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Administration of Estate -
Letters of Administration -
Vesting assent - Family property
- Ownership - Personal and
beneficial use - Contract of
sale - Wrongful and fraudulent
sale – Capacity – Whether or not
the Court of Appeal failed to
appreciate that the withdrawal
of appeal by 2nd
Plaintiff and 3rd
Plaintiff at the appeal stage
should not have affected the
capacity of the Appellant at the
hearing - Whether or not the the
Plaintiff does not have the
locus standi/capacity to
institute the action to protect
property - Whether or not the
entire judgment of the Court of
Appeal could not be supported
given the weight of evidence
adduced at the trial.
HEADNOTES
The Defendants as head of family
and principal members of the
Sappor family respectively,
obtained the grant of
Letters
of Administration from the
High Court, Accra, to administer
the estate of their family
member, By a
vesting
assent the Defendants
assented to the vesting of the
said
family property in the 2nd
and 4th Defendants
for their
personal and beneficial use.
By a
contract of sale executed
the Defendants purported to
sell the said property to the 5th
Defendant as owners. The
Plaintiff brought this action,
originally in his own name and
on behalf of the Koleh We Clan,
a branch of the Sappor Family,
contending that the purported
sale of the said property was
wrongful and fraudulent, The
Plaintiff accused the 5th
Defendant of having acted
recklessly, or in concert with
the purported vendors, when he
purported to purchase the said
property without doing due
diligence on the property. The
Defendants mounted a vigorous
defence to this action, they
categorically denied all the
averments of the Plaintiffs in
support of the claim, and
contended that the 1st
Plaintiff “was an imposter and
not a member of the Sappor
family”; and therefore lacked
capacity
to commence this action on
behalf of the Sappor family. The
trial High Court delivered
judgment in favour of the
Defendants. Aggrieved by, and
dissatisfied the Plaintiffs
filed Notice of Appeal at the
Court of Appeal and his cases
was dismissed.
HELD
On the evidence, the Appellant
could neither establish his
membership of the family, nor
his appointment as head of a
branch of the family, except on
his own say so, his capacity to
maintain the appeal was
irredeemably compromised.
Therefore, the Court of Appeal
was right when it concluded that
the loss of interest by the two
acknowledged principal elders of
the family to prosecute the
appeal cast the Appellant in the
role of “the outsider who weeps
louder than the bereaved”, or
more properly, the “officious
by-stander”. In the
circumstances, the Court of
Appeal was right to come to the
conclusion it did, and we cannot
fault its judgment. We,
therefore, have no option but to
dismiss the appeal.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules 1996 (CI 16)
as amended
Court of Appeal Rules, 1997 (CI
19) as amended
High Court (Civil Procedure)
Rules 2004, (CI 47) as amended
CASES REFERRED TO IN JUDGMENT
Tuakwa v Bosom [2001-2002] SCGLR
61,
Evelyn Asiedu Offei v. Yaw
Asamoah Odehye Kwaku Gyapong
25th April, 2018 ([2018] DLSC 1.
Akufo-Addo v Catheline [1992] 1
G.L.R. 377
Nii Kpobi Tetteh Tsuru III & 2
Ors v. Agri-Cattle & 4 Ors
Civil Appeal No. J4/15/2019 18th
March, 2020
Sarkodee I v Boateng II
(1982-83) 1 GLR 715
Duah v Yorkwa (1993-94) 1 GLR
217
Re Adum Stool; Agyei & Anor v.
Fori & Ors (1998-99) SCGLR 191
Poh v Konamba (1957) 3 W.A.L.R.
74; Tanor v Akosua Koko [1974] 1
GLR 451
Plange v Plange (1968) CC 88;
Saakyi Mami v Dede Paulina
[2005-2006] SCGLR 1116
Kwan v. Nyieni [1959] G.L.R. 67,
(CA)
In re Ashalley Botwe Lands;
Adjetey Agbosu v. Kotey and Ors
[2003-2004] SCGLR 420
Affram v Didiye III [1999-2000]
2 GLR 148
Ameoda v Pordier (Consolidated)
[1962] 1 GLR 200
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary
The law Testate and Intestate
Succession in Ghana,
N.A. Ollennu
The Law of Chieftaincy in Ghana,
S.A. Brobbey
Contemporary Trends in the Law
of Immovable Property in Ghana’
Yaw D. Oppong
DELIVERING THE LEADING JUDGMENT
PROF. MENSA-BONSU (MRS), JSC:-
COUNSEL
EDWARD SAM CRABBE FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
MOHAMMED SAHNOON FOR THE
DEFENDANT/RESPONDENT/RESPONDENT
PROF. MENSA-BONSU (MRS), JSC:-
This is an appeal against the
unanimous judgment of the Court
of Appeal dated 11th April,
2019, in favour of the
Defendants/Respondents. The
action that has culminated in
this appeal to the Supreme Court
was originally commenced by the
1st
Plaintiff/Appellant/Appellant
herein, Kasseke Akoto Dugbartey
Sappor on the 23rd
November, 2011, in the High
Court, Accra. In a judgment
dated 29th November,
2013, the High Court found for
the Defendants and the Plaintiff
appealed to the Court of Appeal.
The Court of Appeal dismissed
the appeal of the 1st
Plaintiff/Appellant on the
grounds of lack of capacity.
Aggrieved and dissatisfied with
the judgment
Plaintiff/Appellant/Appellant
has filed the instant appeal to
this honourable court against
the judgment of the Court of
Appeal.
FACTS
On or about 23rd
May, 2006, the 1st-4th
Defendants as head of family and
principal members of the Sappor
family respectively, obtained
the grant of Letters of
Administration from the High
Court, Accra, to administer the
estate of their family member,
Margaret Sappor (deceased). By a
vesting assent dated 16th
March, 2007, the 1st-4th
Defendants assented to the
vesting of the said family
property in the 2nd
and 4th Defendants
for their personal and
beneficial use. By a contract of
sale executed between the 2nd
and 4th
Defendants of the one part as
Vendors, and the 5th
Defendant as Purchaser, the 2nd
and 4th Defendants
purported to sell the said
property to the 5th
Defendant as owners thereof, for
the purchase price of four
hundred thousand Ghana cedis
(GH¢400,000).
The Plaintiff brought this
action, originally in his own
name and on behalf of the Koleh
We Clan, a branch of the Sappor
Family, contending that the
purported sale of the said
property was
wrongful and fraudulent.
He further alleged that pursuant
to the contract of sale
aforesaid, which he described as
“illegal”, the parties to the
transaction purported to execute
an indenture dated 12th
September, 2007, in furtherance
of a fraudulent scheme; and that
this had wrongfully divested the
Sappor family of the
ownership
and benefit of the said
property. He also alleged that
the 1st – 4th
Defendants had concealed the
wrongful sale of the said
property from the Sappor family
until it came to light in the
course of a related legal
proceeding in Suit No. BL
63/2008 entitled Very Rev.
Solomon Dugbartey Sappor & Ors.
vs. Afi Binga Dugbartey
Sappor. Against the 5th
Defendant, the Plaintiffs
contended that he knew or ought
to have known that the purported
sale of the property to him was
wrongful or fraudulent as the 2nd
and 4th Defendants
had failed to demonstrate that
they had the express authority
of the Sappor Family to enter
into the transaction.
The
Plaintiff accused the 5th
Defendant of having acted
recklessly, or in concert with
the purported vendors, when he
purported to purchase the said
property without doing due
diligence on the property.
The Defendants mounted a
vigorous defence to this action.
In their Statement of Defence
filed on the 16th January, 2012,
they
categorically denied all the
averments of the Plaintiffs in
support of the claim, and
contended that the 1st
Plaintiff “was an imposter and
not a member of the Sappor
family”; and therefore lacked
capacity to commence this action
on behalf of the Sappor family.
Soon thereafter, counsel for
Plaintiff applied for joinder of
two co-plaintiffs, Samuel
Dugbartey Sappor and Joseph Narh
Sappor, who were persons
acknowledged to be principal
members of the Sappor Family, as
2nd and 3rd
Plaintiffs respectively. The
pleadings, however, were not
amended.
The trial High Court delivered
judgment in favour of the
Defendants. Aggrieved by, and
dissatisfied with, the judgment
of the trial High Court, the
Plaintiffs filed Notice of
Appeal at the Court of Appeal
on 17th December, 2013. Before
the appeal could travel very
far, the 2nd and 3rd
appellants abandoned the appeal,
leaving the 1st
appellant to fight the appeal by
himself. (During the pendency of
the appeal the 1st
Plaintiff/Appellant died and was
substituted by Atteh Sappor).
The issue of his non-membership
of the Sappor Family and
consequent lack of capacity to
bring the action either in his
own name or, to represent the
family, reared its head again.
The Court of Appeal analysed the
legal capacity of the 1st
Appellant to maintain the suit,
and delivered its unanimous
judgment on 11th
April, 2019, in favour of the
Defendants. Against this
unanimous decision of the Court
of Appeal, the Plaintiff filed a
Notice of Appeal to the Supreme
Court on 6th May, 2019, seeking
further hearing of the case.
GROUNDS OF APPEAL.
i.
The Court of Appeal failed to
appreciate that the withdrawal
of appeal by Samuel Dugbartey
Sappor (2nd
Plaintiff) and Joseph Narh
Sappor (3rd
Plaintiff) at the appeal stage
should not have affected the
capacity of the Appellant at the
hearing
and determination of the appeal.
ii.
That the Court of Appeal gravely
fell into error of law and fact
when she [sic] held that
Plaintiff/Appellant, like PW1,
is from the female line of the
Sappor Family and therefore not
a member of the Sappor Family.
iii.
The Court of Appeal gravely fell
into error of the law and fact
when she held that
the
Plaintiff does not have the
locus standi/capacity to
institute the action to protect
property belonging to the Sappor
Family.
iv.
The judgment of the Court of
Appeal is perverse and against
the weight of evidence adduced
at the trial.
v.
That further grounds of appeal
may be filed upon the receipt of
the Record of Appeal
Three of the substantive grounds
of appeal are all related to the
issue of his capacity to bring
the action, whilst the fourth is
the usual omnibus ground which
opens the case up for
re-hearting. No substance was
put to ground (v), as no further
issues were subsequently filed.
It would therefore be
appropriate to start the
discussion with Ground (iv),
the omnibus ground. Grounds
( i) and ( iii) are
discussed together, as both
relate to the capacity and
consequences of such lack of
capacity on the fortunes of the
suit and are, hence, two sides
of the same coin.
Ground iv
The essence of the Plaintiff’s
complaint was that the
entire
judgment of the Court of Appeal
could not be supported given the
weight of evidence adduced at
the trial, and therefore it
was perverse. Relying upon the
statement of law in a long line
of cases on the powers of an
appellate court, the Appellant
in his statement of case, argued
that “[T]he Court of Appeal
having the power of rehearing
ought to have dealt with the
record as it existed at the
Trial Court and adopted the
posture of the Trial High Court
Judge which would have energized
the Court of Appeal to determine
the present appeal on its
merits.” The Appellant has thus
challenged the conclusions of
the Court of Appeal, and thrown
an invitation to this honourable
court to give further
consideration to the evidence
adduced in support of the case.
It is indeed, a correct
statement of law that an appeal
is by way of re-hearing as
Tuakwa
v Bosom [2001-2002] SCGLR
61, where the plaintiffs
sole ground of appeal at the
Court of Appeal was that “the
decision of the trial court was
against the weight of the
evidence”. At p.65 Akuffo JSC
(as she then was), held that,
“an appeal is by way of a
re-hearing particularly where
the appellant, that is the
plaintiff in the trial in the
instant case, alleges in his
notice of appeal that, the
decision of the trial court is
against the weight of evidence.
In such a case, although it is
not the function of the
appellate court to evaluate the
veracity or otherwise of any
witness, it is incumbent upon an
appellate court, in a civil
case, to analyse the entire
record of appeal, take into
account the testaments and all
the documentary evidence adduced
at the trial before it arrives
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”.
The point was further extended
in
Evelyn Asiedu Offei v.
Yaw Asamoah Odehye Kwaku Gyapong
(Unreported); decision by
Supreme Court, coram Adinyira
(Mrs) JSC (Presiding), Dotse
JSC, Baffoe-Bonnie JSC,
Akoto-Bamfo (Mrs) JSC and Appau
JSC; judgment delivered on 25th
April, 2018 ([2018] DLSC 1.
The facts of that case were that
the plaintiff had sued the
defendant for herself and on
behalf of her family for title
to a piece of land acquired by
her father for himself and a
group of farmers. The defendant
counterclaimed for title to the
land. Her capacity to bring the
action was challenged, and
judgment was found for the
defendants by the trial High
Court on the ground, inter
alia, of want of capacity.
The Plaintiff appealed against
the decision of the trial High
Court on several grounds
including on the finding of want
of capacity on her part to
represent the group. The Court
of Appeal affirmed the trial
court’s decision that plaintiff
indeed lacked capacity to
institute the action, and also
dismissed the part of the
judgment that upheld defendant’s
counter-claim. The Plaintiff did
not appeal further. However, the
Defendants, aggrieved by the
decision on their cross-appeal,
appealed further to this Court.
The Defendants’ omnibus ground
of appeal that the judgment of
the Court of Appeal was against
the weight of evidence adduced
at the trial, opened the way for
the Supreme Court to exercise
its power of re-hearing the
case. Speaking for the court,
Appau, JSC stated the law thus:
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. (Emphasis supplied)
Analysing the entire record
meant re-examining the decision
as it affected the party who had
not even complained.
Consequently, the court was able
to uphold the Plaintiff’s
position, and to dismiss the
Defendant-Appellant’s appeal
because capacity is a
fundamental issue that remains
relevant in the entire life of a
case.
Failing to acknowledge the fatal
blow dealt to his cause by the
withdrawal of first the 3rd
Plaintiff on 7th July, 2016, and
then the 2nd
Plaintiff on 11th
November, 2016, well before the
Court of Appeal came to
determine the case,
Plaintiff-Appellant went on to
instruct the court thus:
Rehearing of appeal in our
candid opinion is done by
reference to the record at the
trial court and no other facts
should be imported by an
appellate court without
following due process…. In the
circumstances of this case the
Court of Appeal imported without
any justification the status of
the parties at the Court of
Appeal stage. The Court of
Appeal failed to appreciate that
the withdrawal of appeal by
Samuel Dugbartey Sappor (2nd
Plaintiff) and Joseph Narh
Sappor (3rd Plaintiff) at the
appeal stage should not have
affected the capacity of the
Plaintiff at the hearing and
determination of the appeal.
There is no dispute that at the
trial stage there were three
Plaintiffs and same ought to
have been referred to as parties
in evaluating the evidence by
way of rehearing.
Despite the effort to instruct
the court in its duty, the
Appellant does not go further to
affirm whether there were, in
fact, “three Appellants” by the
time the matter came before the
Court of Appeal, even as he
sought to suggest that the issue
of the 1st
Plaintiff’s capacity to bring
the action having become moot by
not featuring in the judgment of
the trial court, it ought to
remain so. Even when clearly,
things had significantly changed
by the time the Court of Appeal
came to hear the case, the
Appellant still insists the
changed circumstances should
have been ignored or overlooked
by the Court of Appeal. His
contention that the Court of
Appeal Appeal “ought to have
dealt with the record as it
existed at the Trial Court and
adopted the posture of the Trial
High Court Judge”, is indeed an
ingenious argument to cure a
nagging problem of the want of
capacity that was initially an
issue but that had been
addressed by the joinder of
co-plaintiffs that occurred
before the case was heard by the
trial High Court. Surely urging
an appellate court to ignore any
developments in the case and to
concentrate only on what
happened at the trial court is
tantamount to urging on us the
novel proposition that an
appellate court, which is
exercising its power of
re-hearing, must wear blinkers
and only focus on issues deemed
relevant by the appellant. If
this, indeed represented the
law, why would Kpegah, JSC in
Akufo-Addo v Catheline [1992] 1
G.L.R. 377 at p. 391 state
the law thus:
One must understand what the
phrase ‘by way of re-hearing
means’. It must be pointed out
that the phrase does not mean
that the parties address the
court in the same order as in
the court below, or that the
witnesses are heard afresh. … It
does also mean that the Court of
Appeal is not to be confined
only to the points mentioned in
the notice of appeal but will
consider (so far as may be
relevant) the whole of the
evidence given in the trial
court, and also the whole course
of the trial. (emphasis in
original).
To put beyond doubt the duty of
an appellate court, it is
provided under Rule 6 sub-rule
7(b) of the
Supreme
Court Rules 1996 (CI 16) as
amended, that when deciding
an appeal, the court “shall not,
… confine itself to the grounds
set forth by the appellant or be
precluded from resting its
decision on a ground not set
forth by the appellant.”
Clearly, the law anticipated
such situations, and prescribed
a solution.
WHAT IS CAPACITY?
Capacity to bring and maintain
the action remains a cardinal
hurdle that must be jumped if
either party is to remain in the
case. It is for good reason that
Order 2(4) of
High
Court (Civil Procedure) Rules
2004, (CI 47) as amended,
insists on the capacity of the
plaintiff being indorsed on the
writ before it becomes a
competent writ. Rule 3 of the
Court of
Appeal Rules, 1997 as
amended, grants the right of
audience only to “A person who
is a party to any cause or
matter before the Court…”
(emphasis supplied)
Therefore, just as there cannot
be a “phantom plaintiff” so
there cannot be a “phantom
appellant”.
Black’s
Law Dictionary defines
‘Capacity’ or Standing as: “A
party’s right to make a legal
claim or seek judicial
enforcement of a duty or right
capacity…” Thus, one’s ability
to appear in court to make a
claim hinges on whether one is
recognized in law as having
sufficient interest in any
matter to seek a hearing on any
particular issue. This
“sufficient interest” must
remain throughout the life of
the case, or one’s legal ability
to stay connected with a case
making its way through the
courts would be lost.
When can the issue of capacity
be raised? The authorities agree
on one point: capacity is so
fundamental that it can be
raised at any time.
In Evelyn Asiedu Offei v.
Yaw Asamoah Odehye Kwaku
Gyapong , supra, Appau JSC
on the issue of capacity, stated
thus:
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 subrule
(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.
Thus, in that case, the issue of
the capacity of the original
plaintiff, whose capacity to sue
had been successfully challenged
at both the trial court and the
Court of Appeal and who had
accepted the verdict and not
appealed against the decision,
remained relevant during the
consideration of the further
appeal of the cross-appellant.
This means that the fact that an
appellate Court re-hears a case
means that it must consider the
entire dossier and not only
aspects deemed relevant by the
parties; and that the parties
must remain competent throughout
the proceedings. The point was
further emphasized in the case
of Nii
Kpobi Tetteh Tsuru III & 2 Ors
v. Agri-Cattle & 4 Ors
Civil Appeal No. J4/15/2019
delivered on
18th
March, 2020, when this
honourable Court held as
follows:-
The law is trite that capacity
is a fundamental and crucial
matter that affects the very
root of a suit and for that
matter it can be raised at
anytime even after judgment on
appeal. The issue is so
fundamental that when it is
raised at an early stage of the
proceedings a court mindful in
doing justice ought to determine
that issue before further
proceedings are taken to
determine the merits of the
case. Thus a plaintiff whose
capacity is challenged needs to
adduce credible evidence at the
earliest opportunity to satisfy
the court that it had the
requisite capacity to invoke the
jurisdiction of the court. If
this is not done the entire
proceedings founded on an action
by the plaintiff without
capacity would be nullified
should the fact of non-capacity
be proved….”
Therefore, the effect of any
primary barriers, such as want
of capacity in the Plaintiff, or
Appellant by the time it is due
to re-hear the case remains
relevant throughout the case. To
hold otherwise would mean to
gloss over an important an issue
as the capacity of the parties
to maintain the action.
Undaunted by the formidable
hurdle of capacity he had failed
to scale, Plaintiff-Appellant in
his Statement of Case stated
that “Indeed, the Trial High
Court in its judgment dated 29th
November, 2014, commented as
follows “However the
participation of the 2nd
and 3rd Plaintiffs
who are members of the Sappor
family saved the matter from
being thrown out and giving
legitimacy to the case to be
heard on the merits”. He
then went further to assert that
though the 2nd and 3rd
Plaintiffs had withdrawn from
the Appeal by the time it came
before the Court of Appeal for
determination “the withdrawal of
Samuel Dugbartey Sappor and
Joseph Narh Sappor at the Court
of Appeal did not change the
record as it existed at the
trial court where both of them
were parties to the action to
the very end.” In the course of
pressing his point, the
Plaintiff-Appellant neglected to
observe that the issue of
capacity that had been raised
against him earlier, had been
resolved by his joinder of the
two acknowledged principal
members of the Sappor family,
and therefore his lack of
capacity ceased to be an issue
by the time judgment was
rendered in the High Court.
Unfortunately, this position
advocated by Counsel for
Plaintiff-Appellant is not
supported by law.
The Court of Appeal at page 5 of
its judgment, stated the law
correctly when it said that “The
issue of capacity is a threshold
and foundation issue which can
be raised at any time. It can be
raised by the court itself
because the lack of capacity
deprives the court of the
jurisdictional competence to
entertain an action at any stage
of a judicial proceedings.” All
the authorities are emphatic
that capacity remains a live
issue throughout the life of a
case and that once a party does
not meet the threshold
requirement of capacity, there
is no need to go beyond that
point to deal with the
substantive issues. In the case
of
Sarkodee I v Boateng II
(1982-83) 1 GLR 715, the
Supreme Court dismissed an
appeal from a decision of
National House of Chiefs
declining to uphold the validity
of an effort to destool the
Paramount Chief of New Juaben.
by one kingmaker only. Having
found that the Petitioner lacked
capacity to destool a Paramount
Chief by himself when,
traditionally, it took the whole
group of kingmakers to install
the chief, the Court went
further to comment on why it
could not vault the
insurmountable barrier of lack
of capacity to examine any
issues of the substantive case.
Apaloo CJ at p.724 stated thus:
it is claimed in one of the more
serious grounds of appeal that
substantial questions were
involved in the suit and it was
unjust for the appellant to be
driven from the ‘judgment seat’
on the preliminary objection
raised by the respondent. 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.
This sentiment was re-echoed in
Duah
v Yorkwa (1993-94) 1 GLR
217 at p 235, when the Court
of Appeal, per Brobbey JA (as he
then was), stated emphatically
that “Where a person’s capacity
to initiate proceedings is in
issue, it is no answer to give
that person a hearing on the
merits even if he has a
cast-iron case”.
Therefore the Court of Appeal
was right when it stated that
“We are of the opinion that the
Plaintiff/Appellant is not a
member of the Sappor family of
the Ada Foah and had no capacity
or locus standi to commence the
action at the court below on his
own, nor can he prosecute this
appeal for the Sappor family.
Having come to this conclusion,
it is unnecessary to discuss any
of the other interesting matters
raised in this appeal. We will
accordingly dismiss the appeal
and affirm the judgment of the
trial High Court dated 29th
November, 2013”.
Grounds i and iii.
“i. The Court of Appeal failed
to appreciate that the
withdrawal of appeal by Samuel
Dugbartey Sappor (2nd Plaintiff)
and Joseph Narh Sappor (3rd
Plaintiff) at the appeal stage
should not have affected the
capacity of the Appellant at the
hearing and determination of the
appeal.”
iii. “The Court of Appeal
gravely fell into error of the
law and fact when she held that
the Plaintiff does not have the
locus standi/capacity to
institute the action to protect
property belonging to the Sappor
Family.”
In his appeal,
plaintiff-appellant contended
that the 2nd and 3rd Plaintiffs
participated fully in the trial
before the High Court, and when
they were dissatisfied with the
judgment of 29th November, 2013,
caused a Notice of Appeal to be
filed at the Court of Appeal;
and that it took three years
before they withdrew from the
case in 2016. If events occurred
within those three years to
cause them to change their minds
about appealing the decision of
the High Court, why should it be
held against them? Whatever be
the case, the Appellant concedes
that the withdrawal occurred
before the appeal could be
heard, and therefore he was the
lone appellant in the Court of
Appeal.
Again, the Appellant complains
in his Statement of Case that
the Court of Appeal failed to
appreciate that the withdrawal
of appeal by Samuel Dugbartey
Sappor (2nd
Plaintiff) and Joseph Narh
Sappor (3rd
Plaintiff) at the appeal stage
ought not to have affected his
capacity to maintain the appeal.
According to him,
the Court of Appeal had imported
without any justification the
status of the parties at the
Court of Appeal stage; and had
failed to appreciate that the
withdrawal of appeal by Samuel
Dugbartey Sappor (2nd
Plaintiff) and Joseph Narh
Sappor (3rd
Plaintiff) at the appeal stage
should not have affected the
capacity of the Plaintiff at the
hearing and determination of the
appeal. There is no dispute that
at the trial stage there were
three Plaintiffs and same ought
to have been referred to as
parties in evaluating the
evidence by way of rehearing.
Although he concedes at the same
time that it is “the 2nd
and 3rd plaintiffs
who gave legitimacy to the
action before the High Court”,
he still found it necessary to
complain that there should be
any consequences from their
having withdrawn from the
appeal. The High Court had, in
fact, stated on the issue of
capacity that “the participation
of the 2nd and 3rd
Plaintiffs who are members of
the Sappor family saved the
matter from being thrown out and
giving legitimacy to the case to
be heard on the merits”. This
should have alerted the
appellant that his legitimacy as
a party had been lost when his
two co-plaintiffs withdrew from
the appeal, and caused him to
re-consider his position.
However, the significance of
this statement by the High Court
appears to have been lost on the
Appellant.
In response to the Plaintiff’s
case, the Defendants’ Statement
of Case said,
It is important to note that the
1st Plaintiff was the originator
of this action. Having realized
the weakness of his case on
grounds of want of capacity the
2nd and 3rd Plaintiff’s applied
to join this action as true and
proper family members to keep
the case alive. The pedigree of
2nd and 3rd Defendants is not in
question as the evidence on
record shows that they are
members of the Sappor family.
However they do not fall under
the exception to the general
rule stated in Kwan v Nyieni…The
question in this case to ask is
whether there are special
circumstances warranting the
invocation of the exceptions to
the general rule regarding the
appropriate person to initiate
proceedings on behalf of the
family.
The Court of Appeal, having
referred to the various
authorities and the evidence on
record it came to the
conclusion, correctly in our
opinion, that the Appellant
herein is not a member of the
Sappor family of Ada Foah and
had no capacity or locus standi
in the matter to commence the
action at the High Court in his
own name. This is also a
correct statement of the law.
WHO CAN MAINTAIN AN ACTION ON
BEHALF OF THE FAMILY?
Could the appellant prosecute
the appeal on behalf of the
Sappor family, even if he could
not do so in the capacity of a
member of the family? The
question of who can maintain an
action to safeguard family
property has been answered by
authorities from Kwan v,
Nyieni onwards. All agree
that although it is
technically-speaking the right
of the head of family, under
certain circumstances any member
of the family can take action
when family property is under
threat of being lost. However,
they are also all agreed that
the person must either be a
member of the family, or
authorized by the family.
WHO ARE MEMBERS OF A FAMILY?
In seeking to determine who are
members of a family in Ghana,
Counsel for the Appellant,
strangely enough for a Ghanaian,
resorted to the definition of
‘family’ in Black’s Law
Dictionary to make a case for
why the Appellant could be
regarded as a member of the
Sappor family. The Dictionary’s
definition of ‘Family’ is as
follows:
“Generally, a family refers to a
group of persons connected by
blood, by affinity or by law
especially within two or three
generations. A family could also
be a group of persons who lived
together and have a shared
commitment to a domestic or
social relationship”.
Counsel for the Appellant then
continues
“My Lords, the evidence on
record revealed that the
Plaintiffs at the trial and the
Defendants are all related by
blood, shared commitment,
affinity and have lived together
as elders and members of the
wider Dugbartey Sappor Family.”
This recommendation by
Plaintiff-appellant is a strange
mode for determining who is a
member of a family in Ghana, and
flies in the face of customary
law principles which have become
notorious by the number of times
it has been re-stated in the
courts and by learned authors,
from Sarbah in the Nineteenth
Century through Ollennu to
modern times.
It bears restatement that in
Ghana, membership of a family is
usually determined by unilineal
descent. Generally speaking, the
family is either matrilineal or
patrilineal. As the acknowledged
authority on customary law Mr.
Justice
N.A. Ollennu points out in
his book ‘The
law Testate and Intestate
Succession in Ghana’:
Sweet and Maxwell, Accra
Waterville Publishing
House.1966, at page 75
The immediate paternal family of
a deceased male or female
consists of his or her father,
the father’s brothers and
sisters and all who are
paternally from the same father
as himself or herself, i.e., his
or her paternal brothers (if
any), his or her paternal
sisters (if any), in the case of
a man, his own children and
paternal ground children, and in
either case, surviving children
of all his or her paternal
brothers, dead or alive, save
that so long as their fathers’
lived, such children of brothers
would not normally be regarded
as principal members of the
family”… Therefore the paternal
family consists of a unit of all
people, male and female, all of
whom are descendants in the
direct male line from a common
male ancestor, however remote
that ancestor may be”.
There is also ample authority to
indicate what constitutes the
traditional ‘family’ in Ghana.
According to N.A Ollennu in his
Principles of Customary Land
Law in Ghana,
under Customary Law in Ghana,
the family consists of the
entire lineal descendants of a
common ancestor either for
purposes of ownership of
property or for purposes of
social life. The family may be
of three kinds: it may be
matrilineal, it may be
patrilineal depending upon the
tribe and it may be joint
patrilineal and matrilineal.”
However, in this case, no
evidence was led to show that
the applicable customary law in
the instant case is a joint
patrilineal and matrilineal
one. It being the usual
patrilineal system in Ghana,
there is ample authority to
determine who belongs, and who
does not.
S.A. Brobbey JSC (as he then
was) in ‘The
Law of Chieftaincy in Ghana’,
Advanced Legal Publications
Accra, 2008, pp.102-107,
discusses the nature of family
membership and entitlement to
chieftaincy stools and Skins and
relies on Re
Adum Stool; Agyei & Anor v.
Fori & Ors (1998-99) SCGLR
191. In that case, the
Supreme Court had occasion to
affirm the customary law on
membership of a patrilineal
family. The facts of that case
were that after the death of the
occupant of the Adum Stool in
Kumasi, a dispute erupted as to
the succession. Both parties
were agreed that the stool was
inherited by patrilineal
succession. However, the
question was whether only sons
of those who had ascended the
stool could be Adumhene or
whether anyone from the
customary Ayete family
(those who provide the chief
with wives by custom, therefore
notional “sons”) could ascend to
the stool. The Plaintiffs
contended that as sons of the
Adum Stool they should have been
consulted on the selection, and
that 2nd Defendant
did not qualify. The Kumasi
Traditional Council found for
the Defendants. This was
affirmed by the Judicial
Committee of the Ashanti
Regional House of Chiefs. On
further appeal to the National
House by the Petitioners, the
Appeal was upheld and the
decision reversed. This
prompted a further appeal to the
Supreme Court by the Defendants.
The court held per Aikins JSC,
citing Ollennu on the paternal
family at p. 199
“A person’s immediate family in
a patrilineal community consist
of his children either male or
female; his paternal brothers
and sisters being children of
his father, paternal ground
father and descendants of the
paternal uncles in direct male
line. His wider family consists
of the immediate families of all
those who trace their ancestry
though males from the common
male ancestor. From this
lineage it will be seen that the
children of daughters are
outside his family. On the
other hand, a person’s family in
a matrilineal community consists
of his mother, maternal brothers
and sisters, children of his
sisters, maternal grandmother
and descendants of maternal
aunts in the direct female
line. The children of his male
sons are outside his family”
In the instant appeal, Counsel
for the Appellant comes to a
strange conclusion in his
Statement of Case when he
asserts
“it is not in dispute that the
mother of PWI was a member of
the Sappor Family. By blood PW1
is a member of the Sappor family
but cannot inherit from the
Sappor Family. …The matter
before the court does not
concern inheritance but a
property belonging to the Sappor
Family. What was in dispute was
whether he was a member of the
Sappor family. Once 1st
Plaintiff’s mother is from the
Sappor family then 1st
Plaintiff is a member of the
Sappor family by blood or
affinity but may not inherit
from the Sappor family.
This is indeed a strange
conclusion to draw. The
conclusion is qualified as
‘strange’ because it defies
logic. How can a person who is
acknowledged to be a member of a
family not be qualified to
inherit property from the
family, but can fight to protect
it?
As a local proverb loosely
translated goes, “However long a
fallen tree trunk stays
submerged in a stream, it does
not thereby become a crocodile.”
This simply means that long
association with a family does
not render one a member without
more. A person who has not been
formally adopted into a family
cannot claim rights of
membership. Adoption is known to
customary law as cases such as
Poh
v Konamba (1957) 3
W.A.L.R. 74; Tanor v
Akosua Koko [1974] 1 GLR
451’ ; Plange v Plange
(1968) CC 88; as well as
Saakyi Mami v Dede
Paulina [2005-2006] SCGLR
1116, all affirm. However,
there is a difference between
‘fostering’ and ‘adoption’, and
while the former transplants a
child from one family into
another, the latter does not.
Therefore, there must be
evidence of such adoption where
it forms the basis of one’s
claim to membership of a family
and not merely one’s say so. It
is common for members of a
family to foster the children of
vulnerable children of poor
members of the family by taking
them in and raising them as
their own, but this neither
alters the child’s parentage nor
divests the original parent of
parental rights over the child.
Where the child by customary law
belongs to the family of the
non-custodial parent, care and
support from the custodial
family does not extinguish
membership of the original
family. Therefore, the length of
stay or association with a
family does not make one a
member unless definite steps are
taken to effect customary
adoption. Not having led any
evidence to establish his locus
in the family, he must have
known that he was on slippery
ground and that his capacity
risked being jeopardized if the
two new co-plaintiffs decided to
opt out. The Appellant’s
patrilineage was known in the
community. Indeed, the name
‘Akoto’ was his father’s name so
his patrimony was undisputed,
and that being his father’s son,
he belonged to a different
family from his mother’s. A mere
statement that his grandfather
adopted him and added the
‘Dugbartey Sappor’ to his name
was not sufficient to establish
his membership of that family.
Capacity to sue on behalf of a
family has been well litigated.
From cases such as Kwan
v. Nyieni [1959] G.L.R.
67, (CA) to In re Ashalley
Botwe Lands; Adjetey Agbosu
v. Kotey and Ors
[2003-2004] SCGLR 420, the law
is replete with authorities on
who may sue on behalf of a
family. On this occasion
however, the issue pertains to a
“non-member”. It is acknowledged
in cases such as Affram v
Didiye III [1999-2000] 2 GLR
148 that it is possible for a
“non-member” of a family to be
appointed as head of family. As
Benin JA (as he then was points
out at pp157-158 of the report,
It is not denied that plaintiff
is a maternal grandson … so that
being a patrilineal family, he
is not entitled as of right to
enjoy its wealth, let alone be
its head. But it must be pointed
out that having a legal right to
enjoy a right or occupy a
position in a family is entirely
different and must be
distinguished from the situation
where those who have the right
have surrendered same to s third
party, albeit temporarily. I is
not uncommon in this country for
communities and towns, etc to
appoint even white men who are
total strangers to occupy
particular stools for their
lifetime only. …[i]t all is that
it is for the true owners of a
stool, family property, etc to
appoint a competent person to
occupy or oversee same… And
nobody can begrudge any family
from appointing a child of one
of its true members to be its
head. .. In my view there is no
hard and fast rule that inhibits
any family from appointing the
head of family from the paternal
or maternal side only as the
case may be. Any competent,
trustworthy and helpful person
related to the family by blood
may be appointed by the family.
Therefore, Plaintiff-appellant
could have led evidence to
establish his capacity to
represent the family, even if he
was not a “full member” of the
family when his capacity to sue
in his own name or on behalf of
the family same was challenged
very early on in the suit, but
he did not. What he did instead,
was to get two acknowledged
principal elders of the family
to join the suit. In a recent
book entitled ‘Contemporary
Trends in the Law of Immovable
Property in Ghana’, Black
Mask Ltd, Accra, 2019 the
learned author Yaw D. Oppong at
pp520-521 relying on Ameoda
v Pordier (Consolidated)
[1962] 1 GLR 200 states thus
It is a well-known customary law
that, where necessary, the
family may authorize a
non-member of the family to
prosecute a case on behalf of
the family. In applying the
principle, the court would
usually assess the evidence and,
if it finds that there is
evidence that the plaintiff was
authorized by the family to
prosecute the case on behalf of
the family, and the case
therefore comes within the
exception laid down in Kwan
v Nyieni, the court will
permit the said plaintiff to
prosecute the case.
Was there evidence of such
authorization by the family?
There is no such evidence. To
the contrary, the Appellant was
contesting the capacity of the
Defendants to deal with family
property, although they were
acknowledged as the head and
principal elders of the Sappor
Family, and proved on the
evidence to have that capacity.
He asserts “the learned
Justices of the Court of Appeal
gravely fell into error when
they held that Plaintiff, like
PWI, is from the female line of
the Sappor family and therefore
not a member of the Sappor
family. Further, holding that
the Plaintiff does not have the
capacity to institute the action
to protect the family property
is with due respect erroneous…
To our mind 1st
Plaintiff as head of the Korle
We Clan can institute an action
in that capacity over a property
belonging to the family.”
On the evidence, the Appellant
could neither establish his
membership of the family, nor
his appointment as head of a
branch of the family, except on
his own say so, his capacity to
maintain the appeal was
irredeemably compromised.
Therefore, the Court of Appeal
was right when it concluded that
the loss of interest by the two
acknowledged principal elders of
the family to prosecute the
appeal cast the Appellant in the
role of “the outsider who weeps
louder than the bereaved”, or
more properly, the “officious
by-stander”.
In the circumstances, the Court
of Appeal was right to come to
the conclusion it did, and we
cannot fault its judgment. We,
therefore, have no option but to
dismiss the appeal.
PROF. H. J. A. N. MENSA-BONSU
(JUSTICE OF THE SUPREME COURT)
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
S. K. MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
A.
LOVELACE-JOHNSON (MS)
(JUSTICE OF THE SUPREME COURT)
G.
TORKORNOO (MRS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
EDWARD SAM CRABBE FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
MOHAMMED SAHNOON FOR THE
DEFENDANT/RESPONDENT/RESPONDENT.
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