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Land –
Ownership - Estoppel – Capacity
– misjoinder. - Article 17 -
1992 Constitution - Wheher or
not there was error or blunder
resulting in miscarriage of
justice – Whether or not the
five plaintiffs joinder to the
action was a mere instance of
misjoinder -
HEADNOTES
This is an appeal from the
unanimous decision of the Court
of Appeal that affirmed the
decision of the trial High Court
in the matter herein. By the
said decision, the Court of
Appeal had substantially
accepted the case of the
plaintiff/Responden /respondent
(hereinafter conveniently
described as the plaintiff) and
rejected the defendants’ (also
conveniently referred to as the
defendants) claim to the
disputed land. By the appeal
herein, the 5th
defendant seeks an order
reversing the decision of the
Court of Appeal whiles the 1st
to 4th plaintiffs and
the 6th plaintiff
have appealed praying for an
order reversing the order that
had them struck out as
plaintiffs on grounds of
misjoinder.
HELD
(1) We think it is for this
reason that the line of
authorities precludes us as the
final appellate court from
interfering in regard to
concurrent findings of fact by
two lower courts that are not
proved to have been due to an
error or blunder that has
resulted in miscarriage of
justice. The result is that the
grounds of appeal filed by the
defendant that are numbered as
“C” “D” and “F” fail and are
dismissed.
(2) The conclusion reached by
the learned justices’ points to
the effect of the evidence that
appears from the record of
appeal. Akamba JA (as he then
was) in the lead judgment to
which the others agreed
considered the entire evidence
that was placed before the trial
court and after considering all
the evidence came to the view
that the plaintiff’s case looked
more probable. We do not think
that the approach of the learned
justices to the consideration of
the evidence falls short of what
is required of them by law.
(3) By virtue of section 24 of
the Evidence Act, we are in the
light of the defendants conduct
precluded from considering any
other fact to the contrary the
effect of which is that the
disputed land belongs to the
plaintiffs.
(4) We have read the record of
appeal and the written briefs in
relation to the said ground of
appeal and have come to the
conclusion that the learned
justices of the court below were
right for the reasons provided
in the judgment, the subject
matter of this appeal. The
plaintiffs themselves asserted a
specific capacity which was not
supported by the evidence and
accordingly, the order striking
them out was right. The
cross-appeal is therefore
dismissed.
For the above reasons, the
appeal and the cross-appeal fail
and are hereby dismissed. The
decision of the Court of Appeal
is hereby affirmed.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
High Court
Civil Procedure Rules), 2004CI
47
Evidence Act,
NRCD 323
CASES
REFERRED TO IN JUDGMENT
Mondial
Veneer (Gh) Ltd v Amuah Gyebu
[2011] SCGLR 466, 470
Odonkor v
Amartei [1992] 1 GLR 577,
In re Agbenu
(decd); Agbenu v Agbenu [2009]
SCGLR 636,
Koranteng v
Klu [1993-94]1GLR 280
Dove v Wuta-
Ofei [1966] GLR 299, 317
Nottage v
Jackson (1883) 1 QBD 627,
Losky v
Green, 142 ER, 145
In re
Ashalley Botwe Lands; Adjetey
Agbosu and Others v Kotey and
Others [2003-2004]1 SCGLR 420,
Kwarteng v
Klu [1991] 2 GLR 93;
Koranteng v
Klu [1993-94] 1 GLR 280
Prah v Ampah
[1992] 1 GLR34, 38.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
E. A.
ACCAM ESQ. FOR THE
PLAINTIFFS/RESPONDENTS/
RESPONDENTS/ CROSS-APPELLANTS .
OSAFO BUABENG
ESQ. FOR THE 1ST
DEFENDANT/APPELLANT / RESPONDENT
FOSU GYEABOUR
ESQ. FOR THE 5TH
DEFENDANT/APPELLANT/APPELLANT.
_______________________________________________________________
JUDGMENT
_______________________________________________________________
GBADEGBE JSC:
This is an appeal from the
unanimous decision of the Court
of Appeal that affirmed the
decision of the trial High Court
in the matter herein. By the
said decision, the Court of
Appeal had substantially
accepted the case of the
plaintiff/respondent/respondent
(hereinafter conveniently
described as the plaintiff) and
rejected the defendants’ (also
conveniently referred to as the
defendants) claim to the
disputed land. By the appeal
herein, the 5th
defendant seeks an order
reversing the decision of the
Court of Appeal whiles the 1st
to 4th plaintiffs and
the 6th plaintiff
have appealed praying for an
order reversing the order that
had them struck out as
plaintiffs on grounds of
misjoinder.
We think that from the processes
filed in the proceedings herein,
the issues for our decision turn
on whether the concurrent
findings of fact made by the two
lower courts are right and or
are instances of a blunder or
miscarriage of justice. Then we
also have to consider the points
of law relating to the question
of estoppel by two previous
judgments that was strenuously
pressed on the court by the
defendants as well as the
question touching the capacity
of the 5th respondent to
maintain the action in view of
the determination by the Court
of Appeal that the other
plaintiffs who were proved to
have originated from the female
and not the male line were not
members of the family on whose
behalf the plaintiffs sued in
the High Court.
In our thinking the grounds that
pose for our consideration the
right of the rival parties to
the disputed land, its extent
and description being
particularly in the domain of
facts that were concurrently
upheld by the two lower courts,
this court as the final
appellate court can only
interfere with those findings of
fact if it is established with
absolute certainty that there
has been some error or blunder
resulting in miscarriage of
justice. Also included in this
consideration is the ground of
appeal formulated “The
judgment is against the
weight of the evidence.”
See: Mondial Veneer (Gh) Ltd
v Amuah Gyebu [2011] SCGLR
466, 470 per Wood CJ. We have
carefully read the record of
appeal and anxiously considered
the written briefs submitted to
us by the parties herein and
have come to the conclusion that
the findings of fact relating to
which of the rival parties to
the action herein owns the
disputed land, its description
and extent are amply supported
by the evidence on the record
without the slightest suggestion
of any error or blunder that
might justify our interference.
In this regard, we wish to
reiterate the settled attitude
of appellate courts regarding
issues of fact that as these are
primarily within the domain of
trial courts except where such
findings are proved to have been
due to considerations that might
be said to be perverse and
unreasonable resulting in a
miscarriage of justice, it is
not proper that they interfere
even if in considering the
evidence they would have come to
a different conclusion from that
of the trial judge. They can
only do so when the findings of
fact are not supported by the
evidence but the mere fact that
from the admitted evidence it
was open to the trial court to
have accepted either of the
rival versions is not sufficient
ground for their interference
but, unfortunately, so it seems,
the defendant by his urgings in
the matter herein seeks to
persuade us to embark upon a
review of the evidence that was
thoroughly sifted by the two
lower courts for the purpose of
preferring their version of the
facts. But, the choice as to
which of the contested versions
is preferable is a matter for
the trier of fact and the said
version having been affirmed by
the intermediate appellate
court-the Court of Appeal for
very clear reasons that are
contained in the lead judgment
of Akamba JA (as he then was the
reasons advanced by the Court of
Appeal impress me in view of the
tedious nature of the task that
they were faced with and we are
unable to embark upon an
examination of the evidence for
the purpose of determining that
which is preferable. Reference
is made in this regard to the
cases of Odonkor v Amartei
[1992] 1 GLR 577, 585 per
Hayfron Benjamin JSC; and In
re Agbenu (decd); Agbenu v
Agbenu [2009] SCGLR 636, 639
per Atuguba JSC. We think it is
for this reason that the line of
authorities precludes us as the
final appellate court from
interfering in regard to
concurrent findings of fact by
two lower courts that are not
proved to have been due to an
error or blunder that has
resulted in miscarriage of
justice. The result is that the
grounds of appeal filed by the
defendant that are numbered as
“C” “D” and “F” fail and are
dismissed.
Having disposed of the factual
grounds, we next turn to the
ground which concerns the
capacity of the plaintiffs who
sued as joint heads. In his
judgment, the learned trial
judge relying on article 17 of
the 1992 Constitution after
finding that save the 5th
plaintiff the others lacked the
capacity endorsed on the writ
came to the that although they
were not descended from the
patrilineal line as the
endorsement asserted having been
begotten by female members of
the family, they were competent
to be joined to the suit in that
capacity. This finding was
contested on appeal to the Court
of Appeal and rightly resolved
in our opinion by the learned
justices of the Court of Appeal
when they held that they were
incompetent to sue and proceeded
to strike them out. It does
appear to us that the decision
of the learned justices on the
said point which has been
appealed to us was right and was
one that looked at the case from
a purely substantive perspective
as indeed is required of us by
Order 1 rule 2 of the High Court
Civil Procedure Rules), CI 47 of
2004 Indeed, there is ample
power in the court under order 4
rule 5 (2) to make such an
order. In our view, having
struck out the other five
plaintiffs their joinder to the
action was a mere instance of
misjoinder that from the rules
cannot by itself operate to
defeat any action and therefore
the submissions urged on us by
the defendants based only on the
said misjoinder looks to us as
being without substance. See
Order 4 rules 5 (1) and 2 of the
High Court (Civil Procedure)
Rules, CI 47. We think that the
learned justices of the Court of
Appeal thought that as the
matter had travelled for a
considerable length of time
spanning about a quarter of a
century in which the rival
parties had put forward their
cases for a consideration on the
merits, it was better and
accorded with reasonableness to
have the case considered so that
the rights of the parties would
be decided thereby and avoiding
a resort to another action. In
so acting, the learned judges
were not without authority and
by so preceding the court did
not give undue advantage to any
of the parties such as did not
occasion a miscarriage of
justice to the contestants. So
said, the next matter to be
considered is whether on the
admitted evidence, the 5th
plaintiff- the sole plaintiff
had placed before the court
sufficient evidence to enable a
decision to be made in his
favour?
In our opinion an answer to the
said question necessarily
involved a consideration of the
rival cases put forward by the
parties contained in the record
of appeal. Having carefully in
our view attended to the
admitted evidence, the learned
justices of the Court of Appeal
concluded that the plaintiff had
made out his case. That quite
frankly implied the rejection of
the cases of the defendants. The
conclusion reached by the
learned justices’ points to the
effect of the evidence that
appears from the record of
appeal. Akamba JA (as he then
was) in the lead judgment to
which the others agreed
considered the entire evidence
that was placed before the trial
court and after considering all
the evidence came to the view
that the plaintiff’s case looked
more probable. We do not think
that the approach of the learned
justices to the consideration of
the evidence falls short of what
is required of them by law.
It being so, the question that
next arises from the grounds of
objection contended before us by
the defendants is whether having
struck out the plaintiffs named
on the writ save the 5th, it was
proper for the learned judges to
have acted upon the evidence of
persons who testified as
plaintiffs but were found by
them to have been wrongly joined
to the action? This is an
objection that in our opinion
goes to form and not substance
as by the rules of evidence;
every person is competent to
testify in an action. The
evidence led by the said
misjoined plaintiffs was not
illegal but relevant for the
purpose of the trial.
Accordingly, the learned
justices were right in taking
them into account. Where they
erred in my view was when they
failed to exercise the powers
conferred on them by virtue of
Order 16 rule 7(1) of the High
Court (Civil Procedure) Rules,
CI 47 following the order that
struck out the plaintiffs save
the 5th to amend the
endorsement to bear out the
order. That error is, however,
something which this court can
correct in the exercise of the
powers conferred on the High
court in appropriate cases in
Order 16 rule 7(1) as follows:
“For the purpose of determining
the real question in controversy
between the parties or
correcting any defect or error
in the proceedings, the Court
may, at any stage of the
proceedings either of its own
motion or on the application of
any party, order any document in
the proceedings to be amended on
such terms as to costs or
otherwise as may be just and in
such manner as it may direct”
The authority conferred on the
court under this rule should be
read conjunctively with that
provided in Order 81 rule 2
following non-compliance with
the rules to set aside wholly or
in part proceedings or allowing
such amendments to be made as
it considers just. Both rules
are remedial in nature and seek
to preserver at her than destroy
that which is capable of being
cured.
As this matter is in the nature
of a re-hearing, we are of the
view that this is a power which
we can exercise as we are vested
with the authority of the trial
court as was done in the case of
Koranteng v Klu
[1993-94]1GLR 280 holding 3. We
think that had the learned
justices of the Court of Appeal
directed their minds to the
power conferred on them under
the said rule, they would have
utilised it to correct the error
in the writ consequent upon
their order striking out the1st
to 4th and the
6thplaintiffs.
In coming to this view of the
matter, we have not disregarded
Order 16 rule 5 of CI 47. In our
view, although the heading to
the said rule which has the
heading “Amendment of writ or
pleading with leave” might
create the impression that the
processes provided for in the
rule can only be amended
following an application for
leave by a party, a careful
reading of this together with
rule 7(1) reveals that a court
can amend any document in a
cause for the purpose of
enabling it to decide on the
true nature of a case.
Similarly, the heading to rule
7(1) which reads “Amendment
of other documents” might
leave one with the impression
that it deals with documents
other than writs and pleadings
but as headings are for
convenience only and do not form
part of the enactment for the
purpose of construction such a
meaning will undermine the
purpose of amendments and in
particular the power conferred
on courts by themselves to make
amendments for the purpose of
determining the real matter in
controversy. This is a power
that courts have used for a
considerable time and indeed was
available under the repealed
rules of court as Order 28 rule
12, which was expressed in
substantially the same words and
enabled judges not only in
courts of first instance but
also on appeal to exercise the
power to amend processes without
an application by either party.
This power was exercised by the
Supreme Court in the case of
Dove v Wuta- Ofei
[1966] GLR 299, 317. Indeed, it
appears that this is a power
available to judges at common
law as was done in the case of
Nottage v Jackson (1883)
1 QBD 627, 638 and Losky v
Green, 142 ER, 145. In our
opinion, placing such a
restrictive meaning on rule 7
(1) which employs in relation to
the court’s power to amend a
wide discretion by the use of
the words “any document in the
proceedings” would undermine the
overriding objective of the
rules as provided for in Order 1
rule 2 of the High Court (Civil
Procedure) Rules, 2004, CI 47.
Accordingly, by virtue of the
powers conferred on the court
under rule 7(1) of Order 16, the
endorsement of the capacity of
the plaintiff to the writ is
hereby amended to read “Ataa
Kweku Mensa suing on behalf
of himself and other members of
the Numo Kofi Anum family….“ so
that there is only one plaintiff
and the title of the action also
amended accordingly. The
authority conferred on the court
is intended as provided in Order
1 rule 2 of the High Court rules
to eliminate expense,
multiplicity of actions and
delays and ensure that the trial
of actions without sacrificing
any of the objectives of the
rules contained in CI 47.
We think as the learned justices
of the Court of Appeal found at
page 411 of the record of appeal
that in view of the rival claims
to the land, “it was
absolutely necessary” for
the plaintiff to initiate the
action herein in order to
safeguard the family property.
This, in our opinion, is
sufficient to dispose of the
issue of his capacity. We also
add that in our opinion as the
parties all claim to hail from
the same locality, Teshie and
indeed the defendants asserted
that they belonged to the same
clan, that merely denying the
capacity of the plaintiff
without any indication by them
as to who to their knowledge as
members of the same clan was the
head of the Numo Kofi Anum
family. In our view, the nature
of the denial by the defendants
of the capacity asserted by the
plaintiffs was not to the point
of substance and was therefore
not credible. The requirement as
to the content of a good
pleading that denies a specific
averment requires that it be
denied substantively and not
evasively.
This leads us to the question
of the 5th plaintiff
not tendering any evidence in
the matter. We think that there
is no obligation on a party
litigant to personally testify
in support of his case. The
correct position is that a party
may rely on the evidence of his
witnesses and when such evidence
satisfies the evidential burden
as was found by the learned
justices of the Court of Appeal
as in our thinking the admitted
evidence points to, the failure
to testify cannot by itself
operate adversely against the
evidence led in the matter. This
is supported by the decision of
this court in In re Ashalley
Botwe Lands; Adjetey
Agbosu and Others v Kotey and
Others [2003-2004]1 SCGLR
420, 448. There was before the
court substantial evidence
including estoppel by conduct
tendered on behalf of in the
judgment of the Court of Appeal
at page 422. The matters to
which the estoppel related
falling within the realm of
recent acts of ownership on the
land stood tall against the acts
relied on by the defendants and
were compelling to tilt the
scale of justice in favour of
the plaintiff. We venture to add
that the conduct of the
defendants in standing by and
allowing the plaintiffs make
grants of the disputed property
without any objection brings the
evidence relating thereto within
the scope of section 26 of the
Evidence Act, NRCD 323 in the
following words:
“Except as otherwise provided by
law, including a rule of equity.
When a party has, by his own
statement, act or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest and such
relying person or his successor
in interest.”
By virtue of section 24 of the
Evidence Act, we are in the
light of the defendants conduct
precluded from considering any
other fact to the contrary the
effect of which is that the
disputed land belongs to the
plaintiffs.
The next point of relevance my
Lords, is that which touches and
concerns the issue of estoppel
by judgments in the cases
entitled Kwarteng v Klu
[1991] 2 GLR 93; Koranteng v
Klu [1993-94] 1 GLR 280 on
which great reliance was placed
by the defendants in seeking to
disprove the claim of the
plaintiffs. Both the trial court
and the intermediate appellate
court thought otherwise. We have
patiently read the lead judgment
from which the appeal herein has
been launched and are of the
opinion that the conclusion
reached therein regarding the
said point is right. We do not
think that the mere fact that
the parties to this action as
the defendants contend belong to
the same clan means that every
case that was taken out or
defended by the clan through
representatives should as a
matter of law be binding on them
under the rule whereby they
would be precluded from
asserting to the contrary in any
subsequent proceeding. To be
binding and have the force of
estoppel by a previous judgment,
the said claim should have been
initiated and or defended by the
persons alleged to be privies of
the plaintiffs in the same
right. In considering the
ground relating thereto, Akamba
JA (as he then was) expended
quite some time at pages 426 to
430 of the record of appeal in
regard to the issue of estoppel
and came to the conclusion that
the issues dealt with by the
Kwarteng case were different
from those before the court in
this action. Indeed, at page
430, the learned justice
observed that what was in issue
previously dealt with lands
initially settled upon by the
ancestors of the parties but the
action herein concerns other
Teshie lands that are outside
the original settlements and
owned by individuals and
families which was not the
subject matter of the previous
determination in the Kwarteng
case and additionally there is
no nexus between the plaintiffs
and any of the parties to the
previous case. As some of the
features that would have the
effect of mutuality to enable
the principle of estoppel by a
previous judgment to be
sustained were absent, the
ground of appeal based thereon
is without substance and fails.
See: Prah v Ampah [1992]
1 GLR34, 38.
Then there is the cross appeal
by which the 1st – 4th
and 6thplaintiffs
invite us to reverse the
decision of the Court of Appeal
relating to the holding by the
learned justices of the Court of
Appeal that they lacked capacity
to be joined to the instant
action. We have read the record
of appeal and the written briefs
in relation to the said ground
of appeal and have come to the
conclusion that the learned
justices of the court below were
right for the reasons provided
in the judgment, the subject
matter of this appeal. The
plaintiffs themselves asserted a
specific capacity which was not
supported by the evidence and
accordingly, the order striking
them out was right. The
cross-appeal is therefore
dismissed.
For the above reasons, the
appeal and the cross-appeal fail
and are hereby dismissed. The
decision of the Court of Appeal
is hereby affirmed.
(SGD) N.
S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
(SGD)
R. C. OWUSU (MS)
JUSTICE OF THE SUPREME
COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) V. AKOTO BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL
E. A. ACCAM
ESQ. FOR THE
PLAINTIFFS/RESPONDENTS/
RESPONDENTS/ CROSS-APPELLANTS .
OSAFO BUABENG
ESQ. FOR THE 1ST
DEFENDANT/APPELLANT / RESPONDENT
FOSU GYEABOUR ESQ. FOR THE 5TH
DEFENDANT/APPELLANT/APPELLANT |
