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BENIN, J.A.
This appeal raises very interesting customary law
questions some of which unfortunately the trial court
failed to appreciate. These questions are:
1)
By Ewe customary land law, who are the rightful persons
to alienate land owned jointly by two or more distinct
families?
2)
What is the effect on any such alienation that is not
made by all the appropriate or rightful persons?
3)
Can any one family sue without reference to the other if
there is wrongful alienation and recover the land for
his family only?
Let me recount the facts of this case at this stage. The
defendant acquired a piece of land to build on from the
Amoah family of Kpando Aloi. When she started building
operations on the land, she was challenged by the
Ablorlor family (plaintiff’s family) which claimed
ownership of a larger tract of land of which the land in
dispute formed a part. The defendant resisted the
plaintiff's claim and continued to build, hence the
action by the plaintiff before the Hohoe Circuit Court.
He claimed these reliefs:
plaintiff’s claim and continued to build, hence the
action by the plaintiff before the Hohoe Circuit Court.
He claimed these reliefs:
(1) Declaration of title to all that piece or parcel of
land at Kpando Aloi commonly known and called Nyametso
land.
(2) General damages for trespass.
(3) Recovery of possession.
(4) Perpetual injunction restraining the defendant, her
agents and/or servants and all claiming through her from
entering the land in dispute or in any way interfering
with the same.
In
the statement of claim, the plaintiff claimed to be
suing for himself as the head of, and for, the Ablorlor
Family. He traced the root of his family’s title to the
land which he averred his ancestors acquired by
settlement. He averred his family has been exercising
rights of ownership over the disputed land, including
granting a portion thereof to the Government of Ghana
for a housing project.
The defendant averred that title to the larger tract of
land had been determined in litigation in 1962, and
pleaded estoppel against the plaintiff. She averred also
that she acquired the land lawfully from the Amoah and
Ntumy families of Kpando.
So
a key issue that the trial court was called upon to
decide was the ownership of the land. Was it owned by
the plaintiff’s family only, or by plaintiff’s family in
conjunction with another family, or by some other family
or families to the exclusion of the plaintiff’s family?
Another issue was which family or families gave the land
to the defendant? On these issues the trial court made
these relevant findings of fact: “(a) the land belongs
to three families (see exhibits 2 and 3) namely,
Ablorlor, Kodje and Tengkpo; (b) it was sold to the
defendant by one of them.” These findings are supported
by the evidence on record. On the first issue, exhibit
3, a judgment of the Kpando Native Tribunal delivered on
10 July 1936, is decisive. The relevant parts of that
decision read: “This Tribunal…finds out that the three
families of Aloi, namely, Kodje, Ablorlor and Komla Teng
have joint title to ownership of the said land in
dispute. Plaintiff is of Ablorlor and defendant of Teng
Kpo… The Tribunal…ruled that either party in the case as
well as every individual from the three families can
enjoy the said land. Title or ownership to the said land
is vested neither in plaintiff nor defendant but
everybody in the three respective families to enjoy the
said land in dispute………”
Then on the second issue even though the plaintiff said
she also went to one Sebastian Tende Ablorlor, a member
of the plaintiff’s family to cement the grant previously
made to him by the Amoah family, it appears this man was
not a true representative of the Ablorlor family. Thus
only the Amoah family gave away this land to the
defendant. However, only the plaintiff’s family
complained about the grant to the defendant. Hence the
obvious questions that the trial court ought to have
resolved were the three that I posed in the opening
paragraph of this judgment. The 1936 judgment declared
the right of members of the three families to enjoy the
land. But it did not determine who has the right of
alienation of portion of the land to strangers.
After those two relevant findings of fact about
ownership of the land and the acquisition by the
defendant, the trial court set out what it regarded to
be two issues for its consideration. The court said:
“The first is who can validly alienate family land and
the second is who can redeem or save family land or
property from being lost?" Obviously the second issue
the trial court set out did not arise at all on the
pleadings, as I shall shortly explain. On the first
issue the trial court rightly set out the law that the
heads and principal members are the rightful persons to
give away family land. The court concluded that “since
the land belongs to three families...only the three
heads and their principal members can validly alienate
the land…..therefore the grant by one family is not
valid as against the other two families and is of no
effect.”
Returning to the second issue, the court relied on the
exceptions in the case of KWAN VS. NYIENI (1959) G.L.R.
67 and held that the plaintiff could sue to protect
family property that was in danger of being lost to the
family. For that reason the court held that the
plaintiff had capacity to bring this action. The court
said the defendant's grantor had also failed to join her
in this litigation. It accordingly entered judgment for
the plaintiff granting him these reliefs:
“(a) a declaration that the land the subject-matter of
the suit is the property of the plaintiff’s family.
(b) a declaration that the purported sale of the land by
Amoah family and Sebastian Tende Ablorlor is void ab
initio;
(c) recovery of possession;
(d) perpetual injunction……”
By
customary law any disposition of family land made
without the consent and concurrence of the head is
absolutely void ab initio. So where, as in this case,
there are two or more distinct families, the head of
each of these families must be a consenting party in any
alienation of family land to a stranger. An alienation
by one or two heads without prior reference to the third
will be void, unless he concurs in the grant, either
expressly or by conduct, through silence or inaction
after he has become aware of it. The position is akin to
the situation whereby a family that has two joint heads
cannot make a valid alienation of family land by only
one head. But if there is evidence that the three
families have a common overall head then it is this
head, as against the heads of the various families who
has the right to alienate family land with the consent
and concurrence of the other individual heads of family.
Where the majority agree to alienate, the minority
should not unreasonably withhold consent. Consensus
building is always a key factor in family decisions,
hence the need for all concerned to be consulted.
As
said earlier only the plaintiff’s family is moving
against the grant made by only the Amoah family to the
defendant. If the plaintiffs claim is to seek an order
setting aside the said grant as invalid, it will be
perfectly in order since he, as a consenting party, was
not consulted before the alienation. But he does not
seek this relief, hence the trial court erred in
formulating and granting a declaration that the
purported alienation of the land to the defendant is
void. The court cannot grant any relief that the party
himself has not asked for, without amending the
endorsement on the writ, if appropriate to do so.
Also the application of the KWAN VS. NYIENI principle
was wrong in the sense that the plaintiff did not come
to court claiming that joint family property was in
danger of being lost and that the other family heads
were refusing to take action to protect it. Neither is
he saying the other family heads had refused to join him
in this action. His claim was simply that his Ablorlor
family exclusively owned this land. A plaintiff who
seeks declaration of title must succeed on the strength
of his own case, not on the weakness of the defence. So
that when the trial court found that the plaintiff’s
claim to exclusive ownership was not established on the
evidence, it ought to have dismissed the claim outright.
The trial court decided to investigate the plaintiff’s
capacity to bring this action, which was a triable issue
raised on the pleadings. In this connection, it ought to
have found out whether the plaintiff was representing
all the three families. It could reasonably be said that
the Amoah family, which gave the land to the defendant,
would not join in any such action. Yet the other family,
Kodje, ought to have been consulted. It is clear from
the record that this family was not consulted. This is
because its head was compelled to apply to join the suit
as a co-defendant in order to protect his family's
interest in the property, which application was,
however, rejected by the trial court. If that family had
been consulted by the plaintiff and it had declined to
join him, then he alone could sue under the exceptions
to the KWAN V. NYIENI principle. These were stated, per
Van Lare, Ag. CJ. who read the judgment of the court, at
pages 72-73 of the report in these words:
“(1) as a general rule the head of a family, as
representative of the family, is the proper person to
institute suits for the recovery of family land;
(1) to this general rule there are exceptions in certain
circumstances, such as:
i) where the family property is in danger of being lost
to the family, and it is shown that that the head
(either out of personal interest, or otherwise) will not
make a move to save or preserve it; or
(i) where, owing to a division in the family, the head
and some of the principal members will not take any
step; or
(ii) where the head and the principal members are
deliberately disposing of the family property in their
personal interest, to the detriment of the family as a
whole.”
It
is to be noted that the court in KWAN V. NYIENI was
careful in not granting an unbridled right to any person
who felt aggrieved to go to court. It made it clear that
anybody who went to court in any of the circumstances
described above could only do so to protect family
property, that is property that belongs to the entire
family. At page 73 of the report, the court made it
clear that in any of the circumstances described as
exceptions to the general rule, “the court will
entertain an action by any member of the family, either
upon proof that he has been authorised by other members
of the family to sue, or upon proof of necessity,
provided that the Court is satisfied that the action is
instituted in order to preserve the family character of
the property.” (The emphasis is mine.)
In
this case, it became clear the plaintiff had not even
sought the consent of the other family, Kodje, before
bringing this action. Nor was there evidence that Kodje
family was not interested in protecting the family
property; at least their attempt to join the action
confirms they were interested. It also became clear,
from the trial court's own finding of fact, that the
plaintiff did not sue to protect the family character of
the property. He did not even acknowledge the fact that
the property was jointly owned, so he could not be said
to have sued to protect the family character of same.
The trial court therefore erred in holding that he had
capacity to bring this action, since none of the
circumstances described in KWAN V. NYIENI availed him.
Reliefs 2, 3 and 4 endorsed on the writ are all
ancillary to the main one which is relief 1. So the
court, having found plaintiff’s family did not solely
own this land, could not substitute anything for that
relief by saying it was jointly owned, and then go on to
grant the ancillary reliefs. A court could not ‘proprio
motu’ grant reliefs to a party which he did not ask for.
If on the evidence he is unable to prove the reliefs he
seeks by his writ, his claim ought to fail, since the
reliefs introduce the cause of action. The pleadings
merely state material facts in support of the reliefs.
An exception is where, in a claim for money, a plaintiff
is found to be entitled to more money than is endorsed
on the writ. In that case the court is allowed by Order
28, r.12 of the High Court (Civil Procedure) Rules,
(L.N. 140A) to amend the reliefs to include a claim for
the larger amount, so long as that larger amount was
within the civil jurisdiction of the trial court. See
AMAKOM SAWMILL & CO. V. MANSAH (1963) 1 G.L.R. 368 S.C.
In short, it is wrong for a court to base its judgment
“on a point that was not a triable issue on the
pleadings,” per Crabbe, J.S.C. in MALM V. LUTTERODT
(1963) 1 G.L.R.1 S.C. at p.15. The pleadings did not
disclose that the plaintiff was suing because the land
was owned by the three families and wanted to protect
its communal character. He sued for his family as the
sole owner thereof, hence the first two issues agreed
upon for trial, namely:
(a) Whether or not the land in dispute as described by
the plaintiff was founded by Togbui Ablorlor I and
belongs to the Ablorlor Family.
(b) Whether or not the Ablorlor family has been
exercising rights of ownership over the land in dispute.
And having failed to prove these issues, the trial court
erred in substituting them with issues he considered the
plaintiff was entitled to in the light of the defence,
unmindful of the fact that plaintiff had to succeed on
the strength of his own case. A trial court, and for
that matter an appellate court, ought not to accept in
favour of a party a case different from, and
inconsistent with, that which the party himself had put
forward in his pleadings, see TAWIAH-YESEREH V. C.F.A.O.
and Another (1966) G.L.R. 357 S.C. For these reasons the
first three grounds of the original grounds of appeal
are allowed. These grounds are:
a)
That the trial Judge erred in law by giving judgment to
the plaintiff/respondent.
b)
That the learned trial Judge did not appreciate the
issue of capacity and thus erred in declaring title in
the plaintiff/respondent.
c)
That the judgment cannot be supported having regard to
the evidence on record.
Now to the additional grounds of appeal. The first two
relate to an application allowed by the trial court to
the plaintiff to amend the statement of claim. These are
the circumstances of that amendment. The plaintiff
opened his case and in the course of his
evidence-in-chief, his Counsel applied orally to amend
paragraph 4 of the statement of claim to add six words
which he claimed had been left out inadvertently by the
typist. This oral application was opposed by Counsel for
the defendant on the ground that the amendment would
change the entire nature of the case put up by the
plaintiff. Counsel therefore argued that there was the
need for a motion supported by affidavit to explain this
substantial and late amendment. The trial court allowed
the amendment nonetheless. The defendant is saying that
the amendment was wrongly allowed on an oral application
and that it has caused substantial miscarriage of
justice to her.
The question then is whether every application to the
court should be in writing, or whether an oral
application will suffice. In the case of KUSI V. SHELL
COMPANY OF GHANA LTD. (1973) 1 G.L.R. 173, this court
considered this question and said, per Amissah, J.A. at
p. 174, that “where a law requires that a party should
apply to the court, without stating the form it should
take, the application need not be in writing. An oral
application will suffice where no prejudice is suffered
by the opponent from the nature of the application.”
From this dictum the court has to find out whether there
is no requirement for writing in the particular
legislation under which the application was made; or
there is any applicable legislation in force. The
starting point for our consideration, therefore, is
whether an application to amend pleadings could be done
orally. The particular application was governed by Order
28, r.6 of L.N.140A. It provides: ‘In all cases not
provided for by the preceding Rules of this Order,
application for leave to amend may be made by either
party to the Court or a Judge, or to the Judge at the
trial of the action, and such amendment may be allowed
upon such terms as to costs or otherwise as may be
just.’
This rule requires an application for leave to be made
to the Court or Judge. Does this imply writing? We may
have to turn to Order 52, r. 1 of L.N. 140A for an
answer. It provides: ‘Where by these rules any
application is authorised to be made to the Court or a
Judge, such application if made to a Judge in court,
shall be made by motion.’
This is a general provision that applies to all cases in
which an application may be made to the Court, (open
court as opposed to application to be heard in
chambers), or Judge (as opposed to Master). It says in
no uncertain language that it shall be made by motion,
that requires writing.
Reading Order 28, r.6 alongside Order 52, r.1, it is my
view that an application to a court or Judge for leave
to amend shall be in writing, by motion. The provision
contained in Order 52, r. 1 has been held by this court
to be mandatory. This was in the case of MICHELLETTI
POLLA LTD. V. CRABBE and Others, (1976) 1 G.L.R. 108.
That case dealt with an oral application for judgment
made under Order 32, r.6, and the court held that the
trial court had no competence or jurisdiction if the
application was made in open court to waive that
provision especially in the teeth of strenuous
opposition. That decision is equally applicable to Order
28, r.6 especially when the defendant herein, per
counsel, had opposed the application and insisted that
it be made on notice to her. I hold that the leave
granted to amend upon the oral application was wrong.
The order granting the said leave is hereby set aside.
On
a more serious point, additional ground 2 charges that
even if the leave granted was right, yet the order
lapsed since no amended statement of claim was filed, as
required by Order 28, r.7 of L.N. 140A. This rule
states: ‘If a party who has obtained an order for leave
to amend does not amend accordingly within the time
limited for that purpose by the order, or if no time is
thereby limited then within fourteen days from the date
of the order, such order to amend shall, on the
expiration of such limited time as aforesaid, or of such
fourteen days, as the case may be, become ipso facto
void, unless the time is extended by the Court or a
Judge.’
It
has been decided by this court in the case of MAHAMA
HAUSA and Others V. BAAKO HAUSA and Another (1972) 2
G.L.R. 469 holding 3, that if a court in granting leave
for amendment confines itself to leave to amend (as in
the instant case), the failure to file the amendments
within the time limited must result in their becoming
ipso facto void, as laid down in Order 28, r.7. It
follows, and I hold, that the leave to amend granted the
plaintiff, even if valid, lapsed after fourteen days; so
the position is as though no leave to amend was ever
granted. This ground of appeal thus succeeds.
Finally, additional ground 3 and it reads: The learned
trial Judge erred in entering judgment for declaration
of title in favour of the plaintiff when the question of
his boundaries were not clearly identified and known.
I
think I need not waste time on this ground of appeal.
Suffice it to say that it has been firmly established
that the entire area of land is owned by the three
families. Thus any decision granting title to only the
plaintiff’s family, on whatever facts, is clearly in
error. This ground accordingly succeeds.
In
the result, the appeal is allowed. The judgment of the
court below will be set aside as well as any order made
pursuant to the said judgment.
A.
A. BENIN
JUSTICE OF APPEAL
TWUMASI J.A.:
I
agree that the appeal be allowed for the erudite and
able judgment just delivered by brother Benin.
P.
K. TWUMASI
JUSTICE OF APPEAL
ARYEETEY J.A.:
I
also agree.
B.T. ARYEETEY
JUSTICE OF APPEAL
COUNSEL
AMESIMEKU for Plaintiff/Respondent
KWENYEHIA for Defendant/Appellant. |
