Land - Capacity - Title
to -
Abunu tenancy agreements -
Evidence -
Whether the appeal was by
way of rehearing, - Whether the
judgment was against the weight
of evidence - Whether or not the
findings (both legal and
factual), which the two lower
courts made on the crucial
issues before them, including
the question of capacity, were
properly made. - whether or not
she demonstrate that she was
the customary successor of her
late father so granted the land
belonged to her late father at
all
HEADNOTES
The plaintiff sued the defendant
for herself and on behalf of her
family for title to a piece of
land and lost in the trial High
Court on the ground of want of
capacity. The defendant who
counterclaimed for title to the
same subject ma`tter succeeded
in his counterclaim. Plaintiff
appealed against the decision of
the trial High Court on several
grounds including the finding of
want of capacity on her part and
the oft-quoted omnibus or
general ground that the judgment
was against the weight of
evidence. The Court of Appeal
affirmed the trial court’s
decision that plaintiff lacked
capacity to institute the action
but dismissed that part of the
judgment that upheld defendant’s
counter-claim
HELD :- Since the Court of Appeal found that
the land did not belong to the
co-defendant as same could not
have been conveyed to him on the
nemo dat quod principle, the
court should have entered
judgment for the plaintiff, had
it not wrongly dismissed her
action on want of capacity. With
the dismissal of defendant’s
counterclaim, and having found
that the disputed land belonged
to plaintiff’s father and upon
his death in 1966 to his family,
justice demands that we do what
the Court of Appeal failed to do
by entering judgment for the
plaintiff on her reliefs 1 and
2, upon our finding that she had
capacity to institute the
action, notwithstanding the fact
that plaintiff did not appeal
against the decision of the
Court of Appeal. Any failure on
our part to take this course,
taking into consideration the
peculiar circumstances of this
case, would amount to denial of
justice In conclusion, we affirm
the Court of Appeal’s decision
to dismiss the defendant’s
counterclaim and enter judgment
for the plaintiff on her
reliefs.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules Court
C.I. 16 Rule 23(3), Rule 6
sub-rule 7(b)
L.I. 218,rule 8 (4)
CASES REFERRED TO IN JUDGMENT
AKUFO-ADDO v CATHELINE
[1992] 1 GLR 377
OWUSU-DOMENA v AMOAH
[2015-2016] 1 SCGLR 790,
TUAKWA v BOSOM [2001-2002]
SCGLR 61;
ARYEH & AKAKPO v AYAA
IDDRISU [2010] SCGLR 891 @ 899;
ACKAH v PERGAH TRANSPORT
LTD & Others [2010] SCGLR 728
KOGLEX LTD (No. 2) v FIELD
[2000] SCGLR 175.
Tuakwa v Bosom [2001-2002]
SCGLR 61
NKRUMAH v ATAA [1972] 2
GLR 13 @ p. 18
ANKUMAH v CITY INVESTMENTS
CO. LTD [2007-2008] 2 SCGLR 1064
@ 1065.
ATTORNEY-GENERAL v FAROE
ATLANTIC CO. LTD [2005-2006]
SCGLR 271 at p. 306
BROWN v QUARSHIGAH
[2003-2004] 2 SCGLR 930 at p.
932
TINDANA (No. 2) v CHIEF OF
DEFENCE STAFF & ATTORNEY-GENERAL
[2011] SCGLR 732 @ 736.
Harris v Gamble (1878) 7
Ch. D. 877; Rutter v Tregent
(1879) 12 Ch. D. 758”.
ADJETEY ADBOSU & Ors v
KOTEY & Ors [2003-2004] SCGLR
420
KWAN v NYIENI [1959] GLR
67,
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING
JUDGMENT
COUNSEL
KWAME BOATENG FOR THE
DEFENDANTS/RESPONDENTS/APPELLANTS.
ASANTE ANSONG FOR THE
PLAINTIFF/APPELLANT/RESPONDENT
APPAU, JSC
:-
The appellants herein who
were the defendant and
co-defendant in the trial High
Court, would be referred to
simply as defendants in this
judgment, while the respondent
who was the plaintiff would
maintain the title; plaintiff.
The authorities are legion
that an appeal is by way of
rehearing, particularly where
the appellant alleges in his
notice of appeal that the
decision of the trial court was
against the weight of evidence.
In such a case, it is the duty
of the appellate court to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that, on
a preponderance of the
probabilities, the conclusions
of the trial judge are
reasonably or amply supported by
the evidence on record. And it
is immaterial whether the appeal
is a second one from the Court
of Appeal to the Supreme Court.
See the cases of: 1.
AKUFO-ADDO v CATHELINE [1992] 1
GLR 377; 2. TUAKWA v
BOSOM [2001-2002] SCGLR 61;
3. ARYEH & AKAKPO v AYAA
IDDRISU [2010] SCGLR 891
@ 899; 4. ACKAH v PERGAH
TRANSPORT LTD & Others [2010]
SCGLR 728 and 5. KOGLEX
LTD (No. 2) v FIELD [2000] SCGLR
175.
In holding (3) of the
Akufo-Addo v Catheline case
(supra), this Court held: -
“Where an appellant exercised
the right vested in him by rule
8 (4) of L.I. 218, which is now
rule 6 (5) of C.I. 16 and
appealed against a judgment on
the general ground that; ‘the
judgment was against the weight
of evidence’, the appellate
court had jurisdiction to
examine the totality of the
evidence before it and come to
its own decision on the admitted
and undisputed facts”.
The plaintiff sued the
defendant for herself and on
behalf of her family for title
to a piece of land and lost in
the trial High Court on the
ground of want of capacity. The
defendant who counterclaimed for
title to the same subject matter
succeeded in his counterclaim.
Plaintiff appealed against the
decision of the trial High Court
on several grounds including the
finding of want of capacity on
her part and the oft-quoted
omnibus or general ground that
the judgment was against the
weight of evidence. The Court of
Appeal affirmed the trial
court’s decision that plaintiff
lacked capacity to institute the
action but dismissed that part
of the judgment that upheld
defendant’s counter-claim. The
defendants appealed to this
Court against the decision of
the Court of Appeal dismissing
their counterclaim. They
contested as many as six (6)
grounds of appeal including the
omnibus ground that; ‘the
judgment of the Court of Appeal
was against the weight of
evidence’. The plaintiff did not
appeal against the decision of
the Court of Appeal affirming
the finding by the trial High
Court that she lacked capacity
to institute the action.
However, the defendants’ omnibus
ground that the judgment of the
Court of Appeal was against the
weight of evidence adduced at
the trial, indicts the whole
judgment of the Court of Appeal
but not only that part that
dismissed defendants’
counterclaim. Accordingly, this
Court is mandated by law, to
consider the totality of the
evidence on record to enable it
come to its own conclusion as to
whether or not the findings
(both legal and factual), which
the two lower courts made on the
crucial issues before them,
including the question of
capacity, were properly made.
In the recent case of
OWUSU-DOMENA v AMOAH [2015-2016]
1 SCGLR 790, this Court
explained further its earlier
decision in Tuakwa v Bosom
(supra) when it held that: -
“The sole ground of appeal that
the judgment is against the
weight of evidence, throws up
the case for a fresh
consideration of all the facts
and law by the appellate court”.
Benin, JSC speaking for the
Court at page 799 of the report
stated as follows: - “We are
aware of this court’s decision
in Tuakwa v Bosom [2001-2002]
SCGLR 61 on what the court is
expected to do when the ground
of appeal is that the judgment
is against the weight of
evidence. The decision in Tuakwa
v Bosom, has erroneously been
cited as laying down the law
that, when an appeal is based on
the ground that the judgment is
against the weight of evidence,
then, only matters of fact may
be addressed upon. Sometimes, a
decision on facts depends on
what the law is on the point or
issue. And even the process of
finding out whether a party has
discharged the burden of
persuasion or producing evidence
is a matter of law. Thus when
the appeal is based on the
omnibus ground that the judgment
is against the weight of
evidence, both factual and legal
arguments could be made where
the legal arguments would help
advance or facilitate a
determination of the factual
matters”. His Lordship referred
to the decision of this Court in
ATTORNEY-GENERAL v FAROE
ATLANTIC CO. LTD [2005-2006]
SCGLR 271 at p. 306 per
Wood, JSC (as she then was) for
support.
These recent decisions of
this Court referred to supra
appear to have punched holes in
the Court’s earlier decision in
BROWN v QUARSHIGAH
[2003-2004] 2 SCGLR 930 at p.
932, which was premised on
the dictum of Osei-Hwere, J in
NKRUMAH v ATAA [1972] 2 GLR 13 @
p. 18 that a party who gave
notice that he intended to rely
solely on the omnibus ground
should not be permitted to argue
points of law. Whilst the
omnibus ground empowers the
Court to consider in general the
correctness or otherwise (both
legal and factual) of the
judgment or decision appealed
against, Rule 23(3) of
the rules of this Court [C.I.
16] on the general powers of
the Court in the determination
of civil appeals, equips the
Court with authority to make any
order that the Court considers
necessary for determining the
real issue or question in
controversy between the parties.
Again, Rule 6 sub-rule
7(b) of [C.I. 16]
obliges the Court not to confine
itself to the grounds set forth
by the appellant in the notice
of appeal when deciding an
appeal. It again permits the
Court to rest its decision,
where necessary, on a ground not
set forth by the appellant in
his/her notice of appeal subject
to the condition that where the
Court intends to rest its
decision on a ground not set
forth by the appellant, or on a
matter not argued before it, the
parties should be afforded
reasonable opportunity to
address the Court on that ground
or matter – Rule 6 sub-rule
(8) and ANKUMAH v CITY
INVESTMENTS CO. LTD [2007-2008]
2 SCGLR 1064 @ 1065. The
only exception to this rule is
that where the party against
whom the point is taken can have
no legal or satisfactory answer
if given the opportunity to
reply, the Court needs not
comply with the provision of
rule 6 (7) (b) – AKUFFO-ADDO
v CATHELINE (supra) and
TINDANA (No. 2) v CHIEF OF
DEFENCE STAFF & ATTORNEY-GENERAL
[2011] SCGLR 732 @ 736.
In our consideration of
the appeal, we found that the
issue of capacity was not
properly addressed by the two
lower courts. The Court
therefore, in compliance with
Rules 6 sub-rule (7) (b) and 23
(3) of C.I. 16, ordered the
parties to address the issue of
the plaintiff’s capacity
notwithstanding the fact that
plaintiff did not file any
appeal against the decision of
the Court of Appeal.
In his written submissions
on the issue as directed by this
Court, filed on 9th
April 2018, the defendants’
counsel virtually repeated the
same arguments he advanced in
the Court of Appeal on why he
thought the respondent had no
capacity to institute the action
against defendants. According to
him, since plaintiff’s case was
that her father purchased the
land with a syndicate, the land
did not belong to her father
alone but to all the members of
that syndicate. So without the
consent of the syndicate
members, she had no capacity to
sue over the said land. He went
on further to assert that
plaintiff did not show that the
said land was shared among the
syndicate members after the
alleged purchase for which she
could sue in respect of her
father’s portion. Another leg of
defendants’ argument was that,
granted the land purchased by
the syndicate was shared among
the members of the syndicate and
that the disputed land was her
father’s portion, plaintiff
failed to prove that she was
either the customary successor
or administratrix of her late
father’s estate to clothe her
with authority to sue over her
father’s estate. Counsel
therefore contended that both
the trial High court and the
Court of Appeal were right in
dismissing plaintiff’s case on
grounds of want of capacity.
Plaintiff’s counsel, on
the other hand, was of the view
that what the trial court judge
held and later affirmed by the
Court of Appeal as capacity to
dismiss plaintiff’s case, was
nothing less than cruelest
justice. According to counsel in
his submissions filed on 11th
April 2018, for the over thirty
(30) years that the late Dr
Asiedu-Offei lived after the
purchase of the land, he
cultivated same without any
hindrance from any person
including the so-called
syndicate members. Again, no
member of the so-called
syndicate has since his demise,
challenged his beneficiaries’
interest in the said land to
this day aside of the alleged
gift of same made to the
co-defendant by the Akim Abuakwa
Traditional Council, which by
law, owns no land in Ghana.
Upon our evaluation of the
evidence on record, we found
that both counsel for the
parties and unfortunately the
two lower courts, did not
appreciate the import of the
evidence led by the plaintiff
and her witnesses. As a Court of
justice, we are mandated by law
to give a decision that reflects
the totality of the evidence on
record, but not necessarily one
that is in line with the
submissions made by counsel.
Whether or not a party has
capacity to institute an action
is a question of law that could
be determined after a factual
evaluation of the evidence on
record. As a legal question, it
could be raised at any time at
all by any of the parties in
litigation or even by the Court
suo motu when the circumstances
call for its invocation. In this
case, both the trial court and
the Court of Appeal were of the
view that the plaintiff did not
have capacity to institute the
action. According to the Court
of Appeal, plaintiff did not
have capacity because: -
(i)
The disputed land did not belong
to plaintiff’s father alone but
to a syndicate of 23 members
including plaintiff’s father.
Plaintiff could not therefore
sue without the consent of the
syndicate members; and
(ii)
Granted the land belonged to
plaintiff’s father, she was not
the customary successor of her
late father to clothe her with
authority to institute the
action.
These were the same
arguments advanced by the
defendants in their submissions
filed on the 9th of
April 2018 as re-called above.
This was what the Court of
Appeal said:
“The issue of capacity goes to
the root of any matter and we
shall first of all address
ground (v) of the appeal. The
plaintiff’s father who acquired
the land with the syndicate in
1935 died in 1966. The plaintiff
and her siblings continued to
enjoy their father’s portion of
the land whilst the other twenty
three continued to enjoy their
respective portions. The
purchase price of five hundred
and sixty pounds was paid by the
syndicate for the land. Exhibit
‘B’ being part-payment of one
hundred pounds paid by the
syndicate to their grantors on 2nd
November 1935 was issued in the
names of all the twenty-three
syndicates. All the other
receipts were issued in the
names of the plaintiff’s father
and the other syndicate members.
The plaintiff, while under
cross-examination, responded to
a question posed by the
defendants’ lawyer as follows:
A.’My Lord, if it really belongs
to a syndicate, the receipt was
issued to my father alone’.
The above answer contradicts all
the receipts issued in respect
of the land to the syndicate,
including the plaintiff’s.
Exhibits ‘A’, ‘B’, ‘C’, ‘D’, ‘E’
and ‘F’ were issued in the name
of the syndicate and they
controvert the evidence of the
plaintiff. The trial High Court
Judge rightly found that the
land the plaintiff is seeking to
litigate as the property of her
father was the property of the
syndicate and not the exclusive
property of her father and
therefore lacked capacity to
institute the action. The
plaintiff failed to prove that
she was the customary successor
of her late father and could sue
to protect his property. The
land was acquired by the
syndicate and would need their
consent to sue on their behalf.
On the other hand a member of
the syndicate or a customary
successor or administrators of
the syndicate could maintain an
action to protect the property
whenever it is in danger. The
plaintiff who is neither the
customary successor nor the
administrator of her late
father’s estate instituted the
action as if the property was
the self-acquired property of
her father and therefore lacks
capacity to institute the
action. She could have
maintained an action in respect
of her father’s portion of the
land but would need the
requisite capacity which she has
failed to prove.”
{Emphasis added}
We are of the view that,
the Court of Appeal did not
properly evaluate the evidence
on record before it when it
affirmed the trial court’s
conclusion that plaintiff lacked
capacity to institute the action
since the emphasized portion of
the judgment quoted above, which
prevailed on the Court of Appeal
to come to that conclusion,
could not be inferred from the
evidence on record. In the first
place, plaintiff never said
anywhere in her evidence
in-chief that her father and
twenty-three (23) syndicate
members purchased the land in
dispute in 1935. Again, she
never said anywhere in her
evidence in-chief that after the
said purchase, they divided the
land amongst themselves with
each holding on to his portion.
Also, there is no evidence on
record to suggest that after the
death of plaintiff’s father in
1966, plaintiff and her siblings
enjoyed her father’s portion of
the disputed land whilst the
other twenty-three (23)
syndicate members also enjoyed
their portions of the said land.
It was counsel for the
defendants, who during
cross-examination of plaintiff
after her evidence in chief,
suggested to plaintiff that her
father purchased the land in the
company of a syndicate and the
plaintiff answered in the
affirmative. It is worth quoting
these questions and answers
which appear at page 106 (Vol.
One) of the Record of Appeal
(RoA):
“Q. Your father purchased this
land in company of a syndicate?
Is that right?
A. Yes.
Q. How many people formed the
syndicate?
A. My lord they are 23 groups”.
The affirmative answer to
the question that his father
purchased the land in the
company of a syndicate as quoted
above, did not mean that it was
her father and the syndicate
members who jointly purchased
the land. In her evidence
in-chief at p. 88, Vol. 1
of the RoA, plaintiff
said: “my father, as the leader
of a syndicate, purchased the
land in dispute” from the
late Chief of Asunafo, Nana
Kwadwo Boadi and his elders,
which sale was confirmed by the
then Okyenhene Nana Sir Ofori
Atta I {Emphasis added}. When
the sentence; “my father, as a
leader of a syndicate, purchased
the land in dispute”, is placed
in its proper context, what it
means is that when his father
purchased the land in dispute,
he was the leader of a
syndicate. She did not say that
her father and the syndicate
members purchased the land in
question as both the trial court
and the Court of Appeal
concluded. Again, the contents
of the receipts covering payment
for the land which plaintiff
tendered in evidence as Exhibits
A, B, C, D, E and F
indicate that the land was sold
to Dr Asiedu Offei & Co. Nowhere
in the record has the term; “Dr
Asiedu Offei & Co” been defined
to mean ‘Dr Asiedu Offei and 23
syndicate members’. No name
apart from Dr Asiedu Offei
appeared on any of the receipts
and there was no evidence that a
group of persons contributed
monies for the purchase of the
land by Dr Asiedu Offei. As we
shall demonstrate infra in this
judgment, the answers that
plaintiff gave in subsequent
questions posed by defendants’
counsel during cross-examination
explained vividly what she meant
by a syndicate.
The fact that Dr Asiedu
Offei purchased land from the
Asunafo Stool which purchase was
confirmed by the Okyehene Nana
Sir Ofori Atta I was
corroborated by all the
witnesses plaintiff called and
even the two witnesses called by
the defendants; i.e. (D.W.1 &
2). In his examination in-chief,
D.W.1 Emmanuel Ofosu Baah who
said he was the Assistant
Secretary to the Akim-Abuakwa
Traditional Council admitted
that plaintiff’s late father Dr
Asiedu Offei had land in the
area in dispute and that it was
the same land that plaintiff is
claiming in this matter. When
asked whether the land of the
co-defendant which he said the
Akim-Abuakwa Traditional Council
had gifted to him shared
boundary with that of
plaintiff’s late father, he said
he could not tell because he had
never been to the land or the
area in question. For purposes
of clarity, I wish to quote that
part of his evidence in-chief
which appear at pages 106 – 107
of Vol. Two of the RoA:
“Q. Do you know the land in
dispute?
A. Yes…
Q. Do you know those who share
boundary with the land in issue?
A. I cannot specifically say at
the moment but I know there are
people who share boundary with
that particular land.
Q. Now tell us what you know
about the land in issue.
A. My Lord, I am aware that
there is a dispute between the
plaintiff and Kwaku Gyapong and
Yaw Asamoah with the plaintiff
claiming the part that Kwaku
Gyapong assigned to Yaw Asamoah
as her land…
Q. Is the land the same as the
one being claimed in this
matter?
A. Yes, my Lord, because Kwaku
Gyapong’s land covers an area of
three square miles and it shares
boundary with that of Asiedu’s
land.
Q. You said that you are aware
that Asiedu has land in the
area?
A. Yes my Lord.
Q. Are you aware that the two of
them share boundaries?
A. I cannot say yes because I
have not been to that area…”
D.W.2 Kwaku Sono ‘aka’
Joseph Oppong said he was the
nephew of the co-defendant. He
exhibited complete ignorance
about the identity of the land.
He also admitted that
plaintiff’s father had land on
the Asunafo Stool land but
denied he purchased it as lands
are not sold in Okyeman. This is
part of his examination in-chief
when led by defendants’ counsel,
which appears at pages 128-129
of Vol. Two of the RoA:
“Q. There is a dispute over a
land which is part of Asunafo
Stool land. Are you aware of it?
A. Yes my Lord.
Q. And the matter is between
Evelyn Asiedu who represents
Doctor Amoako Offei or Mr Asiedu
and Odehye Kwabena Gyapong also
known as Okai Boateng?
A. Yes my Lord.
Q. Do you know where the land in
dispute is located?
A. Yes my Lord.
Q. Tell the court.
A. It is sharing boundary with
the Kwahus.
Q. Have you been to the land
before?
A. I know the land but I have
not been all round it…
Q. And are you aware also that
Doctor Offei bought some land
from Asunafo Stool land?
A. We do not sell Okyeman lands.
Q. Is Doctor Offei Amoako having
any land at Asunafo?
A. Yes my Lord…”
According to plaintiff,
after her father had acquired
the land, he placed twenty-three
(23) tenant farmers on the land
to farm for him on ‘abunu’
or share-cropping basis (p.
96 – Vol. One of RoA).
Plaintiff called some of these
tenant farmers as witnesses to
support her case. When
plaintiff’s evidence in-chief is
juxtaposed with her evidence
during cross-examination and
that of all her numerous
witnesses, it comes out clearly
that what plaintiff meant by a
‘syndicate’ throughout
her evidence is the twenty-three
(23) groups of tenant farmers
that plaintiff’s father
entrusted the land to after he
had purchased same alone but not
that he purchased it with the
said groups. We quote below part
of the testimony of the
plaintiff during
cross-examination by counsel for
the defendants, which appears at
pp. 106-107 of Vol. One of the
RoA.
“Q. Your father purchased this
land in company of a syndicate.
Is that right?
A. Yes my Lord.
Q. How many people formed the
syndicate?
A. My Lord they are 23 groups.
Q. Can you mention their names?
A. Majority of them have died
and they have their children who
have succeeded them. The only
surviving person who is alive is
Opanin Kwame Addo who is the
leader of the gang now.
Q. When they purchased this land
did they distribute or share the
land among them?
A. Since my father was the
leader of the syndicate he took
care of the whole land.
Q. What do you mean by your
father took care of the whole
land?
A. It means that at the end of
every year the tenants come and
made payments to him.
{Emphasis added}
Q. Since your father died, to
whom have the tenants been
accounting?
A. My lord, they have been
accounting to me.
{Emphasis added}
Q. You are saying this land does
not belong to your father alone,
is that correct?
A. My father was the leader of
the syndicate and therefore he
made total payment of the land.
Q. That is not the question; he
bought this land with a
syndicate and I am saying that
since he bought it with a
syndicate and there were 23 of
them, this land does not belong
to your father alone.
A. The land belongs to my
father.
Q. If the land belongs to your
father, then why 23 groups?
A. My lord, I said that they are
tenant farmers and the tenant
farmers have been grouped into
23 to cover the whole land”. {Emphasis supplied}
The testimony of the
plaintiff as elicited from the
above-quoted cross-examination;
particularly the last question
and answer, considered
holistically with the evidence
on record, clearly sums up
plaintiff’s case. Her late
father purchased the disputed
land as his personal property
and gave it out or entrusted it
to twenty-three (23) groups of
tenant farmers to develop same
on share-cropping basis. It is
these twenty-three (23) groups
of tenant farmers who were
plaintiff’s father’s tenants
which plaintiff termed
‘syndicate’. Plaintiff never
said the land belonged to her
late father and the tenant
farmers. This piece of evidence
was not controverted in any way
by the defendants throughout the
trial. The testimonies of the
tenant farmers and boundary
owners who plaintiff called as
witnesses stood solid even after
cross-examination. The first
witness of plaintiff was Patrick
Kwabena Addo who said he was one
of plaintiff’s father’s tenants.
He corroborated plaintiff on the
boundaries and said the whole
land in dispute belonged to
plaintiff’s late father. P.W.2
Opanin Kwame Kissi who said he
was the head of the Abosi group,
gave evidence as boundary owner
to the disputed land which he
said belonged to plaintiff’s
late father – (See pp
158-162, Vol. One of RoA).
He corroborated plaintiff’s
testimony on the boundaries of
the disputed land and the fact
that Dr Asiedu Offei purchased
same in 1935. He added that the
co-defendant was using force to
drive them away from the land.
P.W.3 Yaw Asare said his father
by name Yaw Donkor was Dr
Offei’s tenant. After his
father’s death, he is presently
on the father’s portion as Dr
Offei’s tenant. He corroborated
the boundaries as mentioned by
plaintiff. P.W.4 gave his name
as Nene Akutter Komesour, one of
the boundary owners mentioned by
plaintiff as forming boundary
with the disputed land. He
corroborated plaintiff’s
testimony as to her father’s
ownership of the disputed land.
P.W.5 Kwaku Agyei said he was
from the Gyedu Mankatta family
mentioned by plaintiff as one of
the boundary owners to the
disputed land. He corroborated
plaintiff’s testimony in every
respect. P.W.6 Tamatey Kwame
Musa testified that he had been
the tenant of Dr Offei working
on a portion of the disputed
land for the past forty (40)
years. He corroborated
plaintiff’s testimony to the
core.
Plaintiff’s case was that
she had sued for herself and
on-behalf of the entire Asiedu
Offei family of Larteh. She
prayed for a declaration of
title to the disputed land
which, according to her,
belonged to her said family,
which included her siblings;
perpetual injunction and general
damages of GHc5,000.00 for the
destruction of food, tree and
other crops on the land.
Paragraphs 1, 2, 3, 4 and 5 of
her amended statement of claim
dated 10th July 2007
and filed on 11th
July 2007 pursuant to the order
of Tom Bentil, J. dated 9th
July 2007, which could be found
at page 341 of the RoA (Volume
One) were as follows:
“1. The plaintiff brings this
action for herself and the
Asiedu Offei family of Larteh.
2. The plaintiff is the daughter
of late Dr. E.S. Asiedu Offei
(sic) belonged to the
patrilineal system of
succession.
3. In 1935 Dr Asiedu Offei
purchased a piece or parcel of
land from Asunafo Stool which
transaction was confirmed by the
Okyehene Nana Ofori Atta I.
3(a). The plaintiff says that
her father’s portion is
described in paragraph 1 in the
endorsement of the writ.
(a)1. The plaintiff says that
the land her father purchased
was demarcated by a team
including Kwasi Acheampong who
was appointed by Nana Ofori Atta
I, the Okyehene.
(a)2. The plaintiff says that
Kwasi Acheampong gave evidence
at the hearing in the case
Opanin Kwasi Adade and Others
vrs. Atta Yaw and Others. The
plaintiff will seek leave of the
court to tender a certified true
copy of his evidence.
(a)3. The plaintiff states that
her father, Rev. Annor Nyarko
and Adu Abranh initially decided
to buy the land together as a
syndicate but the two men
withdrew after the initial
payment. Her father paid the
whole purchase price of the
land.
4. The plaintiff states that her
father entered into Abunu
tenancy agreements with 23
tenant farmers who cultivated
cocoa and other crops on
portions of his land.
5. Late Op. Kwasi Adade was
appointed by the plaintiff’s
father as supervisor/ caretaker
of the land and the tenant
farmers.”
In answer to paragraphs 1
and 2 of plaintiff’s statement
of claim quoted above, the
defendant, in an amended
statement of defence filed on 13th
October 2008 pursuant to an
order of the trial court dated
22nd September 2008,
stated as follows:
“1. Save that the defendant
admits that the plaintiff brings
the action on her own behalf, he
is not in a position to admit or
deny the averment that the
plaintiff does so for and on
behalf of the Asiedu Offei
family of Larteh and at the
trial the defendant will be put
to the strictest proof of that
averment.
2. Similarly the defendant is
not in a position to admit or
deny the averment contained in
paragraph 2 of the statement of
claim and will at the trial put
the plaintiff to the strictest
proof thereof”.
The question is; what
strictest proof does one who can
neither deny nor admit an
allegation need? The law is
certain that a party, who
intends to deny an averment in a
pleading, must do so
specifically and that a pleading
to the effect that one could
neither admit nor deny an
averment is no denial. Order 11
rule 13(3) of the High Court
Civil Procedure Rules, 2004
[C.I. 47] provides: “Subject
to rule (4), every allegation of
fact made in a statement of
claim or counterclaim which the
party on whom it is served does
not intend to admit shall be
specifically traversed by the
party in the party’s defence or
defence to counterclaim and a
general statement of
non-admission shall not be a
sufficient traverse of them”.
Enoch D. Kom in his book
‘Civil Procedure in the High
Court’, first published in 1971
by the Ghana Publishing
Corporation, made the point
clear at page 49 as follows: -
“In traversing a fact the
defendant must ‘DENY’ or say
that ‘DOES NOT ADMIT’ it. Such
expressions as ‘the defendant
puts the plaintiff to proof’,
‘the defendant is not in a
position to admit or deny’ a
fact must not be used because
they have been held to be
insufficient traverse, evasive
denial, and not answering the
point of substance, Harris v
Gamble (1878) 7 Ch. D. 877;
Rutter v Tregent (1879) 12 Ch.
D. 758”.
On representative
capacity, the author under
reference above wrote on the
same page that where a defendant
“denies the locus standi of
the plaintiff suing in a
representative capacity, e.g. as
a trustee, personal
representative, head of family,
customary successor or the
alleged constitution of a
partnership, he must do so
specifically”. Again, Order
18 rule 8(20) of the English
Rules of Court; i.e. The Supreme
Court Practice, 1993 Volume 1
(otherwise known as the White
Book) on which our rules of
court are rooted states: “If
either party wishes to deny the
right of any other party to a
claim as executor, or as
trustee, whether in bankruptcy
or otherwise, or in any
representative or alleged
capacity, he must deny the same
specifically, otherwise, such
representative capacity will be
admitted…”
The defendants did not
specifically deny the
plaintiff’s claim that she
brought the action for herself
and on behalf of the Asiedu
Offei family of Larteh. Their
answer to that pleading was that
they could neither admit nor
deny that averment, which in the
eye of the law is no denial. The
farthest the defendant went in
challenging plaintiff’s capacity
was when he averred under
paragraphs 6 and 7 of his
amended statement of defence
dated 13th October,
2008 that; (a) the
plaintiff did not seek the
consent of the syndicate members
whom she claimed purchased the
disputed land with his father in
1935 before pursuing the action
and (b) she was neither
the administratrix nor executrix
of her late father’s estate to
clothe her with authority to
institute an action involving
her father’s estate. But looking
at the nature of plaintiff’s
claim, those averments could not
be a proper challenge to her
capacity because plaintiff did
not sue either as a
representative of a syndicate
that owns the disputed land, or
as an administratrix or an
executrix of her late father’s
estate to claim or protect his
late father’s property. Her case
was that the land over which she
sued belonged to her late father
and upon his death intestate in
1966 the said land had become
family property. It is for this
reason that plaintiff, as a
member of her father’s
patrilineal family, sued for and
on-behalf of her family.
Plaintiff and her siblings are
members of her father’s
patrilineal family so the fact
that she said in her evidence
that she instituted the action
on her own behalf and on behalf
of her siblings doesn’t make any
difference. Without any specific
denial that the plaintiff was
representing her family (which
includes her siblings), which is
the Asiedu Offei family of
Larteh, there was no need for
her to call further evidence to
establish that fact.
Plaintiff said this same
disputed land was a subject of
dispute before the Circuit
Court, Koforidua in 1967. The
suit was between some of her
late father’s tenants on the one
hand, and other persons who
trespassed on portions of the
land on the other hand. He gave
the title of the case as; Opanin
Kwasi Adade & Others v Attah Yaw
& Others. According to her, the
co-defendant in this case joined
in the suit as a co-defendant to
support the trespassers whilst
her late uncle Amoako Offei who
was her late father’s younger
brother and customary successor,
also joined her father’s tenants
as the co-plaintiff. However,
during the trial, the
co-defendant was involved in a
murder case for which he was
convicted and sentenced. The
case could not therefore
continue and remained pending
while the co-defendant was
serving his prison sentence
until her uncle the late Amoako
Offei who was the co-plaintiff
also died. When the co-defendant
came out from prison after the
death of her uncle Amoako Offei,
he purportedly leased a portion
of the disputed land to the
defendant in 1999, knowing very
well that it was a
subject-matter of dispute then
pending in the Circuit court,
Koforidua before his
incarceration. When she learnt
of it, she instituted this
action against the defendant to
protect the family’s interest in
the land. The co-defendant later
applied to join the action. Both
the High Court and the Court of
Appeal therefore misconceived
the evidence on record when they
concluded that; (i) the
land belonged to a syndicate of
23 farmers including plaintiff’s
father so without the express
consent of the other owners,
plaintiff had no capacity to
institute the action, and
(ii) plaintiff did not
demonstrate that she was the
customary successor of her late
father so granted the land
belonged to her late father at
all, she had no capacity to
litigate on same.
As this Court demonstrated
supra in this judgment, the
above conclusion and holding of
the Court of Appeal clearly
shows that the Court of Appeal,
just like the trial High Court,
did not appreciate the totality
of the evidence on record. The
fact is that plaintiff did not
sue because of her late father
as such. She sued for and on
behalf of her family which now
owns the disputed property. The
issue that arises therefore is;
whether or not the plaintiff
could institute the action for
and on behalf of her family.
From the pleadings on record,
her membership of the Asiedu
Offei family on whose behalf she
sued has not been questioned in
any way by the defendants. This
Court, in the IN RE: ASHALEY
BOTWE case; i.e. ADJETEY
ADBOSU & Ors v KOTEY & Ors
[2003-2004] SCGLR 420 took
pains to explain the decision in
KWAN v NYIENI [1959] GLR 67, on
who could sue for and on behalf
of a family under our customary
law. This Court held: “the
general rule recognised in Kwan
v Nyieni, namely, that the head
of family was the proper person
to sue and be sued in respect of
family property was not
inflexible. There are situations
or special circumstances or
exceptions in which ordinary
members of the family could in
their own right sue to protect
the family property, without
having to prove that there was a
head of family who was refusing
to take action to preserve the
family property. One of the
special or exceptional
circumstances is upon proof of
necessity to sue...” Wood,
JSC (as she then was) added
that: “given that society and
indeed, customary law is dynamic
and not static, the Court of
Appeal in Kwan v Nyieni had left
the matter open for possible
expansion of those special
circumstances when the need
arose. Therefore, the question
whether any particular case
falls within the stated
exceptions rather than the rule,
or even an exception not
identified in Kwan v Nyieni, is
dependent on the particular
facts of the given case”.
As an elder female member
of the family, plaintiff is
empowered under the law to sue
to protect her family’s property
when it becomes necessary or
when the need arises for her to
do so. Her case was that, after
the death of her uncle who was
contesting the land with the
co-defendant and others in the
1967 suit, the co-defendant on
his return from prison leased a
portion of the disputed land to
the defendant in 1999,
notwithstanding the pendency of
that suit. She was therefore
compelled to take this action on
behalf of the family because she
and her siblings were
beneficiaries of the property
and it was to her that the
tenant farmers on the land were
atoning tenancy under the abunu
or share-cropping terms after
the death of her uncle Amoako
Offei. The circumstances in this
case are such that plaintiff has
satisfied the requirements by
which an ordinary member of a
family could sue to protect the
family’s property. The Court of
Appeal’s holding that plaintiff
did not have capacity to sue
because she neither sought the
consent of the syndicate members
nor was the customary successor
or administratrix of the estate
of her late father who died in
1966, was therefore misplaced.
That conclusion, which is not
supported by the evidence on
record, is a permitted ground
for this Court to interfere in
the concurrent findings of the
trial court and the Court of
Appeal as was held in the Koglex
case cited supra viz; (i)
where the said findings of the
trial court are clearly
unsupported by the evidence on
record or where the reasons in
support of the findings are
unsatisfactory and (ii)
where the trial court has failed
to draw an irresistible
conclusion from the evidence.
The fact is that from the
pleadings and evidence on
record, the plaintiff had
capacity to sue and both the
trial High Court and the Court
of Appeal should have considered
her case on the merits. We
therefore dismiss the Court of
Appeal’s finding that plaintiff
had no capacity to institute the
action notwithstanding the fact
that plaintiff did not appeal
against that finding. We do so,
on the strength of rule 23(3) of
the rules of this Court [C.I.
16], which empowers the Court in
the determination of a civil
appeal, to make any order that
the Court considers necessary
for determining the real issue
or question in controversy
between the parties.
As for the identity of the
land, it was not in question as
the Court of Appeal rightly
found. The defendants knew the
land over which the plaintiff
had sued them and rightly
counterclaimed for title to the
same land as described by the
plaintiff in their counterclaim.
The first relief defendant
sought in his counterclaim was:
- “By way of counterclaim the
defendant repeats paragraphs
1-16 of his statement of defence
and counterclaims against the
plaintiff as follows: - i)
Declaration of title to the land
herein in dispute” – (See
Vol. Two, p. 48 of RoA).
Also, in his evidence in-chief,
the co-defendant admitted that
it was the same land that was
gifted to him by Okyeman Council
that plaintiff’s father had
occupied. When his lawyer asked
him why the land was gifted to
him by Okyeman Council, this was
what he said: - “Trouble erupted
and even gunshots were involved
and that landed me in trouble.
The use of the gun resulted in
the death of somebody and I was
accused of that person’s death.
I was therefore sentenced to
death. I was the first person to
appear before the Koforidua High
Court when it was opened. I was
then sent to the Usher Fort
Prison. It was after 10 years
that I was released to come
home. When I reached home my
people immediately installed me
again the next day. During the
installation, Okyeman honoured
me. I was given ‘Apakan’ freely.
In addition to the ‘Apakan’,
Okyeman again ordered that my
grandfathers’ land which I
helped to recover, three-mile
square should be demarcated for
me to help me to look after my
children whom I left behind and
also to compensate me for the
suffering I went through. But
plaintiff’s father had sent some
people to work on the land. I
therefore informed Okyeman on
what was going on on the land.
So from 1982 there was
litigation between me and
plaintiff’s father” {Emphasis
added} – {See page 269 of the
RoA Vol. One}
Again, during
cross-examination of
co-defendant by plaintiff’s
lawyer Mr Asante Ansong,
co-defendant admitted that the
land that was the subject-matter
of the dispute between him as
co-defendant and plaintiff’s
uncle the late Amoako Offei as
co-plaintiff in the Koforidua
Circuit Court, was the same land
in dispute in the instant case.
It is worth quoting that part of
the cross-examination which
appears at pp. 283-284 of
the RoA, Vol One, to clear all
doubts on this issue:
“ANSONG: Nana in 1971 you were
in the case entitled Op. Kwasi
Adade & 1 anor. Vrs Atta Yaw & 1
anor. You were in that case, not
so?
CO-DEFT: Yes, I was then the
chief.
ANSONG: So you were a party to
the suit?
CO-DEFT: I was not a party to
the suit. The chief whom I
succeeded was in the suit. He
was called Baffour Awuah.
ANSONG: Did you join it later?
CO-DEFT: Yes, I later joined it.
This was so, because those
elders of mine who were in the
case at first were not there and
I joined it to complete the
case.
ANSONG: Amoako Offei also joined
the action not so?
CO-DEFT: Yes my lord.
ANSONG: Amoako Offei was also a
party.
CO-DEFT: No. This lady gave him
power of attorney. That’s why he
is here.
ANSONG: Amoako Offei, do you
know that he was a full brother
of the late Dr. Offei?
CO-DEFT: I do not know of that.
What I know is that he is the
nephew of Dr. Offei and
documents show that he succeeded
Dr. Offei.
ANSONG: I am putting it to you
that he was the brother of Dr.
Offei and he joined the case to
represent Dr. Offei’s interest.
CO-DEFT: I cannot dispute that
fact because he joined the case
as a nephew of Dr. Offei and
that he succeeded Dr. Offei.
ANSONG: And the matter before
the court was about land. Not
so?
CO-DEFT: That is so.
ANSONG: And that, that land is
the land which is the
subject-matter of the instant
action, not so?
CO-DEFT: Yes, that is so…”
{Emphasis supplied}
From the answers
co-defendant gave during
cross-examination as re-called
above, the co-defendant was
showing his true chameleon
colours as a witness not worthy
of credit when somewhere in his
testimony and in his written
statement of case filed in this
Court on 07/04/2017, he muddied
his case by saying that the land
that was gifted to him by the
Okyeman Council was different
from the one plaintiff claimed
her father purchased in 1935. We
agree with the Court of Appeal
that the parties were ad idem as
to the identity of the disputed
land notwithstanding
co-defendant’s double-tongue
that the land that plaintiff’s
father bought from the Asunafo
Stool was different from the one
that the Okyeman Council gifted
to him. We therefore agree with
the Court of Appeal that there
was no evidence that the Akim
Abuakwa Traditional Council
owned the land at Asunafo which
had, in any event, been sold by
the Asunafo Stool with the
concurrence of the Okyehene to
plaintiff’s late father as far
back as 1935.
Since the Court of Appeal
found that the land did not
belong to the co-defendant as
same could not have been
conveyed to him on the nemo dat
quod principle, the court should
have entered judgment for the
plaintiff, had it not wrongly
dismissed her action on want of
capacity. With the dismissal of
defendant’s counterclaim, and
having found that the disputed
land belonged to plaintiff’s
father and upon his death in
1966 to his family, justice
demands that we do what the
Court of Appeal failed to do by
entering judgment for the
plaintiff on her reliefs 1 and
2, upon our finding that she had
capacity to institute the
action, notwithstanding the fact
that plaintiff did not appeal
against the decision of the
Court of Appeal. Any failure on
our part to take this course,
taking into consideration the
peculiar circumstances of this
case, would amount to denial of
justice since there cannot be a
drawn game in a civil legal
tussle; the standard of proof
being one on the preponderance
of the probabilities.
With regard to relief 3,
though there is evidence that
the defendant entered the
disputed land with labourers to
clear portions for the
cultivation of oil-palm after
the co-defendant had leased same
to him, plaintiff did not lead
enough or satisfactory evidence
on the alleged destruction of
cocoa trees and other food and
cash crops and their value apart
from the pictures that were
tendered in evidence during the
trial. This leaves the quantum
of the general damages plaintiff
is entitled to at large, as she
could not establish with clarity
any special damages suffered.
In conclusion, we affirm
the Court of Appeal’s decision
to dismiss the defendant’s
counterclaim and enter judgment
for the plaintiff on her
reliefs.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
S. O. A. ADINYIRA (MRS)
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
V. AKOTO-BAMFO (MRS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
KWAME BOATENG FOR THE
DEFENDANTS/RESPONDENTS/APPELLANTS.
ASANTE ANSONG FOR THE
PLAINTIFF/APPELLANT/RESPONDENT. |