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JUDGMENT
TWENEBOA-KODUA, J.A.:
In this appeal from the judgment
of the High Court, Kumasi (coram,.
Kusi Appiah, J.) the plaintiff
is the appellant and the
defendant is the respondent.
The facts of the case are set
out herein below. The
appellant's father took a
tenancy of four store rooms in
House No. OTB.287, Odum, Kumasi
in 1971 from one Fahart, the
original owner of the house. The
appellant's father operated a
trading business, Baffour Bamfo
Enterprise, in all the four
rooms. He did that with the
appellant and others.
In 1974, the respondent's father
purchased the house from Fahart,
found appellant's father a
sitting tenant in the store
rooms and duly recognised him as
such.
In 1989, the respondent's father
passed away and the house
devolves upon the deceased
persons nuclear family to which
the respondent belongs. Even
before he died, the respondent's
father had taken two of the four
store rooms from the appellant's
father and had made a bid to
take a third room unsuccessfully
because the move was resisted.
It led to a misunderstanding and
the rent paid for the two rooms
was treated as rent meant for
only a store room. In other
words, the respondent or her
brother refused to take rent for
the room that they sought to
re-enter.
Meanwhile the tenancy was due to
expire on 28 February 2001 and a
statutory notice of six months
was given to terminate on that
date.
After the tenancy had expired,
the appellant's father was given
a notice to quit the remaining
two store rooms. The
respondent's father then brought
an action at the Circuit Court
for recovery of possession on 25
April 2001.
The appellant's father also died
on 18 January 2002. The Circuit
Court suit had not been heard.
All the same business at BBE did
not abate; trading was brisk
there.
The misunderstanding depeened.
Some correspondence was
exchanged between the parties.
The appellant laid a firm claim
of the BBE as beneficiary in his
dead father's Will for which
probate had already been
granted.
The respondent disagreed that
the tenancy that had in any case
run out could be an integral
part of the bequest to the
appellant; the bequest consisted
in the stock-in-trade of BBE and
not the shop premises for its
operation. The respondent's next
line of action was the closure
of BBE shop: the shop was sealed
up. The appellant took out a
writ of summons in the High
Court, Kumasi for, among other
things, a declaration that the
closure of BBE was "totally
unlawful.....trespassory and
without justification
whatsoever" and an interim order
compelling the respondent to
open immediately or to cause to
be opened the said shop.
The appellant subsequently filed
an application at the same High
Court, Kumasi for an interim
order compelling the respondent
to open the said shop premises.
The court heard the application
and refused it. Most
importantly, it also dismissed
the substantive action: all for
the appellant's want of
capacity. Dissatisfied with the
ruling, the appellant has come
to this Court to challenge the
decision on grounds as follows:
"(i) That the ruling of the
Learned Trial Judge is/was per
incuriam by reason of the fact
that he failed to consider and
apply Order 15 Rules 6 and
16(2) of the High Court (Civil
Procedure) (Amendment) (No.2)
Rules, 1977 (L.I.1129) and other
relevant case law authorities
which were cited to him on the
point.
(ii) The Learned Trial Judge
erred in law when he held that
the plaintiff/Applicant failed
to prove his capacity to
institute the action since that
was a burden to be established
by the plaintiff at the trial
and not at the stage of the
instant application for an
Interim Order.
(iii) The Learned Trial Judge
erred in law when he dismissed
the plaintiff's action herein in
limine."
Order 15 rules 6 and 16 are
hereunder quoted in extenso as
follows:
"6. (1) No proceedings shall be
defeated by reason of the
misjoinder or non-joinder of any
party; and the Court may in any
proceedings determine the issues
or questions in dispute so far
as they affect the rights and
interests of the persons who are
parties to the proceedings.
(2) At any stage of the
proceedings the Court may on
such terms as it thinks just and
either of it own motion or on
application—
(a) Order any person who has
been improperly or unnecessarily
made a party or who has for any
reason ceased to be a proper or
necessary party cease to be a
party;
(b) order any person who ought
to have been joinded as a party,
or whose presence before the
Court is necessary to ensure
that all matters in dispute in
the proceedings may be
effectually and completely
determined and adjudicated upon,
to be added as a party.
(3) No person shall be added
as a plaintiff without his
consent signified in writing or
in such other manner as may be
authorised.
(4) Any application by any
person for an order under
paragraph (2) adding him as a
defendant must, except with the
leave of the Court, be supported
by an affidavit showing his
interest in the matters in
dispute in the proceedings.
(5) All applications for an
order under paragraph (2) may be
made to the Court at any time
before trial by motion or
summons or at the trial of the
action in a summary manner.
"16.(1) Any proceedings,
including proceedings to enforce
a security, may be brought by or
against trustees, executors or
administrators in their capacity
as such without joining any of
the persons having a beneficial
interest in the trust or estate,
as the case may be; and a
judgment or order given or made
in those proceedings shall bind
those persons unless the Court
in the same or other proceedings
otherwise orders on the ground
that the trustees, executors or
administrators could not or did
not in fact represent the
interests of those persons, in
the first-mentioned proceedings.
(2) Paragraph (1) is without
prejudice to the power of the
Court to order any person having
such interest as aforesaid to be
made a party to the proceedings
or to make an order under rule
15".
Counsel for the appellant argued
together the first and second
grounds. He said in the light of
the rules set out above, the
trial judge's decision that the
appellant had no capacity in
instituting the action herein in
the Court below was mistaken or
per incuriam.
Learned Counsel blamed the
mistake of the trial judge upon
his reliance on the case of
CONNEY vrs. BENTUM WILLIAMS
(1984-86) 2 GLR. 301,305-307. In
that case the Court of Appeal in
Holding 3 had decided as
follows:
"At the death of the testator,
his "Will" would just become
operative and no more, for his
intentions as expressed in the
will did not have any legal
effect until the will had been
admitted to probate. It was only
after probate had been granted
to the Executor that the
provisions of the Will could be
carried out. And after the grant
of probate, a beneficiary of any
legal real estate under the Will
must have a vesting assent
executed in his favour by the
executors under the
Administration of Estates Act
1961 (Act 63) Sections 101 2(1)
and 96(1). Until that was done,
any purported sale of the real
estate by the beneficiary or the
devisee would be of no legal
consequence and the purchaser
thereof would not have a valid
title."
Counsel purported to take a
contrary view and submitted that
by virtue of section 96 of the
Administration of Estates Act
1961 (Act 63), vesting assent
was required for the transfer of
an immovable property and not
the transfer of a bequest such
as a tenancy or a right thereto.
Counsel was categorical
therefore that the trial judge
was in serious error when he
held that the appellant lacked
capacity to sue in the action
because he had not been given a
vesting assent.
Again counsel attacked the
holding by the trial judge as
per incuriam on the ground that
the judge failed to consider or
he completely ignored the High
Court rules of procedure (supra)
cited to him. For this view,
counsel founded himself on two
authorities, namely, BANK OF
GHANA vrs. LABONE WEAVERS
ENTERPRISE LTD. (1971) 1 GLR.
251 and FOSUHENE vrs. AKORE & 11
ORS. 1 GBR.181. In his response
to the arguments above submitted
on behalf of the appellant,
Counsel for the respondent
pointed out that the parties
were ad idem that the
appellant's deceased father was
a statutory tenant on 28
February, 2001 when his tenancy
expired.
Counsel expounded the law that a
statutory tenant was vested
merely with a personal right to
retain possession of the
premises and that right could
not be assigned to his personal
representative(s) or it could
not devolve on such personal
representatives when he died. On
the death of a statutory tenant,
his tenancy automatically
determined, it was argued.
Counsel relied on the authority
of DHALOMAL vrs. PUPLAMPU
[1984-86] 1 GLR.341 at page 349
C.A. per Osei-Hwere, J.A. (as he
then was) as follows:
"A statutory tenant being a
creature of statute, his right
under Act 220 is merely a
personal right to retain
possession of the premises and
it cannot be assigned nor does
it pass on his death to his
personal representative ......
the death of the appellant in my
opinion brought his statutory
tenancy to an end." (emphasis
added)
Counsel reiterated against the
backdrop of the foregoing that
the appellant's father had no
legal right whatsoever to
transfer, by way of a devise in
his Will, that right in the
store-room accommodation limited
to him by law (Act 220). I
submit with respect that the law
in the Holding 3 of the CONNEY
case (above) is the same as
section 96 of Act 63; there is
no divergence between them. A
vesting assent is required for
purposes of transferring a
devise to the beneficiary; it is
not the same in the case of a
bequest. The truth of the
matter, if I may respectfully
say so now, is that the
appellant's lack of capacity to
sue was due to the fact that his
father did not or could not
transfer the statutory tenancy
that he died possessed of to
him. The deceased father had not
the tenancy right to give the
appellant: (Nemo dat qui non
habet) no one gives what the one
does not have.
Since there was no valid tenancy
to pass on to the appellant,
there happened to be no right in
respect of the store rooms to
bequeath and a vesting assent
was totally out of the question.
All the same, the holding that
the appellant lacked capacity to
sue is still valid because the
appellant went to court not
clothed with any claim of right
giving him capacity.
In response to the rules of
Court [Order 15 rules 6 and
16(l) and (2) of L.I. 1129]
cited in support of appellant's
case, counsel ex altera parte
submitted that these rules were
hardly relevant to the case
herein in terms of the
appellant's capacity to sue:
they were not therefore
applicable in this case. I
cannot agree more with counsel
for the respondent. Rule 6 does
not endow any appellant with
capacity. It deals with
misjoinder or non-joinder and if
I may not be presumptuous, I
shall add "joinder of a
plaintiff" for the sake of
paragraph 3 of the rule. Rule 16
provides for representation of
beneficiaries in a situation
like the one herein by the
executor(s) or personal
representative(s) etc.
The rules (6 and 16) do not vest
the beneficiaries with the right
to take proceedings themselves.
The Court is however reserved
with discretion to join them to
the proceedings.
The authorities of BANK OF GHANA
vrs. LABONE WEAVERS ENTERPRISE
LTD. (citation given supra) and
FOSUHENE vrs. AKORE (citation
supra) were brought in to drive
home the legal precept that a
court risked the declaration of
its decision "per incuriam"
where it ignored statutes or
precedents cited to it.
As counsel for the respondent
rightly pointed out, the two
cases were irrelevant and
inapplicable in this case and
like the rules of procedure
cited, the court could safely
discount them in its
consideration of the matter
before it without running the
risk suggested above.
On balance, the ruling of the
trial judge was or is valid and
faultless, the apparent failure
of the judge to apply the said
rules and case law authorities,
cited and manifestly irrelevant
and inapplicable,
notwithstanding.
Counsel for the appellant
strenuously argued that the
trial judge erred in law for
holding that the appellant
failed to prove his capacity to
institute the action. He
submitted that the burden was to
be discharged at the trial of
the substantive case and not at
the stage of an interlocutory
application.
Counsel submitted that the trial
judge relying on Section 11(1)
and (4) of the Evidence Decree
NRCD.323 concluded that the
appellant had failed to produce
"evidence to prove that he
is/was a 'Joint tenant' with his
late father"; that he had made
a "bare assertion" that he was
such a Joint tenant with his
late father, which was
unacceptable.
Counsel contended that the trial
had not begun and directions had
hardly been given by the Court
on summons. Evidence on matters
in difference between the
parties could not have been
produced. Counsel cited the case
of VANDERPUYE vrs. NARTEY (1977)
1 GLR.428 and sought support
therein for his position that
the trial judge was in error in
holding that the appellant had
failed to prove that he was a
joint tenant with his father
(now deceased) in the hired
stores.
Significantly counsel accorded
prominence to the governing
principle inspiring the grant or
refusal of interlocutory
application such as the one in
question herein, as settled in
the VANDERPUYE case above.
Counsel quoted: "The governing
principle was whether on the
face of the affidavits there was
need to preserve the status quo
in order to avoid irreparable
damage to the applicant,
provided his case was not
frivolous and vexatious."
In his reaction, Counsel for the
respondent submitted that when
the Court was called upon to
determine the interlocutory
application, it required
evidence on the face of the
supporting affidavit to prove
the appellant's capacity that
had been called into question or
put in issue. To counsel the
evidence was not available and
so, to counsel the trial judge
could not have done better than
concluding that the appellant
had failed to offer sufficient
affidavit evidence to establish
his claim of being a joint
tenant amply vested with the
capacity to sue in the matter.
First of all, the concept of
joint tenancy has a deep meaning
and when it was conjured up, it
required a reasonable
elaboration by way of affidavit
evidence. The presumption was
that it was other than a tenancy
of room mates, or
tenants-in-common, or
co-tenants, etc etc; it
seriously implied co-ownership
of the store rooms in the
premises purported to be
absolutely owned by the late
Baffour Bamfo (or his estate on
his demise).
To grant an order, interim or
otherwise, affecting the claim
of right of such a joint tenant,
the Court legitimately required
affidavit evidence to establish
that the appellant's claim was
not frivolous and/or vexatious.
Without doubt, the evidence
required in the application
before the Court below was not
what would be necessary to
support the substantive case. It
was the evidence on the face of
the affidavit in support.
When the requisite evidence was
not available to him, the trial
judge could only have been in
doubt of the claim by the
appellant and his capacity to
sue and call for an
interlocutory order to protect
that claim of right.
That the trial judge refused the
application for the interim
order was, in my humble view,
proper.
It has been contended as the
last ground of appeal that when
he dismissed the appellant's
action in limine, the trial
judge committed a serious error.
Counsel for appellant offered
virtually no submissions on this
ground.
Apart from briefly recalling the
event of the forcible closure of
the shop and the adverse impact
thereof on BBE, he seemed to
have run out of submissions. He
resorted to exhortation aimed at
getting the stores unsealed and
opened. Counsel for the
respondent justified the closure
of the shop as having been
accomplished by self-help which
is not unknown to the Common
Law. He relied on the case of
APPIAH vrs. TAKYI (1882-83) GLR
1 C.A. per Boison J.A.
Counsel also justified the
dismissal of the entire action
of the appellant in limine by
the Court below. Counsel cited
the Supreme Court case of AKRONG
vrs. BULLEY (1965) GLR. 469 and
relied on the exposition by
Apaloo J.S.C. (as he then was)
at page 476 thus:
"But the plaintiff or more
accurately her advisors chose to
bring the action in a capacity
she did not possess and this
difficulty is entirely of their
own making. I am therefore
constrained to hold that the
writ was a nullity and so are
the proceedings and judgment
founded upon it. This disposes
of the appeal and I abstain from
expressing any opinion on the
other matters raised."
His Lordship also observed in
that case as follows:—
"the question of capacity, like
the plea of limitation, is not
concerned with merits."
It is with respect submitted
that when the question of
capacity failed him, the
appellant's action collapsed and
the trial Court was right in
dismissing it in limine. I draw
inspiration from His Lordship to
abstain from expressing any
opinion on the other matters
raised in the closing
submissions by both counsel.
In the result, the entire appeal
fails and it is accordingly
dismissed. The respondent is
adjudged to recover costs
assessed at ¢2,000,000.00
against the appellant.
K. TWENEBOA-KODUA
JUSTICE OF APPEAL
ANSAH, J.A.:
I agree.
J. ANSAH
JUSTICE OF APPEAL
ANINAKWAH, J.A.:
I also agree.
R. T. ANINAKWAH
JUSTICE OF APPEAL
COUNSEL
R. APPIAH NKYI FOR RESPONDENT.
J. K. KODUAH FOR APPELLANT. |
