|
Land -
Declaration of title -
Ownership - Head of family -
Proper person to deal with the
lands – Alienation of lands -
setting aside order of
injunction - Whether or not it
has been the that the land is
vested in the overall head of
the family by custom - Whether
or not the disputed land is
vested in the defendant -
Whether or not the plaintiff and
his section of the family are
mere licensees on the disputed
land - Whether or not the Court
of Appeal did not adequately
consider or did not consider at
all the case of the Plaintiff -
Rule 6 (5) - Supreme Court Rules
1996 - Article 129 (3) - 1992
Constitution
HEADNOTES
Plaintiff
claimed for a declaration to the
effect that as an overall head
of the Royal Adwenadzi family of
Edukrom he is the proper person
to deal with the lands in
Edukrom. The respondent
traversing most of the
allegations, denied the
appellant’s leadership of the
family even though he admitted
that both of them are members of
the same family, He contended
that as original settlers, the
respondents section is the
rightful one to select an
overall head of the amalgamated
family and the only instance
where a member of the
appellant’s section was
appointed was due to the fact
that there was no elderly person
from the respondent’s section
the learned trial judge held
that after the tenure of Kwesi
Bo as the overall head of
family, no person (neither the
appellant nor the respondent had
been lawfully appointed as the
overall head of the Royal
Adwenadzi family. The learned
trial judge ordered that none of
the parties should hold himself
out as the overall head of the
family until a new head of
family is validly appointed. The
appellant lodged an appeal to
the Court of Appeal, Accra,
which heard the appeal and
dismissed it as without merits.
The Court of Appeal set aside
the order of injunction placed
on the land by the learned trial
judge and proceeded to declare
title to the land in favour of
respondent’s section of the
family as well as the Edukrom
stool
HELD
It is unusual
for a Court of law to grant such
application under the
circumstances which amounts to
substantially granting a stay of
execution in the matter. The
Court of Appeal as an appellate
court exercising its
jurisdiction in determining the
cross-appeal was of the view
that the jurisdiction was
unfairly exercised by the
learned trial judge. In fact
the trial judge did not hear the
parties to the suit before
making the order which had
far-ranging consequences as it
directly affected the
substantive rights of the
parties to the suit. Under the
circumstances, the Court of
Appeal was therefore right to
discharge the order by allowing
the cross-appeal. In any case,
the discharge of the order does
not amount to any error or
misdirection to lead any court
to set aside the judgment. On
the whole the appeal is
unmeritorious and same ought to
be dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules, that is, CI 16 of 1996
1992
Constitution
Chieftaincy
Act (Act 370) of 1971
High Court
Civil Procedure Rules CI 47 of
2004
CASES
REFERRED TO IN JUDGMENT
in Beachamp
(Earl) v Mandresfield [1872] IR
8 CP 245.
Hanna assi
(No. 2 v Ghihoc Refridgeration &
Household Products Ltd
[2007-2008] SCGLR 16
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANIN YEBOAH, JSC;
COUNSEL
SOMUAH
ASAMOAH FOR THE APPELLANT.
CAB ADDAE FOR
THE RESPONDENT.
__________________________________________________________________
J U D G M E N T
ANIN YEBOAH, JSC;
This is an appeal from the Court
of Appeal, Accra, which affirmed
the judgment of the High Court,
Cape Coast. In these
proceedings the appellant herein
who sued as plaintiff claimed
for a declaration to the effect
that as an overall head of the
Royal Adwenadzi family of
Edukrom he is the proper person
to deal with the lands in
Edukrom. Other reliefs to the
effect that the land the subject
matter of the dispute is vested
in the overall head of family by
virtue of a judgment and other
reliefs which are ancillary were
also sought. The plaintiff
endorsed his writ as suing for
himself and on behalf of the
Royal Adwenadzi family of
Edukrom.
In a lengthy statement of claim
which accompanied the writ of
Summons, the appellant traced
the root of title of the family
to pre-colonial times and
asserted that ever since his
ancestors migrated from Techiman
to settle on the land, they had
enjoyed undisturbed possession.
According to the appellant it
has always been the custom that
the land in dispute is vested in
the overall head of the family
and the respondent herein (as
the defendant at the High
Court), who is an ordinary
member of the family has no
right to asset ownership of the
land to alienate portions
thereof. Several suits which
the appellant claims to have
been decided in his favour were
pleaded to establish that the
respondent had no right to
assert ownership as he was not
the overall head of family and
for that matter the respondent
is estopped per rem judicata by
virtue of the judgment of
William J. sitting at the High
Court, Cape Coast. He further
alleged that he was the family
member who performed the
customary rites concerning the
burial of Kwesi Yaa and bore the
funeral expenses. By that very
fact he was the customary
successor of Kwesi Yaa and
therefore the head of the Royal
Adwenadzi family of Edukrom.
The respondent as defendant at
the trial court in response to
the statement of claim filed a
statement of defence traversing
most of the allegations. He
denied the appellant’s
leadership of the family even
though he admitted that both of
them are members of the same
family. He pleaded that his
section or branch of the
Adwenadzi family, (that is, Edu
Abekwa section) were the
original settlers on the Edukrom
land and they were later joined
by the appellant’s section, that
is Apentsen Kwakwa section. He
contended that as original
settlers, the respondents
section is the rightful one to
select an overall head of the
amalgamated family and the only
instance where a member of the
appellant’s section was
appointed was due to the fact
that there was no elderly person
from the respondent’s section.
The respondent also pleaded the
decision of Williams J, the
Abura Traditional Council
judgment and the Circuit Court
case which ended at the Court of
Appeal involving the two
sections, in support of his
case.
At the trial court, few issues
were set down to be determined
before Justice Nana Gyamerah
Tawiah. After careful
evaluation of the rival stories
the learned trial judge held
that after the tenure of Kwesi
Bo as the overall head of
family, no person (neither the
appellant nor the respondent had
been lawfully appointed as the
overall head of the Royal
Adwenadzi family. The learned
trial judge ordered that none of
the parties should hold himself
out as the overall head of the
family until a new head of
family is validly appointed.
The appellant lodged an appeal
to the Court of Appeal, Accra,
which heard the appeal and
dismissed it as without merits.
In dismissing the appeal, the
Court of Appeal was of the view
that the appellant as plaintiff
failed woefully to discharge the
burden of proof that he was the
overall head of the Adwenadzi
family. The Court of Appeal
also relied on the several
judgments pleaded by both
parties in their respective
pleadings and tendered at the
trial court to hold that the
respondent’s section are the
exclusive owners and custodians
of Edukrom Stool Lands.
The respondent herein at the
Court of Appeal lodged a
cross-appeal against the final
order in the judgment of the
trial court at Cape Coast in
which the learned judged ordered
as follows:
“I
think it is only proper that I
dismiss the claim of the
plaintiff in its entirety. I
shall, however order that each
section should CEASE any further
alienation of Edukrom lands
until a proper overall head of
the Adwenadzi family is
appointed to take charge of the
Edukrom lands”
The Court of Appeal set aside
the order of injunction placed
on the land by the learned trial
judge and proceeded to declare
title to the land in favour of
respondent’s section of the
family as well as the Edukrom
stool.
The appellant has appealed to
this court on several grounds
seeking the reversal of the
judgment of the Court of
Appeal. For a fuller record,
the grounds of appeal are stated
below;
a.
The Court of Appeal did not
adequately consider or did not
consider at all the case of the
Plaintiff/Appellant/Appellant.
b.
The Court of Appeal erred in
dismissing the
Plaintiff/Appellant/Appellant’s
appeal.
c.
The Court of Appeal erred in
allowing the
Defendant/Respondent’s
cross-appeal.
d.
The Court of Appeal erred in
declaring title to the Edukrom
Stool and its lands for or in
the
Defendant/Respondent/Respondent
and his family.
e.
The Court of Appeal erred in
setting aside the order of the
trial High Court that each
section should cease any further
alienation of Edukrom lands
until a proper overall head of
the Adwenadzi family is
appointed to take charge of the
Edukrom lands
f.
The Court of Appeal erred in
awarding costs against the
plaintiff/Appellant/Appellant.
g.
Further or additional grounds of
appeal may be filed upon receipt
of the Record of Appeal.
On record, no additional grounds
of appeal were filed. We
have taken the trouble to
repeat all the grounds of appeal
to expose the procedural flaws
therein. The Supreme Court
Rules, that is, CI 16 of 1996
Rule 6 (5) does not permit vague
and other grounds of appeal
which disclose no reasonable
grounds to be argued. Even
though this strict adherence to
the rule appear to be relaxed on
some occasions, we think several
grounds of appeal in this appeal
before us deserve to be struck
out as they completely offend
the applicable rules. In our
respectful opinion, grounds (b),
(c) and (f) are not proper
grounds of appeal and should be
struck out as running counter to
the settled practice and the
operative rules.
In arguing grounds (a), (d) and
(c) together in the statement of
the appellant’s case, learned
counsel for the appellant, with
due respect, had little to
quarrel about. No attempt was
made to demonstrate which aspect
of the appellant’s case was not
considered which led the learned
Judges to tilt the scales of
justice against the appellant.
The statement of case is indeed
bereft of any serious attacks on
both the two lower courts
evaluation of the admissible
evidence on record including of
course the numerous exhibits
tendered by both parties. It
was the duty of counsel for the
appellant to demonstrate where
the court below failed to
consider the case of the
appellant and thus denying him
justice. This he could have
done by drawing this court’s
attention to pieces of evidence
which was led but ignored to the
detriment of the appellant.
Learned counsel found it very
difficult in persuading this
court both on the facts and on
the law. Under such
circumstances counsel can in
appropriate cases throw in the
towel. In BEACHAMP (EARL)
V MANDRESFIELD [1872] LR
8 CP 245. Bret J said at page
245 as follows:
“I
quite agree that it is the duty
of counsel to assist the court
by referring to authorities
which he knows to be against
him. But I cannot help
thinking that, when the counsel
has satisfied himself that he
has no argument to offer in
support of his case, it is his
duty at once to say so, and to
withdraw altogether. The
counsel is master of the
argument and of his case in
court, and should at once retire
if he finds it wholly unsuitable,
unless indeed he has express
instructions to the contrary”
[emphasis mine]
The first ground of appeal
argued is accordingly dismissed
as unmeritorious.
Another ground which was also
not argued with any seriousness
was ground (d). From the
statement of defence the
respondent as defendant did not
lodge any counterclaim for
declaration of title. The Court
of Appeal, however, basing
itself on the recent case of
HANNA ASSI (No. 2 v
GHIHOC REFRIDGERATION &
HOUSEHOLD PRODUCTS LTD
[2007-2008] SCGLR 16 decreed
title in favour of the
respondent. From the record,
the High Court did not make the
order complained of and at the
Court of Appeal the cross-appeal
filed by the respondent was
limited exclusively to the grant
of interlocutory injunction by
the trial judge which order was
discharged by the Court of
Appeal in allowing the
cross-appeal. In the summons
for
directions filed
on 22-2-2001 the plaintiff as
the appellant herein set down
some issues for determination as
follows:
(iii). Whether or not the
disputed land is vested in the
defendant
(iv) Whether or not the
plaintiff and his section of the
family are mere licensees on the
disputed land.
It is thus clear that the Court
of Appeal like the trial court
was called upon to decide
whether the disputed land was
vested in the respondent. In
any case, apart from the issues
referred to above which led the
Court of Appeal to make the
declaration, the facts and the
circumstances of the case made
the application of the ratio
decidendi in the HANNA ASI (No.
2) case appropriate. The Court
of Appeal is also bound by that
decision by virtue of Article
129 (3) of the 1992
Constitution. This was the
reason advanced in the judgment
of the Court of Appeal before it
proceeded to rely on the HANNA
ASI (No. 2) case:
“In
any case, the judgment of the
Circuit Court, Cape Coast dated
3rd March, 2003,
tendered in evidence as Exhibit
“18” acknowledged the defendant
as the Ebusuapanin of Edu Abekwa
royal family of Edukrom. The
same judgment was affirmed by
the Court of Appeal in Civil
Appeal No. H1/66/2005 when the
plaintiff’s predecessor (Okyeame
Kwesi Adoko and another) appeal
was dismissed by the Court of
Appeal on 17 February, 2006.
Besides, there has been numerous
judgments by the Abura
Traditional Council, Abukrampa,
the Regional House of Chiefs,
Cape Coast and the High Court,
Cape Coast as Exhibits “1”, “2”,
“3”, and “4” respectively, all
recognizing the defendant and
Edu Abekwa royal Adwenadzi
family of Edukrom as owners and
custodian of Edukrom stool and
its lands”
The circumstances of the case
are such that the Court of
Appeal could not have been in
error in applying the HANNA ASSI
(No. 2) case.
Another point which was raised
but not argued relates to the
proceedings at Abura Traditional
Council in the case of
OPANYIN KWESI YAA V
OPANYIN KWESI BO.
OPANYIN KWESI YAA was declared
destooled by the Abura
Traditional Council in 1978 and
thereafter lodged an appeal at
the Regional House of Chiefs. At
the time of his death the appeal
was pending. The judgment was
delivered in November 1983.
Reference was made to the
section 27 of the repealed
Chieftaincy Act (Act 370) of
1971 and its provisions which
operate to stay execution on
filing of an appeal. Counsel
pointed out that since an appeal
was pending and the execution
was stayed by operation of law,
the said Opanyin Kwesi Yaa
continued to act in his position
as the overall head of the
family until his death. The
stay of execution in such
proceedings is statutorily
conferred on any appellant under
Act 370 of 1971.
The judgment however, determined
his status as regards the
headship of his family. Given
the nature of the claim, nobody
could have substituted him to
continue the case to finality on
appeal. As the Abura
Traditional Council had
jurisdiction over the matter, it
raised estoppel per rem judicata
at that level. This was not
argued under any ground of
appeal but as it appears in the
statement of case it would not
be out of place to consider it.
The last ground which was also
not seriously argued was the one
dealing with the discharge of
the order of the High Court
granting an interlocutory
injunction over the land in
dispute after judgment. On
record, the judgment of the High
Court was delivered on
23/01/2008 when the High Court
Civil Procedure Rules CI 47 of
2004 was in force.
Order 25 rule 1 (2) gives the
court jurisdiction to grant
interlocutory injunction before
and after judgment. One may ask
whether the jurisdiction
conferred on the court was
fairly exercised under the
circumstances of the case.
It is the settled practice that
such applications are mounted by
parties by an application to the
court. A trial judge would
hardly grant such application
when there is no motion before
the court.
It is unusual for a Court of law
to grant such application under
the circumstances which amounts
to substantially granting a stay
of execution in the matter. The
Court of Appeal as an appellate
court exercising its
jurisdiction in determining the
cross-appeal was of the view
that the jurisdiction was
unfairly exercised by the
learned trial judge. In fact
the trial judge did not hear the
parties to the suit before
making the order which had
far-ranging consequences as it
directly affected the
substantive rights of the
parties to the suit.
Under the circumstances, the
Court of Appeal was therefore
right to discharge the order by
allowing the cross-appeal. In
any case, the discharge of the
order does not amount to any
error or misdirection to lead
any court to set aside the
judgment.
On the whole the appeal is
unmeritorious and same ought to
be dismissed.
[SGD] ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
[SGD]
S. O. A. ADINYIRA [MRS].
JUSTICE OF THE SUPREME COURT
[SGD]
R. C. OWUSU [MS.]
JUSTICE OF THE SUPREME COURT
[SGD]
J. V. M. DOTSE
JUSTICE OF THE SUPREME
COURT
[SGD]
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL:
SOMUAH
ASAMOAH FOR THE APPELLANT.
CAB ADDAE FOR
THE
RESPONDENT.
|
