ALICE POKU vs. SELINA OSEI NYARKO
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
ALICE POKU - (Defendant/Appellant)
SELINA OSEI NYARKO - (Plaintiff/Respondent)

DATE:  16TH JUNE, 2016
CIVIL APPEAL NO:  H1/102/2016
JUDGES:  V.D. OFOE J.A. (PRESIDING), F.G. KORBIEH J.A., H.A. KWOFIE J.A
LAWYERS:  MRS. JACINTA GAYLE FOR THE DEFENDANT/APPELLANT
A. G. BOADU FOR THE PLAINTIFF/RESPONDENT
JUDGEMENT

F.G. KORBIEH, J.A.

The case (or better still, the cases) leading to this appeal have a very chequered history. I will however be very brief in tracing this history. In 1990, one Nana Appiawiah sued the defendant/appellant herein in the circuit court for a declaration of title to a piece or parcel of land lying, situate and being at “MILE 7 off Nsawam Rd., Accra measuring 167 ft. on the North-East by Lessor’s land measuring 100 ft. more or less on the North-West by the Lessor’s land measuring 100 ft. more or less and containing an approximate area of 0.36 acre more or less.” The defendant/appellant not only defended the action, she mounted a counter claim for a declaration of title to virtually the same land. Whilst the Nana Appiawiah’s claim was dismissed, the defendant/appellant’s counterclaim was granted and she was declared owner of the land. Thereafter it came to the notice of the defendant/appellant that Nana Appiawiah had obtained a land certificate on that very parcel of land. She therefore sued Nana Appiawiah in the High Court for a declaration of title to the land again, for possession and for the land certificate to be cancelled or revoked. The Land Title Registrar was therefore joined to the suit. The defendant/appellant got judgment and was granted all the reliefs she sought. Upon being granted a writ of possession, she entered the house erected on a portion of the land in dispute and proceeded to demolish it. The plaintiff/respondent herein, who claims to be the wife of Nana Appiawiah, issued a writ in the court below asking for three reliefs: (1) a declaration that the land on which house no. ANT/AB 75 Achimota, Accra is built is not part of the land affected by the High Court judgment in the case of Alice Poku v. Nana Appiawiah & Another; (2) perpetual injunction restraining the defendant, her agents, servants, and assigns from interfering with house no. ANT/AB 75 Achimota, Accra; (3) damages for trespass. The writ was accompanied by a statement of claim(subsequently amended) in which the plaintiff/respondent herein described the land of the defendant/appellant as being surrounded on three sides by her vendor’s property and on the fourth side by a road. She however described herself as the wife of Nana Appiawiah (mentioned supra) and claimed that ANT/AB 75 Achimota, Accra, which was built on adjoining land and which “measures 30 feet by 30 feet”, was built by her and her husband, the aforementioned Nana Appiawiah. The defence of the defendant/appellant was basically that the High Court in Suit No. FAL. 92/12 had ordered that she should recover the land that she had sued for (which the plaintiff had so ably described in her writ of summons).

 

At the close of pleadings and after directions for trial had been taken the defendant/ appellant (hereinafter referred to only as the appellant) applied to have the plaintiff/respondent’s amended writ of summons and amended statement of claim struck out on the basis, among many others, that the respondent had no capacity to bring the action in court. She added that in addition the respondent was estopped by the doctrine of res judicatam in rem as the judgment taken against Nana Appiawiah in the case of Alice Poku v. Nana Appiawiah in Suit No. FAL: 92/2012 was binding not only on her but against the whole world. In her affidavit in opposition, the respondent merely repeated her assertion that the house that had been demolished was built by her and her husband and was on adjoining property. She added that as joint-owner of the demolished house she had the capacity to bring the action.

 

In his ruling, the trial judge correctly stated that when the capacity of a party is raised, it must be resolved before the merits of the case are gone into; and that when the challenge succeeds, the case fails outright. He however added, rather ominously, that raising the issue of capacity of the plaintiff did not include raising a false alarm. He then proceeded to say that going by the surveyor’s plan there was controversy as to the ownership of the land in dispute and so there was the need to go into the merits of the case, hence the case should proceed to trial. It is this ruling that the appellant has appealed against. She has listed three grounds of appeal which are:

 

(a) The judgment/ruling is against the weight of the evidence.

(b) The learned trial court failed to exercise its discretion judiciously when it ruled that: “Raising an issue to the capacity of the plaintiff does not include a false alarm to capacity of the plaintiff…The case will proceed to hearing on the merits.”

(c) The learned trial court erred in law in failing to find that the plaintiff/respondent bore the burden of proving her capacity to bring the current action when the issue of capacity was raised by the defendant/appellant as a preliminary legal issue before considering the merits of the case.

 

PARTICULARS OF ERRORS OF LAW

1. The learned trial court misdirected itself in law in respect of the findings in Sarkodee I v. Boateng II [1982-83] GLR 715 at 724 which held inter alia that: “It was elementary that the a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence.”

(d) The learned trial judge erred in law in failing to find that the plaintiff/respondent lacked capacity to bring the current action as she failed to prove by cogent evidence that she had any claim to the land in issue, and relied solely on a site plan; and she had failed to prove that as purported co-owner of the land in dispute that she had the authority to represent the other co-owners in the action.

 

PARTICULARS OF ERROR OF LAW

1. The learned trial court misdirected itself in law in respect of the provisions of Order 4 Rule 3(2) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47)

2. The learned trial court misdirected itself in law in respect of the provisions of sections 1, 2 and 3 of the Conveyancing Act, 1973 (NRCD 175)

3. Further grounds of appeal will be filed upon receipt of the record of appeal.

 

The relief sought was that the ruling of the court below dated 9th June, 2015 be wholly set aside.

 

In arguing the appeal, learned counsel for the appellant argued grounds (a) and (b) together. He then treated grounds(c) and (d) separately. I propose to follow suit.

 

Under grounds (a) and (b) counsel argued that in the instant case the trial judge failed to give due consideration to the evidence adduced and the arguments in support of the appellant’s application to strike out the respondent’s writ of summons and statement of claim. According to counsel the trial court, in failing to do this and yet referring to the appellant’s application as a “false alarm” amounted to a failure to use his discretion judiciously. Counsel then argued that even though the law generally is that an appellate court should normally not substitute its own discretion for that of the trial court, it was at liberty to do so if it found that the trial court had exercised its discretion wrongfully, in that no sufficient weight had been given to relevant considerations. Counsel cited several cases, such as Kyenkyenhene v. Adu [2003-2004] SCGLR 142, Ballmoos v. Mensah [1984-86] 1 GLR 752 and Sappor v. Wigtap [2007-2008] SCGLR 676 at page 679, in support of his argument. We agree with counsel’s argument and find the legal authorities cited supportive of his argument. The respondent had indeed failed to adduce the necessary evidence in support of her capacity to bring the suit against the appellant. So the learned trial judge indeed abdicated his duty when he failed to assign reasons why he thought the appellant was raising a “false alarm” by challenging the capacity of the respondent.

 

What I am going to say next might not go directly to capacity but it was raised in the submission of counsel for the appellant and counsel for the respondent could have responded to it. It is the issue: whether or not the respondent had a cause of action against the appellant? It is trite law that an appeal is by way of re-hearing and an appellate court can look at the whole of the appeal record. A careful reading of the respondent’s amended statement of claim (which the appellant wanted struck out) shows that that respondent’s land, if she has any at all, must be within the area ordered the High Court in Suit No. FAL: 92/2012 to be re-possessed by the appellant. By the respondent’s own confession in paragraph (3) of her statement of claim (as amended) the appellant’s land is surrounded on three sides by appellant’s vendor’s land and on the fourth side by a road. How then can the respondent’s land be on “adjoining property” to the appellant’s land? The respondent was going to be bound by her own pleadings and so the surveyor’s composite plan would not have been of much use to her, as her counsel tried to impress upon this Court. As for the submission by counsel for the respondent that: “No where(sic) on the record did the plaintiff state that her husband is the co-owner of the land or the house in dispute” it only means that either counsel did not study his brief very well or was deliberately trying to mislead this Court. When the Appellant filed her application to strike out the amended writ of summons and amended statement of claim, the respondent filed an affidavit in opposition on the 8/4/2015 in which in in paragraph (8) she deposed as follows”

 

“That I am advised and verily believe that as joint-owner of house number ANT/AB.75 Achimota, Accra I have the capacity to bring this action.” (See page 90 of the ROA)

 

In view of all of the foregoing, the trial court failed to take into account serious pieces of evidence that should have inured to the benefit of the appellant in reaching its decision. Grounds (a) and (b) accordingly hereby upheld.

 

We now come to ground (c) which is couched as follows: the learned trial court erred in law in failing to find that the plaintiff/respondent bore the burden of proving her capacity to bring the current action when the issue of capacity was raised by the defendant/appellant as a preliminary legal issue before considering the merits of the case. Part of counsel’s argument under this ground is that the respondent failed to adduce “cogent” evidence to establish the fact that she is the wife of Nana Appiawiah. However, under the rules of evidence, she had no obligation to do this. In response to her averment in paragraph (2) of her amended statement of claim that she was the wife of Nana Appiawiah, the appellant, in paragraph 2 of her statement of defence “admitted” the said averment, thus relieving the respondent of any further burden to prove it. But that alone does not make this ground of appeal succeed as being a wife alone does not cloth one to sue on behalf of a husband. We will therefore go on to consider the other leg of this ground of appeal which is that the respondent failed to prove her capacity as co-owner of the land or house in dispute. In the case of the Republic v. High Court, Accra; Ex Parte Aryeteey (Ankrah Interested Party) [2003-2004] SCGLR 398 (cited by learned counsel for the appellant) it was held that:

 

The requirement that a party endorses on the writ the capacity in which he sues, is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has the right to sue. Whether a person who has sued in a representative capacity, indeed has the capacity he claims to have or not, is a question of fact; and if challenged, he must prove same to avoid his suit being dismissed since it is analogous taking an action against a non-existent defendant. But if the representative capacity he claims is not challenged, naturally a plaintiff assumes no such burden. The requirement as the requirement of endorsement of the capacity of suing, enables the defendant, if he is so minded, to challenge the capacity the plaintiff claims he has, and such a challenge may be taken as a preliminary issue. This is because if a party brings an action in a capacity he does not have, the writ is a nullity and so are the proceedings and judgment founded on it. Any challenge to capacity puts the validity of the writ in issue.

 

Having found that the respondent, by her own confession, is a joint-owner of the land or house in dispute, it follows that she could only have sued alongside her husband or made him a defendant under Order 4 Rule 3(2) of C.I.47. This is a mandatory provision of the rules of court and the trial judge was in duty bound to apply it. His failure to do so gravely put in issue the decision the court below to go on with the hearing of the case on the merits. Ground (c) will therefore be upheld despite the earlier observation that the respondent needed not adduce any evidence to prove that she is the wife of Nana Appiawiah.

 

We will now consider ground (d) of the grounds of appeal which states that the learned trial judge erred in law in failing to find that the plaintiff/respondent lacked capacity to bring the current action as she failed to prove by cogent evidence that she had any claim to the land in issue, and relied solely on a site plan; and she had failed to prove that as purported co-owner of the land in dispute that she had the authority to represent the other co-owners in the action. As contended by counsel for the appellant, the respondent had to prove that a valid transfer of the land in dispute was made to her under sections 1, 2 and 3 of the Conveyancing Act, 1973 (NRCD 175). Despite the strenuous denial of her counsel, the respondent had claimed that she was the joint-owner of the property in dispute thereby implying that her husband was the other joint-owner (or co-owner) of the property in dispute. She therefore had a duty to prove her joint-ownership of the property by proving that she had a document of the provisions of NRCD 175 to cloth her with the capacity to sue. She failed to do this and pointed to only a site plan which is not the same as is required under NRCD 175. In other words, the respondent had to attach some title deed to her affidavit in opposition instead of relying on the site plan tendered by CE 1. Ground (d) also therefore succeeds and is hereby upheld.

 

Counsel for the appellant sought to argue a ground (e) which was neither in the original notice of appeal nor for which leave had been sought as an additional ground of appeal. It is true that the issue of res judicata was raised and argued whilst arguing the appellant’s application in the court below but it was not listed as one of the grounds of appeal. It is provided under Rule 8(8) of the Court of Appeal Rules, 1997 (C.I.19) as follows:

 

“The appellant shall not, without leave of the Court, argue or be heard in support of a ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal on the terms that the Court thinks just.”

 

I shall therefore disallow this additional ground of appeal as being unwarranted by the rules by the rules.

 

But that notwithstanding, the appeal succeeds. For the reasons assigned above, the ruling of the trial High Court dated 9th June, 2015 is hereby set aside and the reliefs sought by the defendant/appellant are hereby granted; that is to say the amended writ of summons and amended statement of claim are hereby set aside as being null and void for the reason that the respondent lacked the necessary capacity to institute the action.

 

F. G. KORBIEH

(JUSTICE OF APPEAL)

 

OFOE, J.A.     I AGREE                                           V. D. OFOE

(JUSTICE OF APPEAL)

 

KWOFIE, J.A. I ALSO AGREE                              H. A. KWOFIE

(JUSTICE OF APPEAL)

 

 

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