ACHEAMPONG & 2 OTHERS VRS WELBECK (H1/106/2021) [2021] GHACA 24 (16 December 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL APPEAL) ACCRA – GHANA CORAM: SENYO DZAMEFE JA PRESIDING P. BRIGHT MENSAH JA JENNIFER DODOO JA BETWEEN: SUIT NO. H1/106/2021 16th DECEMBER 2021 1. KWABENA ACHEAMPONG 2. DIANAH NYARKO 3. VICTORIA MENSAH … DEFENDANTS/APPELLANTS SETH WELBECK … PLAINTIFF/RESPONDENT vs JUDGMENT =================================================== BRIGHT MENSAH JA: In this appeal, the defendants/appellants herein [hereafter referred to simply as appellants], being dissatisfied with the decision of the High Court [Land Division], Accra delivered 14/02/2020 in favour of the plaintiff/respondent herein, [also simply referred to as respondent], have appealed on a number of grounds that we shall outline shortly. We need to put it on record that the respondent initially sued the 1st and 2nd appellants claiming the following judicial reliefs: 1. A declaration that the land described in the schedule here- under forms part of the estate of Adolphus Welbeck Abdulai of which the plaintiff is its lawful Administrator. 2. A declaration of title in favour of the plaintiff by virtue of the execution of the deed of vesting assent dated the 27th of September 2016. 3. An order of recovery of possession of the disputed property from the defendants. 4. Damages for trespass. 5. Mesne profit of Ghc2,000 against the defendants per shop per month from the date of this writ of summons to the date of final vacation of the disputed property from the defendants. 6. An order of perpetual injunction restraining the defendants whether by himself, his servants, agents or otherwise how- soever from further trespassing upon the disputed property. 7. Costs. 8. Any further other order[s] that this honourable court may deem fit. Upon being served with the writ and the accompanying statement of claim, the 1st and 2nd appellants did enter appearance and filed a joint defence accordingly, denying substantially the claim. Subsequently, Victoria Mensah successfully applied to be joined to the suit as the 3rd defendant. Pursuant to the joinder, the writ of summons was amended to reflect the joinder. Nevertheless, the claim of the respondent as endorsed on his writ remained the same. See: pp 108 – 109 of the record of appeal [roa]. The 3rd defendant filed her processes and joined the other defendants in contesting the plaintiff’s claim. At the end of the trial, the lower court entered judgment for the respondent on all his reliefs except (d) for mesne profits and (e) for damages for trespass, respectively. The lower court explained that the claim for mesne profits was not satisfactorily proved. As regards the claim for damages for trespass, the lower court gave the reason for refusing it as that: “since it only now that it has been established that their [the appellants] occupation of the disputed property is unlawful after the legal owner has now been established.” Per a notice of appeal filed with this court on 14/04/2020, the appellants contend that the judgment is against the weight of evidence. Having obtained the leave of court, the following additional grounds of appeal, were filed, namely: i) The learned High Court Judge committed an error of law on the face of the judgment which occasioned a grave miscarriage of justice. Particulars of error a) By holding that it is untenable to draw the conclusion that the plaintiff did not have capacity because the issue of capacity did not form part of the pleadings and evidence at the trial and never set down as an issue for determination. b) By holding that the burden of proof shifted to the 3rd defend- ant to lead evidence to show that she never executed Exhibit E. c) The learned High Court Judge erred when he held that the plaintiff’s action was not statute barred. Facts: Before considering the main issues this instant appeal raises, it is convenient to outline the facts of the case. Briefly stated, the respondent who claims to be a beneficiary and an administrator of the estate of his late father, Adolphus Welbeck Abdulai who died intestate on the 14/07/2016. The respondent claims that the property in dispute described as all that piece or parcel of land situate in Accra Central covering an approximate area of 0.15 acre and more particularly described in a plan attached to the deed of indenture dated 18/02/1992 on which he relied, belonged to his grandmother, Rachel Afriyie [aka Afieye] Welbeck. It is the case of the respondent that her grandmother acquired the disputed property on 18/02/1992 from a Foo Chang Soo for an unexpired period of the head lease per a deed of indenture in her favour. His grandmother later died and on 10/02/1994 letters of administration to her estate were granted to Seth Okai Welbeck, Ebenezer Ayiaki Welbeck, Daniel Okoe Welbeck and Adolphus Welbeck alias Abdulai [his father]. According to him, all the administrators of the estate of Rachel Ariyie Welbeck died leaving only his father, Adolphus Welbeck Abdulai. His father then vested the disputed property in himself per a vesting assent dated 12/01/2013. His father also died intestate on 14/07/2016 as a result of which he was applied for, and obtained letters of administration for administration of his estate. Pursuant to obtaining letters of administration, he executed a deed of vesting assent on 27/09/2016 vesting the disputed property in himself. It was his case that in the year, 1973 Mrs Victoria Mensah alias Miss Abenaa Apomasu [3rd appellant] sold the disputed property to his grandmother, Rachel Afiyie Welbeck per an indenture executed on 10/03/1976 between the parties. According to the respondent, he identified the 1st and 2nd appellants as trespassers unto the disputed property and upon their refusal to remove themselves from the disputed property, he sued them for damages for trespass, among other reliefs. Later on Victoria Mensah [3rd appellant] was joined to the suit. The 3rd appellant, on the other hand, lays claim to the disputed property and that the 1st and 2nd appellants are her caretaker and tenant on the property. She claims that per an indenture dated 27/12/1973 made between Bhjosons & Co. Gh Ltd and her good self she purchased the property. She then leased the property to Foo Chang Soo on 07/01/1991 for 15 years. It was a term of the leasehold that the lessee [Foo Chang Soo] was not to sublet the property without her written consent. She denied the claims of the respondent. Issues agreed upon for trial: At the close of the pleadings, the issues raised for trial as set out in the application for direction were as follows: 1. Whether or not the land the plaintiff’s grandmother was the legal owner of the disputed property. 2. Whether or not the plaintiff is a beneficiary as well as the administrator of the estate of the late Adolphus Welbeck Abdulai, who died intestate on the 14th of July 2016. 3. Whether or not the defendants are trespassers. 4. Whether or not the plaintiff is entitled to his claim. 5. Any other issue(s) borne out of the pleadings. See: pp 22–23 [roa] Additional issue: (a) Whether or not the property in dispute belongs to Victoria Mensah. See: pp 24-25 [roa]. Further issues: Significantly, as appearing on pp 75-76 [roa], the lawyer for the respondent filed for the consideration of the lower court the following further issues: 1. Whether or not on the 7th January 1991 the disputed property belonged to the said Victoria Mensah for her to be able to grant same to the said Foo Chang Soo. 2. Whether or not the said Victoria Mensah’s interest in the disputed property had extinguished by virtue of the execution of the 7th January 1991 deed of indenture. 3. Whether or not the said Victoria Mensah rented the disputed property to the said Foo Chang Soo. The appeal: The law is certain that an appeal is by way of re-hearing the case. The Court of Appeal Rules, C. I 19 per rule 8(1) provides that any appeal to the court shall be by way of re- hearing. The rule has received ample judicial interpretation in many cases to mean that the appellate court is enjoined by law to review the whole evidence on record and come to its own conclusion as to whether the findings of the lower court both on the law and facts, were properly made and supportable. In R v High Court (General Jurisdiction 6); Exparte Attorney-General (Exton Cubic – Interested Party) (2020) DLSC 8755 the Supreme Court speaking through Anin-Yeboah JSC (as he then was) restated the principle as follows: “Appeal is an application to a higher (appellate) court to correct an error which may be legal or factual. In Ghana, all civil appeals are by way of rehearing and the appellate court may subject the whole record to review and may even make new findings of facts in deciding the appeal.’’ This court in Kofi v Kumansah (1984-86) 1 GLR 116 @ 121 having considered and adopted the principle as espoused by Webber CJ in Codjoe v Kwatchey (1935) 2 W. A. C. A 371, stated the law as follows: “The Appeal Court is not debarred however from coming to its own conclusion on the facts and where a judgment has been appealed from on the ground of the weight of evidence the Appeal Court can make up its own mind on the evidence; not disregarding the judgment appealed from but carefully weighing and considering it and not shrinking from over- ruling it if on full consideration it comes to the conclusion that the judgment is wrong…………………………………..” The settled rule, therefore, is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case and the evidence led on record just like a trial court. Where the court below comes to the right conclusion based on the evidence and the law, its judgment is not disturbed. The opposite is equally true and the judgment is upset on appeal where it is unsupportable by the facts and or the evidence. See: Nkrumah v Attaa (1972) 2 GLR 13 C/A. The rule is also that where the appellate court was obliged to set aside a judgment of a lower court, it must clearly show it in its judgment where the lower court went wrong. Reiterating the principle, Ollenu JSC delivered himself, an opinion in Prakwa v Ketewa (1964) GLR 423 as follows: ‘’……………….[a]n appeal is by way of rehearing and so an appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the extent that the trial court could …………………………………… Therefore, if in the exercise of its powers, an appeal court feels itself obliged to reverse findings of fact made by the trial court, it is incumbent upon it to show clearly in its judgment where it thinks the trial court went wrong.” It is idle, therefore, to stress the rule that it is not the function of an appellate court to disturb a finding of fact by a trial court except in the circumstances so outlined supra. Now, to the merits of the instant appeal. My Lords, this appeal raises two (2) key and fundamental questions for our consideration, namely: a) the challenge to the respondent’s capacity to mount the suit; and b) the case being statute barred that are capable of disposing of the appeal. In the circumstances, we shall first deal with the Additional Ground of Appeal before proceeding to consider the other ground of appeal, if we find it necessary. The issue of capacity: The Chambers Dictionary 10th ed defines ‘capacity’ to mean, inter alia, mental power; the position or function in which one does something or, of a legal competence to act. As a matter of law, capacity relates to the legal personality of a party to proceedings and where the capacity of the party is put into question, he cannot be heard to say that he must be given a hearing on the account that he has a cast-iron case. Challenge to a party’s capacity to mount or initiate an action goes to the root of his case and therefore carries the burden to prove capacity. Capacity being so fundamental and goes to the root of the case, the general rule is that even if the parties did not raise it, the court has the power to consider it to ensure a proper outcome. In Yokwa v Duah [1992-93] 1 GBR 278 the court propounded the law as follows: “Where a person’s capacity to initiate proceedings was in issue, it was no answer to give that person a hearing on the merits even if he had a cast-iron case. Even though the point of respondent’s capacity was not raised at the trial, it involved a serious point of law that the trial judge ought to have considered.” [emphasis ours] In the celebrated case of Sarkodee I v Boateng II [1982-83] GLR 715 the Supreme Court held: “It was elementary that the plaint of 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 merit because he had a cast-iron case against his opponent.” [emphasis supplied] The case, R v High Court, Accra; Exparte Aryeetey [Ankrah – Interested Party] [2003-04] SCGLR 398 for eg., is also the legal authority to hold that any challenge to capacity puts the validity of a writ in issue and that the question of capacity, like the plea of limitation, is not concerned with the merits of the case so that if the axe falls, then a defendant who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled upon his rights. Traditionally, capacity evokes the court’s jurisdiction to determine the case one way or the other. Thus, the rule of procedure and practice is that such a fact ought to be pleaded so as to allow the party whose capacity is being challenged to be heard on the issue. For, it is provided for under Order 11 r 8 of the High Court [Civil Procedure] Rules, 2004 thus: (1) A party shall, in any pleading subsequent to a statement of claim, plead specifically any matter, for example, per- formance, release, any limitation provision, fraud or any fact showing illegality (a) which the party alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or © which raises issues of fact not arising out of the preceding pleading. On the authorities, where a fact has not been distinctly pleaded as the practice requires but there is clear evidence on the issue that was not objected to, the court cannot ignore it, the rule of procedure on pleadings notwithstanding. See: Amuzu v Oklikah [1998-99] SCGLR 141. In Amuzu v Oklikah [supra] the Supreme Court speaking with unanimity through Atuguba JSC stated that although fraud was not distinctly pleaded in that case as the practice required, it could be said that where there was clear but unpleaded evidence of fraud, like any other evidence not objected to, the court could not ignore it, the myth surrounding the pleading of fraud, notwithstanding. It is a right statement of law to state that the trial court is not bound to consider only the issues set out in an application for directions [summons for directions] but all issues arising across the entire spectrum of the pleadings provided evidence was led on it. See: Kariyavouolas v Osei [1982-83] GLR 658. Significantly, the rule was restated by the Supreme Court in Fatal v Wolley [2013-14] SCGLR 1070 [Holding 2] where the apex court reiterated as follows: “It is indeed sound basic learning that courts are not tied down to only the issues identified and agreed upon by the parties at pretrial. Thus, if in the course of the hearing an agreed issue is clearly found to be irrelevant, moot or even germane to the action under trial, there is no duty cast on the court to receive and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issues.” [emphasis added] In Fosua & Adu v Dufie (dec’d) & anr [2009] SCGLR 310 [Holding 6] the Supreme Court held: “…………….. [I]n considering whether or not the properties in dispute were for the family, the trial judge should have gone for- ward to also consider, on the assumption that they were families properties, whether or not the plaintiffs had the requisite capacity to sue in respect thereof. That was irrespective of whether or not the parties had made that an issue for trial. Capacity to sue was a matter of law and could be raised by a party at any stage of the proceedings, even on appeal. It could also be raised by the court suo motu.” [emphasis ours] The Court of Appeal has held in a number of cases, particularly Fidelity Investment Advisors v Aboagye-Atta [2003-2005] 2 GLR 118 that what issues were relevant and essential was a matter of law entirely for the judge to determine. Admittedly, in the instant case the issue of the respondent’s capacity was not distinctly pleaded by the appellants. However, there are pieces of evidence led on record that point to the challenge of his capacity to sue. In the proceedings of the lower court on 03/04/2019 as appearing on p. 270 [roa] for eg., Counsel for the appellants seeking answers to some questions put to the respondent under cross-examination, elicited from the respondent the following: “Q. Your Exhibit K is also a vesting assent and this one was prepared by you not so. A. I got my lawyer to prepare it for me Q. But you signed exhibit K not so A. Yes my Lord Q. According to you, exhibit J transferred the disputed property from your late grandmother to your father, not so A. Yes my Lord Q. And exhibit K transferred that property in exhibit J to you A. It is not my property but I am just being caretaker of the LA or properties of my father Q. It is your case that the bases of all these two document ie Exhibits J and K are exhibits E, F and G that is your grand- mother’s title document (sic) A. Yes my Lord Q. Look at exhibit J again prepared on the 12th January 2013 you can read right A. Yes I can Q. Counsel reads paragraph 1 ie commencement of exhibit J to the witness. Per exhibit J your late father was vesting a property of Robert Ayer Ayerson A. That is correct my Lord Q. According to exhibit J, the said Robert Ayer Ayerson died on 23rd October 1974 A. Yes my Lord.” Quite significantly, the respondent traces his root of title to the disputed property to his grandmother and through his deceased father. He claims that on 18/02/1992, a Foo Chang Soo offered the property to his deceased grandmother, Rachel Afriyie Welbeck (aka Afieye Welbeck) for the unexpired period of the head lease. A deed of indenture was whereupon prepared to effectuate it. After taking over the disputed property, the said Rachel Afieye Welbeck later died intestate and the Accra High Court on 10/02/1994 granted Letters of Administration to her estate to: 1) Seth Okai Welbeck; 2) Ebenezer Ayikai Welbeck; 3) Daniel Okoe Welbeck; and 4) Adolphus Welbeck @ Abdulai [respondent’s father] to administer her estate. He tendered in evidence in support, Exhibit H, “Letters of Administration de bonis non”. The respondent pleaded in paragraph 5 of his statement of claim [see p. 100 roa] that all the administrators of the estate of her grandmother, Rachel Afieyie Welbeck also died except Adolphus Welbeck @ Abdulai, [respondent’s father] who then became the sole administrator of her estate. He averred further that Adolphus Welbeck administered the estate and vested into himself, the disputed property per a deed of vesting assent dated 12/01/2013. According to the respondent, Adolphus Welbeck died on 14/07/2016 so he [respondent] obtained Letters of Administration [L/A] from the High Court Accra on 07/09/2016 to administer the father’s estate. Pursuant to obtaining the L/A, the respondent prepared a vesting assent on 27/09/2016 and vested the property, the subject matter of this case, in himself. It is the respondent’s case, therefore, that the appellants are in trespass of the disputed property. It is instructive, although the respondent maintains that those who jointly took L/A with his father to administer his grandmother’s estate also died leaving his father as the sole surviving administrator, he nonetheless did admit under cross-examination that one of his father’s siblings namely, Daniel Okoe Welbeck is still alive. For purpose of clarity on the point, we reproduce here below, some answers the respondent gave under cross- examination: “Q. Look at Exhibit G there is a name at the back, Seth Okine A. Yes my Lord Q. Is that Seth Okine Welbeck different from you A. Yes my Lord Q. Who is he A. He is my father’s elder brother Q. You also have Daniel Oko Welbeck on Exhinbit E A. Yes my Lord Q. Who is he A. He is a brother to my father, he is alive.” [emphasis high- lighted]. See: p. 277 [roa] If indeed, Daniel Oko Welbeck, a Co-administrator was alive at the time the respondent initiated this action and still is, the question then arises as to whether the respondent could obtain Letters of Administration to supposedly administer the disputed property which the respondent admits does not form part of his father’s [Adolphus Welbeck @ Abdulai] estate. We shall revisit the issue. The lower court’s proceedings held on 29/04/2019 as appearing on p. 273 [roa] touching on the capacity of the respondent is also instructive. It was recorded: “Q. Did you ever know anything with respect to the properties owned by Mr Robert Ayer Ayerson A. Yes my Lord Q. If you look at exhibit J paragraph 1 (Counsel reads out). Did you ever get to know any of his properties A. Yes my Lord, my father also showed me where some of these properties could be found Q. And you agree with me that this Robert Ayer Ayerson’s properties which your father showed you did not include the property which is the subject matter of this suit A. No my Lord.” In the face of this compelling evidence, the learned trial judge however held as follows: “…………Since it [capacity] did not form part of the pleadings and evidence at the trial and never set down as an issue for determination, I am of the view that it is untenable to draw the conclusion that the plaintiff has no capacity to institute the action without giving him a hearing on the issue.” See: p. 13 of his judgment [p. 369 roa] The learned trial judge had reasoned that the issue of capacity ought to have been raised timeously in the course of the trial so that all parties could have had opportunity to address the court on it. The lower court therefore refused to make a determination on the issue of lack of capacity. The refusal has drawn sharp criticisms from learned Counsel for the appellant. It is Counsel’s opinion that the lower court fell in error whilst its failure to address that pertinent issue has occasioned a grave miscarriage of justice to the appellants. He argues that a court of competent jurisdiction is not tied down to only issues parties raise but has jurisdiction to also address any other issue borne out of the evidence on record in order to do substantial justice in the matter. In support, Counsel referred this court to the dictum of Wood CJ in Fatal v Wolley [2013-2014] SCGLR 1070. Counsel added that the issue of lack of capacity of the respondent sprang out from his own evidence as contained in Exhibits H, J and K and that once the issue was raised in relation to the evidence on record, it was incumbent on the trial court to pronounce on it. Learned Counsel for the respondent, on the other hand, disagrees with the views his learned friend expressed. He rather agrees with the learned trial judge that the issue of capacity did not form part of the pleadings, neither was any evidence led on it. Thus, the lower court could not have drawn any conclusion that the respondent lacked capacity to institute the action. He argued further that the cases his learned friend cited were distinguishable from the instant case because those cases speak of a plaintiff leading cogent evidence to prove his capacity once it was challenged otherwise he stood the risk of losing his case. In the instant appeal, learned Counsel for the respondent repeated, the appellants never raised the issue of capacity nor led evidence on it. In support, he referred us to the case of R v High Court, Accra; Exparte Aryeetey [Ankrah Interested Party] [2003-04] SCGLR 398 @ 399. We have critically evaluated the evidence led on record in the instant appeal. Now, in the light of the available evidence stated supra, it cannot be put to any serious doubt that there were pieces of evidence led on record that touched on, and concerned the respondent’s capacity to mount the suit although admittedly, the appellants never so distinctly pleaded it in their statement of defence. In the circumstances, we roundly uphold the submissions of learned Counsel for the appellant that the judge fell into error when he held that because the respondent’s capacity was not raised as an issue for trial, the lower court could not pronounce on it. Contrary to the reasoning of the learned trial judge, the true and current position of the law is that the court is bound to raise capacity even if the opponent did not raise it or the parties did not contest the case on the basis of want of capacity. This principle finds expression in the case, Owuo v Owuo [2017-2018] 1 SCGLR 730 wherein the Supreme Court propounded the law that the court has the duty to raise capacity even if the parties did not raise it as an issue between them. It is trite learning that capacity may be raised at any time, even on second or third appeal. In Standard Bank Offshore Trust Co. Ltd (subst’d by Dominion Corporate Trustees Ltd) v National Investment Bank Ltd & 2 ors [2018] the Supreme Court speaking through Benin JSC ruled: “A writ that does not meet the requirement of capacity is null and void. Nullity may be raised at any time in the course of the proceedings even on a second or third appeal………...” [emphasis added] Once the issue of the respondent’s legal capacity has been stoutly raised, the question then arises if he had a cause of action against the appellants. ‘Cause of action’ was judicially defined in Spokesman Publications Ltd v AG [1974] 1 GLR 88 to mean a factual situation, the existence of which entitles one person to obtain from the court a remedy against another person. Needless to emphasize, we have carefully examined and evaluated the evidence led in this case and we think that on the evidence and on the law, the respondent lacked the capacity to mount the action principally for two (2) reasons. First, the respondent was unable to lead any cogent evidence to show clearly that the subject matter of this suit formed part of either his father’s estate or the grandmother’s estate. The respondent could only succeed if he led sufficient and cogent evidence to show that the subject matter formed part of his deceased father’s estate or that his father became the sole beneficial owner of the disputed property on the demise of respondent’s grandmother. In discharging that burden to preventing a ruling against him in terms of Ss 11 and 12 of the Evidence Act, 1975 [NRCD 323] the respondent ought to have tendered in evidence, an inventory exhibiting the precise properties of the late Rachel Afiyie Welbeck [aka Afieye Welbeck] as well as his father’s. Additionally, he should have led evidence to prove that Rudolph Welbeck Abdulai took over in administering the property and or inherited it from his sister and has come to him respondent] through succession. As a general rule of practice and a requirement under Order 66 r 8 of the High Court [Civil Procedure] Rules, 2004 [CI 47], an applicant for Probate or Letters of Administration as the case may be, shall make a true declaration of the nature and true value of all the movable and immovable properties of the deceased. In actual practice, inventories declaring properties of the deceased, either movable or immovable, are attached to the application for either Probate or Letters of Administration. Prima facie, the inventory/declaration shows the value of the estate for the consideration of the court and for it to make any order[s] in respect of the application as the case may be. The declaration of the assets and the value given thereof, is also for the purpose of payment of estate duty before the certificate is granted and finally issued to the applicant. If the respondent in the instant case had tendered or exhibited at the trial, a copy each of the inventory containing the movable and immovable properties of both Rachel A. Welbeck and Rudolph Welbeck Abdulai exhibiting the disputed property, it would have put to rest the lingering doubt as to whether the subject matter was Rachel Afiyie Welbeck’s and subsequently inherited by Rudolp Welbeck Abudlai or not. In the teeth of the stiff denial by the appellants that the property, the subject matter of this suit belonged to Rachel Welbeck, it was never sufficient for the appellant to only tender the Letters of Administration de bonis non certificate [Exhibit H] and the L/A [Exhibit B], in respect of Rudolph Welbeck Abdulai’s estate, without tendering the inventories that declared those properties as belonging to the deceased. It is worth repeating that the respondent traces his root of title to Exhibit H, the Letters of Administration de bonis non granted to 4 persons including his father. According to him, all the administrators died leaving his father. His father then vested the disputed property in himself. His father also subsequently died and he [respondent] obtained Letters of Administration tendered in evidence as Exhibit B to administer his estate. Upon obtaining Exhibit B, he prepared a vesting assent, Exhibit K and vested the disputed property in himself. As a matter of law, upon the death of a person both his moveable and immovable properties devolve on his personal representatives. Where the person dies intestate his property devolves on his customary law successor but where he dies testate, on his executor. Unlike an executor who necessarily has to obtain a Probate insofar as the administration of the estate is concerned, a customary successor may or not apply for Letters of Administration [L/A]. His power to administer the estate is derived from customary law. In support of this legal proposition, we find as a useful guide, the legal reasoning of Benin J [as he then was] as espoused in In re: Estate of Amos Ekow Sackey [dec’d]; Adwoa Ansaba v Isaiah E. Mbeah & anr – High Court, Cape Coast (unreported) dated 30/04/1992. One of the key issues that turned for determination in In re: Estate of Amos Sackey (supra) was in whom the estate of intestate vested or devolved. The learned trial judge having carefully considered the issues raised in the case, held as follows: “……………… By customary law as later affirmed by legislation ie S. 1(2)(a) of Act 63 [Administration of Estates Act] the entire estate of an intestate vests in the customary successor. Unlike an executor who by S. 61 of Act 63 must necessarily take out a grant of Probate of a testator, a customary successor does not derive his power or right to administer the intestate estate by a grant of Letters of Administration but the mere fact that he has been duly appointed the customary successor. He may or may not apply for Letters of Administration…………………………..” We find Exhibit H the respondent tendered in this case very intriguing because it is about the estate of Robert Ayer Ayerson (deceased). Exhibit H is the Letters of Administration de bonis non which the respondent claims was granted in respect of the un-administered portion of the estate of Robert Ayer Ayerson which his grandmother, Rachel Welbeck could not wind up before her demise. So, it is reasonable to hold that Exhibit H is irrelevant insofar as this case is concerned since it does not relate to the estate of Rachel Afiyie Welbeck but Robert Ayer Ayerson. Indeed, the respondent even admitted under cross-examination that Exhibit H did not concern the disputed property. See: p. 273 [roa] Now, a closer study of Exhibit H shows quite clearly that L/A to the estate of Robert Ayer Ayerson late of Accra, was previously granted to his sister, Rachel Afiyie Welbeck nee Ayerson. The late Robert Ayer Ayerson died intestate on 23rd October 1974, according to Exhibit H. Further, the exhibit discloses that Rachel Welbeck was unable to wound the administration of the estate of her brother, Robert Ayer Ayerson. It was in that context that Letters of Administration de bonis non were granted to Seth Okai Welbeck, Ebenezer Ayikai Welbeck, Daniel Okoe Welbeck and Rudolph Welbeck @ Abdulai to, so to speak, administer the unfinished business of the administratrix, the late Rachel Welbeck. In the circumstance, we think the lower court ought not to have given Exhibit H any probative value even if it was not objected to when tendered in evidence. Significantly, the respondent’s vesting assent Exhibit K, is anchored on Exhibit H that we find has no probative value as it is irrelevant insofar as the determination of the case was concerned. The second equally important reason we proffer for holding that the respondent lacked legal capacity is that by operation of law, the respondent did not come into the category of persons who reserved the legal capacity to deal with the disputed property. In an answer to a question under cross-administration the respondent admitted unequivocally that of all the four [4] persons who took Letters of Administration de bonis non, one of them ie Daniel Oko Welbeck is still alive. As stated elsewhere in this judgment, Exhibit H did not have any probative value for the determination of the case. Nevertheless, if we were to hold otherwise that it was relevant, we do maintain that insofar as Daniel Oko Welbeck, the sole surviving Co-administrator is still alive and there is no evidence on record to show that he has renounced the L/A, or that he gave the respondent a power of attorney to act for him, the respondent cannot legitimately administer the disputed property. As a child, by operation of law, he has that legal capacity to apply for and obtain L/A to administer the estate of his deceased father, Rudolph Welbeck @ Abdulai only in respect of the movable and immovable properties his late father acquired in his life time. He cannot administer any other property whose administration is vested in a Co-administrator. It is a right statement of law that the question of capacity, like a plea of limitation, is not concerned with the merits of the suit and that it is no answer for a party whose capacity had been challenged by his adversary to plead to be given a hearing on the merits because he had a cast-iron case. See: Fosua & Adu-Poku v Dufie (dec’d) & Adu-Poku Mensah [2009] SCGLR 310. Having regard to the absence of evidence that the disputed property formed part of the estate of Adolphus Welbeck @ Abudulai or that Adolphus Welbeck inherited it as the sole beneficiary from his late sister, Rachel Afiyie Welbeck we hold that the respondent lacked capacity to initiate the action. We do, therefore, allow this ground of appeal. That leads us to addressing yet another important issue as to whether the suit was statute barred. Although we have held that the respondent was not clothed with the legal capacity to mount the action, we are nevertheless obliged to address this other issue on the account that it is an issue that is also capable of determining the case one way or the other. The case being statute barred: The learned trial judge in dismissing the appellants’ contention that the respondent’s claim was statute barred held: “The next issue I am called upon to determine is whether or not the plaintiff’s claim/action is statute barred. It is recognized that this is a legal issue……...… Even though it has been set down as issue for trial, because no evidence was led on it, the plaintiff also never cross-examined on it. It seems the defendants abandoned it in their evidence. In my view, they seem to be saying that they are not in adverse possession. Since they are not in adverse possession, the defence of limitation cannot avail them. I will therefore conclude the determination of that issue and say that it is not applicable to the circumstances of this case.” See: p. 367 [roa] Appearing on p. 364 [roa], the lower court had made a finding of fact based on the evidence on record that the defendants have remained in occupation and possession of the disputed property for a long time. Learned Counsel for the appellants has submitted that although the respondent claims his grandmother initially acquired the disputed property in 1976 from the 3rd appellant who had earlier in time acquired it from a Foo Chang Soo but subsequently resold the property to the said Foo Chang Soo, the contra evidence is that the 3rd appellant and her agents, assigns and privies had been in peaceful possession of the disputed property for several years before respondent suddenly chanced on the scene and made adverse claim to it. Counsel referred us to Exhibit 1 that revealed that 2nd appellant has been in the property as a tenant of the 3rd appellant since the year, 2001 well over 12 years before the respondent initiated his writ. Relying on the decision of the Supreme Court in Klu v Konadu Apraku [2009] SCGLR 741, Counsel argued that once the 3rd appellant has been in continuous possession of the disputed property well over 40 years the case of the respondent was statute barred. Was it the case that no evidence was led on the issue of the case being statute barred as the lower court held? We reproduce below, excerpts of the evidence as appearing on p. 282 [roa] to guide us. “Q. You are telling the court that between 1976 and 1992 as you have mentioned neither your father nor your grandmother made any attempt to take possession of the property in dispute A. My father made it known to me that after Foo Chang Soo vacated the premises his cousin went to live in it.” Another question was asked: “Q. The 3rd defendant has filed in this court a tenancy agreement between herself and the said Foo Chang Soo dated 7th January 1991 for fifteen years. A. I do not know about that but my father told me that the property belong to his mother but the said Foo Chang Soo was occupying the entire top floor and the shops. My father informed Foo Chang Soo was occupying the entire top floor and the shops. My father informed Foo Chang Soo that the person who has leased the property to him has sold the property to his mother.” Learned Counsel for the respondent in response to the submissions of the appellants that the case was statute barred has argued that the appellants by their defence did not give any indication of it or led any evidence to that effect. The obvious conclusion was that the appellants abandoned that claim, Counsel maintained. Counsel next argued that the appellants’ long occupation per se did not bar the respondent’s action for recovery of the disputed property. In support, he relied on Saaka v Dahali [1984-86] 2 GLR 774, the decision of this court in which case, the court held that long possession per se did not avail the possessor against claimant, if the claimant was the true owner or could show that he or she derived title from the true owner. It is important to stress that having regard to some questions and answers given under cross-examination outlined supra, we can make inferences that some evidence was led on the issue of limitation. As a matter of fact, per the claims endorsed on the writ of summons, the respondent was claiming for, inter alia, damages for trespass and an order for recovery of possession of the disputed property as well as mesne profit. These claims imply that the appellants were in adverse possession. The overwhelming evidence as the lower court found is that the appellants have been in occupation and possession for a long time, long before the respondent issued the writ of summons. Ironically, the respondent in reaction to a question under cross-examination stated that his late father was aware that Foo Chang Soo was in occupation of the disputed property. Whereas the 3rd appellant tendered in evidence Exhibit1 to show that she acquired the disputed property from Bhojson & Co. Ltd, and Exhibit 2 to show that she leased the said property to the said Foo Chang Soo, the respondent on the other hand, claimed that his father told him that Foo Chang Soo left the place and a cousin of his father went and occupied it. However, the respondent did not tell the lower court who that cousin was, neither did he invite that party to give evidence to corroborate him. We do, therefore, agree with and uphold the arguments of learned Counsel for the appellants that the evidence rather showed that the appellants have been in occupation of the disputed property for a long time. Once the respondent and his predecessor-in-title [his father] were aware that the appellants were in occupation adverse to their interest but did nothing to dislodge them, the action of the respondent was caught by statute of limitation as provided for under S. 10(1) of NRCD 54. That provision of the law stipulates: “(1) A person shall not bring an action to recover a land after the expiration of twelve years from the date on which the right of action accrued to the person brining it or, if it first accrued to a person through whom the first mentioned claims to that person.” We also think that Saaka v Dahali (supra) cited by learned Counsel for the respondent though good law, is a poor guide on the ground that the defendants in that case occupied the property, the subject matter as licensees of the plaintiff. In our present case, the evidence never showed that the appellants were licensees of the respondent. On the contrary, the evidence was that the 3rd appellant in particular had dealt with the disputed property as the beneficial owner. In that regard, we allow this other ground of appeal. The discussions on these 2 grounds of appeal have rendered moot and otiose, the consideration of the other grounds of appeal. Overall, the appeal succeeds and it is hereby allowed. The judgment of the lower court is hereby set aside and judgment entered in favour of the appellants on the 3rd appellant’s counterclaim. Ghc 15000 costs awarded in favour of the appellants. SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SGD JENNIFER DODOO (MRS.) (JUSTICE OF APPEAL) I AGREE I ALSO AGREE COUNSEL Constance Quist for the plaintiff/Respondent. Dominic Brenya Otchere with Nana Osei Adu Twum and Douglas Pc-Duah for the defendant/appellant 29