INTRODUCTION
The Land Act, Act 1036, represents a significant milestone in Ghana’s land administration and management. It was enacted to consolidate and reform the law governing land in Ghana. the Act aims to promote efficient and transparent land management, ensure security of tenure, and enhance the overall development of the country. By streamlining land ownership, use and management, the Act seeks to balance the interests of various stakeholders, including customary landowners, government and investors, ultimately contributing to Ghana’s economic growth and sustainable development.
However, a careful reading of the Lands Act revealed that some provisions is in clear departure from laid down fundamental human rights principles and precedents. This article contends that Section 115 of Act 1036 represents a marked departure from established common law principles and effectively restricts an individual’s unfettered right to access the courts at any time.
In effect, Section 115 appears to oust the jurisdiction of the courts, a position that runs contrary to established principles of public policy and judicial authority, both within Ghana and in other common law jurisdictions. As rightly noted by Kpegah JSC in the In Re GPRTU case supra:
“The constitutional right of every citizen of this country to have easy and cheap access to the courts of the land for the purpose of vindicating his rights is so important that it cannot be exposed to such dangers. To completely restrain from coming to court with an action which prima facie he has a right to bring and prosecute is a very serious thing and this requires the vigilance of the courts themselves…”
Section 115 of the Act (conflicting claims) states:
“115 (1) Where there are two or more claimants of any interest in land situated in a title registration district and the Land Register is unable to arrive at an agreement among the claimants, the Land Registrar shall direct the claimants to seek resolution of the dispute under the Alternative Dispute Resolution Act, 2010 (Act 798).
(2) A court shall not entertain an action in respect of conflicting claims until the process for resolution referred to in this section has been exhausted.”
The Act makes no provision for a stay of arbitration proceedings in instances where a party seeks judicial redress on questions of law or alleges a breach of the rules of natural justice.
The question is: can the court intervene in situations where there is a threatened breach of natural justice, even if the relevant Act expressly states that access to the courts is only permitted after the dispute has been resolved? The decision in Enderby Town Football Club Ltd v The Football Association Ltd[1], is instructive. Lord Denning stated:
“……if the court sees that a domestic tribunal is proposing to proceed in a manner contrary to natural justice, it can intervene to stop it. The court is not bound to wait after it has been happened.”
Section 115 of the Land Act, 2020 (Act 1036) does not authorize a stay of proceedings. As Acquah JA aptly observed in Essilfie v Tetteh (supra):
“Accordingly, where in an action a defendant contended that the plaintiff should have exhausted the domestic remedies before coming to court, the proper order the defendant should apply for was a stay of proceedings.”
It is important to note that Section 115 merely provides that parties are barred from initiating court proceedings until the Alternative Dispute Resolution (ADR) process has been exhausted. This constitutes a clear statutory ouster of the court’s jurisdiction.”
Analysis
The phrase “a court shall not entertain an action” in my humble submission means that court is prohibited or barred from considering, hearing, or adjudicating a particular cause or matter.
In other words, the court lacks jurisdiction or authority to entertain the action, and any attempt to bring such a case before the court would be rejected or dismissed.
The proviso “until the provision is exhausted” seems to imply that the court is temporarily barred from hearing the case until the specified provision or procedure is complied with or exhausted. In other words, the proviso does not entirely oust the jurisdiction of the court entirely, but rather suspends or limits it until required steps are taken.
It is my respectful submission that the right to justice is an inalienable entitlement guaranteed by the 1992 Constitution and, as such, cannot be curtailed by statute or contract whether express or implied. Any limitation or temporary restriction on a person’s access to the courts amounts, in effect, to an unconstitutional ouster of judicial jurisdiction.
Maxwell on Interpretation[2] writing under the heading: “Presumption against ousting established jurisdiction” stated thus:
“A strong leaning against construing a statute so as to oust or restrict the jurisdiction of the superior courts. Although this feeling may owe its origin to the contests for jurisdiction between the various courts in former times, when the judges emoluments depended mainly upon fees, “the well-known rule that a statute should not be construed as taking away the jurisdiction of the courts in the absence of clear and unambiguous language to that effect” now rests on a reluctance to disturb the established state of the law or to deny to the subject access to the seat of justice. “The proper tribunals for the determination of legal disputes in this country are the courts and they are the only tribunals which, by training and experience, and assisted by properly qualified advocates, are fitted for the tasks.” “Any one bred in the tradition of the law,” said Viscount Simmonds, “is likely to regard with little sympathy legislative provisions for ousting the jurisdiction of the court, whether in order that the subject may be deprived altogether of remedy or in order that his grievance may be remitted to some other tribunal.” “It is, he said in another case, “a principle not by any means whittled down that the subject’s recourse to Her Majesty’s courts for the determination of his rights is not excluded except by clear words. That is, as McNair J. called it in Francis v Yiewsley and West Drayton Urban District Council[3], a ‘a fundamental rule’ from which I would not for my part sanction any departure.”
Cross on Statutory Interpretation[4] also opined, relying on the case of Anisminic Ltd v Foreign Compensation Commission[5], thus:
“Quite apart from their constitutional position as guardians of the rights of citizens and defenders of the law rule of law, the courts take the view that they are the only tribunals really fitted for the task of settling disputes about points of law, and who is to say them nay?”
Facts in the Essifie v Tetteh case supra:
The Plaintiffs and the 1st and 3rd Defendants were members of the Assin Fosu branch while the 4th Defendant was the Central Regional Chairman of the Ghana Private Road Transport Union (GPRTU) of the connivance of the 4th Defendant were in breach of certain provisions of the constitution of the GPRTU brought an action before High Court for, inter alia, perpetual injunction to restrain them from exercising the functions of the branch executives. The Defendants entered conditional appearance and then applied under 12, r 24 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) to set the writ aside on the grounds, inter alia, that since the complaints of the Plaintiffs were in respect of alleged violation of the constitution of the GPRTU and yet they had not first resorted to the procedure for resolution of grievances under article 24 of the constitution of the GPRTU, the action was premature and should be struck out. The Plaintiffs however opposed the application on the grounds that: (i) the domestic grievance procedure did not oust the jurisdiction of the court’ and (ii) the defendants were the very people in charge of those channels of redress. But the High Court upheld the defendants’ objection to its jurisdiction on the ground that if the Plaintiffs could not go to the local union because the defendants were the very people to deal with complaint, they could have gone to the national secretariat. Aggrieved by that ruling, the plaintiffs appealed from it to the Court of Appeal.
The Court of Appeal per Acquah JA (as he then was) held (holding 1) thus
“even though exclusionary clauses were part of the parties’ contract, they were nevertheless subject to the control of the courts because the right of an individual to resort to the law courts for the adjudication of his dispute was so fundamental in our social structure and essential in ensuring peace and stability that, public policy would not permit complete ouster of the jurisdiction of the courts. However, where exclusionary clause provided for an initial recourse to the domestic tribunal, especially in disputes involving issues of fact before recourse to the courts, the court will generally recognize and give effect to it. However, even in disputes involving issues of facts whenever there was a breach or a threatened breach of the principles of natural justice by the domestic tribunal the court would assume jurisdiction over the matter. Furthermore, the court was the final arbiter on questions of law and any clause to the contrary was therefore invalid. However, even though the courts were not bound by any express provision in a contract that a plaintiff had to exhaust his domestic remedies before resorting to the court, the plaintiff would have to show cause why the court should interfere with the contractual position.”
Lord Denning in Lee v Showmen’s Guild of Great Britain[6] referred to by Acquah J.A (as he then was) in the Essilfie v Tetteh case supra said:
“Although the jurisdiction of a domestic tribunal is founded on contract, express or implied, nevertheless the parties are free to make any contract they like. There important limitations imposed by public policy. The tribunal must for instance, observe the principles of natural justice. They must give the man notice of the charge and a reasonable opportunity of meeting it. Any stipulation to the contrary would be invalid…Another limitation arises out of the well-known principle that parties cannot by contract oust the ordinary courts of their jurisdiction…. They can, indeed, make the tribunal the final arbiter on questions of fact, but they cannot make it the final arbiter on questions of law.”
As Ungoed-Thomas J said in Lawlor v Union of Post Officer Workers[7]:
“Trade unions rules clearly cannot oust the jurisdiction of the courts. Contracts….. may provide that recourse to domestic tribunals shall be exhausted before there is recourse to the courts, and the courts may recognize and give effect to that contract; but that does not oust its jurisdiction.”
CONCLUSION
Section 115 of the Land Act, 2020 (Act 1036), though well-intentioned in its aim to promote the use of Alternative Dispute Resolution (ADR) in land disputes, represents a significant departure from established common law principles and constitutional safeguards. Its wording, which bars courts from entertaining actions until ADR mechanisms have been exhausted, risks being construed as an ouster of judicial authority. This raises critical concerns, especially where there is a threatened or actual breach of natural justice, and no express provision exists for judicial intervention during the ADR process.
