L. L. MENSAH, J.A.

This is an appeal by the Defendants/Appellants (hereinafter referred to as the Defendants) against the judgment of the High Court, Ho dated the 24^th day of July 2012 which was delivered in favour of the Plaintiff/Respondent (hereinafter referred to as the Plaintiff)

The Plaintiff claiming to be the Acting Head of Adase Clan of Ho Ho-Ahoe and the Stool Father of the Adase Stool, sought the following reliefs from the Defendant in an action instituted at the High Court Ho, on 9^th of March 2007.

1. A declaration that the Defendants have no right whatsoever to dispose of any portion of Adase Clain land situated in Ho and bounded as follows:-

(i) On one side by Glala family

(ii) On another side by Akortsu, Gbey and Anold families On yet another side by Dzovor and Adakpa families And on the last side by Kasa family

2. A further declaration that any piece or parcel of Adase Clan land aforesaid disposed of to anybody by the Defendants jointly and severally or otherwise is null and void ab initio and of no effect.

3. Recovery of possession of any portion of the said Adase Clan land disposed by the Defendants to anybody by whatsoever means

4. Perpetual injunction to restrain the Defendants whether by themselves, their agents or servants or by whatsoever from interfering in any manner whatsoever with the Adase Clan and described in claim (1) above.

In their defence and counterclaim, the Defendants as expected, denied the claims of the

Plaintiff and counterclaimed for the following reliefs:

1. Damages for the Plaintiff’s unduly interference for with the lawful performance of their duty of administering the Adase Clan land.

2. Perpetual injunction on the Plaintiff, his workmen, assigns, and privies from entering the said land or in any way interfering with their duty aforesaid.

At the application for directions, the Defendants in their additional issues challenged the capacity of the Plaintiff. The court then set this issue down for trial as the first additional issue thus:

Whether or not the Plaintiff has the capacity to bring the instant action.

After both parties gave evidence with their witnesses and were comprehensively cross-examined, the learned trial Judge found for the Plaintiff. This is how he puts it in the concluding paragraphs of his judgment:

In my humble and candid opinion, the combined effect of the In Re Ashalley Botwe Lands’ case and Order 4 Rule 9(3) of C. I. 47 clothes the Plaintiff with capacity to sue Defendants for the reliefs endorsed in his Writ of Summons even if he is not the head of family of the Adase Clan. But he has succeeded in amply demonstrating to this court that he is the acting Head of the said Clan by virtue of the fact that he doubles as the stoolfather of that clan.

It is my ruling therefore that the Plaintiff has capacity to sue the Defendants for the reliefs endorsed in the Writ of Summons.

I hereby accordingly rule in favour of the Plaintiff on the issue of capacity.

It is against this decision that the Defendants, one of whom had even before the judgment, gone into eternity, appeals to this court.

GROUNDS OF APPEAL:

The Defendants have itemized the following as their grounds of appeal:

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

(b) The learned trial judge erred in law in holding that the Plaintiff is the Head of the Adase Clan.

(c) Additional or other grounds to be filed upon receipt of the record of proceedings.

Although the Defendants intimated that other grounds of appeal would be filed upon receipt of the proceedings, no such other grounds were filed by the Defendants. What this means is that the Defendants are limited to arguing the two grounds aforementioned in their notice of appeal.

In this appeal, since the Defendants have canvassed the ground that the appeal is against the weight of evidence, they bear the burden to demonstrate to the court that certain pieces of evidence on the record were not properly applied to their case, and that if these pieces of evidence were rightly applied, judgment would have been given in their favour.

The effect of the omnibus ground that the judgment is against the weight of evidence has been considered in several cases one of which is Tuakwa vs. Bosom (2001-2002) SCGLR 61 where it is thus held:

An appeal is by way of rehearing, particularly where the Appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence. In such a case although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon the appellate court in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that on a preponderance of the probabilities, the conclusion of the trial judge are reasonably or amply supported by the evidence.

The Defendants in this instant appeal bear the burden of convincing us that the trial judge erred in his judgment by pointing out the lapses in the judgment or pieces of evidence not applied to their case or wrongly applied to their case. See the case of Djin vs. Baako (2007-2008) SCGLR 686; and Oppong v. Anarfi (2011) 1 SCGLR 556.

To put this appeal into its proper perspective, it is necessary to state the background of the case as follows: Both parties belonged to the Adase Clan of Ho-Ahoe, a division of the Ho-Asogli paramountly. The Adase Clan itself is one of the six constituent clans which made up of Ho-Ahoe. The chief of Ho-Ahoe is Togbe Kasa III who testified in the court below as PW1.

The Adase Clan consisted of Gbevoadi, Dzadey and Glikpo families, each headed by a family head. It is these three families which made up the Adase Clan. The Adase Clan has a large tract of family land, a chunk of which was acquired by Executive Instrument for the State Housing Corporation/Company for inter alia, the Mawuli Estates at Ho. It would appear that part, if not the main conflict which has been brewing for several years among the key members of the Adase Clan particularly the parties herein, was the management and control over the Adase Clan lands. Indeed, this raging controversy over control of the Adase Clan land was the undercurrent of the parties’ wrangling over the headship of the Clan and the position stool father. This is because the control and headship over the land takes its root from the headship of the Clan and stool father position.

It is also necessary to consider the case of each party, again to put the case of the contending parties into its proper perspective.

The Plaintiff’s case in substance is that he was appointed stool father in 1977. This appointment was executed by some key members of the Dzadey Clan such as Nelson Dzadey, Yaw Donkor, Albert Dzadey, Emmanuel Addo and R. O. K. Dekpo. The Plaintiff also said he was appointed as head of the Clan in 2005 when the whole Clan had a gathering and appointed him. The key family members present at his appointment are Anthony Dzadey, Edwin Gbevoadi, Fred Gbevoadi, Fred Dzadey, Mama Alode II, Thophilus Dzadey, Godson Darke and others.

It is the case of the Plaintiff that the fact of his appointment and position as a stool father has been acknowledged by the Defendants in two letters Exhibits A and A1 from their solicitors to him. The Plaintiff however admitted under cross-examination that he did not extend invitation to the Defendants at the time of his said appointmen,t the reason being that members of the Glikpo family of which Defendants were members, were not at home at the time of the said appointment.

The Defendants in their case, deny the position of Plaintiff as a stool father or head of the Dzadey Clan. According to the Defendants, the Plaintiff “was handpicked” by the late Togbe Adase IV as a stool father, and in any case, after the death of Togbe Adase, the Plaintiff ceases to be a stool father. Any new chief who is installed must have his own stool father to the exclusion of the old one such as the Plaintiff in this instant case.

According to the Defendants, there are three positions of significance in the Adase Clan. These are the position of the chief, the position of the head of the Clan and the counselor to the chief.

From the examination of the record of appeal as a whole, or the scrutiny of the documentary and oral evidence of the parties and their witnesses, the two main issues raised in the court below, are which of the two contesting protagonists – Plaintiff or 1^st Defendant is the stool father and the head of the clan. And flowing from this, whether or not the Plaintiff who issued the writ against the Defendants has the locus standi to litigate in the interest of the Adase Clan land. This is because the writ was endorsed as a representative action.

In his written submission, the learned Defendants’ counsel rightly referred to two cases of the highest court of the land which made definite pronouncement on the issue of capacity.

In the case of Republic vs. High Court, Accra; Ex parte Aryettey Ankrah (Interested Party) (2003-2004) SCGLR 398 it is held in holding 2 as follows:-

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 to taking an action against a non-existing Defendant.

But if the representative capacity he claims is not challenged, naturally a Plaintiff assumes no such burden. The requirement as to the endorsement of the capacity of suing, enables the Defendant, if he is so minded, to challenge the capacity 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 proceedings and the judgment found on it. Any challenge to capacity put the validity of the writ in issue.

The same conclusion mutatis mutandis is reached in the case of Asante-Appiah vs. Amponsah alias Mansah (2009) SCGLR 90 at 95.

In this instant case, the learned Defendants’ counsel in his written submission in the light of the above on the issue of capacity, contended that the Plaintiff failed to prove his capacity as the head of the Adase Clan. The Plaintiff’s evidence, counsel submitted, is a mere repetition of his averment in his statement of claim. The evidence of the PW1 and PW2, counsel contended, could not corroborate his evidence. This is because, PW1 Togbe Kasa III while saying that the Plaintiff is the stool father of the Adase Clan, he could not say when Plaintiff was appointed and by whom.

Counsel further submitted that the PW2 Emmanuel Addo also failed to move the case of Plaintiff forward. This is because the PW2’s evidence is of no evidential value, as all that he told the court is that it was the family who appointed Plaintiff as a stool father. He contended that the functions listed by the PW1 as the work of stool father “has very little to do with the management of the assets of the clan and its assets, including the land, subject-matter of this suit”.

A further argument of the learned Defendant’s counsel is that from the evidence of the Plaintiff as enumerated by the Plaintiff himself under cross-examination, the head of the Clan is the proper person to sue and be sued in respect of the Clan property including its lands.

Further that though the Plaintiff on page 122 of the Record of Appeal mentioned several people as those present when he was appointed head of family, “Plaintiff could not mention the particular members of the family who appointed him but only those who were present”.

Counsel said the “key members of the family mentioned by the Plaintiff became material witnesses of his appointment as Head of Adase Clan and it is further submitted that the failure of Plaintiff to call them to testify to the fact that he was duly appointed Head of the Clan is fatal to his case”. Counsel referred to the case of Don Ackah v. Pergah Transport Ltd. and Others (2010) SCGLR 728.

The learned Defendants’ counsel then quoted the portion of the Court of Appeal’s decision which has been confirmed by the Supreme in the Don Ackah case as follows:-

The onus is on the Plaintiff to establish these matters which were capable of proof by simply calling Mr. Thompson as a witness to corroborate the evidence. We accordingly agree with their Lordships in the Court of Appeal that:

(H)aving said all these concerning the role played by Mr. Thompson; one expected the Respondent (the Plaintiff) to have called the said Mr. Thompson. From the record of appeal, we find at pages 100 to 101 that the Respondent (the Plaintiff) applied for subpoena directed at Mr. Thompson to testify for the Plaintiff on 9^th February 2006. Even though the subpoena was filed, the said Mr. Thompson did not appear to testify. On examination of the evidence, the Respondent needed to call Mr. Thompson to corroborate his evidence. Indeed, Mr. Thompson in this suit was a very material witness for the Respondent and taking into account his evidence some of which have been reproduced above in this judgment, the failure of the Respondent (the Plaintiff) in calling the said Mr. Thompson was fatal to the discharge of the evidential burden he assumed in the trial (counsel’s emphasis).

We have taken note of the argument of learned Defendants’ counsel that the Plaintiff failed to call those who were present at the time he was appointed Head of the clan. These are Anthony Dzadey, Edwin Gbevoadi, Fred Dzadey, Mama Alode II, Theophilus Dzadey, Godson Darke and others. That these people are material witnesses, and that Plaintiff’s failure to call them is “fatal to his case”. We, unfortunately don’t agree with the learned counsel for Defendant in collectively tagging those present at the appointment of Plaintiff as Head of the Clan as material witnesses whose failure to come and testify for Plaintiff stultifies the case of the Plaintiff.

With all due deference, a material witness is a witness whose testimony is decisive in its particularity that his presence or absence will affect the case one way or the other. It does not include every absentee person who was present at a particular forum or gathering as those aforementioned in the appointment of Plaintiff as the Head of the Adase Clan.

The case of Don Ackah v. Pergah Transport (supra) is a far cry from the instant case. Indeed the fact that the Mr. Thompson is repeatedly mentioned in the excerpt quoted above shows this. As it is put:

(T)he gravamen of the Respondent’s case is that the entire transaction concerning the purchase of the house was between himself and the former Managing Director of SG-SSB Bank, Mr. Thompson.

Further, in the Don Ackah case, the Plaintiff/Respondent confirmed in his evidence-in-chief that he “initially spoke with the managing director; made all the arrangements with the managing director so I did not subsequently go to the SG-SSB. I had all my dealings with the Managing Director of SG-SSB on the house”.

The reason both the Supreme Court and the Court of Appeal considered Mr. Thompson as a material witness in the Don Ackah case was that the Plaintiff dealt with him exclusively, so much so that it was as if the Plaintiff more or less side-stepped the SG-SSB Bank as an institution, and dealt with the Managing Director on one on one basis in the transaction on the disputed house. This explains why he was a material witness, for his evidence would have tilted the scale one way or other, particularly when a subpoena was prepared in anticipation of his coming to give evidence, but which he failed to give.

Now coming to the instant case, members of the Clan who were at the Plaintiff’s appointment do not stand in the position of a material witness in that the absence of their evidence did not affect the scale of justice one way or the other.

We say this because in several of the authorities dealing with appointment of a family head, such as in Edah v. Hussey (1989-90) 1 GLR 359, the normal practice in the appointment is made at “any recognized family meeting”. The argument of Defendants’ counsel that “Plaintiff could not mention the particular members of the family who appointed him, but only those who were present”, is with due deference, far fetched and misplaced.

Indeed as the authority of Edah v. Hussey (supra) says in holding 1:

….The appointment was made by the family at a meeting where they would look for the person who in their discretion was best suited for the post. But a successor or head of family did not need to be appointed formally; the appointment could be made by popular acclamation or acknowledgment, and in the absence of appointment by acclamation the oldest male member and failing him, the eldest female member. Accordingly, any person whom the family permitted to deal with the family property for and on behalf of the family or to exercise functions of the head of the family was in law deemed to be the head of family until the contrary is proved.

One other argument of the learned counsel for the Defendants is that since the Adase Clan is made up of three distinct families or divisions, and the head of the clan is the overall head of the three families, it follows that the head of the Clan is the overall head of the three distinct families. He contended that all the principal members of the three distinct families ought to be present to appoint the overall head. Counsel contended that in the appointment of the Plaintiff, he admitted under cross-examination on pages 135-136 of the Record of Appeal that the Defendants were not at the meeting before his appointment.

That the Plaintiff having admitted that he did not invite members of the Glikpo family to participate in the said appointment, it follows that it is only two sections of the Clan who participated in appointing the Plaintiff. This renders “the purported appointment of the Plaintiff as the head of the Adase Clan null and void ab initio”. We think this is a potent and valid point raised by the learned Defendants’ counsel. And same backed by the case of Lartey v. Mensah & Dedei and Others (1958) 3 WALR 410 holding 3 per Ollenu J (as he then was):

The appointment of the head of family should be made by all the principal elders of the family at a family meeting. When it is intended to make an appointment, a notice convening a family meeting and stating the intention to appoint at such a meeting should be given to all those entitled to attend and participate in the appointment. Failure to give such notice renders the appointment invalid any appointment made at a meeting from which any elders entitled to participate in the appointment were absent, unless such absent elders subsequently ratify the appointment thus made”.

If Lartey v. Mensah (supra) is a High Court case, the Supreme Court in the case of In Re Estate of Kwabena Appianin (Decd), Frimpong v. Anane (1965) GLR 354 puts the matter beyond doubt that in appointment of a head of family, all the principal members of the family should be given the opportunity to be heard. As the court puts it in the headnote as follows:-

In matters such as the appointment and removal of a head of family which are of vital importance to a family, all the principal members of the family are entitled to a hearing, and opportunity should be given to all of them so that those of them who wish to be heard can exercise their rights. This means that notice of the proposed meeting should be given to all the principal members.

See also Allotey and Others v. Quarcoo (1981) GLR 208 CA.

In the instant case, the Defendants’ counsel is right to argue that since the Plaintiff (intentionally) failed to inform the Glikpo family and in our opinion, there was no evidence to show that Defendants and other Glikpo family members were invited, but refused to attend the meeting, the appointment of the Plaintiff would appear not to be binding on the Defendants.

While holding that the appointment of the Plaintiff was of no effect, it is to be mentioned that the Defendants have acquiesced in the said appointment and cannot be heard to say that the Plaintiff is not the head of family.

In the case of Abakah and Others vs. Ambradu (1963) GLR 456, the Supreme Court in holding 1 held as follows:-

The right of removing the head of family from office is vested in the principal members of the family and the act of majority of the members would be binding upon the rest, but where a head is removed, as in this case, without the notice of the meeting being given to all the sectional heads, the act of the sectional heads who were present, cannot be binding upon the rest, and unless it is acquiesced in, it is ineffective (our emphasis).

It should be mentioned that the modalities of appointing a family head is the same as removing him. In other words the same conditions and modalities are needed for same.

In the instant case, did the Defendants acquiesce in the appointment of the Plaintiff? Very much so. Since the Defendants became aware that the Plaintiff’s appointment as a head of their clan was without their participation, did they timeously move to query, cancel, resist or refuse to acknowledge the position of the Plaintiff? The evidence seems to show that the Defendants acknowledged the position of the Plaintiff as the stool father and by extension head of the clan.

In his address, the Defendants counsel submitted that “Exhibits 4, 5 and 6 are very important to the determination of the issues in the mini-trial ie the issue of capacity. Unfortunately counsel forgot that Exhibit A series are also important. Exhibit A is a letter a former Defendants’ counsel wrote on 11^th October 2005 designating the Plaintiff as a Stool Father of the Adase Clan in respect of the parties’ wrangling over the control of the Adase Clan lands. In Exhibit A1 of 10^th January 2007, the Defendants through their same lawyer wrote another letter. In the said letter the Defendants labeled the Plaintiff as “handpicked by the late Togbe Adase IV to be his stool father contrary to the traditions and customs of the Ewe people”.

In reply to these letters the Plaintiff in person as a layman on 8^th February 2007 replied the said lawyer of Defendants. He told Defendants that they actually recognize “my authority as the stool father of the Adase Stool, as all their previous correspondents were addressed to me in my capacity as the stool father of the Adase Clan”. Plaintiff said having fully recognized him as a stool father in their letters of 20^th September, 2005 and 11^th October, 2005, “I will definitely use those letters in testimony against them in any future action in this matter”.

The question is, did the Defendants withdraw these letters in which they recognized the Plaintiff as the stool father? No, they did not. Did they mount an action to challenge the Plaintiff about his position as a stool father? No. What this means is that the Defendants cannot now turn round to deny the twin position of Plaintiff as the stool father and head of the Adase Clan. This is because they did not initiate any action to remove him. This is the findings of the trial judge as considered hereafter in this judgment.

In the case of Welbeck v. M. Captan Ltd. (1956) 2 WALR 47, it was held inter alia that the burden of alleging and proving specific grounds of invalidity of either the appointment or removal of a family head at a family meeting rests with the family members seeking to avoid a decision reached at a family meeting.

In the judgment which the Defendant have impeached in this forum, the learned trial judge has found from the facts joined between the parties that the Plaintiff has led cogent and compelling evidence to establish the fact of his being the stool father since 1977 and acting head of the Clan since 2005. This is because Plaintiff was acknowledged as such by all members of the family.

The learned trial judge found further that the 1^st Defendant spokesman for the Defendants confirmed the fact of the position of the Plaintiff, both in his evidence-in-chief and in paragraph 2 of the statement of defence.

Again the trial judge found out as a fact that “granted without admitting that the Plaintiff was handpicked by Togbe Adase IV as his stool father, the Defendants did not provide any shred of evidence that being principal members of the family they resisted or opposed it. They offered no challenge but allowed the Plaintiff to “style” himself as stool father for the family or clan because Togbe Adase was the chief of the clan”.

Further the trial court found sufficient evidence that though the Defendants belatedly refused to acknowledge Plaintiff as the stool father because the former chief died, his position abated, yet in their two letters aforementioned, they acknowledged the Plaintiff as stool father.

That the position of Plaintiff as stool father and head of the Adase clan is unassailable and unimpeachable, also finds place in the elucidating and authoritative evidence of the PW1 Togbe Kasah III, Dufia of Ho-Ahoe found at page 139-143 of the record of appeal. The court below found as a fact that as a stool father, the Plaintiff assumes the role of the chief and head of Adase clan till a new chief is appointed after the death of Togbe Adase IV. This is because the chief is also the head of the clan. And this is why he deals with the Plaintiff as the stool father and head of the Adase Family in all matters concerning the clan. Sometimes he deputizes for him at important functions and occasions.

In the same vein, the PW2 Emmanuel Addo corroborated the evidence of the Plaintiff and PW1 that the Plaintiff is indeed the stool father and head of the Adase Clan.

As against the fact of finding that the Plaintiff is the stool father and head of family, the trial court found that non of the three Defendants, one of whom died before the judgment, was formally or customarily appointed as the head. The Defendants, particularly the 1^st Defendant consider(s) themselves as head of family simply because they took Togbe Adase IV to court for not taking good care of the family properties. Again the trial court found that in their statement of defence, and counterclaim none of the Defendants described himself as head of family, but as principal members of Adase Clan.

The record of appeal also shows that although the Defendants and their witnesses DW1 Roger Dake tendered a number of documents, Exhibit 1-6, the learned judge at the court below found that none of these documents could obviate the fact of the Plaintiff’s dual roles as a stool father and a clanal head of Adase.

Indeed although the DW1 with respect was bombastic in his credentials as a 1974 graduate of political science from University of Ghana who “studied the political systems of Ho Asogli”, he strangely pontificated that the Adase Clan has no stool, but only ancestral stool. This bizarre evidence of the DW1 is a sharp contradiction of the pleadings, evidence-in-chief and documentary evidence of Defendants and what he himself had tendered. In Exhibits 4, 5 and 6 tendered by DW1, he never designate the 1^st Defendant as head of the Adase clan.

Indeed the fact that DW1 tendered Exhibit 4 which recommended that a panel of three should be set up to be elected from the three constituting families of the Adase Clan namely Gbevoadi, Dzadey and Glikpo, to manage the Adase lands, and shall be responsible to the Clan and make report to the clan twice a year, shows that the 1^st Defendant is an imposter.

In his address, the learned Defendants’ counsel sought to raise Exhibits 1 and 6 to the pedestal and found estoppel in terms of sections 24 through 26 of the Evidence Act. Exhibit 1 is a receipt evidencing the payment of money to the Asempa Settlement Committee as ordered by Justice Gyaesayor. Exhibit 6 is the Memorandum of Understanding between the Asempa Settlement Committee and the Adase Family. According to the learned Defendants’ counsel, in as much as the Plaintiff signed as a witness to 1^st Defendant who paid the ₵10 million to the Asempa Committee, it follows that by that singular act of the 1^st Defendant, he is the head of the Adase Clan. The Plaintiff is therefore estopped from denying the headship of the 1^st Defendant.

Counsel confirms the above submission with the case of Sefa & Asiedu No. 2) vs. Bank of Ghana (No. 2); Gyamfi (No. 2) vs. Bank of Ghana (No. 2) (Consolidated) (2013-2014) 1 SCGLR 520.

Unfortunately, we have to respectfully disagree with Defendants’ counsel that Exhibit 1 and 6 between them found conclusive presumptions against Plaintiff. This cannot be so because there is nothing conclusive in respect of Exhibits 1 and 6. If the Defendant had been designated as a head of the Adase clan and the Plaintiff signed as his witness, then sections 24, 25 and 26 of the Evidence Act would have applied. Indeed sections 24 through section 29 are labelled conclusive presumptions because they admit no other evidence as provided under section 24(1) of the Act.

Given the nature and content of Exhibits 1 and 6, they come under rebuttable presumption. In conclusive presumption, there is no space for inference as in rebuttable presumption. Indeed the fact that the Defendant’s counsel has to reproduce a chunk of the evidence-in-chief and cross-examination to reach his verdict on Exhibits 1 and 6 as conclusive presumptions, show the failure of these documents to estop the Plaintiff. Conclusive presumptions is a self-sufficient, self-contained rule of evidence. It speaks for itself. Its power lies in exposing the conduct of the party against whom it is evoked.

As against the above, the Defendants are rather veritable candidates of the same conclusive presumption which the defence erroneously wants to foist on the Plaintiff. This is because Exhibit A and A1 which are the two letters aforementioned, in which the Defendants acknowledged the Plaintiff as a stool father are conclusively presumed against them in terms of sections 24, 25 and 26 of the Evidence Act. They cannot now deny their acknowledgement.

As provided under sections 25 and 26 of the Evidence Act as follows:-

25. Except as otherwise provided by law, including a rule of equity, the facts provided in a written document are conclusively presumed to be true as between the parties to the document, or their successors in interest.

26. Except as otherwise provided by law, including a rule of equity, if a party has, by that party’s own statement, act or omission, intentionally or deliberately caused or permitted another person to believe a thing to be true and act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in proceedings between

(a) the party or the successors in interest of that party, and

(b) the relying person or successors in interest of that person.

See the case of Social Security Bank vs. Agyakwa (1991) 2 GLR 192 CA and the Sefa & Asiedu (No. 2) vs. Bank of Ghana (No. 2). Gyamfi No. 2) vs. Bank of Ghana (No. 2) (Consolidated) supra.

What is interesting and unique about the conclusive presumption in this instant case is the warning if not the taunting of Plaintiff against Defendants that he would use, as aforementioned their two letters acknowledging him as a stool father, as evidence against them in a law court. It is a prophesy that came true.

As this judgment is cruising to an end, we have to state that it does not lie within the province of an appellate court to interfere with the findings of a trial court. The higher court can only interfere when (a) the court has taken into account matters which were irrelevant in law (b) the court excluded matters which were critically necessary for consideration (c) the court has come to a conclusion which no court properly instructing itself would have reached; and (d) the court’s findings were not proper inferences drawn from the facts. However, just as the trial court is competent to make inferences from its specific findings of facts and arrive at its conclusions, the appellate court is equally entitled to draw inferences from findings of facts by the trial court and to come to its own conclusions. See Amoah v. Lokko & Alfred Quartey (substituted by) Gloria Quartey & Others (2011) 1 SCGLR 505 and Koglex Ltd. (No. 2) vs. Field (2000) SCGLR 175.

From the totality of the evidence on the entire record of appeal, we see no reason why the verdict of the trial court should be disturbed. Indeed the issue of capacity raised by Defendants which is basic and fundamental in this case, is not necessarily which of the Plaintiff or Defendants occupy the two highest social and cultural positions of the Adase Clan. What the lower court was tasked to do was to determine whether or not the Plaintiff has capacity to mount the action. The evidence is overwhelmingly in favour of the Plaintiff. Assuming without admitting that Plaintiff’s dual role as a stool father and acting head of family, is not proven, he can still, as an ordinary member of the Adase family, institute an action to protect the properties of the family. The Plaintiff’s position is backed statutorily and by decided cases. The learned trial judge has admirably touched on all the strands in the case.

As he rightly found out in his evaluation of the evidence in the judgment found at pages 224 to 234, of the record of appeal, the Plaintiff as an ordinary member of the Adase Clan can under the ambit of the Head of Family Accountability Law, PNDC Law III, bring an action against Defendants. So also under Order 4 rule 9(3) of C.I. 47. The case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Others vs. Kotey & Others (2003-2004) SCGLR 420 puts the position of the Plaintiff beyond doubt.

There being no merit in this appeal, same is hereby dismissed.