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Practice and procedure - Will -
Property - Ownership to the
property - Beneficial interest
in the disputed property -
Consequential awards -
Variation of relief - Whether
the decision of the Court of
Appeal can be said to be
reasonably derived from the
evidence contained in the record
of appeal - Order 1 rule 2 -
High Court (Civil Procedure)
Rules, 2004, CI 47 - Section
11(8) - Courts Act, 1993, Act
459 - section 52 - Evidence Act,
NRCD 323 - Rule 8 (9) - Court of
Appeal Rules, CI 19
HEADNOTES
During his life time, Opanyin
Kwabena Asare was married to one
Abena Tiwaah with whom he had
two children, Opanyin Kwasi
Sarfo and Opanyin Kwadwo Gyebi.
He also acquired the disputed
property in which he lived with
his children and their said
mother. At his death, Opanyin
Kwabena Asare left behind a
will,
which contained a devise of the
disputed property to his wife
and children. The wife
predeceased the children and was
followed in that order by
Opanyin Kwasi Sarfo and Opanyin
Kwadwo Gyebi. The evidence
established that in their life
time, the two children of
Opanyin Kwabena Asare had rights
of occupancy in respect of the
disputed property and the
plaintiff as a child of Opanyin
Kwasi Asare also lived therein
with his siblings even after
their father’s death. Indeed,
his uncle and his children also
lived in the disputed property.
When the last of the two
brothers, Opanyin Kwadwo Gyebi
died, he purported to devise the
property to his wife and
children. Accordingly, the
plaintiff sued to protect the
right and interest of the
children of Opanyin Kwasi Asare
to the disputed property the
defendants are the executors of
the last will of the said
testator, the plaintiffs issued
the proceedings herein by which
they sought certain reliefs
including an order that the
devise of the disputed property
by his uncle, Opanyin Kwadwo
Gyebi to his wife and children
be declared a nullity. The
defendants contested the action
and made a counterclaim in
respect of the disputed
property.
HELD
Also, having regard to the
undisputed evidence that the
disputed property did not belong
exclusively to Opanyin Kwadwo
Gyebi, we think that the learned
justices of the Court of Appeal
who had all the powers of the
trial court should have granted
relief 3 by which an order
declaring the devise of the
disputed property null and void
as was sought by the plaintiffs.
We think that such an order
naturally follows from the
declaration made in respect of
relief (1) regarding the right
to the beneficial enjoyment of
the disputed property being in
the children and descendants of
Opanyin Kwasi Asare and Opanyin
Kwadwo Gyebi. Accordingly, in
regard to relief 3 endorsed on
the writ of summons, and in the
exercise of a power conferred on
us under section 2 (4) of the
Courts Act, 1993, Act 459, we
make an order declaring the
devise of the disputed property
by Opanyin Kwadwo Gyebi to his
wife and children ineffectual.
For the above reasons and
excepting ground 4 of the notice
of appeal, the appeal herein is
dismissed. The decision of the
CA in the matter herein dated
February 16, 2017 is hereby
affirmed subject to the
variations contained in this
judgment.
STATUTES REFERRED TO IN JUDGMENT
High Court (Civil Procedure)
Rules, 2004, CI 47
Courts Act, 1993, Act 459
Evidence Act, NRCD 323
Court of Appeal Rules, CI 19
CASES REFERRED TO IN JUDGMENT
Achoro v Akanfela [1996-97]
SCGLR 207;
Fosua & Adu- Poku v Dufie
(Deceased) & Adu- Poku Mensah
[2009] SCGLR 310.
A-G v Simpson
[1901] 2 Ch 671.
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE,
JSC
COUNSEL
KWAME A. BOAFO FOR THE
DEFENDANTS/APPELLANST/APPELLANTS.
BENJAMIN OSEI BOATENG FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
GBADEGBE: JSC
We have before us in the
exercise of our appellate
jurisdiction, an appeal from the
judgment of the Court of Appeal
(CA) by which the decision of
the trial High Court was varied
in part. In the judgment on
appeal to us, the learned
justices agreed with the lower
court’s findings of fact but
varied the
consequential awards. While
the
variation of relief 2
relating to an order of
perpetual injunction was
essentially a different
formulation of that which was
granted by the trial court,
relief 1 was varied in substance
to include children and
descendants of the plaintiff’s
uncle- Opanyin Kwadwo Gyebi.
The variation to the order made
regarding relief 2 inserted the
words; “the children of Opanyin
Kwadwo Gyebi and their
descendants” to the persons
whose
beneficial interest in the
disputed property was
acknowledged in the judgment of
the trial court. Following the
said judgment, the defendants/
appellants/ appellants
(defendants) launched the
instant appeal seeking a
variation of the judgment in
their favor. For reasons of
convenience, in these
proceedings the
plaintiff/respondent/respondent
will bear the description of
plaintiff.
In the notice of appeal, the
defendants attacked the judgment
of the CA on the following
grounds:
1.
The judgment is against the
weight of the evidence.
2.
The Court of Appeal was wrong in
declaring the children of
Opanyin Kwasi Sarfo and their
descendants, the children of
Opanyin Kwadwo Gyebi and their
descendants are beneficiary
owners of House No 27, Block 6,
Old Tafo, Kumasi.
3.
The Court of Appeal erred in
restraining the Defendants/
Appellants/ Appellants and or
Agona Petenyinase family and
their respective privies,
assigns, workmen and anybody
claiming in trust for them from
interfering with the
beneficiaries’ occupation and
use of House No 27, Block 6, Old
Tafo, Kumasi.
4.
The Plaintiff was not entitled
to judgment against the
Petenyinase family or the family
of Opanyin Kwadwo Gyebi.
5.
The Defendants were not the
proper persons to be sued or to
be continued as Defendants in
respect of the Suit.
6.
The Plaintiff was not entitled
to judgment on the reliefs he
was granted upon the requisite
standard of proof or at all.
A brief statement of the
background to the action herein
is stated as follows.
During
his life time, Opanyin Kwabena
Asare was married to one Abena
Tiwaah with whom he had two
children, Opanyin Kwasi Sarfo
and Opanyin Kwadwo Gyebi. He
also acquired the disputed
property in which he lived with
his children and their said
mother. At his death, Opanyin
Kwabena Asare left behind a
will, which contained a devise
of the disputed property to his
wife and children. The wife
predeceased the children and was
followed in that order by
Opanyin Kwasi Sarfo and Opanyin
Kwadwo Gyebi. The evidence
established that in their life
time, the two children of
Opanyin Kwabena Asare had rights
of occupancy in respect of the
disputed property and the
plaintiff as a child of Opanyin
Kwasi Asare also lived therein
with his siblings even after
their father’s death. Indeed,
his uncle and his children also
lived in the disputed property.
When the last of the two
brothers, Opanyin Kwadwo Gyebi
died, he purported to devise the
property to his wife and
children. Accordingly, the
plaintiff sued to protect the
right and interest of the
children of Opanyin Kwasi Asare
to the disputed property. As
the
defendants are the executors of
the last will of the said
testator, the plaintiffs issued
the proceedings herein by which
they sought certain reliefs
including an order that the
devise of the disputed property
by his uncle, Opanyin Kwadwo
Gyebi to his wife and children
be declared a nullity. The
defendants contested the action
and made a counterclaim in
respect of the disputed
property.
After giving careful and anxious
consideration to these grounds,
we are of the view that while
grounds 3, 4 and 5 raise
procedural matters, the
cumulative effect of the other
grounds 1, 2 and 6 is directed
at the effect of the admitted
evidence before us contained in
the record of appeal. As this is
a rehearing and the procedural
matters are not alleged to have
resulted in jurisdictional
error, we will consider the
question regarding the
correctness of the judgment on
appeal before us before
attending to them. We add that
as the defendants on whose
behalf the procedural points are
urged took part in the
proceedings, a different
approach to the appeal, would in
the event of such points
succeeding deprive the court of
having before it the necessary
parties to
proceedings which are in
their nature ‘inter partes’ and
was in conformity with.
Therefore, the fundamental issue
to be determined in these
proceedings is
whether
the decision of the CA can be
said to be reasonably derived
from the evidence contained in
the record of appeal such as
not to be said to suffer from
perversity and or
unreasonableness. In our
opinion, such a consideration
would take into account grounds
1, 2, and 6 as set out in the
notice of appeal. The suggested
approach would enable us
determine whether on all the
evidence placed before the
learned justices of the CA,
their decision in the matter
herein was a proper exercise of
their discretion. See: (1)
Achoro
v Akanfela [1996-97] SCGLR
207; (2) Fosua & Adu- Poku v
Dufie (Deceased) & Adu- Poku
Mensah [2009] SCGLR 310.
As pointed out earlier in the
course of this delivery, the
learned justices of the CA
varied the decision of the High
Court regarding the beneficial
enjoyment of the disputed
property to include the children
of Opanyin Kwadwo Gyebi, and
their descendants. In our
opinion, the evidence contained
in the record of appeal is
overwhelmingly supportive of the
position reached by the CA. In
so concluding, the CA must have
considered the uncontroverted
evidence tendered by the
parties, plaintiff and the
defendants alike that the
disputed property was built by
Opanyin Kwabena Asare, the
father of Opanyin Kwasi Sarfo
and Opanyin Kwadwo Gyebi who
were both born to him by his
wife, Akua Tiwaah. As the said
Opanyin Kwabena Asare devised
the property to his wife and
children, the property devolved
upon them. Abena Tiwaah
predeceased her children and
with Opanyin Kwasi Sarfo also
predeceasing Opanyin Kwadwo
Gyebi. In the circumstances,
the learned justices of the CA
reached the right conclusion on
the evidence when they varied
the judgment to reflect the
effect of the evidence placed
before them in the record of
appeal. Again, as the plaintiff
and his siblings as well as the
children of his uncle derived
their grant from the same
source, the declaration made in
respect of his uncle’s children
and descendants was necessary to
avoid multiplicity of
proceedings and in conformity
with the overriding principles
contained in
Order 1
rule 2 of the High Court (Civil
Procedure) Rules, 2004, CI 47.
In the circumstances, we
agree with the variation order
made by the learned justices of
the CA; such an order sought to
correct an obvious lapse in the
judgment and better served the
needs of justice in the matter.
The variation made by the CA is
justified by
section
11(8) of the Courts Act, 1993,
Act 459 which provides:
“For the purpose of hearing and
determining an appeal within its
jurisdiction ...on any appeal,
… the Court of Appeal shall
have all the powers, authority
and jurisdiction vested in the
court from which the appeal is
brought.”
Further, on all the evidence,
the learned justices could not
have declared
ownership
to the property in the
Petenyinase family as demanded
by the defendants in their
counterclaim. We say so because
apart from the apparent
inconsistencies in the version
of the defendants regarding how
the property came to acquire
that character, the substance of
the said evidence is inherently
improbable. That aside, there
was no witness to the said
agreement, which the defendants
sought to impress upon the trial
court as though it was a matter
within their knowledge. It is
incredulous to accept that the
initial story on which the
family’s right to the property,
which was said to be based on an
agreement reached at the
fortieth day celebration of
Opanyin Kwadwo Gyebi’s funeral
can metamorphosize, so to say,
into a new and distinct claim
allegedly derived from a
consensual agreement between
Abena Tiwaah and her two
children that the property be
passed on to the said family.
Although this new version was
given effect to by an amendment
to the statement of defence, the
apparent inconsistency in the
two versions rendered it
improbable. That such a claim
could first be made only after
the death of the persons who
reached such an agreement is
difficult to believe
particularly bearing in mind
that it involves rights to
property which before then was
dealt with in a manner
inconsistent with the agreement
alleged to have been reached.
The allegation of such an
agreement also tends to be
supportive of the position that
before then they held the
property in common. On this
aspect of the matter, the
learned justices of the CA
accepted the findings of the
learned trial judge in his
judgment at page 102 of the
record of appeal, which
conclusion he reached after a
careful consideration of the
probabilities before rejecting
that version of the matter; we
share that rejection as well. In
reaching this view of the
contested facts, we have also
been guided by
section
52 of the Evidence Act, NRCD 323.
Furthermore, although by the
rules, a party to a cause may
amend his pleadings, the court
is not thereby disabled from
reaching the conclusion that it
is untrue; that is the true
province of a trial judge
subject to the said conclusion
being rooted in reasonableness.
A careful examination of the
affidavit of the defendants in
support of their application to
amend the statement of defence
provided inadvertency as the
sole reason for not pleading the
consensual agreement between
Abena Tiwaah and her children;
the two contentions being
inherently irreconcilable
undermines any credit that such
evidence might otherwise have
attracted. On the whole, we are
of the view that placing the
uncontroverted version of the
facts regarding the acquisition
of the property by Opanyin Kwasi
Asare and the devise made by him
in his will and the associated
enjoyment of the property by his
children against, the agreement
on which the defendants based
the claim of the Petenyinase
family to the disputed property,
the learned justices of the CA
were right in agreeing with the
learned trial judge on the
acceptance of the version of the
matter tendered by the plaintiff
in support of his claim.
Closely related to the above is
the contention regarding the
gift that was made by Opanyin
Kwabena Asare, the original
owner of the disputed property
to Kwabena Duku, a junior
brother of his. As the
declaration made in the judgment
of the CA at page 170 of the
record of appeal did not utilize
either the word “the “or
“exclusively” before “are
beneficiary owners”, the issue
raised by the defendants before
us related to the interest of
Kwabena Duku pales into
insignificance. Therefore, the
attack on the judgment of the
learned justices of the Court of
Appeal derived from grounds 1, 2
and 6 of the notice of appeal
fail. It is probable that had
the learned justices of the CA
not varied relief 1 to include
the children and descendants of
Opanyin Kwadwo Gyebi as
beneficial owners, the
defendants would have complained
about it as well.
Regarding ground 4 by which the
judgment against the Petenyinase
family is attacked, we are of
the view that having reached the
view that the defendants were
not members of the said family,
the learned justices were
without justification when they
granted an order of restraint
against them. But, to be quite
frank, it was the defendants who
sought a declaration of title to
the property on behalf of the
said family and as there was no
objection raised to their
capacity, the learned justices
of the CA for whom we have great
respect must have acted on the
assumption that the counterclaim
was competent. The complaint
made by the defendants which
finds favor with us reiterates
the need for appellate judges to
appreciate that their
jurisdiction is one of
correction, which requires them
to interrogate proceedings
beyond the grounds of appeal in
order to uphold their onerous
duty of deciding cases according
to law. We observe the emergence
of an unhappy trend in appeals
before us of the learned
justices of the CA shying away
from utilizing the extensive
power conferred on them under
the Rules to interrogate appeals
before them beyond the grounds
of appeal raised by the parties.
Reference is made to
Rule 8
(9) of the Court of Appeal
Rules, CI 19, which
provides as follows:
“Despite sub-sections (4) to
(8), the Court in deciding the
appeal shall not be confined to
the grounds set out by the
appellant but the Court shall
not rest its decision on a
ground not set out by the
appellant unless the respondent
has had sufficient opportunity
of contesting the case on that
ground.”
A similar such power is
conferred on this court in rule
6 (8) of CI 16. Ground 4 of the
notice of appeal therefore
succeeds. Sequentially, the
order of restraint is corrected
to read “The
defendants-appellants/appellants
and their privies, assigns,
workmen, agents and any person
claiming through them are
restrained from interfering with
the beneficial enjoyment of Hose
No 27, Block 6, Old Tafo, Kumasi
by the children of Opanyin Kwasi
Sarfo, Opanyin Kwadwo Gyebi and
their descendants”.
There is also the complaint
contained in ground 3 of the
notice of appeal. It concerns
the order of restraint made
against the defendants. While we
are in agreement with the
defendants on the complaint
related to the making of the
order against the Petenyinase
family, we are unable to accept
their contention that the order
of restraint made against the
defendants is not proper. On the
contrary, we say that as the
defendants conduct provoked the
action herein, the order of
restraint was justifiably made
against them. Although the
defendants claimed to be acting
on behalf of the Petenyinase
family, as discussed in relation
to ground 4 of the notice of
appeal, their acts lack a family
character as none of them is
said to be either head of the
family or comes within any of
the exceptions by which a person
other than the head of family
might sue on its behalf, they
must personally answer for their
actions. Accordingly, the order
of restraint made against them
under relief 2 of the claim
herein is intended to prevent
them from disturbing the quiet
and peaceful enjoyment of the
disputed property by the
beneficial owners.
Ground 5 raises an objection
regarding the competency of the
defendants as parties to the
action. We think that authority
aside, the defendants who were
executors of the last will of
Opanyin Kwadwo Gyebi are
necessary and proper parties to
the action; in point of law they
became vested with the rights of
the deceased testator at the
date of his death and any action
concerning any bequest or devise
in the said last will must, to
be good, be directed at them as
such. There is therefore, no
substance in the submissions to
the contrary and the said ground
also fails. And for a more
compelling reason, there is
relief 3 by which the plaintiff
claimed “An order of the Court
declaring the portion of the
Will of Opanyin Kwadwo Gyebi
(deceased) purporting to devise
House Number 27, Block 6, Old
Tafo, null and void.” The said
relief can properly be directed
only at the executors of the
last will of the said testator,
the defendants herein.
Accordingly, it is baffling that
in the face of the said relief
the defendants deny that they
are competent parties to the
action herein.
Before ending this delivery,
we would like on our own to
correct what we consider to be a
slip in the making of the Court
of Appeal’s order regarding
relief 1 by substituting
‘beneficial’ for ‘beneficiary’.
Accordingly, the order shall be:
“It is hereby declared that the
children of Opanyin Kwasi Sarfo
and their descendants, the
children of Opanyin Kwadwo Gyebi
and their descendants are
beneficial owners of House No
27, O Block 6, Old Tafo Kumasi
to hold same as tenants in
common.”
Also, having regard to the
undisputed evidence that the
disputed property did not belong
exclusively to Opanyin Kwadwo
Gyebi, we think that the learned
justices of the Court of Appeal
who had all the powers of the
trial court should have granted
relief 3 by which an order
declaring the devise of the
disputed property null and void
as was sought by the plaintiffs.
We think that such an order
naturally follows from the
declaration made in respect of
relief (1) regarding the right
to the beneficial enjoyment of
the disputed property being in
the children and descendants of
Opanyin Kwasi Asare and Opanyin
Kwadwo Gyebi. Accordingly, in
regard to relief 3 endorsed on
the writ of summons, and in the
exercise of a power conferred on
us under section 2 (4) of the
Courts Act, 1993, Act 459, we
make an order declaring the
devise of the disputed property
by Opanyin Kwadwo Gyebi to his
wife and children ineffectual.
See:
A-G v Simpson
[1901] 2 Ch 671.
For the above reasons and
excepting ground 4 of the notice
of appeal, the appeal herein is
dismissed. The decision of the
CA in the matter herein dated
February 16, 2017 is hereby
affirmed subject to the
variations contained in this
judgment.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
A.
A. BENIN
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G.
PWAMANG
(JUSTICE OF THE SUPREME COURT)
PROF N. A.
KOTEY
(JUSTICE OF THE SUPREME COURT)
COUNSEL
KWAME A. BOAFO FOR THE
DEFENDANTS/APPELLANST/APPELLANTS.
BENJAMIN OSEI BOATENG FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
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