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ANIN YEBOAH J.S.C;
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On the 21/05/2014, we allowed
the appeal in this case and
reserved our reasons. We now
proceed to give our reasons.
The facts of this appeal appear
not to be in any controversy
whatsoever as the case was not
determined on the merits at the
trial court. The facts of this
appeal as by the Court of Appeal
are as follows:
“On the 5th of June,
1981 EBUSUAPANYIN KOFI CHARLES
BOHAM, the plaintiff therein,
hereafter referred to as
respondent issued out a Writ of
Summons against Opanyin Kofi
Kwei and Opanyin Kweku Annan in
Suit № CS.122/81 entitled
EBUSUAPANYIN KOFI CHARLES
BROWN ….. PLAINTIFF
VRS
1. OPNAYIN KOFI KWEI SUBSTITUTED
 BY
KOFI ESSON
….. DEFENDANTS
2. OPANYIN KWEKU ANNAN
Kofi Esson who was substituted
by the order of the High Court,
dated 23-7-85 in place of the 1st
defendant, who had died, will
hereafter be referred to as the
appellant.
The original Writ of
Summons, later amended on
10-8-1992 had the following
reliefs;
1.
Declaration that he is the
principal Ebusuapanyin of the
Buturnan Anona Ebusua of Tetter
Kessim near Elmina and that the
Ebusua comprises of 8 sections
and not the 2 sections
represented by the defendant
only.
2.
Recovery of the Bombe drums,
Amankwa drums and all the
associated equipment for the
male and female drumming and
singing groups of the Ebusa.
3.
Recovery of the State Whisk.
4.
Perpetual injunction restraining
the defendants, their
representatives, agents, workmen
from misrepresenting the 1st
defendant as the principal
Ebusuapanyin of the Buturnyan
Anona Ebusua of Tetter Kessim.
5.
Perpetual Injunction restraining
the defendants, their agents,
representatives, workmen from
acts misrepresenting their two
sections only as comprising the
Buturnyan Anon Ebusua of Tetter
Kessim.
The defendants therein, herein
appellants resisted these claims
and filed a counterclaim also
seeing similar declarations.
In the meantime, Suit № CS.57/91
had been instituted and
intituled as follows;
EBUSUAPANYIN KOFI ESSON &
ANOTHER
…..PLAINTIFFS
VRS
KOFI CHARLES BOHAM
….DEFENDANT
In the above Suit, plaintiffs
therein, herein Appellants
claimed against the defendant
therein, herein respondent the
following reliefs;
a)
“ A declaration that the
defendant herein is not the
Ebusuapayin of Nana Buturnyan
Anona Family of Tetter Kessim”
b)
“ Perpetual Injunction
restraining the defendant
from in anyway whatsoever
describing himself as the
Ebusuapanyin of Nana Buturnyan
Anona Family of Tetter Kessim
In an amended Statement of Claim
filed pursuant to an Order of
the High Court, dated 10th
September, 1991 the Statement of
Claim in support of the Writ of
Summons in suit №57/91 was
amended as follows; - (Reference
page 143 lines 1-20 of the
appeal record, the plaintiffs
averred as follows;
1)
“That 1st plaintiff
is the Ebusuapayin of Buturnyan
Anona family of Tetter Kessim
and on behalf of the said family
as well as on his own behalf
brings this instant action. He
is an accountant by profession
and lives at Takoradi and Tetter
Kessim near Elmina respectively.
2)
The 2nd plaintiff, a
member of the said Buturnyan
Anona family, is the Chief of
Tetter Kessim near Elmina. He
is by profession a Surveyor and
lives respectively at Tetter
Kessim and Sekondi.
3)
The defendant is an ordinary
member of Kobina Esson’s section
or chamber of the Anona family
at Elmina. He is a driver and
lives at Elmina.
The defendant therein resisted
the said claims, entered
appearance and filed defence to
the suit appropriately.
In an amended defence, reference
page 146 of the record of
appeal, the respondent herein,
therein defendant averred in
paragraphs 2 and 6 as follows;
2. “Paragraph 1 of the claim is
denied, 1st plaintiff
is not the Ebusuapanyin of the
Buturnyan Anona Family of Tetter
Kessim. He is only the head
of one of the 8 sections or
houses comprising the said
Family.”
6. “Paragraph 4 of the claim is
denied, there is no vagueness
or seeming less that the 8
houses or sections make up the
Buturnyan Anona Family of Tetter
Kessim. This was accepted by
all the parties in the Cape
Coast Circuit Court case of”
 1.
Ebusuapanyin Kojo Awotwe
substituted by
Kweku Bosomtwe
…..Plaintiffs
2. Ajoa Seguwa
Ebusuapanyin Kofi Charles Boham
…..Co-Plaintiff
Vrs
1.
 Edina
Traditional Council
2.
Kofi Kwei
…..Defendants
3.
John E. Edu
Both substituted by Kofi Esson
4.
Sofo Ama Kwesi
In Suit № LS. 9/81 the learned
trial judge in his judgment
stated;-
“Apart from the initial
disagreement in the pleadings,
the plaintiffs and the
defendants from the evidence do
not dispute that the Buturnyan
Anona Family of Tetter Kessim is
made up of eight sections each
with its own head. There is
also a general agreement that
the either sections are linked
together by one common ancestor
and one family property, Tetter
Kessim Lands”
The above quotation from the
judgment of the case referred to
is the courts evaluation and
assessment of the pleadings and
the evidence that had been led
before it. It is interesting to
note that both the Appellant and
Respondent herein were key
participants in the said case.
This judgment of the Circuit
Court, Cape Coast presided over
by B.T. Aryeetey, (as he then
was) seems therefore to support
the contention of the
respondents herein. Out of
abundance of caution, the said
judgment was used in the
instance appeal and it is on the
appeal record and headed as
Exhibit “A”.
On the 31st day of
October, 1991, the plaintiff
herein, brought an application
seeking to consolidate Suit № CS
122/81 and CS 57/91 both pending
at the High Court, Cape Coast.
On the 21st day of
November, 1991, J.D Sappong J.
(as he then was) whilst granting
the application for
consolidation made the following
observations;_ reference pages
74 to 75 line 34-40 and lines
1-8 respectively.
“CS 122/81 and CS
57/91 are suits pending in this
court
In CS 122/81 Kofi Charles Boham
is the plaintiff and in CS 57/91
he is the defendant. In CS
122/81 Kofi Esson and Opanyin
Kweku Annan are the defendants
and in CS 57/91 Kweku Annan and
Nana Buturnyan are the
plaintiffs”.
The main quarrel in both cases
centers around whether or not
Kofi Charles Boham is
Ebusuapanyin of Nana Buturnyan
Anona Family of Tetter Kessim.
Having therefore heard both
counsel and having read the
Affidavits for and against the
application for consolidation
and by the observation above
made, I am of the opinion
that a consolidation order is to
be made. Thus, I do grant
the application for
consolidation”
Thereafter, quite a number of
interlocutory applications were
filed and determined by the High
Court after the suits were
consolidated.
However, on 12th
April 1994, the respondent
herein through his counsel filed
an application to dismiss suit №
57/91 on the grounds that the
plaintiff lacked capacity to
institute the said action.
The crux of the defendants’
application was their contention
that the plaintiffs lacked
capacity to institute this
action because the question
of the Headship of the Buturnyan
Anona Family of Tetter Kessim
was determined in Cape Coast
Circuit Court Suit № LS 9/81
already referred to supra.
The respondent contended that
the judgment that was delivered
in the said suit was in his
favour as the Co-Plaintiff
therein. The respondent also
averred that the appellant
herein, KOFI ESSON was the 2nd
defendant in the Circuit Court
suit № LS 9/81.
The defendant supported his
application with a number of
exhibits reference pages 162 –
163 of the record of appeal.
This application was vehemently
opposed by the appellants herein
who also attached copious
exhibits to authenticate why the
application should not be
granted.
However, after arguments by both
counsels in the matter, the
court on 27th day of
September, 1995 delivered its
Ruling. The Ruling upheld the
application made before the
court and by its suit № 57/91
was dismissed as plaintiff
therein lacked capacity to mount
that action.
Aggrieved and dissatisfied with
the Ruling of the Cape Coast
High Court the appellant on the
6th day of November
1995 lodged an appeal against
the said ruling. By a majority
decision, the ruling of the High
Court, Cape Coast was affirmed.
The appellant has further
appealed to this court against
the majority decision of the
Court of Appeal.
The appellants seek to attack
the judgment of the majority
decision by the following
grounds:
I.
The majority judgment is against
the weight of affidavit evidence
adduced.
II.
That the majority judgment was
wrong to the extent that it
relied on the judgment and not
the whole proceedings in the
Circuit Court in determining any
issue of estoppels per rem
judicatam.
III.
That to the extent that the
reliefs on the Writ of Summons
culminating in the Circuit Court
judgment relied upon to operate
as estoppels by the majority
decision dealt with title to
land and not the leadership of a
family any issue of headship of
any family was orbiter dictum
and not ratio descendendi and
therefore cannot operate as
estoppels the majority decision
was wrong.
IV.
That the majority decision erred
in not finding that the question
of estoppels could not be dealt
with by way of a motion and
affidavit instead of by viva
voce evidence
V.
That the majority decision erred
in not finding that with the
demise of the original defendant
the issue as to whether or not
[the original defendant] was the
overall head of family died with
him to the extent that his
contention was that the position
rotated among the different
sections of the family
VI.
Other grounds to be filed upon
receipt of the record of
proceedings.
In my respected opinion, the
first issue to consider in this
appeal touches on the procedure
at the High Court which was
endorsed by the majority.
Ground (iv) of the grounds of
appeal raises serious doubts
about the procedure adopted to
terminate the proceedings at
that stage without a plenary
trial.
It must be pointed out that the
action was decided when the old
rules, that is High Court (Civil
Procedure) Rules (LN 140A) of
1954 was in force. Under the
said rules, Order 19 rule 16
made it mandatory for the
defendant to plead estoppels and
other defences to avoid surprise
to a plaintiff in any
proceedings. See ASARE v
BROBBEY [1971] 2 GLR 211
and BASSIL v KABBARA
[1966] GLR 102 SC. Estoppel of
any kind be it per rem
judicatam, laches or
acquiescence ought to be pleaded
to avoid surprise. See ARYEE
v BLANKSON [1972] 2 GLR
247 and G.B. OLLIVANT LTD
v KORSAH [1941] 7 WACA
188. In these proceedings in the
Amended Statement of Defence to
plaintiff’s Amended Statement of
Claim filed on 22/10/91, the
defendant who is the respondent
in this appeal pleaded that the
Cape Coast Circuit Court had
already determined that the
appellant herein was not the
Ebusuapanin of the Buturnyan
Anona Family of Tetter kessim.
It must be pointed out that
reading the said Amended
Statement of Defence as a whole,
the respondent did not go
further to plead that by virtue
of the said judgment the
appellant herein is estopped
from re-litigating the issue of
his status as Ebusuapanin of his
said family. However, as
pointed out earlier, the
respondent herein on 12/4/94
filed a motion to dismiss the
suit. In view of the peculiar
antecedent of this case the body
of the motion is reproduced as
follows:
NOTICE OF MOTION
“PLEASE TAKE NOTICE that his
Honourable Court will be moved
by counsel for and on behalf of
the defendant herein praying for
an order of the court dismissing
the suit for lack of capacity on
the part of the plaintiffs to
bring this action.”
It must also be pointed out that
the said application to dismiss
the action was not brought under
any rule of procedure under the
then High Court [Civil
Procedure] Rules LN 140 A of
1954 or any settled practice of
the Court or under the Court’s
inherent jurisdiction. The
only procedure sanctioned by the
then existing rules of court to
terminate the action after
summons for directions was under
Order 25 rule 2 (3) of the
rules. For a fuller record the
said order is as follows:
(2) “Any party shall be entitled
to raise by his pleading any
point of law, and any points so
raised shall be disposed of by
the Judge who tries the cause at
or after the trial, provided
that by consent of the parties
or by order of the court or a
Judge on the application of
either party, the same may be
set down for hearing and
disposed of at any time before
the trial.
(3) If in the opinion of the
court or Judge the decision
of such point of law
substantially disposes of
the whole action or any distinct
cause of action, ground or
defence , set-off, counterclaim
or reply therein, the court or
Judge may thereupon dismiss the
action or make such other order
therein as may be just.”
The determination of lack of
capacity in the appellant was
based entirely on the ruling of
the Cape Coast, Circuit Court.
How the judge entertained the
motion referred to above to
dismiss the entire action
appears to be incomprehensible
to us after a careful reading of
Order 25 rules 2 and 3 of the
rules of court as it then
stood. The disposal of the
point of law that the action was
squarely caught by estoppel per
rem judicatam in our respectful
opinion could only be determined
by resort to evidence from the
parties to the suit especially
the party relying on it to
non-suit his adversary.
It is interesting to note that
both on the pleadings and in the
motion, the appellant had
stoutly denied that he was
estopped by the ruling of the
Cape Coast Circuit Court. This
denial clearly called for
adduction of evidence. In the
case of APPENTENG & ORS v
BANK OF WEST AFRICA & ORS
[1961] GLR 196 Ollenu J [as he
then was] in determining how to
resolve issues under Order 25
rules (2) and (3) of LN 140A
said at page 199 as follows;
“As bases for the application
of these rules there must be
facts pleaded which are admitted
by the party raising the point
of law, or which for the
purposes of the objection are
assumed to be true”
The learned judge relied on the
English case of EVERETT v
RIBBANDS [1952] 2QB 198
in which Romer L.J said:
“where there is a point of law
which if decided in one way, is
going to be decisive of
litigation, advantage ought to
be taken of the facilities
afforded by the rules of court
to have it disposed of at the
close of the pleadings or
…shortly afterwards”
In our opinion, as the facts in
this case show, the contentious
nature of the issue called for
adduction of evidence by the
party who raised the issue. The
dispositions in the affidavit
which were stoutly denied were
not proved when counsel for the
respondent moved the motion to
non-suit the appellant herein.
As the respondent herein bears
the burden of proof of the issue
he was enjoined by the basic
rules of evidence to prove the
issue on preponderance of
probabilities. This has been the
position of the law expounded
lucidly by our sister Adinyira
JSC in the often-quoted case
ACKAH v PERGAH TRANSPORT
LTD [2010] SCGLR 731.
As the motion was moved and was
stoutly opposed without any
supporting evidence to back the
depositions in the affidavit it
was not proved by the respondent
that indeed the appellant was
estopped by the ruling of the
Circuit Court, Cape Coast. The
law requires more evidence than
what was placed before the
learned judge at the High
court. See MAJOLAGBE V
LARBI [1959] GLR 190 and
ZABRAMAH v SEGBEDZI
[1991] 2 GLR 221 CA.
It must also be said that
estoppels is a rule of evidence
and its denial must be proved.
In the reknowed book: Cross
and Tapper on Evidence, 12th
edition the learned authors
stated the law so clearly at
page 85 as follows:
“When estoppel bind a party
to litigation, he is prevented
from placing reliance on or
denying the existence of certain
facts. This justifies
the treatment of estoppels as an
exclusionary rule of evidence”
In our opinion, the issue of
estoppels per rem judicatam
ought to have been proved on the
balance of probabilities.
Another vital omission in the
majority decision was its
failure to appreciate that
whether a party has capacity to
sue or not is a matter which
requires evidence to show that
the party is indeed clothed with
that requisite capacity.
Several reported cases
established the principle that
when a suitor’s capacity is
challenged he could only succeed
on the merits if he is clothed
with that capacity. See
QUARTEY v QUARTEY
[1963] I GLR 58 SC, SOKPUI II
v AGBOZO III [1951] 13
WACA 241, CHAPMAN v
OCLOO & KPORHANU [1957] 3
WALR 84, ASARE v
DZENZY [1976] I GLR 473 CA
[Full Bench]. In the SOKPUI II
case Verity, Agp said at page
242 as follows:
“There can be no doubt that
where parties sue in a
representative capacity and
their authority to do so is
questioned, it lies upon them to
satisfy the court that they have
been duly authorized. It is
for the Court to consider the
evidence they have tendered in
that regard and to argue to its
conclusion”
The evidence required to be
tendered was to have come from
the plaintiff/appellant herein
who was duly challenged as
regards his capacity.
Alternatively the learned High
Court judgment could have set
the issue of capacity down for
determination which necessarily
would have called for adduction
of evidence in the
circumstances.
The determination of the vital
issue by motion in this case in
our opinion was not based on the
settled practice or under any
rule of procedure. We are of
the opinion that the affirmation
of the ruling of the High Court
judgment by the majority of the
Court of Appeal judges was, with
due respect, in error as vital
procedural steps canvassed in
this judgment were ignored.
Apart from the procedural flaws
pointed out above, another
crucial point which was with due
respect, ignored by the majority
decision. The respondent
pleaded estoppels per rem
judicatam to prevent the
appellant from proceeding with
the
action. It is a cardinal rule
of evidence that he who bears
the burden of proof must proved
his case by producing the
required evidence of the facts
in issue. See the judgment of
this court in ACKAH v
PERGAH TRANSPORT LTD & ORS
[2010] SCGLR 728.
A party pleading estoppel must
prove it to succeed on that
issue. It is a requirement of
the law that when estoppels per
rem judicatam is pleaded, the
whole record of proceedings must
be tendered in evidence for the
court to know exactly the issues
raised by the pleadings, if any,
and the judgment or findings
based on the evidence adduced.
See LARBI v KWABENA
[ ] and ATTA v
AMISSAH [1970] CC.
However, the parties through
admissions formally made in the
pleadings or the judgment relied
on which may appear to be
unambiguous, the court may not
have to look at the pleadings to
attribute a different meaning to
the judgment. See
OKWEI-MENSAH v AHIETEYE
[2011] ISCGLR 317. In this case
the ruling on which the
respondent sought to rely on as
creating estoppels per rem
judicatam was not free from
doubt. The motion which was
filed, the pleadings, if any,
and the record of the trial
court were not part of the
evidence placed before the
learned High Court judge in
coming to a fair conclusion that
the issue of estoppel per rem
judicatam had been proved as
required by law.
We are of the opinion that the
majority decision did not
adequately consider the legal
points raised by the appellants
on appeal at the Court of
Appeal. We therefore allowed
the appeal and remitted the case
to the trial court for hearing
on its merits as a consolidated
suit with suit № 122/81 entitled
Ebusuapanyin Kofi Charles
Brown v Opanyin Kwesi,
substituted by Kofi Esson and
Opanyin Kweku Annan.
ANIN
YEBOAH
JUSTICE OF THE SUPREME
COURT
S. O. A.
ADINYIRA (MRS)
JUSTICE OF THE SUPREME COURT
R.
C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
P.
BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
J.
B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
NKRABEAH EFFAH DARTEY ESQ. FOR
THE PLAINTIFFS//APPELLANT/
APPELLANT.
JOSEPH NICHOLAS NKRUMAH ESQ. FOR
THE DEFENDANT RESPONDENT/
RESPONDENT. |
