KINGSFORD OSOI CHARWAY -VRS- JAMES OKPOTI MENSAH [2022] GHACA 89 (20 July 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA A. D. 2022 CORAM: SUURBAAREH G. S. (MR.) J. A (PRESIDING) WOOD MERLEY (MRS) J. A. JANAPARE BARTELS-KODWO (MRS.) J. A. SUIT NO: H1/204/2019 20th July, 2022 KINGSFORD ODOI CHARWAY …… PLAINTIFF/APPELLANT VRS JAMES OKPOTI MENSAH …… DEFENDANT/RESPONDENT JUDGMENT BARTELS-KODWO, J. A: The Plaintiff/Appellant instituted an action at the trial court describing himself as a member and principal elder of the Nii Adjei Charway Family of La on his own behalf and on behalf of the family. This action was against the Defendant/Respondent for recovery of land which forms part of the Nii Adjei Charway Family at Oyarifa. The parties in this judgment will be referred to as the Appellant and the Respondent. On the 30th of April 2018, after a full trial the trial court dismissed the Appellant’s action for want of capacity to bring the suit and declared the Writ a nullity. It also dismissed the counterclaim of the Respondent having declared the Writ a nullity. It is against the judgment of the trial court which is at pages 236A - 236M that this appeal is brought. Though the Notice of Appeal contained three grounds of Appeal the Appellant before this court argued only the first ground being that: ‚The trial judge was wrong in dismissing the Plaintiff’s action on the ground that he had no capacity to bring this action on behalf of Nii Adjei Charway Family when the defendant did not by his defence raise the issue of Plaintiff’s capacity to institute that action on behalf of the Nii Adjei Charway Family. It is trite learning that an appeal is basically a re-hearing as created by statute, see rule 8 of C. I. 19, The High Court (Civil Procedure Rules) 2004. In the Court of Appeal case of BAKANA LTD. V. ALBERT OSEI AND THE OFFICIAL LIQUIDATOR OF GHANA AIRWAYS, C. A., Civil Appeal No: H1/28/2014, delivered on 12th June, 2014. This is how the court expressed the appeal mandate: “An appellate court as a rehearing court is to hear an appeal as if same the hearing were the original hearing of the case and hence may comprehensively review the whole case by analyzing the entire record of appeal, taking into account the testimonies and all the documentary evidence adduced at the trial before arriving at the decision, so as to satisfy itself that, on a preponderance of probabilities, that the conclusions of the trial judge are reasonably or amply supported by the evidence.” Learned Counsel for the Appellant in arguing the appeal submitted that though the court took evidence on the ownership of the land, the court took the stand that in civil litigation the issue of capacity was very important hence the court did not determine the substance of the matter that was before it being whether or not the land tract in issue belonged to the Plaintiff’s family. Rather it went ahead to decide the issue of capacity and came to the conclusion that the Appellant did not have capacity to bring the action. See page 236C of the judgment. The trial court he said relied on the cases of REPUBLIC V HIGH COURT A, EX-PARTE ARYEETEY (ANKRAH INTERESTED PARTY) (2003- 2004) 1 SCGLR 398 and SARKODIE I VRS BOATENG II (1982-1983) 1 GLR 715 to set the tone to determine capacity rather than the substance of the matter before it. Learned counsel for the Appellant argued that since by his pleadings the Appellant averred he is a member of the Nii Adjei Charway Family of La and institutes the action on its behalf with the knowledge and consent of the other principal elders to which the Respondent in his defence and counter claim averred he was not in a position to admit or deny, but was going to put the Appellant to strict proof at the trial and the Appellant joined issues with him in his reply, the Appellant was expected to lead evidence to establish that he is a member and principal elder of the Nii Adjei Charway Family of La with the necessary capacity to sue on the family’s behalf. It is the case of the Appellant’s counsel that the trial court erred in dismissing the suit on the basis that the Appellant failed to establish his capacity. This is so because the Respondent did not admit or deny the Appellant’s claim but stated it was not in a position to deny or admit the claim. In learned counsel’s view having gone down that path the Respondent is deemed to have admitted the Appellant’s claim going by order 11 rule 13 of the High Court and Civil Procedure Rules, C. I 47 which reads as follows: Admissions and denials “13. (1) Subject to sub rule (4) of this rule, any allegation of fact made by a party in the party's pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it. (2) A traverse may be made either by a denial or by a statement of non- admission and either expressly or by necessary implication.” In learned counsel’s view having failed to take a stand it meant or implied that the Respondent had admitted the capacity of the Appellant to bring the action. Consequently the Appellant was under no compulsion or duty to lead evidence at the trial to prove his capacity. He relied on Sir JACK JACOB GOLDERIN’S book on PLEADINGS, PRINCIPLES AND PRACTICE where at page 119 it is stated that ‚An implied admission has the same value and effect as if it were an express admission… ‛ Consequently the trial court was wrong to have placed the burden on the Appellant to prove his capacity. It was from this wrong expectation by the court of the Appellant that caused the court to look at the Appellant’s witness’s evidence to find out whether there is a Nii Adjei Charway Quarter at La rather than Abese Kplen We Family, Odoi Charway Quarter or Abese family, when the Respondent’s pleadings had never raised those issues. It is the prayer of the Appellant to allow the appeal since the trial court committed an error in considering paragraph 2 of the defence as a denial of Appellant’s capacity to institute the action. Learned Counsel for the Respondent on the other hand holds the view that counsel for the Appellant misconstrued the meaning of ‘traverse’ as used in Order 11 rule 13 of C. I. 47 because by sub-rule (2) of the order, a traverse is a denial or a statement of non- admission of a material allegation of fact. Hence a denial or a statement of non- admission is not an admission. Their paragraph 2 of their defence that ‚ the defendant is not in a position to admit or deny the averment contained in paragraph 1 of the statement of claim and will put plaintiff to strict proof at the trial‛ is a statement of non- admission which is catered for under sub-rule 13 (2) of Order 11 under the court rules. They hold the view that the Appellant knew he had the burden to establish his capacity having testified at page 2 of the ROA that he belonged to the Nii Adjei Charway family of La and is a principal elder. Yet his witness at page 6 of the ROA testified to the effect that Appellant was from the Abese Kwakoranya Charway Quarter of La Abese. PW2 at page 2 said the Appellant was from La Kpakplanya We. PW3, Appellant’s older brother also testified at page 6 of the ROA that they are from Abese Kpakpalanya We Family. Counsel argued that nothing in the evidence suggests that Nii Adjei Charway family and Abese Kpakpalanya We Family are the same family. PW4 also says at page 2 of the ROA that the Appellant hails from Odoi Charway family. PW5 testified that Appellant is from Nii Charway family of La. Then on the other side this is what the defence witness DW1 had to say about where the Appellant hails from. He told the court at page 2 of the ROA that the Appellant comes from Abese quarter and is NOT (emphasis ours) from the Nii Adjei Charway Family. Under cross-examination this same witness stated the Appellant was from the Abese Kpakplanya We family. Learned Counsel for the Respondent pointed out that from all these witnesses both on the Appellant’s side and the Respondent’s, it was only the Appellant who claims he hails from the Nii Adjei Charway Family. Therefore there is no credible evidence on record that he is an elder of the family he claims to hail from and is an elder and principal member of the family. Yet he has instituted the action on their behalf. Learned counsel argued further that counsel for the Appellant misunderstood the correct position of the law that an unambiguous admission of an allegation of fact by a party in a pleading absolves the opponent from leading evidence to establish the allegation. This will not hold when despite the admission the opponent attempts to lead evidence which is contrary to the admission and pleading of the party in which case the said admission cannot stand. The admission he submitted is not proof of the allegation but only absolves the opponent of the burden of proof. Learned counsel went on further to submit that the Appellant lacked capacity to bring the action on the basis of Order 4 rule 9 of C. I. 47 which states as follows: Order 4 Representation of stools and families “9. (1) The occupant of a stool or skin or, where the stool or skin is vacant, the regent or caretaker of that stool or skin may sue and be sued on behalf of or as representing the stool or skin (2) The head of a family in accordance with customary law may sue and be sued on behalf of or as representing the family. (3) If for any good reason the head of a family is unable to act or if the head of a family refuses or fails to take action to protect the interest of the family any member of the family may subject to this rule sue on behalf of the family. (4) Where any member of the family sues under subrule (3) a copy of the writ shall be served on the head of family. (5) A head of family served under sub rule (4) may within three days of service of the writ apply to the Court to object to the writ or to be substituted as plaintiff or be joined as plaintiff. (6) If the head of a family is sued as representing the family but it appears that he or she is not properly protecting the interests of the family, any member of the family may apply to the Court to be joined as a defendant in addition to or in substitution for the said head. (7) An application under sub rule (5) or (6) shall be made on notice to the parties in the action and shall be supported by an affidavit verifying the identity of the applicant and the grounds on which the applicant relies.” He argued that a member of a family may sue when the Head is unable, fails or refuses to sue to protect the interest of the family. Then in that case a copy of the Writ is served on the Head of family. Else the Head of family may authorize anybody with a Power of Attorney to sue on behalf of the family. Therefore since the Appellant states he brought the action on behalf of the family where is the evidence of the consent and knowledge of the family since it is clear from Page 38 of the ROA that the Head of Family is alive. According to the Appellant he is now old and cannot walk but gave him the power to take up the matter. When he was asked where the power was that he was given? The Appellant told the court he gave him the land documents to pursue the matter. Learned Counsel for the Respondent submitted that because the Appellant did not tender a Power of Attorney his statement that he was given power by the Head of Family is an afterthought. The statement is therefore contrary to his pleading and evidence that he brought the action with the consent and knowledge of the elders of the family. Learned counsel concluded his submissions by stating that issues of capacity can be raised at any time, even on appeal. See the case of HUSEINI VRS MORU [2013-2014] 1SCGLR 363 where the court at page 370 observed that “After reviewing the authorities and citing the cases of Fosua and Adu Poku v Dufie (deceased) and Adu-Poku Mensah 2009 SCGLR 310 and The Republic V High Court, Accra; ex parte Aryeetey (Ankrah, Interested party) (2003-2004) 1 SCGLR 398, the Court of Appeal said 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 be raised by the court suo motu. So it was no answer to say that once the power of attorney was not objected to when it was being tendered, its genuineness or admissibility could not be a subject of appeal.‛ Likewise in this matter the issue of lack of capacity was raised by the Respondent in their closing address but the Appellant failed to respond to it. It is never the case that the Respondent by his pleading admitted that the Appellant is a member and principal elder of the family. They only made a statement of non-admission which is a traverse. The Appellant from the evidence has no capacity to bring the action therefore the Appeal be dismissed. For the purposes of this Appeal it is the issue of the capacity of the Appellant to initiate the action that needs to be settled since the Respondent has put the Appellant to strict proof as this appeal is by way of a rehearing. The Appellant explained that he took the action instead of the family head and was supported by PW3 see page 38 where the Appellant testified in Ga and told the court he was bringing the suit as a principal elder of the Nii Agyei Charway Family because the head of family is old and has mobility issues. Q. In what capacity have you brought this suit? A. The head of family is now old and cannot walk that is why he gave me power to take up the matter. Q. Why did he give you the power to bring this suit? A. It is because the head of family cannot walk. Q. Where is the power given to you by the family head? A. That is the land document he released to me. His evidence was supported by his older brother PW3 who stated they were from the same La Abese Kpakplanyawe family and their head of family Ashitey Armah is unwell but is aware of the action because the Charway family met and agreed that since the head is unwell as well as he himself the Appellant should take up the case on their behalf, see page 52-53. It is the case that Quarters are made up of a number of families hence PW3 mentioning La Abese Kpakplanyawe and the Charway family. DW1 admits quarters and families exist and he is aware of Abese as a Quarter and also knows the Charway family. It cannot be the case that DW1 who is not a member of their family will take the position that he does not know the Appellant when members of his family know him. He DW1 an outsider is not expected to know the members of Appellant’s family. It is our view that the Interpreter was the one who used the word or translated Appellant’s speech in Ga by using the word ‘power’, the Appellant obviously from his position that his brother had given him the land documents to work with was not talking about a power of attorney in the legal sense, but authorisation to prosecute the case. As a result this situation is an exception to cases where issue of capacity is raised and persons are found wanting because they do not have a power of attorney and they had not served a copy of the Writ on the head of family as required under Order 4 rl 9 o C. I. 47. It is not the case here that the head of family has refused to take an action to safeguard the family lands. As a result the case of KWAN V NYENI (1959) GLR 67 is distinguishable. The finding of the court at page 236K of the ROA that the Appellant failed to indicate that he had the consent and authority of the Head of Family cannot hold. We are of the opinion that under the circumstances here the word power should not be taken literally to mean a power of attorney. The Appellant testified that his aging brother had given him the land documents to take the action. PW3 corroborated this evidence of the Appellants authorization. We are of the view that expecting a formal power of attorney will be out of sync with the scenario before us. The Appellant did not bring the action under the Kwan supra exception, consequently the case of ASANTE- APPIAH VRS AMPONSAH (2009) SCGLR 90 will not apply as the learned trial judge found at page 236M of the ROA in his judgment because the evidence shows that he had the consent or blessing of the family when the land documents were given to him to take this action. We therefore find that the Appellant had capacity to bring the action on his own behalf and on that of the family. The trial judge was therefore wrong in dismissing the Appellant’s claim on the basis that he did not have the capacity to bring the action. Having held that the Appellant had capacity to institute this action, this court, in its duty to rehear the matter will proceed to look at the evidence led during the trial and come out with a decision on which of the parties is entitled to judgment upon a preponderance of probabilities. Looking at the totality of the evidence led, the Appellant’s case was supported at pages 42-45 of the ROA by the Asomanwe family of La. PW1 said their families shared a boundary with the land at Oyarifa. However the Respondent did not share any boundaries with them and his land was nowhere near the land in dispute. He denied that the land belongs to Respondent’s family but rather they had trespassed onto it and were selling it to others. PW2 who hails from the Agawe Owusu family also told the court that she married Appellant’s uncle and lived with him and farmed on the land at Oyarifa. Before her marriage her father-in-law lived on the land and farmed on it. It was after his death that her husband took over. She denies that Respondent has any land near the land in dispute. She said Respondent has however trespassed onto Appellant’s land. Likewise PW3 testified the land belonged to Appellant’s family to which she belongs. They have also been in possession of the land and have farmed on it. PW5 also told the court the land in issue was at Oyarifa. That the Appellant’s farm on it. His family was a boundary owner to the Appellant’s land. He also said the Respondent did not own land near the Appellant’s land. PW5 is the linguist of Oyarifa. He also testified that the Appellant’s land was at Oyarifa. He said the Respondent’s land was toward Frafraha and it did not share boundaries with Appellant’s land which is the land in issue. Respondent testified that he is a member of the Kple We family who granted it the land it had registered as per Exhibit 1 series. He says the land is at Oyarifa. He has been granting parts of the land to others. He however never called any boundary owners to support his ownership of land at Oyarifa. His witness DW1 also stated the land in dispute belongs to the Kplen We family. He said their family had given out land to other families to farm on so they knew their boundary owners. The surveyor tendered the composite plan Exhibit CW1 and told the court that though the parties gave their documents for the composite plan to be drawn up the defendant and his grantor could not show the physical position of his land because he was prevented from doing so by families in actual possession who drove him away saying that he had no land on the ground. The original defendant passed away and his successor who was substituted said he did not know where the land was. From the evidence though the Respondent stated they had given out lands to others so knew who they shared boundaries with they did not call any boundary owners to come and testify to their ownership of land in dispute. The respondent did not also call any of his grantees as a witness. Coupled with the testimony that the surveyor gave that they could not show their lands physically on the ground one wonders where their land was. Their own schedule described their land as bounded on all sides by unnamed property, see schedule of the land description in their document Exhibit 1C at page 176 of the record. We come to the conclusion that although the respondent claimed to have registered the land in dispute in Exhibit ‘1’ series and normally the effect of such registration under the repealed Lands Registry Act, 1962 (Act 122) and the repealed Land Title Registration Law, PNDCL 175 would have constituted notice to the whole world, despite these provision of s. 18 and 43 therein of 152 that the land register shall be conclusive evidence of title of the proprietor of any land interest in land on the register, the authorities show that registration per se does not guarantee Title Registration for instance, will then not cure a defective title from a grantor that had nothing to pass on. See the cases: 1. Oklikah v. Amuzu [1998-99] SCGLR 141 2. Hilodjie & Ors. v. George [2005-2006] SCGLR 974 at 990 3. Barnie v. MO Traditional Council (Per the Omanhene E. K. Manu @ Chupa) [2017] 105 GMJ 295 CA Indeed the Respondent made a counterclaim and so was in the same position as the Appellant in his claim to establish through the evidence he led that indeed this parcel of land belonged to him. On the totality of the evidence we find that he failed to do so. On the preponderance of probabilities the Appellant on the other hand had independent witnesses testifying on his behalf on the ownership of the land. The Supreme Court through Adinyira JSC as she then was in the case of ACKAH V. PERGAH TRANSPORT LTD. (2010) SCGLR 728 stated thus: “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of a fact is more probably reasonable than its non-existence.” On the totality of the evidence led we find that the Appellant produced sufficient evidence to enable us come to the conclusion that his case is more probable than the Respondents case. As was stated by Buckley L. J. in the case of HAWKINS V POWELL TILLERY STEAM COAL CO [1911] 1 KB 988 @ 996 thus; “When it is said a person who comes to court must prove his case, it is never meant that he must prove it with absolute certainty. No fact can be proven in this world with absolute certainty. All that can be done is to adduce such evidence that the mind of the reasonable tribunal is satisfied that the fact is so. This may be done either by direct evidence or by inference from facts. But the matter must not be left in surmise, conjecture or guess.” Having combed through the available evidence we are of the view that the balance tilts in favour of the Appellant as the person with the more probable of the rival claim to the land in dispute. The Respondent’s counterclaim is hereby dismissed. We therefore grant the Appellant reliefs (i), (ii), (iii), (iv), and (vi) as endorsed on his Writ of Summons and Statement of Claim. (Sgd.) JANAPARE A. BARTELS-KODWO (MRS.) (JUSTICE OF APPEAL) Suurbaareh, (J. A.) I agree G. S. SUURBAAREH (Sgd.) (JUSTICE OF APPEAL) Wood, (J. A.) I also agree MERLEY WOOD (MRS.) (JUSTICE OF APPEAL) (Sgd.) COUNSEL:   James Ahenkorah Esq. for Plaintiff /Appellant Raphael Alijina for Defendant/Respondent 13