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Land - Declaration of title -
Damages for trespass and
injunction - Capacity - Whether
appellant had capacity to
institute the action - Whether
the High Court, and the Court of
Appeal erred in determining the
other issues raised -
HEADNOTES
The appellant who claims to be
an administrator of the Estate
of late Malam Musa brought this
action for and on behalf of the
estate thus: ALPHA MUSA (serving
as the administrator of the
Estate of late Malam Musa). In
a very brief and concise
statement of claim, the
appellant pleaded that he was
the eldest son of Malam Musa and
administrator and legal owner of
the property the subject-matter
of this appeal. The land was
obtained by a lease by the
appellant’s father from the
Nungua Stool. he respondent
lodged a statement of defence
and counterclaimed against the
appellant for damages for
trespass and injunction. The
respondent pleaded that he
bought the land from WILLIAM
NKANSAH who was initially the
second defendant to this
action. He claimed that his
land was within Bawaleshie and
Otele now East Legon which was
part of the area covered by a
land litigation in the Circuit
Court, Accra, between Nii Kotey v Mad.
Rebecca Donkor[, The judgment in
the said suit declared that the
Klanaa Quarter of La rather
owned the land at Bawaleshie and
Otele. He asserted that after
the judgment he proceeded to
regularize his title and that of
his grantor and therefore the
land claimed by the appellant
had changed ownership by virtue
of the judgment -
HELD :- In these proceedings, if the learned
trial judge had exercised his
discretion to hear or determine
the issue of appellant’s
capacity, the costs of
litigation, time, etc. would
have reduced significantly.
Even though the rule above
imposes a discretion on trial
courts, it should in appropriate
cases be exercised to fulfil the
main objective of the drafters
of the rules under Order 1 rule
2 of CI 47 to achieve
expeditious and less expensive
mode of adjudication of causes
or matters before the Circuit
Courts and the High Courts. Even
though the two lower courts put
in a lot of industry to discuss
all the other issues and should
be praised for their efforts,
the matter should not have been
decided on the merits.
STATUTES REFERRED TO IN JUDGMENT
High Court [Civil Procedure] Rules CI
47 2004, Order 2 rule 4, Order
II rule II (1),Order 33 rule 3
CASES REFERRED TO IN JUDGMENT
Sarkodie I v Boateng
[1982-83] GKR 715
Appiah v Amponsah alias
Mansah [2009] SCGLR 715.
Sokpui II v Tay Agbozo III [1951] 13
WACA 241.
Akrong & Or v Bulley [1965] GLR 469
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
YEBOAH, JSC:-
COUNSEL.
ALI GOMDAH WITH HIM RITA KUNTI
ALI FOR THE
PLAINTIF/APPELLANTS/APPELLANT.
COLONEL KOFI DANSO (RTD.) FOR
THE
RESPONDENT/RESPONDENT/RESPONDENT.
JUDGMENT
YEBOAH, JSC:-
On the 2/05/2018 we dismissed this
appeal as without merits and we
hereby proceed to offer our
reasons.
This appeal is against the unanimous
decision of the Court of Appeal,
Accra, which affirmed the
judgment of the High Court,
Accra. The
plaintiff/appellant/appellant
(who for the sake of brevity
shall henceforth be referred to
as the appellant) commenced an
action against the
defendant/respondent/respondent
(hereinafter called the
respondent) at the High Court,
Accra on the 6/02/09 for a
declaration of title to a piece
or parcel of land at East Legon,
Accra, and the usual ancillary
reliefs of recovery of
possession, damages for
trespass, perpetual injunction
and cost.
The appellant who claims to be an
administrator of the Estate of
late Malam Musa brought this
action for and on behalf of the
estate thus: ALPHA MUSA (serving
as the administrator of the
Estate of late Malam Musa). In
a very brief and concise
statement of claim, the
appellant pleaded that he was
the eldest son of Malam Musa and
administrator and legal owner of
the property the subject-matter
of this appeal. The land was
obtained by a lease by the
appellant’s father dated
23/05/1969 from the Nungua Stool
for fifty years whereby the
Nungua Stool as the lessor was
represented by the Paramount
Chief Nii Odai Ayiku IV. The
appellant’s father represented
the Hausa Community and the
transaction was evidenced by the
lease which was registered at
the Lands Registry. According
to the appellant, after the
death of his father, he applied
for and obtained Letters of
Administration from the High
Court to administer the estate
of his deceased father.
According to him, the respondent
was laying claim to the land
when he caused his solicitors to
commence these proceedings
against the respondent for the
reliefs referred to above.
The respondent lodged a statement of
defence and counterclaimed
against the appellant for
damages for trespass and
injunction. The respondent
pleaded his root of title and
traversed virtually all the
allegations in the statement of
claim and put the appellant to
strict proof of his locus standi
to commence this action. He
pleaded that he bought the land
from WILLIAM NKANSAH who was
initially the second defendant
to this action. He claimed that
his land was within Bawaleshie
and Otele now East Legon which
was part of the area covered by
a land litigation in the Circuit
Court, Accra, between Nii
Kotey v Mad. Rebecca
Donkor [Suit No. CCL
67/89]. The judgment in the
said suit declared that the
Klanaa Quarter of La rather
owned the land at Bawaleshie and
Otele. He asserted that after
the judgment he proceeded to
regularize his title and that of
his grantor and therefore the
land claimed by the appellant
had changed ownership by virtue
of the judgment and the Lands
Commission amended its records
to reflect the new ownership.
Further, he pleaded that the
appellant had commenced a suit
at the Circuit Court, Accra, and
asserted his capacity like the
one in this appeal but the suit
was thrown out for want of
capacity.
The case at the trial High Court
attracted several interlocutory
applications which are not
necessary for the determination
of this appeal. At the
application for directions, the
issue of appellant’s capacity to
institute the suit was raised
but the suit proceeded to be
heard on the merits.
The High Court after hearing the
evidence of both parties held
that the appellant had no
capacity to institute the suit
and dismissed the action. The
appellant’s appeal to the Court
of Appeal was dismissed on the
grounds that he had no capacity
to institute the action, thereby
affirming the decision of the
High Court. This appeal was
lodged by the appellant to seek
the reversal of the Court of
Appeal’s judgment.
The appellant had filed several
grounds of appeal thus:
“(i). The Court of Appeal erred in
affirming the judgment of the
trial High Court that the land
covered by exhibit C was not the
personal property of late Mallam
Musa as a result the
plaintiff/appellant/appellant
suing as a personal
representative of late Mallam
Musa lacks capacity to institute
this action.
(ii). The Court of Appeal after
affirming that, that land was
acquired for the Hausa Community
erred in not sustaining the
action of the
plaintiff/appellant/appellant on
other capacities of the
plaintiff/appellant/appellant
disclosed by the record.
(iii). The Court of Appeal erred in
not applying the Illiterate
(Protection) Ordinance to
protect the late Mallam Musa.
(iv). The Court of Appeal erred when
it refused to extend the lessee
in exhibit C to include the
plaintiff/appellant (Appellant
who is the personal
representative of late Mallam
Musa as provided in the
exhibit).
(v).The Court of Appeal erred in
holding that the Hausa Community
is competent to holding interest
in land.
(vi).The Court of Appeal erred in
refusing to dismiss the
counterclaim of the
defendant/respondent/respondent
after affirming that the
plaintiff/ appellant/
appellant’s lack of capacity to
institute this action.
(vii). The Court of Appeal erred in
holding that the ground of
appeal before it relating to the
cancellation of the Land
Certificate of the defendant/
respondent/ respondent is
incompetent.
(viii). The Court of Appeal erred in
holding that
plaintiff/appellant/appellant
failed to deny the pleadings in
the statement of defence and the
alleged failure amounts to
admission.
(ix). The judgment was against the
weight of evidence before the
Court of Appeal.
(xa). The Court of Appeal decision is
unconstitutional for not being
bound by its earlier decision,
exhibit K, which found the late
Mallam Musa was the person who
acquired the land covered in
exhibit C.
(xb). The Court of Appeal erred in
holding that in one breath late
Mallam Musa was the grantee of
the land covered by exhibit “C”
and in another the Hausa
Community was the grantee of the
land covered by exhibit ”C”.
Since the issue of capacity was raised
against the appellant at the
High Court and the Court of
Appeal the first ground of
appeal appears to be very
fundamental to the determination
of this appeal and in every
Civil Proceedings for that
matter.
In compliance with Order 2 rule 4 of
the High Court [Civil Procedure]
Rules CI 47 of 2004, the
appellant indorsed his capacity
as suing as the administrator of
the estate of Mallam Musa.
The evidence conclusively established
beyond doubt that the only root
of title of the appellant was
the lease tendered as exhibit
“C”, executed by the Chief of
Nungua and Mallam Musa. In
exhibit C, Mallam Musa executed
it as the representative of the
Hausa Community. A careful
reading of exhibit “C” clearly
proved that the lease was for
the Hausa Community and was
never the personal property of
the late Mallam Musa. The High
Court formed the opinion,
rightly in our view that since
the said property was not the
personal property of the said
Mallam Musa, the appellant had
no capacity as his successor to
prosecute the action. This
finding was affirmed by the
Court of Appeal without any
reservations whatsoever. In the
High Court, the appellant’s
capacity resurfaced under
cross-examination and the
appellant made admissions
against his capacity which is
reproduced for fuller record:
Q. In that case there was objection to
your capacity
A. Yes.
Q. You recall the judge made a
specific findings that the land
belonged to the Hausa Community
but that Mallam Musa only bought
it for the Hausa Community.
A. Yes
With the evidence conclusively
pointing to lack of capacity of
the appellant to institute this
suit the learned trial judge
proceeded to state the
well-known proposition of law
that when the suitor’s capacity
is challenged he must prove it
before he can succeed on the
merits. The often-quoted cases
of Sarkodie I v
Boateng [1982-83] GKR 715
and Asante Appiah v
Amponsah alias Mansah [2009]
SCGLR 715. Another case worth
citing is Sokpui II v
Tay Agbozo III [1951] 13
WACA 241.
We think the law is that, when a party
lacks the capacity to prosecute
an action the merits of the case
should not be considered.
However, the two lower courts,
with due respect, proceeded at
length to discuss all the issues
raised as if the appellant’s
case should be considered on the
merits. If a suitor lacks
capacity it should be construed
that the proper parties are not
before the court for their
rights to be determined. A
judgment, in law, seeks to
establish the rights of parties
and declaration of existing
liabilities of parties. In the
case of Akrong & Or v
Bulley [1965] GLR 469 the
then Supreme Court after holding
that the plaintiff lacked
capacity to prosecute the action
as an administrator of the
deceased, did not proceed to
discuss the merits. For
proceeding to discuss the merits
when the proper parties are not
before the court is not
permitted in law. In this
appeal, regardless of the other
issues raised, the High Court,
and the Court of Appeal for that
matter erred in determining the
other issues raised.
Even though the court may resort to
taking evidence on all the
issues raised by the pleadings,
the court must always consider
the issue of capacity first. In
the Akrongs’s case, supra, where
lack of capacity was
successfully raised on appeal
before the Supreme Court, Apaloo
JSC (as he then was) said at
page 476 thus:
“But the question of capacity, like
the plea of limitation is not
concerned with the merits and as
Lord Greene MR said in HILTON v
SUTTON STEAM LAUNDRY, once the
axe falls it falls, and a
defendant who is fortunate
enough to have acquired the
benefit of the statute of
limitations [and I would myself
add, or unanswerable defence of
what of capacity to sue] is
entitled of course, to insist
upon his strict right”
The above would have sufficed to be
reasons for this appeal but
there is a procedural point
which trial courts usually
ignore in determination of cases
of this nature in which the
issue of capacity, stature of
limitation, estoppel per rem
judicata are raised. Order II
rule II (1) of CI47, the High
Court [Civil Procedure] Rules,
permits a party to raise any
point of law in his pleadings.
Order 33 rule 3 permits a trial
court to dispose of such issues
raised in the pleading. It
states thus:
Order 33 rule 3
“The court may order any question or
issue arising in any cause or
matter whether of fact or law,
or partly of fact and partly of
law, and raised by the pleadings
to be tried before, at or after
the trial of the cause or matter
any may give directions as to
the manner in which the question
or issue shall be tried”.
In these proceedings, if the learned
trial judge had exercised his
discretion to hear or determine
the issue of appellant’s
capacity, the costs of
litigation, time, etc. would
have reduced significantly.
Even though the rule above
imposes a discretion on trial
courts, it should in appropriate
cases be exercised to fulfil the
main objective of the drafters
of the rules under Order 1 rule
2 of CI 47 to achieve
expeditious and less expensive
mode of adjudication of causes
or matters before the Circuit
Courts and the High Courts. Even
though the two lower courts put
in a lot of industry to discuss
all the other issues and should
be praised for their efforts,
the matter should not have been
decided on the merits.
We found that the appeal was clearly
unmeritorious and we accordingly
dismissed same with costs.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
J. ANSAH
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ALI GOMDAH WITH HIM RITA
KUNTI ALI FOR THE PLAINTIF/
APPELLANTS/ APPELLANT.
COLONEL KOFI DANSO (RTD.)
FOR THE RESPONDENT/ RESPONDENT/
RESPONDENT.
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