ALBERT BENTSI ADDISON vs. ADJOA OWUSUA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
ALBERT BENTSI ADDISON - (Plaintiff/Respondent)
ADJOA OWUSUA - (Defendant/Appellant)

DATE:  20TH OCTOBER, 2016
CIVIL SUIT NO:  H1/24/2016
JUDGES:  M.OWUSU (J.A.) – PRESIDING, ACQUAYE (J.A.), WELBOURNE (J.A.)
LAWYERS:  MR. RICHARD T. ANKRAH FOR DEFENDANT/APPELLANT
MR. CHARLES BAWADUAH FOR PLAINTIFF/RESPONDENT
JUDGEMENT

MARIAMA OWUSU, J.A.:

On 21st August, 2014, the Circuit Court, Amasaman dismissed the defendant’s counterclaim as not proved and gave judgment for the plaintiff for all the reliefs endorsed on her writ of summons.

 

In her judgment, the trial Judge held among other things as follows:

 

“I am satisfied on a careful examination of the totality of the evidence led that the plaintiff adduced sufficient evidence to establish her claim on a balance of probabilities. With regard to the defendant’s counterclaim, she failed to prove her title to plot number 92 and did not lead any evidence to prove the special damages claimed. I dismiss the defendant’s counterclaim and enter judgment in favour of the plaintiff for all the reliefs endorsed on her writ of summons.

 

Having regard to the four bedroom house built on plot 92, I shall award nominal damages of Gh¢1,000.00 to the plaintiff.

 

In respect of costs, I shall consider the length of the trial, the number of witnesses called, travel expenses to court, the fact that plaintiff engaged counsel and award costs of Gh¢2,500 to the plaintiff.”

 

Dissatisfied with the decision of the trial court, the defendant appealed to the Court of Appeal on the following grounds:

i. The judgment is against the weight of evidence adduced at the trial.

ii. The learned trial Judge erred in giving judgment in favour of the plaintiff/respondent.

iii. Defendant/appellant was not notified of the date to give judgment.

iv. Additional grounds of appeal to be filed upon receipt of the records of proceedings. The reliefs sought from the Court of Appeal are:

 

The reliefs sought from the Court of Appeal are:

1. An order setting aside the judgment of the Circuit Court, Amasaman dated 21st day of August, 2014.

2. An order allowing the appeal.

3. Any other order(s) that shall be deemed fit, just and equitable by the Honourable Court. On 17/12/2015, the defendant/appellant filed further grounds of appeal as follows:

 

On 17/12/2015, the defendant/appellant filed further grounds of appeal as follows:

1. That the learned Judge erred in law when in spite of admitting that the defendant had a four bedroom house on the land built without challenge still gave judgment to the plaintiff contrary to the principles of laches and acquiescence.

2. The learned Judge erred in law when she clothed the plaintiff’s attorney with capacity which he did not have at the time of instituting the action for and on behalf of Victoria Tawiah Kotey.

 

Before dealing with the arguments advanced in support and against this appeal, I will give a brief background of this case.

 

By his amended writ of summons, the plaintiff claims against the defendant the following:

a. Declaration of title to all that piece or parcel of land situate, lying and being at Ofankor, a suburb of Accra bounded on the North by proposed road measuring 95ft more or less. On the South by lessor’s land measuring 124ft. more or less. On the East by lessor’s land measuring 220ft more or less. On the West by proposed road measuring 180ft. more or less and on the North-West by Splay measuring 48ft. more or less and containing an approximate area of 0.63 acre more or less.

b. Recovery of possession of the disputed land.

c. General damages for trespass.

d. An order of perpetual injunction restraining defendant, her agents, assigns, workmen, representatives, etc. from having anything to do with the disputed land.

 

In the ten paragraph statement of claim which accompanied the writ of summons, the plaintiff averred that he is suing for and on behalf of his mother Madam Victoria Tawiah Kotey. The plaintiff averred further that Madam Victoria Tawiah Kotey obtained the land described supra through a lease in 1996 from Nii Nikoi-Okai Amontia IV, Asere Mantse and the lawful representative of the Asere Stool with the consent and concurrence of the principal members of the said Stool. He continued that the lease document is dated 10th September, 1996 and was duly signed by the said Nii Nikoi-Olai Amontia.

 

It is the case of the plaintiff that, after obtaining the land, Madam Victoria Tawiah Kotey later constructed a defence wall around the land the subject matter of this suit when the defendant tried to encroach on portions of the land. Whilst Madam Victoria Tawiah Kotey was away from the country the defendant broke part of the defence wall to create a way for herself, entered the land and is fast developing portions of the land hence the claim.

 

When defendant was served with the plaintiff’s writ of summons and statement of claim, she reacted by filing her statement of defence and counterclaim denying plaintiff’s claim and putting the latter to strict proof of the averments contained in the claim.

 

In particular, the defendant averred that she purchased the said plot 92 in the year 2000 from one A. B. Naburi, a surveyor who gave her an indenture dated March, 1997. The root of title recited in the indenture mentioned Nii Koi-Fio Kotey as A. B. Naburi’s grantors. There was also a site plan attached to the indenture. The defendant continued that, in the year 2001, she put up a manhole and a wooden structure which plaintiff caused her agents to destroy. Plaintiff then quickly erected a fence wall around the disputed plot NO. 92. Next to the disputed plot is plot No. 91. The defendant reported the matter to the Achimota Police and subsequently, reported the matter to the grantor family, the Nii Koi Tsuru family. The grantor family acknowledged plaintiff as a member of their family and decided to settle the matter between the parties in this case.

 

At the meeting to settle the matter between the parties, the settlement arrived at the following decisions:

1. That plaintiff should abate the act of trespass and harassment against the defendant and must vacate the said parcel of land to allow defendant to develop same, since she legally acquired the said land.

2. That plaintiff be given another plot, plot No. 91, next to the disputed plot, plot No. 92.

3. The plaintiff to remove the fence wall she erected to allow defendant develop the said land.

 

It is the case of the defendant that the panel kept faith with the decision and delivered plot No. 91 to plaintiff which the latter subsequently developed.

 

The defendant averred further that, flowing from the outcome of the settlement, she went ahead to develop an outer house which was completed in 2002 and put tenants in them. These tenants, according to the defendant have been in effective occupation since 2002 without any hindrance and encumbrance from anyone. She subsequently erected a fence wall separating plot No. 92 from plot No. 91 without any hindrance from anybody.

 

She concluded that, in 2004, Naburi’s wife prepared an indenture and a site plan for her because Naburi had been deceased. In 2009, precisely 3rd May, plaintiff brought about 20 workmen who broke part of the middle wall and also part of the outer wall, destroyed cassava and plantain defendant had planted, dug trenches on the compound and issued threats to the tenants defendant had put in the outer house. Defendant reported the matter to the Central Police Station, Accra, who invited both parties to the Station. The police advised the grantor family to settle the matter to which the family and the parties agreed. The matter was subsequently settled. David Nii Koi Fio was mandated by the family to settle the matter between the parties.

 

At the said meeting, the family restated their position that plaintiff should follow through the first settlement and stop harassing defendant to which plaintiff disagreed and walked out of the meeting.

 

The defendant says the plaintiff is not entitled to her claim and counterclaimed as follows:

a. Special damages for plaintiff’s destruction of crops defendant planted on her compound.

b. An order of perpetual injunction restraining plaintiff, her agents, assigns, workmen and representatives from having anything to do with the disputed land.

c. General damages for trespass.

d. Legal costs.

 

See the statement of defence filed on 26-6-2009.

 

At the trial, the plaintiff testified and called two witnesses.

 

Defendant also testified and called one witness.

 

As stated supra, the defendant’s counterclaim was dismissed and judgment was given in favour of the plaintiff on all the reliefs endorsed on his writ of summons hence this appeal.

 

In arguing the appeal, counsel for the defendant/appellant (herein after referred to as appellant) argued ground ‘f’ first which deals with the issue of capacity. He referred to the title of the suit and paragraphs 1 and 2 of the statement of claim. Counsel then submitted that, the Power of Attorney which the plaintiff purported to rely on in instituting this action was signed on 1-5-2011. This is Exhibit ‘A’. He then submitted that, Exhibit ‘A’, so dated does not support the writ of summons which was filed on 28-5-2009.

 

Consequently, at the time the plaintiff instituted the action, he did not have the power to do so. In this regard, the opening sentence by the trial Judge that:

 

“The plaintiff’s attorney, Albert Bentsi Addison, instituted this action on behalf of his mother, Victoria Tawiah Kotey in respect of a dispute over ownership of plot No. 92 located at Ofankor in the Greater Accra Region.”

 

cannot be correct as at the time the action was instituted, the power to institute the action against the defendant did not exist. Counsel referred to the cases of Sarkodie Vrs. Boateng [1982/83] 1 GLR 715; Appiah II Vs. Boakye [1994] GBR 921, and the celebrated case of Macfoy Vs. United Africa Company Ltd. [1962] AC 152 @ 160 PC Lord Denning which had emphasized that:

 

“If an act is void, then it is a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside…”

 

He concluded on this point that once the plaintiff instituted the action at the time he did not have a valid power of attorney, everything hanging or founded on it is bad and incurably bad and same must collapse.

 

In response to the plaintiff’s lack of capacity to initiate the present action, counsel for the plaintiff/respondent (hereinafter referred to as respondent) submitted that, the appellant’s contention that at the time the plaintiff’s attorney instituted this action, the attorney had no capacity to do so is misconceived. Counsel referred to page 8 of the record of appeal where a copy of the power of attorney filed is and submitted that the power was specific to Mr. Brako that is a general power of attorney which is not only limited to Mr. Brako. Therefore, the institution of this action against the appellant was necessary to protect the right and interest of the donor. Therefore the attorney acted within the power conferred on him by instituting this action.

 

 From the record of appeal, specifically page 8 thereof, there is a power of attorney given to plaintiff by Madam Victoria Tawiah Kotey. It is dated 11th day of May, 2009.

 

The present suit was filed at the District Magistrate Court, Amasaman on 28-5-2009.

 

The Power of Attorney tendered by the plaintiff at the trial, Exhibit ‘A’ is dated 14th March, 2011. Obviously, at the time plaintiff instituted this action, he did not have the requisite capacity to initiate the action. Consequently, the action so instituted is a nullity. See the case of Sarkodie Vs. Boateng referred to supra. If the action instituted is a nullity, then anything flowing from it is also a nullity.

 

See also the case of Nassiru Abdulai Banda Vs. Colonel Ayisi [2015] 82 GMJ 1, a Supreme Court decision where their Lordships affirmed the decision of the Court of Appeal. In the words of His Lordship Gbadegbe, (JSC) delivering the lead judgment of the Court:

 

“If we are right in coming to this conclusion, then the issue of capacity raised by the defendants was unanswerable and accordingly the amendment having been made wrongly, the case of the plaintiff was thereby ruptured and there was nothing that could be called in its aid with the result that it failed. The above reasons are sufficient in our opinion to dispose of the appeal herein and we proceed to dismiss same.”

 

Capacity is a legal requirement and that whoever institutes an action in a representative capacity has the burden to prove that at the time when he instituted the action, he was clothed with capacity to do so.

 

From the date on Exhibit ‘A’, the Power of Attorney which is dated 14-3-2011 and when the present suit was instituted on 28-5-2009, the plaintiff at the time of instituting the action did not have the requisite authority to do so.

 

Consequently, the action so instituted was a nullity. That being so, any judgment flowing from it is also a nullity. The result is that the appeal succeeds on this ground.

 

This brings us to the appellants counterclaim which was dismissed as not proved.

 

The question is, was the counterclaim rightly dismissed? A counterclaim is a separate action that must be proved. See the case of Fosuhene Vs. Atta Wusu [2011] 1 SCGLR 273, 275 holding (3) where their Lordships held that:

 

“It was settled that a counterclaim was in law a separate and independent action tried together with the original claim of the plaintiff. Consequently, where in the course of an action in which there was a counterclaim, the plaintiff’s claim was struck out, dismissed, discontinued or stayed, the defendant could proceed to prosecute his counterclaim as it was independent of the original claim even though a counterclaim had no separate suit number different from the original suit…”

 

In this case the appellant led evidence in proof of her counterclaim.

 

In her judgment, the trial Judge made the following findings of facts:

 

“Furthermore, the assertion made by the defendant that the plaintiff’s family offered her a ‘replacement’ at the first meeting suggests that the plaintiff was being asked to forego one thing for another. If the plaintiff did not have any interest in the land in dispute, I do not think that logically, she could have been offered a ‘replacement’. I am not satisfied from the totality of the evidence led that there was a settlement that went in favour of the defendant with regard to plot no. 92. I hold that the plaintiff cannot be bound by the terms of an alleged settlement to which she was not a party and of which no written records exists.”

 

Still on the appellants counterclaim, the trial Judge held that:

 

“Finally, an examination of the document tendered by both parties in support of their claims revealed that the plaintiff acquired her land from Nii Nikoi-Olai Amontia IV Asere Mantse (Chief) in 1996 while the defendant’s vendor A. B. Naburi acquired land from the plaintiff’s family in 1997. Exhibit ‘2’ upon which the defendant relied as proof of a transaction between her and A. B. Naburi was questionable to say the least.

 

This is because under cross examination the defendant admitted that A. B. Naburi died in 2003, therefore a document that was purportedly executed between A. B. Naburi and the defendant in 2004 by which the land in dispute was transferred to the defendant was bound to raise questions. Since A. B. Naburi was already dead, one can conclude that the defendant, on the face of the document, entered into a transaction with a non-existing party…”

 

She continued:

 

“There is no indication from a careful examination of Exhibit ‘2’, that A. B. Naburi’s wife executed it on his behalf or acted on his behalf as his personal representative. Important facts of this nature could have been recited in the document. As matters stand, Exhibit ‘2’ is a forgery and I declare it void. In the result, the defendant was only able to prove a transaction between plaintiff’s family and A. B. Naburi.”

 

In her statement of defence, the appellant had counterclaimed for the following:

 

“a. Special damages for plaintiff’s destruction of crops defendant planted on her compound.

b. An order of perpetual injunction restraining plaintiff, her agents, assigns, workmen and representatives for having anything to do with the disputed land.

c. General damages for trespass and

d. legal cost.

 

Exhibit ‘2’ which forms the basis of the appellant’s claim to plot No. 92 is dated 7-9-2004 and was executed between A. B. Naburi and the appellant. But from DW1, at the time Exhibit ‘2’ was executed, A. B. Naburi had died. The cross-examination of DW1 confirms this:

“Q: So Exhibit ‘2’ was made in 2004?

A. Yes

Q. At the time Exhibit ‘2’ was made Mr. A. B. Naburi had passed away

A. That is so, he passed on in 2003.

Q. Exhibit ‘2’ purportedly is an agreement between A. B. Naburi and the defendant herein.

A. No, it is the wife of Naburi who did the transfer

Q. The document says the transfer was made by Naburi?

A. I cannot tell.”

 

Since Exhibit ‘2’ was allegedly executed between A. B. Naburi and Adwoa Owusuaa, on 7-9-2004 and A. B. Naburi died in 2003, the trial Judge was right in declaring Exhibit ‘2’ a forgery. If Exhibit ‘2’ is a forgery, then nothing can pass to the appellant. That being so, this court cannot restrain the respondent, his agents, assigns, representatives, etc. based on Exhibit ‘2’. Consequently, the trial Judge rightly dismissed the appellants counterclaim (b).

 

In respect to the special damages for the destruction of the appellant’s crops planted on her land, the appellant did not state the cost of the crops destroyed both in her evidence in chief and under cross examination. Special damages must be proved strictly.

 

Appellant’s counterclaim (a) too was rightly dismissed by the trial Judge.

 

On the counterclaim (c) in respect of general damages for trespass since the appellant was not able to adduce evidence that plot No. 92 belongs to her as Exhibit ‘2’, which form the basis of her claim to it is forgery, she is not entitled to general damages for trespass and it was rightly dismissed.

 

From all of the foregoing, the appeal is allowed on ground ‘f’. The judgment of the Circuit Court dated 21-8-2014 is hereby set aside.

 

(Sgd.)

MARIAMA OWUSU

[JUSTICE OF APPEAL]

 

(Sgd.)

Acquaye, (J.A.)          I agree                                 K. A. ACQUAYE

[JUSTICE OF APPEAL]

 

(Sgd.)

Welbourne, (J.A.)      I also agree                 MARGARET WELBOURNE

[JUSTICE OF APPEAL]