|
Head notes -
This is an appeal against the judgment of the Court of Appeal reversing
the judgment of the High Court,
Kumasi, which held that the
appellant (hereinafter referred
to is the plaintiff) had
capacity to file this action and
that the disputed house is
family property. Aggrieved by
the High Court decision the
respondent (hereinafter also
referred to as the defendant)
successfully appealed against
the judgment of the High Court
and had it overturned
HELD; In the result we are of the view that the plaintiff failed to prove by
cogent evidence that he had the
capacity to institute the suit.
Accordingly we will dismiss this
appeal and affirm the decision of
the Court of Appeal.
CASES REFEREED TO
KWAN V. NYIENI & ANOR [1959]
G.L.R. 67
DOTWAAH
V. AFRIYIE [1965] G.L.R. 257
AKRONG
V. BULLEY [1965] G.L.R. 469.
CHAPMAN V. OCLOO & ANOR. (1957)
W.A.L.R. 84
SARKODIE
I V. BOATENG II[1977] 2 G.L.R. 343
SOKPUI
II & ORS. V. TAY AGBOZO III & ORS
(1951) 13 W.A.C.A.
SARKODIE
I V. BOATENG II
[1982-83] G.L.R. 715
QUARTEY
V. QUARTEY
[1963 1 G.L.R. 58
YARTEY
& ANOR. V. CONSTRUCTION AND
FURNITURE (WEST AFRICA)
LTD. & ORS. [1972 ] 1 G.L.R.. 86
BANAHENE
V. ADINKRA & ORS
[1976]1 G.L.R. 346
TSRIFO
V V. DUA VIII
[1959] G.L.R. 63
OSEI
YAW & ANOR V. DOMFEH [1965]
G.L.R. 418
ASANTE
V. BOGYABI & ORS.
[1964] G.L.R. 232
COUNSEL:
Mr. Atta Akyea for Appellant.
Mr. Dennil Adjei for Respondent.
J U D G M E N T
LARTEY, J.S.C.:
This is an appeal against the
judgment of the Court of Appeal
reversing the judgment of the
High Court, Kumasi, which held
that the appellant (hereinafter
referred to is the plaintiff)
had capacity to file this action
and that the disputed house is
family property. Aggrieved by
the High Court decision the
respondent (hereinafter also
referred to as the defendant)
successfully appealed against
the judgment of the High Court
and had it overturned.
The plaintiff issued
the instant writ at the Kumasi
High Court against the defendant
claiming:
“1. A declaration that
House No. Z.E. 172 Zongo
Extension/Kumasi-Ashanti is the
property of the immediate
matrilineal family of the late
Stephen Yaw Nimo.
2.
That the late Stephen Yaw Nimo
had no capacity to present House
No. Z.E. 172 Zongo Extension,
Kumasi/Ashanti intervivos by a
purported ‘Deed of Gift’ to
Madam Elizabeth Amma Nsiah
without the knowledge and
consent of the matrilineal
family the owner thereof.
3.
That the said Deed of Gift
purportedly executed between
Stephen Yaw Nimo during his life
time and Madam Elizabeth Amma
Nsiah dated the 30th
of August, 1994 is null and void
and of no effect whatsoever and
that therefore the same should
be set aside.
4.
An order of perpetual injunction
restraining the defendant, her
agents, administratrixes,
Executrixes, successors
according to native customary
law, assigns and any other
member or members of her family
from laying claim to the
ownership of House no. Z.E. 172,
Zongo Extension, Kumasi/Ashanti.
In his amended statement of
claim, the plaintiff avers that
he brought the action on behalf
of the matrilineal family of the
late Yaw Nimo of which he is the
head, although by the
endorsement on the writ of
summons his relief for
declaration of title is that the
property is for the immediate
matrilineal family of the said
Yaw Nimo. He alleges that the
disputed property was the
self-acquired property of the
late Kwadwo Nsiah, and upon his
death intestate he was
customarily succeeded by Yaw
Nimo (deceased), who applied for
and was granted Letters of
Administration to administer the
estate of Kwadwo Nsiah for and
on behalf of the matrilineal
family. It was further his
averment that the late Yaw Nimo
clandestinely substituted his
name for that of Kwadwo Nsiah as
the assignee of the house
without the family’s knowledge
and consent. The plaintiff
states also that after the death
of Yaw Nimo a purported will was
read out at the High Court
Registry, Kumasi, which will
turned out to be a deed of gift
purportedly executed between the
late Yaw Nimo and his widow the
defendant, by which deed the
late Yaw Nimo gave the house in
dispute to the defendant.
The defendant, admitting the
grant of Letters of
Administration to her late
husband Yaw Nimo, denied that he
clandestinely used it to
substitute his name for that of
Kwadwo Nsiah. She alleged that
it was the said Kwadwo Nsiah who
made a gift of the house to her,
and it was he who gave her in
marriage to his nephew Yaw
Nimo. She contended that the
document which was read at the
High Court was a deed of gift
executed in her favour and
confirming a gift inter vivos of
the house by the predecessor of
her husband Opanin Kwadwo
Nsiah. The gift was the result
of the late Kwadwo Nsiah giving
the defendant in marriage to his
nephew Yaw Nimo. The defendant
again contends that the
plaintiff is estopped from
commenting on the defendant’s
title to the property as the
plaintiff is in no way related
to the late Yaw Nimo – the
former belonging to the Boayaase
Baamu family and the latter the
Abrafo family respectively.
At the trial, the plaintiff
called four witnesses. His
first witness Abena Nkrumah, who
described the plaintiff as her
elder sister’s son testified
that the owner of the disputed
house was the late Kwadwo Nsiah
who acquired it through
purchase. According to this
witness Kwadwo Nsiah in his
lifetime instructed that whoever
was to be his customary
successor was to hold the
property in trust for the
family. Kwadwo Nsiah was
succeeded by Yaw Nimo who in
turn was succeeded by the
Plaintiff. P.W.2 (Kwame Dumfeh)
also testified that upon the
death of Yaw Nimo the whole
family met and appointed the
Plaintiff to succeed the
deceased. On this issue
relating to the appointment of
the plaintiff as successor to
Yaw Nimo, the evidence of PWs 3
and 4 was based on what they
claimed the late Yaw Krah told
them. PW3 (Nana Kwame Asua)
claimed to have heard through
Yaw Krah that he (Yaw Krah) had
been appointed “to take care of
the widow ….. as well as the
children and entire estate of
the deceased” and that he (Yaw
Krah) had appointed his brother
the plaintiff “to sit on his lap
and act in his stead, whenever
he Yaw Krah was away”. On his
part P.W.4 (Nana Kofi Agyei IV)
said Yaw Krah told him that he
(Yaw Krah) was appointed
customary successor to Yaw Nimo
but he declined to accept the
appointment on the ground that
he had been a successor to some
of his deceased relatives,
whereupon the appointment as
successor was given to the
plaintiff.
It should be noted at this stage
that the testimonies of P.Ws 3
and 4 on the point whether or
not it was the Plaintiff rather
than the late Yaw Krah who was
appointed successor to Yaw Nimo,
both testimonies took on the
colour of hearsay evidence.
That apart, it is doubtful to
accept these testimonies as
strong corroborative evidence on
the plaintiff’s claim that he,
to the exclusion of any one
else, was appointed customary
successor to the late Yaw Nimo.
For her part the defendant
called three witnesses. The
first witness for the defendant
(Ernest Kofi Boakye) narrated in
detail what occurred on the
fourtieth day funeral obsequies
of Yaw Nimo. He was emphatic in
his claim that on that day no
customary successor was
appointed by the family. Rather
it was Yaw Krah whom Yaw Nimo
himself in the latter’s lifetime
had appointed “to take care” of
the defendant, her children and
the estate of the deceased.
According to the witness they
did not alter the pre-death
arrangement of Yaw Nimo since
the deceased was the only
surviving member of his family.
He was also emphatic in his
claim that the plaintiff was not
in any way related by blood to
Yaw Nimo. Similarly DW2 (Kwadwo
Manu) testified that the
plaintiff was his uncle and that
Yaw Nimo was in no way his
relative. By implication he
seemed to be saying that the
plaintiff and Yaw Nimo
(deceased) were not relatives.
DW3 (Nana Kofi Genfi II) claimed
that although he lived with his
step-father Kwadwo Nsiah for
over fifty years he never met
the plaintiff, and that to his
knowledge Yaw Krah was of the
plaintiff’s family.
In his judgment, the trial judge
preferred the genealogy
described by the defendant to
that of the plaintiff and
declined to hold that the
plaintiff belongs to the
immediate matrimonial family of
Opanin Kwadwo Nsiah. However,
he went further to say that
since the plaintiff successfully
linked the genealogy, earlier on
rejected by him, to Kwadwo
Nsiah’s family he (the
plaintiff) was a member of that
family “by extension”; that is
to say that the plaintiff was a
member of the wider family of
Kwadwo Nsiah. Upon that premise
he held that the plaintiff was
related to late Yaw Nimo, the
last surviving member of his
immediate family. He also held
that on the evidence there was
no gift inter vivos by Kwadwo
Nsiah made in favour of the
defendant. The trial judge
declared the disputed house to
be family property on the
footing that the plaintiff was
appointed customary successor of
Yaw Nimo and therefore the
plaintiff had capacity to file
the action. He finally entered
judgment for the plaintiff and
awarded costs of
Ë3,000,000.00
against the defendant.
The Court of Appeal, on the
other hand, was of the opinion
that the Plaintiff woefully
failed to establish that he was
the head of the immediate family
of Yaw Nimo or his customary
successor, and therefore the
plaintiff had no locus standi to
sue the defendant. In sum, the
trial judge, so held the Court
of Appeal, was wrong to have
entered judgment in favour of
the plaintiff, and that the
right verdict was to have
dismissed the plaintiff’s claim
on the ground of want of
capacity to sue.
It is against the unanimous
judgment of the Court of Appeal
that the plaintiff launched the
instant appeal to this court on
the following grounds:
“(a) The Court of Appeal
erred in law by holding that the
plaintiff has no locus standi to
sue the Defendant.
(b)
The findings and conclusions of
the Court of Appeal have no
factual or legal basis.
(c)
By wrongly holding that the
plaintiff had no locus standi to
sue the Defendant, the Court of
Appeal thereby misdirected
itself and failed in its
judicial duty by not deciding on
the ownership of the house, the
subject-matter of the dispute,
thereby occasioning the
Plaintiff substantial
miscarriage of justice.
(d)
Additional grounds of appeal may
be filed upon receipt of the
record of appeal”.
It should be noted from the
foregoing grounds that the
over-riding and dominant issue
that calls for scrutiny in this
appeal relates to the capacity
or standing of the plaintiff to
maintain the action.
But before examining the locus
standi of the plaintiff we
prefer to preface this stage of
the judgment with reference to
certain general principles as
enunciated in few authorities
touching upon customary law and
practice relating to family
property. The first is the
leading case of KWAN V.
NYIENI & ANOR [1959] G.L.R.
67 at p.72 wherein the general
customary rule has been held
stating that it is the head of
the family who is the proper
person to sue for the recovery
of family property. But to this
principle are exceptions, as for
instance where family property
is being lost to the family, or
where because of a division in
the family the head will not act
to save the property from being
lost, or where the head and
principal members are
intentionally disposing of the
property in such a manner as to
be detrimental to the whole
family. In any of the foregoing
events, the court is likely to
entertain the suit by any member
of the family, subject of course
to the court being satisfied
that the ultimate objective is
the preservation of the family
character of the property.
In the case of DOTWAAH V.
AFRIYIE [1965] G.L.R. 257 it
was emphatically stated by the
Supreme Court that by customary
law the self-acquired property
of a deceased member of a family
vests in the successor for and
on behalf of the family, and
thus clothing the successor with
responsibility to litigate the
family’s title to such
property. Similarly the same
principle was reiterated by the
Supreme Court in AKRONG V.
BULLEY [1965] G.L.R. 469.
Now we turn to the crucial issue
of capacity upon which this
whole litigation hinges. And
the question that arises is how
do the facts of the instant case
fit into the general
propositions outlined above? It
should be noted that whatever
capacity in which the plaintiff
claims to have instituted the
action would require proof. He
alone bears the responsibility
of establishing that status if
he can. In his writ of summons
the plaintiff described himself
as “customary successor to the
late Stephen Yaw Nimo and head
of family of the matrilineal
family of Stephen Yaw Nimo
(Deceased)”. The property for
which a declaration was sought
was said to be that or the
“immediate matrilineal family of
the late Stephen Yaw Nimo”. In
the amended statement of claim
the word “immediate”
conspicuously vanished. However
we believe that, the confusion
arising out of the plaintiff’s
capacity in mounting the action
as successor of the immediate
family or simply a successor “by
extension” as per the trial
court’s judgment, should not
generate much controversy.
Be that as it may, the trial
judge, rightly in our view ruled
out the plaintiff as belonging
to the immediate matrilineal
family of Opanin Kwadwo Nsiah
because the evidence did not
establish that fact. However,
the learned trial judge held
that since the plaintiff had
shown his genealogy and had
successfully linked it to Kwadwo
Nsiah’s family, he (plaintiff)
was a member of the family “by
extension”. We take this to
mean that in the view of the
judge the plaintiff belonged to
the wider family of Kwadwo
Nsiah. But as the Court of
Appeal found, nowhere in the
pleadings and the evidence did
the plaintiff attach his name to
the extended family of Kwadwo
Nsiah or Yaw Nimo.
It is instructive to note that
the laws relating to the issue
of capacity is now well
settled. In CHAPMAN V. OCLOO
& ANOR. (1957) W.A.L.R. 84
the plaintiff had sued the
defendants in respect of a
family property, and when his
authority to sue had been
challenged, he failed to
establish by evidence that he
had such authority. It was held
by Ollenu J. (as he then was)
that when a party has been
challenged on his authority to
sue in a representative capacity
he is duty bound and mandated to
prove that indeed he has such
authority, and cannot hope to
succeed on the merits of the
ease without first satisfying
the court on the important
preliminary point of capacity.
And in the salutory case of
SARKODIE I V. BOATENG II[1977]
2 G.L.R. 343 the issue therein
was whether the Kyidomhene alone
under Akan custom was capable of
instituting destoolment
proceedings against the Omanhene
whereupon the full Bench of the
Court of Appeal held at page 346
thereof:
“It is now trite learning that
where the capacity of a
plaintiff or complainant or
petitioner is put in issue, he
must, if he is to succeed, first
establish his capacity by the
clearest evidence”.
See also SOKPUI II & ORS. V.
TAY AGBOZO III & ORS (1951)
13 W.A.C.A.
241.
And six or so years
later when the same case of
SARKODIE I V. BOATENG II
[1982-83] G.L.R. 715 resurfaced
at the Supreme Court to
determine whether the first
action was to be heard on its
merits, the principle was firmly
established when the court
observed at page 724 as
follows:-
“It is elementary that a
plaintiff or petitioner whose
capacity is put in issue must
establish it by cogent evidence
.….. But it is no answer for a
party against whom a serious
issue of locus standi is raised,
to plead that he should be given
a hearing on the merits because
he has a cast-iron case against
his opponent”.
It is instructive to
make reference also to
QUARTEY V. QUARTEY [1963 1
G.L.R. 58, which puts on the
plaintiff the burden of proving
this representative capacity.
Similarly in YARTEY & ANOR.
V. CONSTRUCTION AND FURNITURE
(WEST AFRICA) LTD. & ORS.
[1972 ] 1 G.L.R.. 86 the Supreme
Court upheld the principle that
once the plaintiffs had set up a
case of authority to sue
conferred by the whole
community, they were bound to
prove it strictly.
In the instant case,
the trial judge rightly in our
view, declined to hold that the
plaintiff is a member of the
immediate family of Opanin Yaw
Nimo. Assuming however that the
plaintiff was a member of the
wider family the question which
arises is whether he was able to
produce that clear and
satisfactory evidence which
could prove his capacity as
having been appointed the
customary successor to the late
Yaw Nimo. The plaintiff
contended that by virtue of his
appointment as customary
successor he belonged to the
matrilineal family of the
deceased, and that upon the
appointment he (the plaintiff)
provided two bottles of schnapps
as “aseda”. This contention was
hotly disputed by the defendant
who claimed that the plaintiff
was in no way related to her
late husband; nor was the
plaintiff appointed customary
successor following the death of
Yaw Nimo. So the question is
where lies the truth – was the
plaintiff a member of the family
of late Yaw Nimo? While the
plaintiff’s contention that he
belonged to the deceased’s
family was supported by both
P.W.s 1 and 2, the evidence of
his other witnesses (P.Ws 3 and
4) differed on this crucial
point. The evidence of P.W.s 3
and 4 tended rather to support
the defendant’s version that the
late Opanin Yaw Nimo and the
plaintiff were not members of
the same family. Their evidence
corroborated that which was led
through the defendant and her
witnesses that the plaintiff is
a member of Boayaase family
whereas the deceased was not.
What then is the legal effect of
the evidence of one party which
is corroborated by a witness of
his opponent?
The rule as espoused
in BANAHENE V. ADINKRA & ORS
[1976]1 G.L.R. 346 at p. 350 is
that where the evidence of a
party on a point in a suit is
corroborated by witnesses of his
opponent, whilst that of his
opponent on the same issue
stands uncorroborated even by
his own witnesses, a court ought
not to accept the uncorroborated
version in preference to the
corroborated one unless for some
good and apparent reason the
court finds the uncorroborated
version incredible, impossible
or unacceptable. This rule is
similar to the dictum of Ollenu
J. (as he then was) in TSRIFO
V V. DUA VIII [1959] G.L.R.
63 p. 64 and applied in such
cases as OSEI YAW & ANOR V.
DOMFEH [1965] G.L.R. 418 p.
423 and ASANTE V. BOGYABI &
ORS. [1964] G.L.R. 232 pp.
240 – 241. In the instant case
the overall effect of the
evidence of P.Ws 3 and 4 was to
render the plaintiff’s case less
weighty or simply incredible on
the issue whether or not the
plaintiff and the late Yaw Nimo
were of the same family. If the
plaintiff is of a different
family as contended by the
defendant, then he would lack
capacity to sue in respect of
property which does not belong
to the family of which he is a
member.
Closely linked with
the above analysis is the issue
of the provision of drink as
“aseda”. On this point the
trial judge made his findings as
follows:-
“Even though the
plaintiff said he presented
drinks, that is, two bottles
schnapps to seal his acceptance,
weightier evidence exists on the
record from the defendant, her
witnesses and the plaintiff’s
own witness, P.W. 3, Nana Kwame
Asua to support the competing
version of the defendant, that
the “aseda” was presented by the
defendant herself, not the
plaintiff. I therefore reject
the plaintiff’s allegation that
he presented two bottles
schnapps as “aseda” and accept
that it was the defendant who
provided one bottle of
schnapps”.
We think the trial
judge was right in rejecting the
plaintiff’s story on his
allegation that he provided
drinks of two bottles schnapps.
According to customary practice,
it is the person who has been
appointed to succeed the
deceased who provides drinks and
not someone else. In the
instant case it seems just not
reasonably probable for the
widow/defendant to provide
drinks for and on behalf of
someone who claims to have been
appointed to customarily succeed
her late husband.
Turning again to the
evidence on succession as given
by the third and fourth
witnesses for the plaintiff, it
was contended in this appeal
that since they were not members
of the family of the plaintiff
they were not competent, or
could not be expected, to
testify as to whether the
plaintiff and the late Yaw Nimo
were members of the same
family. But it should be noted
that both witnesses testified at
the instance of the plaintiff.
It was the plaintiff who
subpoened them as his witnesses,
and if they felt unable to
testify on matters touching on
the plaintiff’s family, nothing
precluded them from so
declaring. Having given
categorical answers during
cross-examination, their
assertion that the plaintiff and
the deceased were not of the
same family, cannot easily be
dismissed or glossed over,
notwithstanding the damning
effect their testimony had on
the plaintiff’s case.
Finally, it is
relevant to examine the nature
of interest in the disputed
property around which the
parties pitched their battle.
The plaintiff’s action for a
declaration suggests that
ownership resided in Kwadwo
Nsiah and thereafter Yaw Nimo
became the owner of the
disputed property. But as
evidenced by exhibit ‘D’ the
disputed property is the subject
matter of a lease dated 2nd
January, 1929 for a term of
fifty years with effect form 1st
February, 1929, and made between
the “government of Ashanti” and
one Thomas Abraham as lessee who
in turn assigned his interest to
Opanin Kwadwo Nsiah on 13th
August, 1937. As can be seen
from the document the lease
expired on 1st
January, 1979 and has since
remained unrenewed. That being
the case it is the lessor, i.e.
the Government of Ghana which
has the reversionary interest in
the property. In these
proceedings neither the
plaintiff nor his family was
shown to have acquired any
interest in or the right to have
any dealing with the property in
dispute. On the other hand, the
defendant and her late husband
were in complete possession of
it for at least forty-four years
after the death of Kwadwo Nsiah
in 1950, and she continues to be
in possession, even now. In
these circumstances, it is
difficult to imagine the
competency with which the
plaintiff mounted this
litigation against the
defendant.
In the result we are
of the view that the plaintiff
failed to prove by cogent
evidence that he had the
capacity to institute the suit.
Accordingly we will dismiss this
appeal and affirm the decision
of the Court of Appeal.
F. M. LARTEY
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
R. T. ANINAKWA
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. Atta Akyea for Appellant.
Mr. Dennil Adjei for Respondent.
gso*
|
