Dadzie Vrs Itu [2023] GHAHC 122 (22 June 2023)

IN THE HIGH COURT HELD IN CAPE COAST ON THURSDAY, THE 22ND DAY OF JUNE, 2023, BEFORE HER LADYSHIP MALIKE AWO WOANYAH DEY (HIGH COURT JUDGE) SUIT NO: E11/04/2023 CHRISTOPHER DADZIE ----------------- PLAINTIFF/APPELLANT SUING FOR HIMSELF AND ON BEHALF OF THE ADWZENADZE FAMILY OF BROFUYEDUR VS. KWESI ITU ------------------ DEFENDANT/RESPONDENT PLAINTIFF/APPELLANT PRESENT DEFENDANT/RESPONDENT PRESENT PHILIP YOUNG FOR THE PLAINTIFF/APPELLANT PAAPA NIMAKO DANKWAH FOR DANIEL ARTHUR FOR THE DEFENDANT /RESPONENT JUDGMENT INTRODUCTION On 14th February 2022, the District Court Cape Coast dismissed the suit for want of capacity on the part of the plaintiff-appellant, hereinafter called the appellant, depicted on page 100 of the Record of Appeal in the following terms; "The challenge to the plaintiff's capacity to sue the defendant was made by counsel for the defendant during his cross-examination of the plaintiff. Both lawyers for the parties raised the point as a legal issue in their written addresses and canvassed arguments for and against the issue. Having examined the evidence on Record and the applicable law, I am inclined to agree with counsel for the defendant that the plaintiff has no authority to commence the action against the defendant. In the case of Stephens v Apoh [2010] MLRG 12 at 26 SC Anin Yeboah JSC as he then was held as follows; "It is the law that if an action succeeds on a plea of statute of limitation, lack of jurisdiction or lack of locus standi, the trial court and for that matter an appellate court should not proceed to determine the merits of the case irrespective of the evidence." Since the plaintiff has no legal right to be in court to litigate over his family’s property, I am unable to proceed further to determine the merits of the case. Accordingly, I hereby dismiss the plaintiff’s action for want of capacity. I award GHC1000 as costs in favour of the defendant”. Dissatisfied with the judgment of the court, on 21st February 2022, the appellant filed a Notice of Appeal and complained about the entire judgment and crafted the grounds of appeal as depicted on pages 103 to 104 as follows; a) The judgment is against the weight of evidence on Record. b) The learned Magistrate fell into error of law and fact when he held that the plaintiff lacks capacity to institute the action. He particularised the errors as follows; i) The learned Magistrate failed to appreciate that the beneficial use, enjoyment and control of the disputed land vests in the Essie Effiniba Branch of the Adwenadze family of Brofoyedur and not the wider family, thus entitling the plaintiff as branch head to sue. ii) The learned Magistrate misdirected himself when he held that the plaintiff failed to prove any of the exceptions in the case of Kwan vs Nyeni [1959] GLR 67-74 to clothe him with capacity to sue. iii) The learned Magistrate misdirected himself by misapplying the ratio in the case of Nyamekye v Ansah [1989-90] 2GLR 152 to dismiss the suit for lack of capacity. It should be noted that the appellant filed no additional grounds though it was intimated that same would be filed. THE CASE OF THE APPELLANT AT THE TRIAL At the trial court, the appellant claimed the following reliefs against the defendant; 1. A declaration of title to all that piece and parcel of land lying situate at Atterbury Road, Amanful near Brofoyedur bounded on the North by Kofi Eyensu’s Twidan Family’s property measuring 100 feet more or less on the South by Amanful Plot No. 97 measuring 100 feet more or less on the East by Kwesi Attah’s property measuring 55 feet more or less and on the West by Kofi Eyensu’s Twidan Family’s property measuring 55 feet more or less comprising an area of 0.126 of an acre. 2. Recovery of possession 3. Perpetual Injunction restraining the defendant, his agents, assigns, workmen, privies and anyone claiming through him from having anything to do with the land. In his 14-paragraph statement of claim depicted on pages 8 to 10 of the Record of appeal, the appellant introduced himself as the present head of the Essie Effiniba House/ branch of the Adwenadze family of Brofoyedur and informed the court that the defendant/respondent hereinafter known as the respondent is a squatter living on the subject matter of dispute. He further averred that the land in question is the property of his Adwenadze family because it was acquired by his maternal grandmother by name Essie Effiniba from Kofi Eyensu Twidan Family of Amanful as allodial owners in 1958 with a deed of conveyance dated 5th April 1958 pursuant to the purchase. The said deed was thereafter registered at the Lands Registry Department with number 1999/1967. It was his case that his grandmother took over the land and erected clay ovens for the smoking of fish. Essie Effinba had planned to erect a two-storey building on the property, but she died sometime in 1989; thus, her plans could not materialise. According to the appellant, upon the death of his grandmother, the land was inherited and or succeeded to by her children (all deceased) and has since become the property of the Essie Effiniba branch of the Adwenadze family. He further alleged that his uncle, the late son of Essie Effiniba by the name of Opanyin Ekow Essoun, allowed his grandson Kwabena Awortwi and his friend Takyi to erect a temporary one-room wooden structure on the land to reside until they both relocated to their rented apartments. His uncle permitted Kojo Essoun, a junior brother of the respondent herein, also to erect a one-room wooden structure on the land to have a place to lay his head. He further averred that not too long ago, he realised that the respondent had demolished the wooden structure, revealing that a block structure had been clandestinely constructed within the walls of the wooden structure to meet the roofing. He lodged a complaint at the Cape Coast Metropolitan Assembly (CCMA) about the unlawful block construction on his family land, and the parties were invited. After perusing his documents, the CCMA officials informed the respondent that he had no claim to the land. The respondent told the officers that he would proceed to court, but he instituted the action upon his failure to do so. He testified and tendered documents to support his assertions. He called one witness by the name of John Mensah, his cousin, to support his case. THE CASE OF THE DEFENDANT/RESPONDENT AT THE TRIAL On the other hand, the respondent’s defence can be found at pages 18 to 20 of the Record of Appeal. In his defence, the respondent denied that the appellant was the head of the said family. He averred that his father, Opanyin Kwamina Owiredu, has been on the land for over 20 years, and the land in dispute has never been the property of the Adwenadze family of Brofoyedur, nor does it belong to the Essie Effiniba section of the said family. He averred that Esi Effiniba put up a house on the section of her land, which is distinct from his father's land, and he has been in possession of the said land to date without any interference from members of the defendant's family. The house put up by Essie Effiniba is currently being used as the plaintiff's family house. It was his case that his father put up a room block structure on the land and permitted his son Kojo Essoun to live therein, and he occupied it for about ten years. He averred that his father moved into the house right after acquiring interest in the land and has exercised rights of ownership over it to date. He admitted that the appellant reported the matter to CCMA, but it was not determined. Significantly, he stated that his father purchased the land from Nana Tutu Dadzie alias Nathaniel Taylor Abraham, head of the Ama Tekyiwaa (Tutu Hannah Martin) Twidan family of Amanful Cape Coast. His father went into immediate possession by putting up a block house on it which Kojo Essoun occupied, and he also occupied it later. He averred that the house had been on the land for about 20 years. According to him, his father presented the title documents to the Lands Commission for registration, but he was informed that the land was State land and, therefore, could not be registered in his name. Thus his father began the process of acquiring the land from the Government of Ghana but has not been able to complete the process of acquisition due to the bureaucracy at the Lands Commission. The respondent also testified and tendered various documents to support his case. SUBMISSION OF COUNSEL FOR THE PLAINTIFF/ APPELLANT In arguing the appeal, counsel for the appellant argued both grounds of appeal together and called for a determination of the issue of whether the appellant had the capacity to litigate the suit and, further, whether he was entitled to the reliefs he sought before the court. He referred to the case of Tuakwa vs Bosom [2001 2002] SCGLR, where it was held that an appeal is by way of rehearing, where the appellant alleges that the judgment is against the weight of evidence. He also noted that in such a case, the appellant is obligated to show the lapses in the judgment of the court and that the correction of those lapses would tilt the scale of justice in his favour. Thus he submitted that the court must look at the entire Record of appeal to ascertain whether the evidence on Record reasonably or amply supports the trial judge's conclusions. He also relied on the cases of Akufo Addo vs Catheline [1992] 1 GLR 377; Aryeh and Akakpo v Ayaa Iddrisu [2010] SCGLR 891 at 899, Ackah vs Pergah Transport Ltd and Others [2010] SCGLR 728 and Koglex Ltd No 2 v Field [2000] SCGLR 175. Counsel for the appellant also touched on the legal and evidential burden of proof imposed on the appellant. He relied on the cases of Ackah vs Pergah Transport Ltd [2010] SCGLR 729 and Adwubeng vs Domfeh [1996 97] SCGLR 660. He also relied on sections 11(4) and 12 of the Evidence Act 1975 NRCD 323 on the allocation of the burden of proof in civil actions and the standard of proof required. Regarding capacity, he relied on the case of Andrews vs Hayford [1982 -83] GLR 214. He submitted that the customary law position is that the children of Essie Effiniba and her maternal descendants are members of her immediate family and, as such, are entitled to the beneficial enjoyment and control of the self-acquired properties of Essie Effiniba, which became her family property upon her death. He further relied on the case of Nyamekye vs Ansah [1989-90] 2 GLR 152 CA and submitted that if the learned trial judge had adverted his mind to holding 3 of the decision, he would have arrived at a different conclusion. He submitted that there was evidence on the Record that the appellant is the eldest of the House of Essie Effiniba, as stated by PW1, and had managed the property on behalf of the said immediate family of Essie Effiniba. He also relied on the case of Susan Bandoh Vs Dr Mrs Maxwell Appeagyei- Gyamfi & Another unreported judgment of the Supreme Court, Civil Appeal No. J4/16/2016, and finally that on the issue of capacity, the appellant had the capacity to institute the action to secure and protect the disputed family property and therefore, the trial judge erred in holding otherwise. Counsel further addressed the court on the merits of the case and stated that the appellant had led evidence to substantiate his claim for a declaration of title. On the issue of whether or not the property was acquired by Essie Effiniba or Kwamina Owiredu, counsel for the appellant submitted that the appellant’s instrument affecting land Exhibit A was duly registered under the applicable laws it takes precedence over any other interest and is actual notice to whole world that land belongs to the registered person, in this case being Essie Effiniba. The plaintiff has therefore satisfied the legal burden on him that the land was acquired by Essie Effiniba. He relied on the case of Amuzu vs Oklika to buttress his point. In respect of the respondent’s evidence he noted that his Exhibit I affected the disputed land but the principle of law is that when land had been sold to another person first in time, the vendor cannot alienate same subsequently to another purchaser. He relied on the case of Christiana E. A Aboa vs Major Kelson (Consolidated) 2011 37 GMJ 63 SC. Thus since from the evidence Essie Effiniba and the respondent purchased the land from the same family with the appellant’s grandmother acquiring the land in 1958 ahead of respondent’s father in 1998, the 2nd sale to the respondent’s father was null and void. He further submitted that though the respondent claimed that the land was State land he failed to adduce any evidence to that effect. He further submitted that since the appellant had registered his deed then there was a presumption that the land was not State land. He relied on section 37 (1) to support his submission and further submitted that Exhibit D which is a search report from the Lands Commission supported the presumption. He further submitted that the appellant denied the assertion of the respondent that the land which Essie Effiniba purchased is being occupied by the appellants and not the one he has lived on for 20years. He noted that the address used by Essie Effiniba in acquiring the disputed land is H/No 12/1 Atterbury Road Brofoyedur, Cape Coast as his residential address as depicted in Exhibit A . Thus the rising deduction was that at the time she acquired the land she was residing in that house. According to him it therefore confirmed that the land on which the appellant is resident differs from the disputed land. On the issue of whether the respondent’s father constructed a sandcrete house on the disputed land upon acquisition, he submitted that despite his evidence that his father had lived on the land for over 20years he did not plead the Statute of Limitation, laches or acquiescence as defences to the claim of the appellant. He stated that the evidence disclosed that the respondent had contradicted himself under cross-examination on the issue. He submitted that the respondent had contradicted himself in terms of the time he claimed his father acquired the land and developed same. He noted that the Valuation report which was made in 2002 had described the place as not developed with some few clay ovens on some greater part of it and the greater part was covered by weeds yet he claimed that his father had built on the land in the 1990s. He also noted that the Valuation report corroborated the evidence of the appellant that his grandmother had erected clay ovens on the land. He finally submitted that in the light of the pieces of evidence and legal analysis, the appellant had proved his claim on the preponderance of probabilities. SUBMISSION OF COUNSEL FOR THE DEFENDANT/RESPONDENT Counsel for the respondent also addressed the court on both grounds of appeal together. He addressed the court on the principle of the law, which states that an appeal is by way of rehearing. He relied on the cases of Tuakwa vs Bosom [2001- 2002] SCGLR 61 at 65, Oppong vs Anarfi [2011] SCGLR 556 and Djin vs Musa Baako [2007- 2008] SCGLR 686 to buttress his point. He submitted that the appellant bears the burden of showing the lapses and errors of the trial court and the pieces of evidence which, when applied in his favour, would result in a change of the decision in his favour. He submitted that though the appellant, in his witness statement, claimed that he was the head of the family, he failed to testify as to how and when he was appointed as the head of the family. He noted that the capacity of the appellant was further challenged under cross-examination. He opined that since the respondent had challenged the appellant on his capacity to institute the action, the burden was on him to prove the same. He submitted that capacity is central to determining whether a party can maintain an action or not. He relied on the case of Standard Bank Offshore Trust Co. Ltd Vs National Investment Bank Limited and 2 Others in 2017 and 2018 1SCGLR 707. He submitted that the trial judge dismissed the appellant's action because he made a finding that the appellant did not possess the capacity he endorsed on the amended writ of summons. Counsel submitted that based on the trial judge's findings, the appellant failed to prove per the required standard that he was the head of the family. He failed to bring himself within the exceptions to the rule in Kwan vs Nyeini and Anor [1959] GLR 47. He further submitted that the appellant told the court who the head of the family was, and he failed to call that head to confirm that he was indeed the branch head of the Esi Efinniba section. He submitted that the appellant told the court under cross-examination that he was the head of the family of CID No.1 Dze Wo Fie Asem, contrary to his averment that he was the head of the Esi Effiniba branch of the family. He further submitted that the appellant did not lead any evidence at the trial to show that the beneficial use, enjoyment and control of the land in dispute is vested in an alleged Essie Effiniba branch of the family. He said the respondent had even denied that the land belonged to the Esi Effiniba family. He submitted that the appellant had testified that he was appointed 12 years ago when his uncle died, yet when his witness was asked under cross-examination, he said he could not tell when that appointment happened. Instead, his witness said he was the eldest in the family, and since he could not tell when the appointment took place, it must be taken that the appointment did not happen. He submitted that what was not in contention was the appellant's head of the family. He also submitted that serious doubt was cast on the identity of the branch or house on whose behalf the appellant commenced the action because, under cross-examination, he said he was the head of a family of the CID No 1 Dze Wo Fie Asem, and no explanation was proffered for that answer. Thus the findings of the trial judge could not be faulted. Continuing his submission on the substantive matter, counsel addressed the court on the burden of proof on the appellant since the respondent had not counterclaimed. He submitted that the appellant's claim must fail where he fails to identify the land to which he claims the title positively. He relied on the case of Anane and Others v Donkor and another Consolidated 1965 GLR 188-198. He submitted that his indenture Exhibit A contained two site plans; thus, there is doubt as to whether the appellant has any personal knowledge of the subject matter. He noted that the contradictions in the appellant's Exhibit A should not be taken lightly. Counsel detailed the disparities in the documents presented by the appellant and urged the court to hold that the appellant had failed to prove the identity of the land. Counsel for the respondent further submitted that the court should treat the appellant and his witness as lacking credibility because they claimed the respondent clandestinely built a block structure within the wooden structure and denied that building materials would be sent to the site. He submitted that the respondent had testified that they had been on the land for 20 years, whilst the appellant and his witness failed to show any acts or control over the land. He also drew attention to the respondent's documents which he tendered and submitted that they were consistent with his evidence. He finally submitted that the appellant had failed on the totality of the evidence to prove his case, and same ought to be dismissed. ANALYSIS OF THE GROUNDS OF APPEAL It must be stated that the finding by the trial judge that the appellant herein and his maternal grandmother belong to the Adwenadze family of Brofoyedur is right and supported by the pleadings and the evidence led at the trial. I also agree with the counsel for the appellant that the allegations of the appellant in his pleading show that he was allegedly claiming the property in dispute for the Esi Effiniba branch of the Adwenadze family. At the trial, the appellant sought to establish that the property in question is the self-acquired property of his grandmother, which has devolved unto his parent and the direct descendants of Esi Effiniba. Thus taking the nature of the claims made into consideration, if indeed Esi Effiniba acquired the said property, then definitely though she belongs to the wider Adwenadze family, it is her direct descendants who would be entitled to the said property. Nevertheless, did the judge fall into error in his finding? Indeed I am of the opinion that the judge fell into error when he held that it was the head of the larger Adwenadze family who had the right to sue in respect of the subject matter. That is because it is the finding of the court that there is no evidence on record to show that the property came under the control and management of the larger family and, besides the nature of the claim made by the appellant, did not call for the involvement of the wider family. That is a fact, as revealed by the evidence on record. However, one may ask the germane question as to whether the appellant led cogent and reliable evidence to support his claim that he was the head of the said Esi Effiniba family. In his evidence, he told the court emphatically that he was appointed as the head of family of that branch of the Adwenadze family. As stated by counsel for the respondent, it is trite that capacity goes to the root of a case, and anybody who sues in a representative capacity must prove so strictly when he is challenged. It is interesting to note that the appellant did not establish, per his evidence, that he was a successor to the previous head of that branch, but he made an emphatic statement that he was appointed 12 years ago when his uncle died. He did not lead evidence on how he was appointed and those who were present when he was appointed as branch head. When his witness PW1 was also questioned, he could not remember when the said appointment took place, but rather, he also gave another explanation that the plaintiff was the eldest in the family. Thus the question is, was the appellant appointed as head, or has he been acclaimed as head of family because he is the eldest in the family? When averments are made, they must be proved to the letter, especially when a positive averment is made. The appellant did not say that he became head of the family because he was the eldest in the family. He emphatically stated that he was appointed and ought to have proffered evidence to establish that specific averment. Below were his answers under cross-examination on page 44 of the Record of appeal Q: You claim to be the present head of family of the Esi Effiniba Branch of the Adwenadze family of Brofeyedur. Is it the case? A: Yes. Q: On which date were you appointed Head of Family A: It was during the death of my uncle Ekow Essoun Q: What is the exact date? A: This was about 12 years ago. Indeed the appellant's claim of being appointed head of the said family ought to be proved to the letter by calling witnesses or providing documentary evidence to show that appointment. That was not done. This court is not oblivious to the fact that it is the immediate family that has a direct interest in the self-acquired properties of a deceased person, but since the appellant claimed that he was appointed as the head of the said immediate family, he ought to have proved same by cogent and reliable evidence. He cannot rely on cases that say that the head of the family could be popularly acclaimed due to his position as the eldest, as submitted by counsel for the appellant. He must prove his appointment. The court cannot go around that averment and hold that because he is the eldest in the family, then automatically he is the head, where the appellant himself had not mentioned that in his evidence to the court but rather made such a serious averment that he was appointed 12 years ago. This is even more so when the only witness he called could not answer questions on the said appointment. At page 65 of the Record, PW1 answered questions thus; Q: In which year was the plaintiff allegedly made the branch Head of the Esi Effiniba Branch of the Adwenadze family of Brofoyedur? A: It has been a long time. I cannot tell Q: I put it to you that the plaintiff is not the head of any family or Branch A: Plaintiff is the eldest in the family Q: So the plaintiff is the elder (sic) and not necessarily the Head of the family A: Plaintiff is the elder in the house that we live in. The evidence of this witness emphasises his averment in his witness statement that the appellant is the eldest in the house in which he lives, but he could not corroborate the evidence of the appellant that he was appointed as head of the family as he could not even tell when that appointment took place. Before the court can make a finding that the appellant had the capacity to sue based on being acclaimed, there must be cogent and reliable evidence to that effect. Here the court is torn between the evidence of the appellant that he was appointed as head of family and the evidence of his witness that he was the eldest in the family and so had the authority to sue or that because he was the eldest in the family he had been popularly acclaimed as the head of family. Inferences of popular acclamation by the said family cannot be made on behalf of the appellant, where he told the court that he was appointed when his uncle died. Another point to be noted is that the appellant was bound to confuse the court when under cross-examination on page 63 of the Record of Appeal, the appellant answered questions thus; Q: You claim to be Ebusuapanyin? A: I am Ebusuapanyin of a gate of the family and not the entire family Q: I put it to you that you are not a branch head. A: I am Head of the family of the CID No1 Dze Wo fie Asem Q: put it to you that you have no authority to commence this action A: I have the authority. I find this answer contradictory to the endorsement on the amended writ of summons and the previous answers of the appellant. As counsel for the respondent puts it, is the appellant the head of the Esi Effiniba branch of the Adwenadze family or the head of the CID No I Dze Wo Fie Asem? I agree that the appellant did not explain this answer in light of the endorsement on the amended writ and his previous answers and I hold that it is a confusing answer and throws the court into a state of doubt as to the exact family of which the plaintiff claimed to be head. This evidence on the Record of Appeal makes matters worse for the appellant in terms of his capacity and cannot be overlooked or sidestepped by the court to hold that the appellant had proved his capacity as the head of the Esi Effiniba branch of the Adwenadze family if that branch even existed. Another aspect of the evidence that works against the appellant in terms of his capacity is that at the same page 63 of the Record of Appeal, the appellant did not emphatically answer the question of being a successor to Kojo Essoun. This was the answer he gave under cross-examination.' Q: You have been parading as Head of Family because you were appointed customary successor to the late Kojo Essoun. A: I am the Head of one of the gates. Having evaded this question, this court cannot hold that the appellant succeeded Kojo Essoun, and to make such an inference would be illogical because all the appellant said in answer to the question was to insist that he was the head of one of the gates. The question is, which gate? Esi Effiniba branch or CID No1 Dze Wo Fie Asem? From the analysis, though I hold the opinion that the immediate descendants of Esi Effiniba would have a direct interest in her self-acquired properties and the head of the immediate family is the one entitled to sue, the appellant woefully failed to establish his capacity as the head of that immediate branch as he contradicted himself on the specific branch for which he was head. The opinion of the court is that the principles in the case of Kwan vs Nyeini already cited supra do not arise as the character of the alleged property is said to be the self- acquired property of Esi Effiniba. However, the appellant's capacity to be the head of that immediate family because of his appointment some 12 years ago was not cogently established at the trial. Though I am afraid I have to disagree with the conclusion of the trial judge that it was the head of the larger Adwenadze family that had the right to sue, I do not agree 1) that the appellant sufficiently proved by cogent and reliable evidence the family for which he alleged he was head and 2) also that he was appointed as head of the Essie Effiniba gate. I must also mention that I fail to see the evidence that the appellant had been in control of the disputed land because, for 20 years, the subject matter had been in the respondent's possession, and the appellant failed to show any control over the land. In my opinion, the mere fact of reporting the matter to CCMA or registering a land document purported to be related to the subject matter is not sufficient to show that he had been in control of the land. To prove that he had been in control of the land, he could have shown more overt acts of control over the land if not physical constructive. In light of the denial by the respondent, the appellant ought to have strictly proved the same. Therefore, I agree with the counsel for the respondent that he had failed to prove his capacity to the letter. On the totality of the evidence on Record, I am of the opinion that the appellant failed to positively prove that he had the capacity to bring the action as the head of the Esi Effiniba branch of the family. I shall therefore affirm the judgment of the learned trial judge, though for different reasons. The appeal is hereby dismissed since the appellant failed to establish his capacity at the trial. Having dismissed the appeal on this point, the court cannot pronounce on the substance of the case. Costs of GHC8000.00 against the appellant. MALIKE AWO WOANYAH DEY JUSTICE OF THE HIGH COURT CAPE COAST