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J U D G M E N T
ANIN YEBOAH, J.S.C:-
This is an appeal against the
judgment of the Court of Appeal
dated the 13/03/2006. The Court
of Appeal allowed an appeal
against the judgment of the High
Court, Kumasi which was
delivered on 15/07/2002. The
Plaintiff/Respondent/Appellant
who for the sake of brevity
shall be referred to as the
Appellant herein on 25/10/1996
issued a writ of summons against
the
Defendant/Appellant/Respondent
(who shall be referred to in
this judgment as the
Respondent). The action was for
a declaration to the effect that
a single room in a house at old
Amakom known as H/№ Plot 2 Block
XIII, Old Amakom is neither the
property of the Respondent nor
any member of her family. The
appellant also sought as
ancillary reliefs, ejectment and
recovery of possession and
injunction.
The case for the appellant was
that one Kwabena Bio was the
original owner of H/№ Plot 2
Block XIII, Old Amakom, in
Kumasi and in 1954 he assigned
his interest in the house to one
Yaw Mensah a grand uncle of the
Appellant. At the time of the
assignment, one Madam Tiwaa who
was the sister of the alleged
assignor was occupying two rooms
being chamber and hall in the
first floor of the house. The
said Madam Tiwaa was the mother
of the Respondent. Due to the
fact that Kwabena Bio had
assigned his interest in the
house, her sister Madam Tiwaa
had to vacate the house. The
assignee on humanitarian grounds
offered Madam Tiwaa one room on
condition that she could live in
the room in only her lifetime.
Madam Tiwaa accepted the
proposal and lived in one room
with her daughter, the
respondent herein, till she died
in 1995. It was soon after the
death of Madam Tiwaa that the
appellant demanded rent from the
respondent if she wanted to
continue to live in the room.
The respondent disputed the
appellant’s title which led to
the action at the High court,
Kumasi.
The respondent traversed most of
the allegations of facts upon
which the appellant’s claim was
based. She pleaded that Kwabena
Bio put up the house but
received a loan from one Yaw
Mensah the predecessor-in-title
of the appellant and used the
house as security which made the
transaction a pledge. According
to her, it was as a result of
the inability of the family of
Kwabena Bio to pay off the debt
to redeem the pledge whereby Yaw
Mensah agreed with her family to
exact rents from the house and
pay off the debt. Respondent
stated categorically that her
mother on her own volition moved
from the hall and chamber to
occupy a single room in the
house which is the subject
matter of this action. In
effect it was her case that
kwabena Bio owned the house and
that Yaw Mensah was a mere
pledgee who never owned the
house.
On the 17/6/1998, one Tony
Agyemang -Boateng who claimed to
be the head of family of the
respondent applied to join the
suit as co-defendant. His
application was granted. In his
statement of defence filed
pursuant to the joinder, he
virtually repeated the
allegations of facts pleaded in
the statement of defence of the
defendant. He, however, lodged
a counterclaim and put the
capacity of the appellant in
issue. He denied stoutly any
assignment executed by his
relative Kwabena Bio and pleaded
fraud to deny the assignment any
effect in law.
The learned trial judge was
called upon to resolve several
issues which emerged from the
pleadings. He found as a fact
that the property, that is, H/№
Plot 2 Block XIII Old Amakom was
indeed put up by Kwabena Bio.
He, however, found in favour of
the appellant herein that
Kwabena Bio in his lifetime
assigned his interest in the
house to Yaw Mensah. As a trial
judge, he proceeded to evaluate
the evidence of the respondents
touching on the allegations of
fraud. According to the learned
trial judge, the Deed of
Assignment which was tendered as
Exhibit ‘B’ did not suffer from
any fraud. It was therefore
concluded by the judge that
Exhibit ‘B’ upon examination
assigned all the interest of
Kwabena Bio effectively to Yaw
Mensah.
Several exhibits in the form of
rent cards and statutory demand
notices for payment of property
rates were admitted in evidence
and they bore the name of Yaw
Mensah as the owner of the house
in which the single room, the
subject matter of this appeal is
part of. Based on the evidence
the learned trial judge entered
judgment for the appellant to
recover the single room in the
house and further granted all
the reliefs sought on the writ
of summons and dismissed the
counterclaim.
The respondents being
dissatisfied with the judgment
of the High Court lodged an
appeal to the Court of Appeal.
On the 13/03/2006 the Court of
Appeal, in an unanimous
decision, reversed the judgment
not on the merits but on the
issue of lack of capacity. As
the Court of Appeal held that
the appellant had no capacity to
bring the action, it did not
deem it proper to go into the
other issues or grounds of
appeal. The Court of Appeal
based its decision on the case
of CONNEY V
BENTUM WILLIAMS
[1984-86] GLR 310 CA and held
that as the appellant was
deriving her title from an
estate in which she was a
beneficiary she required a
vesting assent to enable her to
initiate legal proceedings
involving the estate’s property.
The appellant has lodged this
appeal to this court obviously
seeking the reversal of the
judgment of the Court of Appeal
on several grounds apparent in
the notice of appeal.
The judgment of the court of
Appeal has been seriously
attacked under ground (a) of the
grounds of appeal which stated
as follows:
The Court of Appeal erred in
holding:
(a)
that the plaintiff did not have
the requisite capacity to sue at
the court below in view of the
fact that the court did not have
any factual evidence to support
its holding, particularly as the
issue of capacity raised at the
court below and the Court of
Appeal related to the
plaintiff’s lack of vesting
assent and not as to her lack of
capacity as the head of family.
In civil actions, usually
commenced by writ of summons, if
a party to the suit initiated an
action in a representative
capacity, such capacity ought to
be fully endorsed on the writ
and appear in subsequent
processes filed. The action
which has culminated in this
appeal was commenced on 25/10/96
when the High Court Civil
Procedure Rules LN 140 A of 1954
was in force. Order 3 Rule 4 of
the operative rule states as
follows:
4. If the plaintiff sues or the
defendant or any of the
defendants is sued in a
representative capacity, the
endorsement shall show in the
manner appearing by such of the
forms in appendix A, part II, as
shall be applicable to the case
or by any other statement to the
like effect in which capacity
the plaintiff or defendant sues
or is sued”
See GHANA MUSLIMS
REPRESENTATIVE COUNCIL & ORS
V SALIFU [1975] 2
GLR 246 CA.
In this appeal before us it is
obvious from the proceedings,
specifically the writ of summons
that the appellant as plaintiff
did not sue in any
representative capacity
whatsoever. Her case was
simple. Both in her evidence and
statement of claim it was her
case that the house formed part
of the estate of one Yaw Mensah,
and that after his death one
Kwame Adum Atta obtained letters
of administration and
administered the estate. It was
her case that as Yaw Mensah had
another landed property as H/№
KO77 his estate was distributed
and H/№ Plot 2 Block XIII Old
Amakom of which the room in
dispute form a part was given to
her by the family.
She was obviously not suing as
the head of her family. Both
the pleadings and the evidence
did not disclose so. It was
therefore not proper for the
defendant and co-defendant to
plead that she had not capacity
to institute the suit. In my
respectful view, the learned
judges of the Court of Appeal
did not consider the procedural
requirement of suing in a
representative capacity as laid
down in the applicable rules of
court as it then stood at the
time the writ was issued. Order
3 Rule 4 of LN 140 A of 1954
has been subsequently repeated
in Order 2 Rule 4 of the new
High Court (Civil Procedure)
Rules, 2004 CI 47 and nothing
turns on the difference. In my
opinion the Court of Appeal
erred in raising the issue of
capacity against the appellant
in the manner it did.
Another error which touches on
the issue of capacity was the
application of the ratio
decidendi in the case of
CONNEY V BENTUM
WILLIAMS [1984-86] 2 GLR
301 CA which states inter alia,
that lack of vesting assent and
registration of same does not
vest legal title in a
beneficiary under a will by
virtue of Land Registry Act 1962
(ACT122).
In as much as I do not doubt the
correctness of the decision in
the Conney’s case, it is clear
that this case is easily
distinguishable from the
Conney’s case. In the Conney’s
case, the testator had died on
30/04/1976, at a time when both
the Administration of Estates
Act 1961 (Act 63) and the Land
Registry Act 1962 (ACT 122) were
in full force and effect. In
this case before us, Yaw Mensah,
on the evidence, died in 1957
and Letters of Administration
was obtained in 1957 by one Adum
Attah. It is therefore erroneous
for learned counsel for the
respondent to invoke Act 63 and
Act 122 which were both wholly
inapplicable given the
circumstances of the case. As
the evidence was not clear from
the record when the property was
given to the appellant, it was
with due respect equally wrong
for the Court of Appeal to raise
this point against the appellant
and based its judgment on it by
applying the Conney’s case to
deny the appellant her capacity
to sue.
Apart from the erroneous
application of both statutes
which influenced the Conney’s
case, the appellant in this case
had sued for only one room in
the house which had been gifted
to her. The title of the whole
house was not put in issue in
her claim in anyway. The
respondents rather
counterclaimed for the house on
the simple grounds that the
house was pledged by Kwabena Bio
to Yaw Mensah and sought
declaration of title and the
usual ancillary reliefs or
recovery of possession,
injunction and accounts.
In my respectful opinion, there
was therefore no basis to deny
the appellant her right to sue
to recover only the one room
which was the subject or her
claim. I am of the view that
the appeal ought to be allowed
and the judgment of the High
Court granting the reliefs
endorsed on the writ to the
plaintiff restored.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
I agree
G. T. WOOD (MRS)
( CHIEF JUSTICE)
I agree
S. A. BROBBEY
( JUSTICE OF THE SUPREME COURT)
I
agree
J. ANSAH
( JUSTICE OF THE SUPREME COURT)
I agree
P. BAFFOE-BONNIE
( JUSTICE OF THE SUPREME COURT)
COUNSEL:
DR.
L. K. AGBOSU FOR THE APPELLANT.
K. A. ASANTE-KROBEA FOR THE
RESPONDENTS.
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