HAMMOND & ANOTHER VRS M & G PHARMACEUTICALS (H1/149/2021) [2022] GHACA 105 (24 February 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL APPEAL) ACCRA – GHANA CORAM: MARGARET WELBOURNE JA AMMA GAISIE JA PRESIDING P. BRIGHT MENSAH JA BETWEEN: SUIT NO. H1/149/2021 24TH FEBRUARY 2022 1. GABRIEL JONAS DOWUONA HAMMOND … PLAINTIFFS/ 2. PATIENCE DOWUONA HAMMOND WHITE RESPONDENTS vs M & G PHARMACEUTICALS … DFENDANT/APPELLANT ========================================================= JUDGMENT ========================================================= BRIGHT MENSAH JA: The instant appeal has been launched against the judgment of the High Court [Land Division], Accra delivered 22/05/2018 in favour of the plaintiffs/respondents herein. Being dissatisfied with the decision, the defendant/appellant herein has filed an appeal urging this court to overturn the judgment. Per the notice of appeal filed in this court, the defendant/appellant complains that: 1. The learned trial judge erred by holding that the plaintiffs have capacity to bring their action. 2. The learned trial judge erred by failing to make a determination on the triable issue of whether or not Rosemond Mark Hansen was a head of the Sarah Addo Family. 3. The learned trial judge erred by granting the plaintiffs reliefs not sought by them per amended writ of summons. 4. The learned trial judge erred by holding that the plaintiffs’ action was not statute barred. 5. The learned trial judge erred by dismissing the defendant’s counter- claim and ordering a cancellation of its land certificate No. GA 18620 in Land Register Volume 15 Folio 85. 6. The judgment is against the weight of evidence on record. In this appeal, the defendant/appellant shall simply be referred to as the appellant whilst the plaintiffs/respondents shall be called the respondents. The writ: The original parties who caused the writ of summons to be issued in the registry of the High Court [Land Division], Accra on 27/12/2013 were Gabriel Jonas Dowuona- Hammond and Patience Dowuona-Hammond White. It was pleaded in the statement of claim that accompanied the writ that Gabriel Jonas Dowuona-Hammond was the oldest surviving male member of Laingoye Lartey family and the head of the said family whilst Patience Dowuona-Hammond White was described as a housewife then domiciled in the United Kingdom but has relocated to live in Accra at the institution of the case. It is noted that Gabriel Dowuona-Hammond passed on whilst the case was still pending for trial. In the result by an order of the lower court made on 14/11/2016, he was substituted by Patience Dowuona-Hammond White as the 1st plaintiff whilst Madam Christiana Dowuona-Hammond was then joined as the 2nd plaintiff. The title of the case was therefore amended to read: 1. Gabriel Jonas Dowuona-Hammond (substituted by Patience Obieley Dowuona-Hammond White) 2. Patience Obieley Dowuona-Hammond White (substituted by Christiana Dowuona-Hammond) Suing for themselves and for the Laingoye Lartey Family) All of Hse No.2 Plateau Close NTHC Estate, East Legon Extension, Agyirgano, Accra … Plaintiffs M & G Pharmaceuticals Ltd P. O Box 1681, Accra … Defendant vs See: p. 125 [roa]. The writ herein referred to, was subsequently amended per an order of the High Court dated 28/02/2014. Per the amended writ, the respondents had sued for: a. Declaration of title to the land situate and lying at Bannerman Road, Accra bounded on the North-West by the Korleyna Road, measuring 72 feet, on the South-East by the property of Laingoye Lartey measuring 50 feet, on one side and 25ft on the other side, on the North-East by Bannerman Road measuring 72ft, on the South-West by the property of Laingoye measuring 52feet on one side and 22ft 5” on the other side. b. Recovery of possession. c. Interlocutory injunction restraining the defendant, its servants, agents, workmen and assigns from dealing with the land. d. Damages for trespass. e. Costs. See: pp 34-35 of the record of appeal [roa]. Counterclaim: On record, the appellant filed a defence to the respondents’ claim and counterclaimed as follows: a. Declaration of leasehold title to all that parcel of land comprising an appropriate area of 0.09 of an acre being Parcel No. 102 Block 6 Section 031 at Bannerman Road, James Town – Accra as delineated on Land Registry Map No. 004/031/1991 annexed to Land Certificate No. GA 18620. b. Perpetual injunction restraining the plaintiffs, their agents, assigns, servants and workmen from dealing with the land. c. General damages against the plaintiffs for causing the defendant to suspend the development of the land in dispute at considerable expenses and inconvenience. d. Costs. See: pp 133 – 135 [roa]. Brief facts: The original 1st respondent sued as head of the Laingoye Lartey family of Accra. As recounted supra upon his demise, Gabriel Jonas Dowuona-Hammond was substituted by Patience Obieley Dowuona-Hammond White, then the 2nd plaintiff. Pursuant to the amendment, Patience Obieley Dowuona-Hammond White then became the 1st plaintiff [now 1st respondent in this appeal]. It is peculiarly useful to note that the substituted respondent now claims that she is the Head of Sarah Addo family and not the head of Laingoye Lartey as the original 1st respondent claimed. The substituted 2nd respondent, Christiana Dowuona-Hammond is described as an elder of the said Sarah Addo Family. See: para 8 of Amended Statement of Claim @ p 131 [roa]. It is common knowledge that the disputed land was granted to the appellant sometime in June 2000 by Rosemond Mark-Hansen. Per an indenture the appellant tendered in evidence at the trial, the said Rosemond Mark-Hansen described herself as the head of Sarah Addo Family of Bannerman Road, Accra and it is stated therein as having conveyed the disputed property to the appellant with the consent and concurrence of the principal members of the Sarah Addo family. See: pp 181 - 188 [roa] It is the case of the respondents that the said Rosemond Mark Hansen had no power or authority to have entered into the said agreement with the appellant. According to the respondents, after the death of Rosemond Mark Hansen, a Charlotte Naa Adukwei Quist brought some documents covering the Laingoye Lartey Estate to the 1st respondent contending that she had been instructed by the late Rosemond Mark Hansen to deliver them to him as a principal member of the family. They claim that they were not living in Ghana at the time the said Rosemond Mark Hansen granted the lease to the appellant in the year, 2000. The respondents claim that it was after their return to Ghana that they discovered the said agreement and took steps to challenge the validity of the conveyance. They tried but unsuccessfully to engage the appellant to settle the issue. The appellant then heaped stones and sand on the disputed land with intention to develop it. It is the case of the respondents that in 2006, the 1st respondent representing Neils Dowuona-Hammond, the 2nd respondent representing Okainja Dowuona-Hammond and Charlotte Naa Adukwei Quist representing Emma Shormey Quaye acting as principal elders of the family signed as lessors, a grant of a portion of the said estate to the Assemblies of God Mission. The appellant, on the other hand, contend that the grant by Rosemond Mark-Hansen was valid as she had the power and authority to grant the land as the Head of Sarah Addo Family. It was their case that the appellant went into possession of the disputed land in 2000 soon after acquiring it and have been in possession from then until the respondents took the present action on 27/12/2013. Thus, the action was statute barred by reason of S. 10 of the Limitation Act, 1972 (NRCD 54). It is also the case of the appellant that its title over the disputed land is protected by S. 43(1) of the Land Title Registration Act, 1986 (PNDCL 152). Again, the appellant contends that the respondents lack the legal capacity to institute the present action. Issues adopted for trial: The issues for trial as contained in the Application for Directions filed with the lower court on 16/01/2017 were as follows: 1. Whether or not the conveyance dated 11th November 1898 from Laingoye Lartey to her children and children of her descendants extinguished the rights of the plaintiffs herein to sue on behalf of the family of the said children and grandchildren. 2. Whether or not the Rosemond Mark Hansen was a Head of Family of Sarah Addo Family and was entitled to lease the disputed land to the defendant. 3. Whether the defendant has acquired any rights under the lease executed between it and the said Rosemond Mark Hansen. 4. Whether the land title certificate obtained by the defendant is lawful. 5. Whether or not the plaintiffs’ action is statute barred by S. 10 of the Limitation Act (NRCD 54). 6. Whether or not the plaintiffs are entitled to their claims. 7. Whether or not the defendant is entitled to its counterclaim. Judgment of the lower court: After the trial of the case, the learned trial judge found for the respondents on their claim and dismissed the counterclaim of the appellant. See: pp 385 – 395 [roa]. The main highlights of the judgment are that: 1. The appellant was unable to discharge the burden that Sarah Addo Family was a matrilineal for the purpose of succession to her estate. In the lower court’s view, the mere fact that Ga Mashie has been held to have a matrilineal system of succession did not make the defendant’s [appellant] assertion that Sarah Addo hailed from Ga Mashie and therefore succession to her property was matrilineal a proven fact. 2. On the meaning of “children of Laingoye Lartey born and unborn and to their heirs and assigns forever” the lower court held that although there was no dispute that the subject matter of the gift became part of the estate of Sarah Addo after her brothers died without leaving any children behind but she died survived by 3 children, namely Emma Shormeh Quaye, Neils Dowouna Hammond and Okaija Dowuona Hammond, all their children after them have an equal share in the disputed property. The lower court conceded that the respondents could not bring the current action on behalf of the Laingoye Lartey Family. Nevertheless, it held that the respondents have beneficial interest in the subject matter by virtue of being descendants of Sarah Addo through her sons Neils Dowuona Hammond and Okaija Hammond and therefore were entitled to institute the action. 3. The grant to the appellant of the conveyance by Rosemond Mark Hansen was invalid. The lower court therefore went ahead to cancel the Land Tittle Certificate of the appellant. 4. The suit was not statute barred. Established facts: Significantly, the following established facts emerged from the pleadings and evidence led on record as findings the lower court made: 1. That in the year, 1898 Laingoye Lartey executed a deed of Gift of land which the disputed property formed part to “their children born and unborn and their heirs and assigns forever”. 2. That the said Laingoye Lartey died in 1923, leaving behind 4 children namely, Sarah Addo, Charles Nanka-Bruce, Wati Nanka-Bruce and Emmanuel Nanka-Bruce. 3. That Charles Nanka-Bruce, Wati Nanka-Bruce and Emmanuel Nanka-Bruce died survived by no children. 4. That Sarah Addo survived her brothers and became the sole beneficiary and or absolute owner of the land, the subject matter of the gift. 5. That Sarah Addo had 3 children namely: Emma Shormeh Quaye, Neils Dowuona Hammond and Okaija Dowuona Hammond. 6. The said Sarah Addo died intestate. See: pp. 389-390 [roa] The appeal: At this stage we proceed to analyze the arguments of both Counsel vis-a-vis the evidence led on record. The settled position of the law is 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 principle that an appeal is by way of rehearing the case is entrenched in case law. See: Kofi v Kumansah (1984-86) 1 GLR 116 @ 121 where the Court of Appeal 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. The rationale is to correct the lower court and that also serves as a guide to all lower courts to follow the decision of the higher court on questions of law. 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.” Now, to the merits of the instant appeal. Ground 1: The learned trial judge erred by holding that the plaintiffs have capacity to bring the action. Learned Counsel in his written submissions conceded that the issue of capacity of the plaintiffs [respondents] was not one of the issues specifically set down as the issues for trial. Counsel nevertheless argued that that issue clearly emerged from the pleadings and evidence was led on it. He referred us to some averments contained in the pleadings the parties filed in support of that contention. In particular, he referred to paragraphs 4, 5, 6 and 7 of the respondents’ further amended statement of claim [p.284 roa]; paragraphs 3, 4, 5, 6 and of the appellant’s statement of defence [p.133 roa] as well as paragraphs 3 and 4 of the reply of the respondents appearing on p.136 [roa]. Furthermore, Counsel referred us to the respondents’ further amended writ [p.284 roa] wherein the respondents have averred that they sued for themselves and for the Laingoye Lartey family. In his view, once the respondents admitted that the disputed property became Sarah Addo family by reason that all the children of Laingoye Lartey died without children surviving them except Sarah Addo who had children and Sarah Addo intestate then it was the Head of the Sarah Addo family rather than the Head of the Laingoye Lartey Family who could sue and be sued in respect of the land, the subject matter of the suit. In support of the legal proposition, Counsel referred us to Order 4 r 9(2) of the High Court [Civil Procedure] Rules, 2004 [C. I 47] and relied also on the case law ie the classic Kwan v Nyieni [1959] GLR 67 and In re Ashalley Botwe Lands; Adjetey Agbosu & ors v Kotey & ors [2003-2004] 1 SCGLR 420 @ 423. In the result, Counsel invites the court to dismiss the claim of the respondents for want of capacity to sue. In response, learned Counsel for the respondents on capacity did argue that the evidence showed that there was no properly recognized head of the Sarah Addo’s family. Thus, in the year, 2006 when part of the land gifted to the Laingoye Lartey family was being alienated to the Assemblies of God Mission it was 3 members of family ie the 1st and 2nd respondents as well as DW1 Charlotte Adukwei Quist, each a descendant of one of Sarah Addo’s children who acted together. To Counsel, the principle in Kwan v Nyeini [supra] has been done away with by the subsequent judgments from the Supreme Court notably, In Re Ashalley Botwe Lands [supra]. He concluded that the learned trial judge was right when she held that the respondents had the capacity to institute the action. The issue of capacity: As a matter of fact, the issue of capacity of the respondents to sue was not specifically set down for hearing in this case. Nevertheless, once the appellant per its pleadings did raise it and in response, the respondents reacted to it in their pleadings particularly in their Reply, issue was so joined as to whether the respondents were clothed with capacity to sue. Indeed, on the authorities, the trial court is not bound to consider only the issues set out in an application for directions [previously summons for directions]. The court is mandated to consider and determine all issues arising across the entire spectrum of the pleadings provided evidence was led on it. See: Kariyavouolas v Osei [1982-83] GLR 658. It is instructive to observe that 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] In any event, what issues were relevant and essential to a case was a matter of law entirely for the judge to determine. See: Fidelity Investment Advisors v Aboagye-Atta [2003- 2005] 2 GLR 118. Guided by the principles so stated supra, we think the lower court took the right course when it considered and ruled on the issue although admittedly, capacity of the respondents to sue was not specifically set down for hearing. The lower court held that the respondents were beneficial owners of the disputed property and therefore, could sue in the present suit. This appears on p.10 of the judgment worth reproducing here below: “………………. I however agree with Counsel for the defendant that the plaintiffs cannot bring this action on behalf of Laingoye Lartey Family because the said property, by their own admission in the Reply has devolved onto the Sarah Addo. However, since the plaintiffs also brought this action in their capacity as beneficial owners of the land in dispute, their action can be sustained on ground.” See: [p. 394 roa]. Was the lower court right in coming to the conclusion it did? The law has always been that persons suing in a representative capacity must establish that status. See: Akoto II v Kavege [1984-86] 2 GLR 365. 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. In paragraph 4 of the respondents’ further amended reply filed 23/12/2016 it was pleaded: “4. In answer to paragraphs 5 and 6 of the Further Amended Statement of Defence and Counterclaim filed 19th December 2016, the plaintiffs say that the land in dispute was gifted to Sarah Addo and her siblings as joint tenants: since the other siblings did not leave behind any children, Sarah Addo be- came the absolute owner of the property upon the death of the other siblings.” Once the issue of the respondents’ legal capacity was put in issue, the question then arises if they had a cause of action against the appellant. 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] ‘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. We have critically evaluated the evidence led on record in the instant appeal. In the light of the facts of the case and on the pleadings, it cannot be put to any serious doubt that the respondents had sued for and on behalf of the Laingoye Lartey Family. They tendered in evidence as Exhibit B to support that claim. Exhibit B is the Letters of Administration granted to the respondents to administer the estate of Laingoye Lartey. Now, the lower court having made a finding of fact that the disputed property had devolved on the Sarah Addo family at the institution of the suit and did not belong to the Laingoye Lartey family, we roundly agree with the submissions of learned Counsel for the appellant that by operation of law it is the owner of that property or the head of Sarah Addo Family that reserved the power and or right to have sued in terms of Order 4 r 9(2) of the High Court [Civil Procedure] Rules, 2004 [C. I 47]. 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. We think that the respondents were unable to demonstrate that they had capacity to sue in respect of the disputed property that did not belong to the family they sued for, neither they did they come within the rule of exceptions laid down in Kwan v Nyeini (supra) and Order 4 r 9(2) of CI 47. We do, therefore, uphold the submissions of learned Counsel for the appellant that the respondents lacked the capacity to bring the action in respect of the disputed property. In the result, we allow this ground of appeal. Ground II: The learned trial judge erred by failing to make a determination on the triable issue of whether or not Rosemond Mark Hansen was a Head of the Sarah Addo Family. Learned Counsel for the appellant has drawn the court’s attention to the issue stated supra as one of those adopted for trial but argues the trial court made no determination on it. See: p. 289 [roa] It was Counsel’s submission that once the respondents alleged that Rosemond Mark Hansen had no power to grant the land in dispute to the appellant when she did so as the Head of the Sarah Addo Family at the time, the lower court ought to have made such a determination. In support, he relied on Mechanical Lloyd Assembly Plant v Nartey [1984-86] 1 GLR 412 that settles the law that it is the head of family who can sue and be sued in respect of family property. Thus to Counsel, the issue whether or not Rosemond Mark Hansen was the then head of Sarah Addo Family was very key in the determination of the suit. But it has submitted on behalf of the respondents in reply that the learned trial judge was right when it held that all the descendants of Sarah Addo (male or female) are equally entitled to her estate. We have critically studied the evidence on record and cannot agree more with the erudite submissions of learned Counsel for the appellant that it was a fundamental issue in the determination of the case that the lower court could not have ignored. By the respondents’ further amended statement of claim they conceded that the disputed property was the Sarah Addo family’s yet they claimed they were suing for themselves and on behalf of the Laingyoe Lartey family. Insofar as the pleadings go, the crux of the matter before the court was not whether the respondents were beneficiaries of Sarah Addo Family. The fundamental issue that could have decided the case one way or the other was, as a matter of emphasis, whether Rosemond Mark Hansen was the head of the Sarah Addo Family clothed with capacity to alienate the disputed property to the appellant. The lower court having sidestepped that basic function of making that key determination, we think it erred in law when it rather held that the respondents were beneficiaries of Sarah Addo Family property and thus could maintain the action. It is peculiarly important to observe that although the respondents alleged that in the year 2000 that Rosemond Mark Hansen granted the disputed property to the appellant she was not the head of family, they were unable to disclose who the head of family was. Some answers the respondents gave to questions under cross-examination on 17/01/2018 are quite revealing. It was recorded: “Q. In the year 2000 who was the head of Sarah Addo Family A. To my knowledge nobody had been elected Q. Before the year 2000 who was the head of Sarah Addo Family A. I cannot recall who was.” However, under further cross-examination they claimed that Rosemond Mark Hansen was acting as the family’s spokesperson when the 1st respondent returned from the United Kingdom in 2001. She nevertheless believed that a family spokesperson may be the head of family. See: pp 293-295 [roa] From the available evidence, it is plainly obvious the respondents were unable to rebut the evidence of the appellant that Rosemond Mark Hansen was the head of Sarah Addo Family in 2000 when she alienated the disputed land. We therefore hold that Rosemond Mark Hansen was the head of family at the time the grant was made. Consequently, the grant was valid. Even proceeding on the premise that Rosemond Mark Hansen was only a Spokesperson of the Sarah Addo Family at the time, on the authorities, the grant was not void but voidable at the instance of the rightful members of the family who reserved the right to sue to promptly set aside the grant and to protect the property. See: Kwesi Manko & ors v Bonso [1956] 3 WACA 62 @ 63. In the circumstance, we 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 respondents were 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 appellant’s contention that the respondents’ claim was statute barred held: “With respect to the defendant’s claim that the action was statute barred because he obtained the lease in 2000 and was in possession up to 2013 when the plaintiffs first challenged him, the plaintiffs have explained that they were living in the UK when the lease was executed. When the 1st plaintiff came down to Ghana and became aware of this lease in or around 2006 she took steps to challenge it as shown by correspondence between Counsel for the two parties. It is evident from the accent of the 1st plaintiff that she has lived in the United Kingdom for a very long time. I agree with Counsel for plaintiffs that time could not have begun to run against the plaintiffs until they became aware of the said lease.” It has been submitted on behalf of the appellant that they remained in possession of the disputed land when it was acquired in June 2000 and was developing it until they were slapped with an injunction order. At the time the respondents commenced their action in December 2013, the appellant had been in undisturbed possession of the disputed land for 13 years 6 months, Counsel maintained. In his view, if the respondents contended that the appellant had no right to be on the disputed land because its grantor had no power to make a grant to it, the possession was in those circumstances adverse to the interest of the respondents for which the appellant could take advantage of the Limitation Act. In support, he referred us to such cases as Djin v Musa Baako [2007 – 2008] 1 SCGLR 683 and Adjetey Adjei & ors vs Nmai Boi & ors [2013 – 2014] 2 SCGLR 1474. Counsel has, therefore, invited this court to hold that the respondents’ action having been brought after the limitation period their interest in the land had been extinguished by the Limitation Act, 1972 (NRCD 54). Per contra, learned Counsel for the respondents has argued that the right of action against someone in adverse possession cannot be said to have accrued until the person has had knowledge of his right. He submitted further that the respondents became aware of their right when documents covering the land came into the possession of the 1st respondent in about 2006. The appellant cannot be said to have been in adverse possession until 2006, Counsel insisted. In further submission, Counsel for the respondents contended that simply entering into a lease agreement and registering same at the Lands Commission does not satisfy the requirements of S. 10(4) of the Limitation Act but possession that requires formal entry unto the land that must be open, visible and unchallenged. In support, he relied on Adjetey Adjei & ors v Nmai Boi & ors [2013-2014] 2 SCGLR 1474. We have carefully evaluated the evidence led on the issue of the entry unto, and possession of the disputed land by the appellant and do agree with submissions of the learned Counsel for the appellant that the findings or the conclusion the lower court reached do not support the evidence led on record. First, the 1st respondent in her evidence under oath admitted under cross-examination that she relocated to Ghana from the United Kingdom in the year, 2001 and became aware of the appellant’s possession of the disputed land. We reproduce here below, the question put to the 1st respondent and the answer she volunteered, as appearing on p. 302 [roa]: “Q. I am suggesting to you that before the commencement of your action, the defendant had taken possession of the land in dispute since the year 2000. A. I believe so.” [emphasis supplied] It is common knowledge that the grant of the disputed land to the appellant was made in 2000. It is also not in any controversy that the house that occupied the land at the time was in a state of disrepair. In other words, it was a dilapidated house which was pulled down. Whereas the appellant claims they pulled it down soon after they acquired the land in 2000 and fenced the area for construction and development to be carried thereon, the respondent other the hand claimed that it was the City Authorities, Accra Metropolitan Authority that rather did. On the preponderance of probabilities, we think the story of the appellant was more probable and preferable to the respondents’. This is because if indeed it was the City Authorities that pulled down the house there would be records to support it, particularly when it was so pulled down. The respondents never explained with any degree of certainty when the City Authorities pulled it down. They never called that evidence from the City Authorities. If they did, it would have put to rest, the lingering doubt as to when the appellant formally entered the land and took possession thereof, in conformity with the principle stated in Adjetey Adjei & ors vs Nmai Boi & ors [2013 – 2014] 2 SCGLR 1474. Admittedly, the respondents engaged the appellant in 2006 to resolve amicably, the grant and possession of the land but it does appear no successful settlement was reached. That may account for the initiation of the respondents’ action in December, 2013. Having regard to the pleadings and evidence led on record, particularly the 1st respondent’s admission that she became aware of the appellant’s occupation in 2001 of the land adverse to their interest but did nothing to dislodge them, the action of the respondents 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.” As a matter of fact, per the claims endorsed on the writ of summons, the respondents were claiming for, inter alia, damages for trespass and an order for recovery of possession of the disputed property. The claims imply that the appellants were in adverse possession. For the reasons so stated supra, we allow this other ground of appeal. The discussions on these 2 grounds of appeal are capable of disposing of the appeal. However, we think the other ground of appeal listed here below is worth discussing. Ground 6: The judgment is against the weight of evidence on record. The appellant contends that the judgment of the lower court is against the weight of evidence. The appellant carries the burden to show where the lower court erred and the need to reverse the judgment in his favour. To succeed, it must be demonstrated: 1. That the findings and conclusions by the lower court were contrary to the evidence led on record and therefore the judgment cannot be supported. 2. That the findings and inferences from established facts by the lower court were wrong which gives the appellate court the power to draw its own inferences and come to the proper conclusions. 3. That the lower court applied wrong principles of law to the case and therefore, the judgment is liable to be set aside. The omnibus ground that the judgment is against the weight of evidence also empowers the appellate court to consider the case as a whole and come to its own conclusion having regard to the pleadings and the evidence led on record, both oral and documentary. The case, Owusu-Domena v Amoah [2015-2016] 1 SCGLR 790 is the legal authority for saying that the sole ground of appeal that the judgment is against the weight of evidence throws up the case for a fresh consideration of all the facts and law. In that respect, the appellate court just like the trial court, has the duty to evaluate and assess the evidence led at the trial in order to determine in whole, in whose favour the balance of probabilities tilts. As a general principle, the lower court has the exclusive right to make findings of fact. It is a well-established principle of the Common Law jurisdiction that it is the trial court that has the exclusive right to make primary findings of fact; this is because it is that court that observes the demeanour of witnesses and in a position to determine the truthfulness of their testimonies. Thus, where the findings are supportable by the evidence the appellate court ought to hasten slowly and exercise great caution in setting aside such findings except where certain specific flaws occur in the findings of the trial court. See: Agyenim-Boateng v Ofori & Yeboah [2010] SCGLR 861 @ 863. See also: Fofie v Zanyo [1992] 2GLR 475. From the available evidence led on record in the instant appeal, we do agree that the judgment was against the weight of evidence. First, there was no dispute that all the protagonists except the appellant, in the saga insofar as the disputed property was concerned, were all from Ga Mashie. Significantly, the 1st respondent in her testimony under cross-examination conceded to that fact. On the authorities which include the decision of the Supreme Court in Okine v Welbeck [2013-2014] SCGLR 1335, the Ga Mashie’s system of inheritance is matrilineal. Inheritance being matrilineal means it is only the female members of the family that can pass any property that has assumed family character to their children whilst the males cannot. It cannot be overemphasized that the legal authorities learned Counsel for the appellant cited supra was enough proof that Ga Mashie inheritance is matrilineal. The learned trial judge was therefore clearly wrong when she refused to follow the law as espoused by the apex court but tried feebly to distinguish them, and contending that DW1 was unable to clearly delineate the boundaries of Ga Mashie people. In the Okine v Welbeck [supra] the Supreme Court recognizing that the original owner of the disputed property in the case was a native of James Town, Ga Mashie where the system of inheritance is matrilineal held that the plaintiffs and other members of the wider family on whose behalf they had sued had only, realistically, a spes successionis to that property, which by reason of its sale to the defendant-appellant cannot be attained. As a matter of law, the learned trial judge in the instant appeal was in terms of Article 129(3) of the 1992 Constitution and S. 2(3) of the Courts Act, 1993 [Act 459], bound to the follow the decision of the Supreme Court. She therefore fell in error when she refused to follow it. We need to state that as a general rule, a judgment may be used as a fact and not as estoppel and the lower court must take judicial notice of it in accordance with S. 9(2) of the Evidence Act, 1975 [NRCD 323] . The law does not prevent a judgment being used as a relevant fact from which the court may draw a conclusion in favour of the person who tenders it though not used as an estoppel. See: Nana Akoto v Nana Agyiman (Consolidated) [1962] 1 GLR 52. Next, we also think that the lower court fell in error on the interpretation it put on the words “their children and heirs and assigns” in its application to the case. It is not in dispute that the gift of the disputed land was made by Laingoye Lartey per a conveyance dated 11th November, 1898 to their “children born and unborn and their heirs and assigns forever.” It bears stressing that the position of the English law that was applicable to the gift at the time made in the year, 1898 is that the term “heirs and assigns forever” only created a joint tenancy in the donees alive at the time of the gift. This position of the law was articulated in Fynn v Gardiner [1953] 14 WACA 260 wherein it was held that the term created a joint tenancy in the donees with the ultimate right of the survivor to take absolutely to the exclusion of all others. See also: Biney v Biney [1965] GLR 619. In applying the term to the instant case, the established evidence is that the children of Laingoye Lartey who were alive at the time the gift was made died without children except Sarah Addo survived by children and who then became the absolute owner of the disputed property. The evidence further established that Sarah Addo died intestate so by law, the property assumed a family character. Put differently, the property then became the exclusive property of the Sarah Addo Family. Since the established evidence is that Sarah Addo was of Ga Mashie lineage, the family property went to the female members of the family to deal with it and also pass it on to their children. Thus, once there is that unchallenged evidence that Rosemond Mark Hansen was the daughter of Sarah Addo and the head of family, the grant to the appellant by Rosemond Mark Hansen was valid. The lower court, therefore, fell in error to have held that the grant to the appellant was invalid when the respondents never proved that someone else was the head of family rather than Rosemond Mark Hansen. Additionally, we think the declaration by the lower court that the respondents are beneficial owners of the disputed property in equal measure was not a relief the respondents sought for. That being the case, it is reasonable to hold that the declaration was a case the lower court set up for the respondents in contradistinction to their claim and in violation of the time-honoured principle espoused in Dam v Addo [1962] 2 GLR 200. It is instructive to observe that respondents had sued as representing the Laingoye Latey Family. However, as the case progressed, they changed their story to say that the 1st respondent was head of Sarah Addo family although they maintained that they sued as representing the Laingoye Lartey Family. That was a complete departure from their pleadings. Interestingly, the story of the appellant was consistent with their pleadings. The law is that where there was a departure from pleadings at a trial by one party whereas the other’s evidence accorded with his pleadings, the latter’s was a rule, preferable. See: Appiah v Takyi [1982-1983] GLR 1 C/A. Consequently, we allow this other ground of appeal. At this stage, we are of the considered opinion that we have sufficiently dealt with all relevant issues raised in the instant appeal, both on the facts and on the law and we think that the discourse so far is capable of disposing of the appeal. We do not intend, therefore, to consider the other ground of appeal. Overall, the appeal succeeds in its entirety and is hereby allowed. The judgment of the lower court is hereby set aside. The interlocutory injunction order obtained against the appellant is equally set aside. Now, having held supra that Rosemond Mark Hansen was head of Sarah Addo Family and had the capacity to make the grant at the time and the grant being valid, we enter judgment for the appellant on all the reliefs sought for in its counterclaim. It is on record that when upon payment of the necessary valuable consideration and the appellant lawfully acquired the disputed land; pulled down the dilapidated structure thereon and was to develop the land, the respondents obtained an interlocutory injunction order against the appellant’s intended construction thereon. It cannot be denied that prices of building materials have gone up considerably since October 2014 when the injunction order was obtained against the appellant. It is also a truism that it shall currently be of considerable cost to the appellant if they decided to develop the land. In the circumstances, the appellant is entitled to general damages for which we make an award of Ghc30,000.00 in their favour. Costs follow the event. Given the length of time that the case has been in court, coupled with the fact that at a stage it has come to this court on appeal in connection with the Ruling of the lower court on the injunction and thereafter the case went back to the lower court for trial, the appellant’s costs is assessed at Ghc10,000.00 I agree I also agree SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD MARGARET WELBOURNE (JUSTICE OF APPEAL) SGD AMMA A. GAISIE (MRS.) (JUSTICE OF APPEAL) COUNSEL NANA AMA PANYIN AMOAH FOR DEFENDANT/APPELLANT YAW ODDEI OSEI WITH KELLY S. KWAKYE & NAA SHIKA T. TORTO FOR PLAINTIFF/RESPONDENT 30