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JUDGMENT
ANINAKWAH, JSC:-
This is an appeal against the
judgment of the Court of Appeal
reversing the judgment of the
High Court, Kumasi delivered on
the 11th day of
December, 2002, which granted
all the reliefs’ sought by the
plaintiff and dismissed the
defendants’ counter claim.
Aggrieved by the High Court
decision, the appellant
(hereafter referred to as the
defendant), successfully
appealed against the judgment of
the High Court and had it
reversed.
The plaintiff who claimed to be
the Head of her family sued on
behalf of her maternal family
of Ampabame, Kumasi-Ashanti,
against the defendants
claiming:-
“(a) Declaration that House
No. AM.9, Ampabame, Kumasi,
devised by late Opanin Kwabena
Asante in his last Will dated 18th
September, 1986, is the
property of the family.
(b)
An order of recovery of
possession of the said house.
(c)
Perpetual Injunction to restrain
the defendants”.
In her Statement of Claim, the
Plaintiff avers that she is the
head of her maternal family and
that she brought the action on
behalf of her said maternal
family. She alleges that
Defendants are the children of
the late Kwabena Asante alias
Kwabena Dan, her granduncle.
That late Kwabena Asante was one
of the four children of her
great grand mother the late
Ateakosuaa, and that her family
lived at Old Ampabame in Kumasi.
It is her case that the Old
Ampabame Township was relocated
from its old site to its present
site, to give way to the Owabi
head-works. The then Gold Coast
Government paid a compensation
of £30 to each household for
each house lost as a result of
the re-location. Unspecified
sums of money were also paid as
compensation for each farm lost.
Plaintiff alleges further that
the late Kwabena Asante
received the compensation paid
for their family house at
Ampabame, as well as the
unspecified sums of money paid
for the cocoa farm of the late
Kojo Mosi the then deceased
brother of Kwabena Asante.
That it was those sums of money
received by Kwabena Asante as
compensation for the family
house and Kojo Mosi’s farm that
Kwabena Asante applied to the
building of the disputed house.
The defendants denied the
plaintiff’s capacity and her
claim that the house in dispute
is her maternal family property.
For their part it is their case
that no compensation was paid to
any household for any house lost
and that Kwabena Asante did not
receive any compensation on
behalf of the plaintiff’s
family, which he could have
applied to the building of the
disputed house.
According to defendants, the
plot on which the house stands
was acquired for £5 from Asafo
Akowuah, the overlord of the
Ampabame Kojo Krom Stool.
That the house was put up solely
from the resources of PW1, (the
wife of Kwabena Asante) and
Asante himself. The disputed
house, therefore, is the
self-acquired property of the
deceased testator.
At the trial Plaintiff called
two witnesses, both of whom gave
evidence before plaintiff gave
her evidence.
Her first witness PW1 Akosua
Yentumi gave evidence which
clearly exposed plaintiff;
firstly as to her claim to be
the Head of her maternal family
and secondly as to how the house
in dispute was acquired. In her
evidence PW1 stated thus:
“I am Akosua Yentumi, I live at
Ampabame near Kumasi and is
(sic) a farmer. Roughly I am
over 100 years now. I know the
plaintiff herein who is my
grand daughter. I also know the
three defendants herein. I
remember the late Yaa
Ateakosuaa. She was my mother.
Apart from me the late Yaa
Ateakosuaa did not have other
child. I know one Afua Nyarko,
DW1. She is my sister-in-law as
she was married to my brother,
Kwabena Dan alias Kwabena
Asante. I know the house in
dispute, House No. AM.9 Ampabame
Kumasi. This house was built
by my mother, Yaa Ateakosuaa
now deceased. Therefore, that
house belongs to me. Prior to
my mother building or acquiring
this house, she was staying at
the Old town of Ampabame.
However, the Colonial Government
asked my mother to vacate the
old town. She was given
compensation of thirty pounds
which she used to put up this
building. My mother acquired
this land from one Kwabena
Mensah who was then the chief of
Ampabame. My mother applied the
£30 thirty pounds compensation
and added some money to same to
put up the house in dispute.
Some proceeds from the cocoa
farm of my mother’s brother one
Mosi now deceased was also used
to put up the disputed house”.
In addition to PW1 was PW2 –
Kwame Owusu Ansah. PW2, a non
member of Plaintiff’s family
gave evidence that he knows the
plaintiff’s family.
That at the time of the
relocation, he was 22years old.
According to him at the time of
the relocation, households at
the old Ampabame were paid £30,
and that it was the late
Kwabena Asante who received the
Plaintiff’s family household
money. He however, could not
tell how much compensation was
paid to Kwabena Asante for the
farm.
It should be noted that the
testimony of PW2 can only be
hearsay or at best very weak
traditional evidence. It is
therefore, doubtful to accept
it as strong corroborative
evidence on the plaintiff’s
claim that house No. AM. 9
Ampabame is her family property.
When the plaintiff came to give
her evidence, she gave such
evidence that cannot be said
to be very coherent. She
repeated her claim in her
Statement of Claim that she is
the Head of her maternal family
of Ampabame, and that she was
suing on behalf of her said
family. She continued that she
knows the house in dispute as
well as PW1 Akosua Yentumi.
According to her, to the best of
her knowledge, which could only
be traditional, her grandmother
the late Yaa Ateakosuaa was the
owner of the house in dispute.
She stated further that her
grandmother Yaa Ateakosuaa ‘s
eldest son Kwabena Mosi died
and was succeeded by Kwabena
Asante.
This happened when the old
Ampabame was being relocated to
the new site. The Colonial
Government paid a compensation
of £30 to every household and
unspecified sum of money for
farms destroyed at Old
Ampabame. These sums of monies
were paid to the late Kwabena
Asante, who applied same to
put up the house in dispute for
and on behalf of their
family. Plaintiff’s said
evidence is a far cry from that
of the PW1 and the two pieces of
evidence cannot be said to be
corroborating the other.
During cross-examination of
plaintiff by counsel for
defendant, it was revealed that
plaintiff is not deserving of
the status she claims to be. She
is not the Head of her
maternal family neither is she
the oldest member of her
family.
The defendants gave evidence
through 3rd
Defendant, daughter of the late
Kwabena Asante, and supported by
DW1, her mother and DW2 – Kwame
Kyere who was only 5years old at
the time of the relocation from
old Ampabame to New Ampabame.
His evidence, like that of PW2
is only a hearsay with no
corroborative value.
Defendants repeating their
averments in their Statement of
Defence, stated that the
testator was not paid any
compensation for any house lost,
neither did he receive any
compensation for the farm of his
late brother Kwabena Mosi.
According to the Defendants the
late Kwabena Asante built the
house in dispute from his own
resources out of his earnings
from his trading and tailoring
business. He also received some
support from DW1.
At the end of the trial even
though the capacity of the
plaintiff to bring the action
had not been made an issue in
the summons for the directions
it had become a strong issue
arising out of the evidence.
Counsel for Defendant raised
it in his submission.
In his judgment, the trial
judge preferred the case of
the plaintiff and granted her
all the reliefs sought by her.
In giving his said judgment the
trial judge rightly directed
himself on the law relating to
capacity to sue thus:-
“The position of the law is that
where a party’s capacity to sue
is challenged, he cannot succeed
without proving he had the
relevant capacity to sue”.
The plaintiff could not produce
any specific evidence on record
to support her claim apart from
her claim of being a principal
member of her family. Counsel
for plaintiff therefore, invited
the trial judge to consider her
case under any of the exceptions
spelt out in the case of KWAN
VRS NYIENI (1959) GLR 62 at 67
to protect their family
property.
Failing under Kwan v. Nyieni
(supra) Counsel invited the
trial court to clothe his
client with capacity by
applying the principle as
extended by the Supreme Court in
the case of OWUSU VRS AGYEI
(1991) 2 GLR 493 at 504 -506,
where FRANCOIS JSC delivered
himself thus:-
“In my view, the catergories of
the application of the
exceptions are yet to be
exhausted. They may never
close.”
Flowing from the above-mentioned
authorities, the trial judge
concluded thus:-
“In any case, once the the
plaintiff is a principal
member of her family, the Court
will amend the Writ, title of
the case and paragraph 1 of the
amended Statement of Claim by
Order 28 rule 12 of LN. 140A to
reflect the true position of
the plaintiff herein, that is
the evidence by the plaintiff as
representing the Head of her
family, Madam Yentumi”.
The trial judge thereby
dismissed the Defendants’
Counterclaim. The Defendant s
appealed to the Court of Appeal
which by a unanimous judgment
overturned the High Court
judgment.
It is against the unanimous
judgment of the Court of Appeal
that the plaintiff launched
the instant appeal to this
Court on the sole ground. “That
the Judgment is against the
weight of evidence”.
She indicated that additional
ground would be filed on the
receipt of the record of
proceedings. However, no
additional ground was filed,
thus leaving the omnibus ground
to be the only ground of the
appeal.
In arguing his appeal Counsel
for plaintiff whose sole ground
was the omnibus ground – i.e.
“That the judgment is against
the weight of evidence” has
sub-divided the said ground of
appeal into three (3) main
topics:-
i)
Evidence on the capacity of the
plaintiff to litigate on behalf
of her family.
ii)
Evidence on the family
character of the disputed house.
iii)
Evidence on the payment or
otherwise of compensation for
lost properties at the time of
the re-location from Old
Ampabame to New Ampabame.
It is not very clear why
Counsel chose to place capacity
under the ground of Appeal that
says that “the judgment is
against the weight of
evidence”.
To say that the judgment is
against Weight of evidence
amounts to saying that the
lower court has either
misapplied the evidence or the
facts before it, and that if
such facts or evidence had been
applied in a way he thought was
proper, judgment would have
gone his way.
The question of capacity is a
question of Law. When the
Defendants, then appellants
went before the Court of Appeal,
they made the question of the
plaintiff’s capacity a ground of
Appeal. It was an additional
ground before the Court of
Appeal that “the court erred by
relying on Order 28 Rule 12 of
LN. 140A, on its own Motion to
amend the Capacity of the
Plaintiff”. Order 28 r12 states
thus:-
“The Court or judge may at
anytime, and on such terms as
to costs or otherwise as the
Court or a judge may think just,
amend any defect or error in
any proceedings, and all
necessary amendments shall be
made for the purpose of
determining the real question
or issue raised by or depending
on the proceedings.”
But before applying this rule to
amend the capacity of the
Plaintiff, the trial judge quite
rightly, directed himself thus:-
“The position of the law is that
where a party’s capacity to sue
is challenged, he cannot succeed
without proving he had relevant
capacity to sue.”
The trial judge went on further
to state:
“To resolve this issue, I think
it is the duty of the plaintiff
to show that she was indeed
the representative of the Head
of her family. The burden of
satisfying this Court that she
is the representative of her
Head of family rests solely and
throughout the proceedings on
the plaintiff, it never shifts”.
Yet when the plaintiff had
failed to discharge the said
burden on her, the trial judge
applying the principles in KWAN
VRS NYIENI (supra) and
exercising his discretion under
Order 28 r12 of LN. 140A amended
her capacity to clothe her with
the Capacity she did not deserve
thus:-
“In any case, once the plaintiff
is a principal member of her
family, the court will amend the
Writ, the title of the case and
paragraph 1 of the amended
Statement of Claim by Order 28
r12 of LN.140A to reflect the
true position of the plaintiff
herein, that is the evidence
by the plaintiff as
representing the Head of her
family, Madam Yentumi.”
This exercise of discretion by
the trial court was one of the
Defendant’s grounds of Appeal
before the Court of Appeal.
The Court of Appeal after
carefully considering the
evidence on record,
submissions by Counsel and all
relevant judicial authorities
reacted to Plaintiff’s Capacity
and the trial Court’s exercise
of discretion thus:-
“It is quite clear that there
was absolutely no evidence on
record upon which the Learned
trial judge should have
concluded that the Respondent
was a principal member of her
family, and had sued on behalf
of PW1, Madam Yentumi”.
We have already referred to the
relevant portions of the
evidence of PW1 in which she did
not confirm the Respondent as
her representative. Instead, she
put in an adverse claim to
that of the Respondent.
On the basis and strength of the
decisions of the Supreme Court
in the YARTEY’s case already
referred to supra, it is clear
that, since the Respondent did
not plead that she was appointed
to institute the suit on behalf
of Madam Yentumi, PW1, and also
not having shown by which
authority she instituted the
present action, she must be
non-suited.
In similar vein, the decision of
the Privy Council in ABABIO V
QUARTEY (1946) 12 WACA 18 at
p.20 which was quoted by the
Supreme Court in the YARTEY V.
CONST. & FURNITURE (W.A) LTD,
case does not seem to support
the contention of learned
counsel for the Respondent”.
This court is in agreement with
the views expressed by the
learned justices of the Court of
Appeal.
And in the case of Sarkodie I
vs. Boateng II (1977) 2 GLR 343,
the issue therein was whether
the Kyidomhene alone under Akan
Custom was capable of
instituting destoolment
proceedings against the Omanhene
whereupon the full Bench of the
Court of Appeal held at page 346
thereof:-
“It is now trite learning that
where the capacity of a
plaintiff or complainant or
petition is put in issue, he
must, if he is to succeed, first
establish his capacity by the
clearest evidence”.
Later when the same case of
Sarkodie I vs. Boateng II
(1982-83) GLR 715 came before
the Supreme Court to determine
whether the first action was to
be heard on its merits, the
principle was firmly established
when the court observed at page
724 thus:-
“It was elementary that a
plaintiff or petitioner whose
capacity was put in issue must
establish it by cogent evidence.
And it was no answer for a
party whose capacity to
initiate proceedings had been
challenged by his adversary, to
plead that he should be given a
hearing on the merits because he
has a cast-iron case against his
opponent”.
Even though this Court is not
bound to follow the judgment of
the Court of Appeal, however
where as in this case the
persuasive force should not be
overlooked. This Court will not
hesitate to adopt it.
And there being no appeal
against the Court of Appeal’s
judgment on the Defendants’
counterclaim, the Plaintiff’s
appeal is hereby dismissed. The
Court of
Appeal judgment is affirmed.
R. T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
G. T. WOOD (MRS)
CHIEF JUSTICE
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
S. K. ASIAMAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
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