NINA NAADEI KOTEY VS THE CHURCH OF PENTECOST (H1/214/23) [2023] GHACA 143 (18 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – GHANA AD - 2023 CORAM: DODOO (MRS) J. A. (PRESIDING) ADJEI – FRIMPONG J. A. AMALEBOBA ( MRS) J. A. CIVIL APPEAL NO: H1/214/23 18TH DECEMBER, 2023 NINA NAADEI NEE - KOTEY - PLAINTIFF/RESPONDENT VRS THE CHURCH OF PENTECOST - DEFENDANT/ APPELLANT JUDGMENT AMALEBOBA (MRS) J. A. The jurisdiction of this Court has been invoked by a Notice of Appeal filed by the Plaintiff/Appellant on 5th May 2022. By this Appeal, the Plaintiff/Appellant seeks to set aside an interlocutory Ruling of the High Court, dated the 14th day of April 2022. By the said Ruling, the High Court dismissed the Plaintiff/Appellant’s Motion on Notice, seeking to amend her Statement of Claim, as well as the Witness Statement of her Attorney and to have the Attorney recalled to adduce fresh evidence. In this Appeal, the parties shall be referred to by their designations in the Trial Court. The Plaintiff/Appellant shall therefore be referred to as Plaintiff, while the Defendant/Respondent shall be referred to as Defendant. BACKGROUND It is necessary for the determination of this Appeal, that we refer to in summary, to facts preceding this Appeal. By her Writ of Summons and Statement of Claim filed in the High Court, the Plaintiff claims ownership to the parcel of land the subject matter of the dispute. According to the Plaintiff, in the year 1990, she purchased the land situate at East Ashalley Botwe from one Nii Adjetei Obere, Wolomo of Accra. She averred that she obtained the necessary documentation from her grantor, took possession of the parcel of land, and placed one Nii Odoi in charge of same. The Plaintiff said sometime thereafter, the Defendant Church led by the said Nii Odoi went to see one Mr. Wilson, a cousin to the Plaintiff and custodian of her land, to be permitted to use the land to construct a temporary structure for worship. The Plaintiff averred that the said Mr. Wilson gave his consent without consulting her, whereupon the Defendant put up a temporary structure on the land. The Plaintiff contended that she visited the land sometime thereafter and found that the Defendant had commenced construction of permanent structures on same, whereupon she confronted the Defendant, who informed her that Nii Odoi had sold the land to the Defendant Church prior to his demise some two (2) years earlier. The Plaintiff alleged that the Defendant had procured her land by fraud. Wherefore, the Plaintiff seeks declaration of title to the land in dispute, among other reliefs. The Defendant which filed a Defence to the action denied the assertions of the Plaintiff. By its Statement of Defence, the Defendant averred that it does not know the said Mr. Wilson and was not privy to any discussions by the Plaintiff to purchase the land in dispute. According to the Defendant, in the year 2000, it acquired the parcel of land in dispute from Nii Odoi who represented himself to it, as owner of the land. The Defendant averred that after the purchase, Nii Odoi who had given them necessary documentation covering the transaction, undertook to register their title at the Lands Commission. The Defendant further said that the Lands Commission did not recognise the documentation, for which reason the registration was unsuccessful. According to the Defendant, sometime in 2006 while it was putting permanent structures on the land, the Adjetey, Freeman and Agbosu families of Sraha visited the land to claim ownership of same. The Defendant said it conducted a search at the Lands Commission to ascertain the veracity of their claims and upon confirmation of their title by the Lands Commission, the Defendant was again compelled to purchase the land for the second time. The Defendant averred that after it was given the necessary documentation by the Adjetey, Freeman and Agbosu families of Sraha, it registered same at the Lands Commission in 2010 and obtained a Land Certificate for same. The Defendant denied fraud on its part, contending that it rightfully owns the land and has never been a Licensee of same. The Defendant filed a Counterclaim also praying for a declaration of title to the land in dispute, among other reliefs. After the Plaintiff had filed its Reply and Defence to Counterclaim, at the close of pleadings issues were set down for trial. The trial commenced and the evidence of the Plaintiff’s Attorney was heard. On 14th July 2021, after the close of the Plaintiff’s case, her Counsel filed a “MOTION ON NOTICE FOR LEAVE TO AMEND PLEADINGS AND TO RECALL PLAINTIFF’S ATTORNEY TO LEAD FRESH EVIDENCE PURSUANT TO ORDER 16 R 5 OF CI 47.” In the Affidavit in support of the Application, Counsel for the Plaintiff who deposed to the Affidavit stated that at the time of filing Plaintiff’s Witness Statement, the Plaintiff could not trace the Report of a search conducted at the Lands Commission. That, however, after the close of the Plaintiff’s case, the Search Report had been found, necessitating an amendment of the Plaintiff’s Statement of Claim and Witness Statement and a recall of the Plaintiff’s Attorney to tender the Search Report in evidence. According to Counsel for the Plaintiff, the grant of the Application was necessary for an effectual determination of the suit and will allow for a swift determination of all matters in controversy. The Search Report was attached to the Affidavit in Opposition. The amendment sought to be made was stated in paragraph 10 of the Affidavit in Support as follows: “That I shall insert paragraph 5a to my Statement of Claim as follows: It is the case of the Plaintiff that she conducted a search at the Lands Commission which shows that the Plaintiff’s land has been divided into two between Plaintiff and Defendant and the two have a common boundary.” The Application was opposed by the Defendant. In the Affidavit in opposition deposed to on behalf of the Defendant, the deponent contended among others. that the Search Report sought to be tendered shows that the Plaintiff’s request to have her land plotted was not granted, due to the prior plotting of the Defendant’s land. The deponent also stated that though an amendment can be made at any stage of the proceedings, the amendment sought to be effected for the purpose of tendering the Search Report, is not relevant to the determination of the suit before the Court and will delay the proceedings, for which reason the Application should be dismissed. The Trial Judge dismissed the Application by her Ruling, which can be found at pages 142 – 144 of the Record of Appeal ( ROA). It is this Ruling from which this Appeal has been lodged. By the Notice of Appeal filed on 5th May 2022, and at pages 145 and 146 of the ROA, the grounds upon which this Appeal is to be determined are: a) The ruling is against the weight of affidavit evidence. b) The Honourable Court fell in error when it held that it was the Lands Commission that was the proper party to tender the search report inspite of the overwhelming evidence on record that it was the Plaintiff/Appellant who applied for the said search to be conducted at the registry of the Lands Commission. c) The Honourable Court erred in law when it held that Plaintiff/Appellant had stated in the pretrial check list that she did not intend filing any amendment hence one of the reasons for the refusal to grant an application for amendment. i. that refusal of application for amendment offends Order 16 R 5 (1) (a) and (b) of The Civil Procedure Rules, 2004 (C. I.47). ii. The Honourable Court failure to grant the order for amendment was contrary to the principles of stare decisis as there are plethora of decided cases on amendment which the Court was enjoined to abide by. d) Further grounds of appeal may be filed on receipt of the record of proceedings PLAINTIFF/APPELLANTS WRITTEN SUBMISSIONS The Defendant/Respondent did not file Written Submission upon this Appeal. In his Written Submissions, on ground (a), of the Appeal, Counsel for the Plaintiff submitted that the Judgment is against the weight of evidence, arguing that the Trial Judge ought to have considered the Affidavit evidence and applied the law to the facts before her. According to Counsel for the Plaintiff, the Trial Judge failed to consider Order 16 r 5 of the High Court Civil Procedure Rules, 2004 (CI 47), in arriving at her decision. Counsel referred to the cases of OWUSU DWAMENA V. AMOAH [ 2015 – 2016] 1 SCGLR 90 and OSEI KWAKU V. CLETUS BARRO KUFIA [2020] 150 GMJ 48 CA. Arguing grounds (b) and (c) of the Appeal together, Counsel for the Plaintiff contended that the Honourable Court erred in law as the refusal of the said application for amendment, offended against Order 16 r 5 (1) of the High Court Civil Procedure Rules ( CI 47). Counsel for Plaintiff submitted that the decision of the Trial Judge was contrary to a plethora of decided cases on the principles regarding the grant of amendment. According to Counsel for Plaintiff, regardless of the stage of the trial, an amendment may be granted and that had the Trial Judge followed the doctrine of stare decisis, she would not have come to the conclusion of dismissing the Application for amendment. Counsel for Plaintiff referred to the cases of ADJELEY SOWA AND ANOTHER [1966] GLR 754 @757: IN RE ASHALLEY BOTWE LAND: ADJETEY AGBOSU and OTHERTS V. KOTEY and others [ 2003 – 2004] SCGLR 420 |@ 460; GARE V. SUPERDRUG STORES PLC [1996] AER @ 467. Counsel also referred to the learned author S. Kwami Tetteh in his book, CIVIL PROCEDURE, A PRACTICAL APPROACH @ page 454, wherein the learned author referred to principles for the grant of an amendment, as set down by the case CLARAPEDE & CO V. COMMERCIAL UNION ASSOCIATION. [1883 ] 32 WR, per BRETT MR. Counsel for Plaintiff argued further that Order 16 r 5 of CI 47 is subject only to Order 4 rules 5 and 6 of CI 47 and permits a party to seek an amendment at any stage of the pleadings. According to Counsel for Plaintiff, had the Trial Judge exercised her discretion correctly under Order 16 r 5 of CI 47, she would not have considered a delay in the proceedings as a ground for refusal of the Application for amendment. Counsel for Plaintiff contended that the Trial Judge could in fact have granted the Application, subject to costs as provided by Order 16 r 5(1)of CI 47. Counsel for Plaintiff submitted that Section 79 of the EVIDENCE ACT, 1975 ( NRCD 323) grants the Trial Judge judicial discretion to allow a witness to be recalled to the witness box. Referring to Black’s Law Dictionary Ninth Edition, on the definition of Judicial discretion, Counsel for Plaintiff submitted among others, that the exercise of such discretion must be guided by rules and principles of law, since the discretion ought to be exercised judiciously. Though it was stated in the Notice of Appeal that further grounds will be filed upon receipt of the record of proceedings, no further grounds were filed. DETERMINATION OF THE APPEAL We will first determine the propriety of ground (a) of the Appeal, which is that the Ruling of the Trial Judge is against the weight of evidence. The Ruling appealed against is in respect of an interlocutory Application for amendment and to recall the Plaintiff’s Attorney. No viva voce evidence was heard upon the Application. Furthermore, there were no disputed factual matters upon the Affidavits. The Application was opposed by the Defendant on the grounds that the amendment was not relevant to the determination of the issues before the Court and further that same will occasion a delay in the trial. In the case of FENU & ORS V. ATTORNEY GENERAL & ORS [2018] GHASC 17TH OCTOBER 2018, the Supreme Court speaking through Yeboah JSC on the omnibus ground of appeal in interlocutory matters stated thus: “The respondent has raised objection to the ground 1 of the grounds of appeal which seeks to criticize the judgment on the basis that it is against the weight of evidence and the invitation by the appellant for this court to conduct a fresh enquiry or rehear the entire application for the stay of proceedings. The omnibus ground is usually common in cases in which evidence was led and the trial court was enjoined to evaluate the evidence on record and make its findings of facts in appropriate cases. In cases in which no evidence was led but the order which has been appealed against is interlocutory, such ground of appeal are not canvased at all. This has been settled long ago by this court in three notable cases; ASAMOAH v MARFO [2011] 2 SCGLR 832, REPUBLIC v CONDUAH; EX PARTE AABA substituted by ASMAH [2013 – 2014] SSCLR 1032 and RE SUHYEN STOOL; WIREDU & OBENEWAA v AGYEI & ORS [2005 – 206] SCGLR. We think this ground is clearly misconceived and same is hereby struck out as there were no disputed factual matters which called for findings by the lower court which merely determined the application for stay of proceedings on affidavit evidence which was not in controversy”. Upon the foregoing, since no viva voce evidence was heard and the factual matters in the Affidavits were not disputed, we find the omnibus ground of appeal in this case to be misconceived. Ground (a) of the Notice of Appeal is accordingly struck out. We will proceed to determine grounds (b) and (c) of the Appeal together. The Plaintiff’s Application for amendment was made pursuant to Order 16 r (5) of the High Court, Civil Procedure Rules, 2004 ( C. I 47) which provides as follows: “Amendment of writ or pleading with leave - Order 16 5. (1) Subject to Order 4 rules 5 and 6 and to the following provisions of this rule, the Court may at any stage of the proceedings upon an application by the plaintiff or any other party grant leave to: (a) the plaintiff to amend the plaintiff's writ; or (b) any party to amend the party's pleading; on such terms as to costs or otherwise as may be just and in such manner as it may direct. (2) Where an application to the Court for leave to make the amendment mentioned in subrule (3), (4) or (5) is made after any relevant period of limitation has expired, the Court may nevertheless grant the leave in the circumstances mentioned in that application if it considers it just to do so. (3) An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued. (4) An amendment to alter the capacity in which a party sues may be allowed under subrule (2) if the new capacity is one which that party had at the date of the commencement of the proceedings or has since acquired. (5) An amendment may be allowed under sub rule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment”. From a reading of Rule 5(1) of Order 16 of CI 47, a Court has a discretion to grant or otherwise refuse an application for amendment. Similarly, the recall of a witness under section 79 of the EVIDENCE ACT 1973 ( NRCD 323) requires an exercise of discretion by a Court. Section 79 of NRCD 323 provides as follows: “Section 79—Recall of Witness. After a witness has been excused from giving further testimony in the action, he cannot be recalled without leave granted by the court in its discretion.” The Plaintiff recognises that the grant of his application required that the Trial Judge exercise her discretion. The gravamen of his appeal is that the said discretion was exercised wrongly, without due consideration to the law and in particular Order 16 r (5) of CI 47 and a plethora of decided authorities on the principles governing the grant of amendments of pleadings. Where the law requires of a person or body to exercise discretionary power, same must be exercised fairly and not in an arbitrary manner. ARTICLE 296 (A) AND (B) OF THE 1992 CONSTITUTION of the Republic of Ghana, provides the guiding principles for the exercise of the Court’s discretion in the following terms: “Where in this Constitution or in any other law discretionary power is vested in any person or authority - (a) that discretionary power shall be deemed to imply a duty to be fair and candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased wither by resentment, prejudice or personal dislike and shall be in accordance with due process of law…” An exercise of the Court’s discretion must therefore be judicious. The position of the law is that generally, an appellate Court must be slow to interfere in the exercise of the discretion of the Trial Court, unless it can be established that in the said exercise of discretion the Judge misdirected himself or herself, by taking into account irrelevant matters or ignoring relevant matters. This was the position taken by the Supreme Court in ATUGUBA & ASSOCIATES V. SCIPION CAPITAL UK LTD & ANOR [ 2019] GHASC 18 9 3RD APRIL 2019. Where an appellate Court finds that the said discretion has been wrongly exercised, however, it has the duty to interfere with same. In the case of OWUSU V. OWUSU ANSAH [ 2007- 2008] SCGLR 870 @ 877, ADINYIRA JSC emphasizing the grounds upon which an appellate Court may interfere with the exercise of a lower Court’s decision referred to the House of Lords decision in the case of BLUNT V. BLUNT [1943] AC 517@ 518, wherein the Court stated as follows: “ An appeal against the exercise of the Court’s discretion may succeed, on the ground that the discretion was exercised on wrong and inadequate materials if it can be shown that the Court acted under a misapprehension of fact in that it either gave weight to irrelevant matters or omitted to take relevant matters into account.” SEE ALSO: KOJACH LIMITED V. MULTICHOICE GHANA LIMITED J4 /3/2013; 2014 GHASC 149 (19 MARCH 2014), unreported. Order 16 r 5 of CI 47 permits a party to bring an application to amend a Writ of Summons or pleadings at any stage of the proceedings. Therefore, regardless of the stage of proceedings, an amendment of pleadings may be permitted by the Court in the exercise of its discretion. In OBENG & OTHERS V. ASSEMBLIES OF GOD, CHURCH , GHANA [ 2010] SCGLR 300, the Supreme Court affirmed the decision of the Court of Appeal to suo motu amend the name of the Plaintiff on the Writ of Summons even on appeal. The Court opined that the Courts exist to do substantial justice to parties and to ensure that all real issues in controversy are determined, to bring finality upon the Judgment. Therefore, an amendment ought to be permitted where the same was necessary to meet the justice of the case. The Court said as follows: “We take the view that since the Courts exist to do substantial justice, it would be manifestly unjust to non -suit the Plaintiffs because they added “Executive Presbytery” to their name on the Writ of Summons . Courts must strive to prevent and avoid ambush litigation by resorting and look more at the substance than at the form. In the circumstances of this case, we are of the considered opinion that the Court of Appeal was right in amending the capacity of the Plaintiffs in order to do substantial justice, avoid mere and fanciful technicalities and bring out the real issue sin controversy resolution….” The position of the Courts of this jurisdiction to permit amendments to ensure that the justice of the case was met, was emphasized by the Supreme Court in GHANA PORTS AND HARBOURS AUTHORITY V ISSIFOU [ 1993 – 94] 1 GLR 24 S. C. Therefore, where an amendment of pleadings will enable the Court to determine the real issues in controversy between the parties , even where the Plaintiff had closed his case, a Court ought to exercise its discretion in favour of the grant, where no surprise will be occasioned to the other party and where the other party can be compensated in costs. This was the position taken by the Court of Appeal in the case of LARYEA V. OFORIWAAH [1984 -86) 2 GLR 400 CA. In the said case, the Court relying on the cases of YEBOA V BOFOUR [1971] 2 GLR 199 AND AUSTRALIAN STEAM NAGIVATION CO LTD V SMITH & SONS (1889) 14 APP CAS 318, stated thus: “Their Lordships are strong advocates for amendment whenever it can be done without injustice to the other side, and even where they have been put to certain expense and delay, yet if they can be compensated for that in any way it seems to their Lordships that an amendment ought to be allowed for the purpose of raising the real question between the parties." In my opinion the learned trial Judge erred in not exercising his discretion in favour of granting the amendment; and his refusal could have worked manifest injustice to the defendant. This appellate court can therefore even at this stage admit the said indenture which is on the record of appeal”. From the decided authorities, it is obvious that the rationale guiding the favourable exercise of the Court’s discretion in the grant of an amendment, is to ensure that substantial justice is done to the parties, by permitting all matters in controversy to be decided effectually and finally. The amendment sought to be effected must therefore be relevant to the determination of the issues in controversy between the parties. This Court, in exercising its powers of re -hearing conferred on it by RULE 8 (1) OF THE COURT OF APPEAL RULES CI 19, will examine the Record before it and in so doing determine whether, the Trial Judge exercised her discretion wrongly, as contended by Counsel for Plaintiff. At paragraphs 7, 8 and 9 of the Plaintiff’s Affidavit in support of her Application deposed to on her behalf ( Pages 88 and 89 of the ROA), it was asserted that a grant of the amendment is in the best interest of justice and for the effectual adjudication of the case as it will allow for all matters in controversy to be determined. The purpose of the application for amendment sought by the Plaintiff, was to amend the Statement of Claim by adding a paragraph 5 (a) to same and pursuant to that, amend the Witness Statement of the Plaintiff’s Attorney, to permit the Attorney tender a Search Report from the Lands Commission in evidence. The Search Report at page 90 of the ROA stated in its paragraph ( a) as follows: “This Search from the SMD does not in any way confer or confirm ownership or title to the land on the attached site plan shown edged pink. It only indicates a stage in the registration process”. The Search Report also states at paragraphs 1 and 2 as follows: “1. Whole Site is affected by a plotted transaction for Church of Pentecost – Dated 7/2/2011. 2. Portion marked A is affected by a noted request for Nina Naa Dee Nee – Quartey – Dated 18/8/2014”. The indication from the Search Report, therefore, is that in the year 2011, the Lands Commission plotted the land claimed by the Defendant, being the entirety of the the land in dispute. Subsequent to this plotting, in the year 2014, the Plaintiff made a request to the Lands Commission for plotting of her land which was noted in the records of Lands Commission. The Plaintiff’s request was noted but not plotted. Is this Search Report relevant to the determination of the issues in controversy between the parties? We have had regard to the Record before us , particularly, the Affidavits filed upon the Application for amendment, the pleadings of the parties, the issues for determination and the evidence on record. We are of the view that the relevant matters to be established by the Plaintiff to succeed on a suit for a declaration of title and other reliefs, as has been held by a plethora of authorities, requires her to: establish the identity of her land with the land claimed; establish that she has a prior grant from the rightful grantor; that she was in possession of the land; and that the Defendant has trespassed on same. In this case since the Plaintiff alleges that the Defendant is a Licensee who procured the land through fraud, the Plaintiff must also establish among others, the said License and that the Defendant having had prior notice of Plaintiff’s ownership of the land in dispute, proceeded to fraudulently procure same. The Search Report indicating that the Plaintiffs request to plot her land at the Lands Commission was made long after the Defendant’s interest had been plotted, is in our view not relevant to the determination of the issues in controversy between the parties, particularly when the Plaintiff has already tendered her site plan in evidence at the trial, as Exhibit B. The Plaintiff submitted that the Trial Judge in arriving at her conclusion, relied on an indication in Plaintiff’s pre -trial check list that she will not amend her pleadings and that a grant of an amendment will occasion delay. As already stated by this Court, an amendment can be applied for at any stage of the proceedings, provided same will not occasion surprise to the other party, will not prejudice the case of the other party, will do substantial justice to the parties, and ensure that all matters in controversy are effectually determined. The position of the law as already stated in this Judgment makes it abundantly clear, that delay per se, is not a justifiable ground for refusing an amendment which is relevant to the determination of the suit and will do justice to the parties, particularly where the delay can be compensated for by costs. Admittedly, the Trial Judge in her arriving at her conclusion, did consider these matters contested by the Plaintiff. However, her decision did not rest solely on these matters. In Arriving at her decision to dismiss the application, the Trial Judge in her Ruling also considered Order 16 r 5 of CI 47 and the Search Report and noted among others, that the Court is not compelled to grant an amendment unless it deems it just and relevant to do so. The consideration of these matters by the Trial judge is in accordance with law and the principles governing amendments. In our opinion as already stated above, the Search Report is not relevant to the determination of any issues in controversy between the parties. Therefore, refusing an amendment aimed at admitting the said evidence will not occasion injustice to the Plaintiff in this suit. In the circumstances, since the Defendant was in the Witness box when the Plaintiff filed her application for amendment, any delay occasioned by granting an amendment which clearly is not relevant to the determination of the issues in controversy, will not be justifiable. Counsel for the Plaintiff contended that the Trial Judge made a finding in her Ruling that the Lands Commission was the proper authority to tender the Search Report in evidence. This is not borne out by the Record before the Court. The Trial Judge noted that the Search Report emanated from the Lands Commission. After she had made the order dismissing the Application, she further stated that if the Plaintiff so wished, she could Subpoena the Lands Commission to tender same in evidence. The Trial Judge in our view cannot be faulted on this. Having found that the amendment sought by the Plaintiff is not relevant to the determination of the issues in controversy between the parties, the exercise of the Court’s discretion to recall the Plaintiff’s Attorney to adduce fresh evidence does not arise. Upon the foregoing, we have come to the conclusion, that the Trial Judge did not exercise her discretion wrongfully, in refusing the Application to amend the pleadings, the Witness Statement and to recall the Plaintiff’s Attorney to adduce fresh evidence. Consequently, the appeal fails and is accordingly dismissed. HAFISATA AMALEBOBA (MRS) JA. I agree. JENNIFER DODOO (MRS) JA. I also agree. RICHARD ADJEI – FRIMPONG JA. 17