REPUBLIC v. COURT OF APPEAL AND OTHERS; EX PARTE AGYEKUM

JUDGMENT OF APALOO C.J.

Apaloo C.J. delivered the judgment of the court. This matter commenced as an ordinary land suit between two subjects from the Ajumako Traditional Area in the Central Region. The parties are subjects of two stools which own land contiguous to each other. They are the Amia and Ochiso stools. The action was brought before the Circuit Court, Cape Coast.

The learned circuit judge found for the defendant who traced his title through the Ochiso stool. The plaintiff laid his title in the Amia stool. Having lost the suit, the plaintiff appealed to the Court of Appeal. In that court, the point was taken on his behalf that as the real issue of ownership between the parties could not be determined without a prior determination of the boundaries of the stool lands of Amia and Ochiso, the circuit court's jurisdiction was ousted by section 4 of the Stool Lands Boundaries Settlement Decree, 1973 (N.R.C.D. 172).

That point was hotly contested by the defendant. In the result the court sustained the jurisdictional point and held that the court's jurisdiction was ousted by N.R.C.D. 172. The court thought that the proper forum to determine the suit was the court of the Stool Lands Boundaries Settlement Commissioner. It accordingly set the judgment aside and referred the matter to the commissioner to determine the boundaries of the lands of the two stools in contention. After this, the matter was to be returned to the circuit court to pronounce on the issue of ownership in the light of the commissioner's finding. In so holding, the court drew support from its earlier decision in Agyei II v. Abudulai [1977] 1 G.L.R. 453, C.A.

The applicant who persuaded the Court of Appeal to make the order of reference, now says we should prohibit the commissioner from obeying the Court of Appeal's order and from entertaining the reference. Mr. Adumua-Bossman who successfully obtained this order in the court below and who now seeks the prohibition order, says he is not unaware of his somewhat inconsistent position but he says since the point he now urges is a jurisdictional one — that is of law, he is entitled to be heard. His position was not a particularly enviable one, but we granted him full hearing on his submissions.

Two main grounds were urged by Mr. Adumua-Bossman in support of his application. They were fully set out in his written case. In [p.693] sum, they are namely firstly, the office of the Stool Lands Boundaries Settlement Commissioner was not pre