IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
KOFI MANU - (Defendant/Appellant)
KWAME BOAFO & ANOR - (Plaintiffs/Respondents)
DATE: 31ST OCTOBER, 2018
CIVIL APPEAL NO: H1/64/2018
JUDGES: M. OWUSU (J.A.) – PRESIDING, KWOFIE (J.A.), GAISIE (J.A.)
MARIAMA OWUSU, J.A.:
On 16th December, 2016, the Circuit Court, Nkawie entered judgment for plaintiffs on all their claims.
The court held among other things that:
“On the totality of the evidence adduced and on a preponderance, the plaintiffs’ version is to mind of this court more probable than that of the defendant. In that event, the court enters judgment in favour of the plaintiffs on all their claims for the recovery of possession of House Number H12 situate and being at Hiakosi Bontefuofuo. It is further declared that title to the land in issue resides in Yaa Korkor, plaintiffs’ grandmother and from whose line the plaintiffs have sued. Consequently, the plaintiffs shall recover possession of the said land more properly described in the endorsement of the plaintiffs’ writ. The defendant’s counterclaim fails it its entirety. There shall be no award as to costs.”
Dissatisfied with the decision of the trial court, the defendant appealed to the Court of Appeal on the following grounds:
The judgment is against the weight of evidence on record.
Further grounds to be urged upon receipt of the record of appeal.
On 7th February, 2018 the defendant filed three additional grounds of appeal. They are:
The plaintiffs not being their head of family lack the requisite capacity to institute the present action
The learned trial Judge at the court below unfortunately failed to avert his mind to the legal proposition that in matters of declaration of title the plaintiffs have to prove their case, thus same wins on the strength of his own case and not rely on the weakness of the opponent.
The learned trial Judge at the court below unfortunately failed to give weight to the legal proposition that in matters of declaration of title and recovery of possession the party must clearly state both in his pleadings and evidence prove his boundary owners but in the instant case the plaintiffs failed to do so.
The relief sought from the Court of Appeal is to set aside the said erroneous judgment and judgment rather be given in favour of the defendant/appellant.
Before dealing with the arguments canvassed in support and against this appeal. I will give a brief background of the case.
The plaintiffs by their writ of summons claim against the defendant the following:
Recovery of possession of House H12 situate and being at Hiakose-Bontefufuo.
Declaration of title to farmstead situate and lying or being at Boadwowa
Recovery of possession of the said land bounded on the North by the properties of Nana Yaw Kwaakye, Kwaku Abora, Nana Kofi Nkrumah. West by Atta Yaw, South by Nana Kwame Anning, Tesuoyema Stream, East by Kwame Wuo and Nana Kwadjo Fordjour.
In the statement of claim that accompanied the writ of summons the plaintiffs averred among other things that their great grandmother Yaa Korkor, acquired a virgin forest and started developing it. According to the plaintiffs, Yaa Korkor beget three (3) children namely, Kwasi Addai, Yaa Darkwaah and Akyeapoma. The plaintiffs averred further that, after the death of Yaa Korkor, her elder son Kwasi Addai continued working on the land her mother acquired and cultivated. When Akwasi Addai died, he was succeeded by his nephew Kwadwo Boampong who also worked on the land of Yaa Korkor and used the proceeds from the farm to put up House No. H12 at Hiakose. It is the case of the plaintiffs that Kwadwo Boampong married Nana Nyamoah, the grandmother of defendant who gave birth to eleven (11) children, one of the children of Kwadwo Boampong and Nyamoah gave birth to defendant’s mother Ama Dapaah. The plaintiffs continued that in 1974, Kwame Adawa gave portio of the land to the defunct Workers Brigade to get money to repair House No. H12, Hiakose-Bontefufuo.
The plaintiffs concluded that about four (4) years ago, their sister and mother went to the land to farm and defendant drove them away and threatened to kill them. They therefore reported the matter to the Odikro who said since both parties are family members, the land should be shared between them but three (3) days to the time for sharing, the defendant went to the Odikro and told him that he has nothing to share with plaintiffs. Plaintiffs maintain that by Akan custom, the defendant is not the rightful successor to the property of their great grandmother, Yaa Korkor hence this action.
On his part, the defendant averred that the disputed house was built by defendant’s grandfather by name Opanin Kwaku Armah from his own resource.
He also denied his mother gave birth to eleven children and said his mother gave birth to seven children. The defendant continued that after the death of Op. Kwaku Armah, he was succeeded by Augustine Donkor and defendant has succeeded Augustine Donkor and the disputed property has devolved unto him for defendant’s family.
In respect of the farmstead at Boadwowa (Kobiri Afuom) the defendant averred that same was originally acquired by Opanin Kwaku Armah, Kwame Badu and Kwaku Minta who were brothers. It is the case of the defendant that after cultivating the said land, the brothers shared the farm among themselves and Kwaku Armah constructed a cottage in his farm hence the name ‘Armah’s Cottage’.
The defendant concluded that Op. Kwaku Armah used the proceeds from his said farm to construct the disputed house whilst his brothers constructed their own respective houses.
The defendant therefore maintained that the properties mentioned in his counterclaim have devolved onto him as successor of Augustine Donkor and he is the caretaker of the properties for his family. He therefore counterclaimed as follows:
An order of declaration of title and recovery of possession of House No. H12 situate and being at Hiakosi-Bontefufuo, Ashanti.
Declaration of title and recovery of possession of the farmstead situate and lying at Boadwowa (Kobiri Afuom) and sharing boundaries with the properties of Opanin Abora, Opanin Kwame Owuo, Kwadwo Ntidwoo, Kwadwo Asamoah, Kwadwo Fordwoo, Akwasi Addai, Kwabena Nsowah, Kwame Nsowah.
After close of pleadings the case went through a full trial. At the end of the trial, defendant’s counterclaim was dismissed. Judgment was entered in favour of the plaintiffs against defendant hence this appeal.
In arguing the appeal, counsel for the plaintiff abandoned his original grounds of appeal contained in his notice of appeal filed on 12th January, 2017 and argued only the additional grounds of appeal filed on 7th February, 2018.
On ground (a) the issue of capacity raised against the plaintiffs to institute the present action, counsel submitted that from the writ of summons, the plaintiffs failed to disclose the capacity in which they instituted the present suit. He continued that, as a general principle to protect family property, it is the head of the family that must institute the action. In the instant case, counsel argued, the plaintiffs are not the head of their family. He cited the following cases in support of his submission:
Madina Shopping Mall Association Vs. Rosehill Gh. Ltd. & 2 Ors.  39 MLGR 81
The Republic Vs. High Court, Accra; Ex Parte Ayetey (Ankra Interested Party) [2003/2004] SCGLR 398
Ankrong Vs. Bulley  GLR 496
Nyamkye Vs. Ansah [1989-90] GLR 152 -163 as well as Fosua & Adu-Poku Vs. Dufie (deceased) &
Adu-Poku Mensah  SCGLR 310 @ 388
Based on the cases cited supra counsel for the defendant submitted that from the evidence on record, no where did the plaintiff disclose that they are the head of their family. Additionally, the plaintiffs failed to serve the head of family with a copy of the writ of summons as required by law that is, Order 4 Rule 9(4), (5) and (7) of the High Court (Civil Procedure) Rules 2004, C. I. 47 and therefore the appeal should be allowed.
He continued that, the exceptions in the case of Kwan Vs. Nyieni  GLR would not avail the plaintiffs as the trial Judge sought to do. This is because, the trial Judges analysis of the exception to the rule in Kwan Vs. Nyieni supra was wrong. Consequently, the appeal should be allowed on this ground.
On the additional ground (b), counsel for the defendant argued that, the plaintiffs action is one for declaration of title or ownership of House No. H12, Hiakosi. He argued that, the trial Judge made a finding that, the plaintiffs led very scanty evidence in proving that Kwadwo Boampong built it.
Nonetheless, the trial Judge entered judgment for recovery of possession of House No. H12, Hiakosi in favour of the plaintiffs and this is wrong.
Similarly, the farmstead at Boadwowa and the recovery of possession thereof the plaintiffs failed to prove their claim to the land. Nonetheless title was declared in their favour.
This is because none of the boundary owners of the said land was called to testify as to sharing boundary with plaintiff. Counsel continued that this action being declaration of title, the plaintiffs must win on the strength of their case and not to rely on the weakness in defendant’s case. He cited the case of Kodilinye Vs. Odu  2 WACA, 336 @ 337; Odametey Vs. Clouch [1989/90] 1 GLR SC; as well as Barima Gyamfi Vs. Ama Badu  2 GLR SC among others and invited us to allow the appeal as the plaintiffs failed to prove their claim.
On ground ‘c’, counsel referred to the case of Nartey Vs. Mechanical Lloyd Assembly Plant Ltd. [1987/88] 2 GLR 34, Nyikplonkpo Vs. Agbodobor [1987/88] GLR 165 and Adjei Osae Vs. Adjeifio [2007/2008] SCGLR 499. He then submitted that the plaintiffs failed to call any adjoining boundary owner and or failed to identify the land they were seeking recovery of possession of. Consequently, they failed to prove their claim and the appeal should be allowed on this ground also.
In response to the above submissions counsel for the plaintiffs submitted on ground (a) that, the conclusion arrived by the trial Judge is correct. He cited the case of In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors. Vs. Kotey & Others [2003-2004] SCGLR 240. He argued that the Kwan Vs. Nyieni laid down the general principle of the head of family as representative of the family to institute actions in respect of family properties. However, there are exceptions to this general rule.
Counsel stated the exceptions and said in the In Re Ashalley Botwe Lands, the Supreme Court held that, the general rule in Kwan Vs. Nyeini was not inflexible and that, there are situations or special circumstances where ordinary members of the family could in their own right sue to protect the family property without having to prove that there is a head of family who was refusing to take action to preserve the family property and one of such situations is upon proof of necessity. Based on the case of In Re Ashalley Botwe Lands, counsel submitted, this ground of appeal should fail and same should be dismissed as the trial Judge made a finding that the plaintiffs were clothed with capacity to sue after evaluating the facts on record.
On the failure to comply with Order 4 Rule 9 (4), (5) and (7) of C. I. 47, counsel conceded that the plaintiffs did not comply with the said Order but submitted that, this non-compliance does not render the proceedings null and void. He cited the cases of Republic Vs. High Court, Ex Parte Allgate Co. Ltd. (Algamated Bank Ltd. Interested part  2 GMJ 16 SC and Ankomah Vs. City Investment Co. Ltd. [2007-2008] 2 SCGLR 970. He concluded on this point that, the non-compliance of Order 4 Rule (9) of C. I. 47 did not occasion any substantial miscarriage of justice on defendant.
On ground (b), counsel for the plaintiffs submitted that it is true a plaintiff must win on the strength of his own case and not to rely on the weakness of his opponent’s case. He argued that, if a court has to make a determination on an issue of fact, that determination depends on evaluation of the evidence. Counsel concluded that the plaintiffs provided evidence which the trial court weighed and or evaluated and concluded that on the totality of the evidence adduced, on the prepondence of probabilities, the plaintiffs proved their case. He referred to Section 10 and 11 of the Evidence Act, 1975 (NRCD 323) to support his point and invited us to dismiss ground (b) as the trial Judge did not err.
On ground (c) counsel urged us to adopt the argument and submissions or ground (b).
Based on the foregoing, counsel submitted that, the appeal should fail in its entirety.
The issue of capacity goes to the very root of a case and it can be raised at any time even on appeal.
See the case of Sarkodie Vs. Boateng [1982/83] GLRD 73, holding 3.
In his judgment the trial judge made a finding that, the plaintiffs were clothed with capacity to initiate the present suit. He held that:
“By the nature of the plaintiffs claim, it is family land they sue for. None of the plaintiffs is the head of family. The plaintiffs head of family is not suing. The plaintiffs sued for and on behalf of their siblings. Counsel referred to and argued that as a general rule an action to protect family property must be brought by the head of family. To this general principle there are exceptions… See Kwan Vs. Nyeini  GLR 67 where the court stated the general principle and goes on to list three (3) exceptions.
These three (3) exceptions notwithstanding, a family member may sue to protect family property and must show circumstances which clothes his situation as an exception. In the plaintiffs’ situation is a head of family who before PW1 is not willing to give the needed evidence to aid PW1 to resolve the matter and only says he does not want two families divided. Such a head of family, according to counsel will not sue in the circumstances the plaintiffs find themselves and therefore this courts finds that the plaintiffs are clothed with capacity to sue.”
This findings by the trial Judge is on point and clearly supports the evidence on record. Additionally, under customary law, family property is preserved for the family and is not usually divided among family members. The head of family suggestion that, PW1 should divide the land among the plaintiffs’ sister and defendant is clearly contrary to customary law position that family property is indivisible and is preserved for the family. Therefore, the plaintiffs being members of the family working on the disputed land, can sue as of necessity. See the case of In Re Ashalley Botwe Lands where their Lords held in holding (1) that:
“the head of family was the proper person to sue and be sued in respect of family property was not inflexible. There are situations or special circumstances or exceptions in which ordinary members of the family could in their own right sue to protect the family property without having to prove that there was a head of family who was refusing to take action to preserve the family property. The special or exceptional circumstances include situations where;
(a) a member of the family had been authorized by members of the family to sue; or
(b) upon proof of necessity to sue. On the facts of the instant case, the plaintiffs, as principal members of their families, had the capacity to sue under the necessity rule. Thus no duty was cast on the plaintiffs to prove that there had been a head of family who had refused to take action.”
In the words of Wood JSC;
“given that society and indeed customary law is dynamic and not static, the Court of Appeal in Kwan Vs. Nyieni had left the matter open for possible expansion of those special circumstances when the need arose. Therefore, the question whether any particular case falls within the stated exceptions rather than the rule, or even an exception not identified in Kwan Vs. Nyieni, is dependent on the particular facts of the given case”.
The trial Judge was therefore right in clothing the plaintiffs with the requisite capacity to sue. Ground (a) of the appeal fails and it is hereby dismissed. This brings us to ground (B) which states:
"In an action for declaration of title, the plaintiff wins his case on the stenght of his case and not to rely on the weakness of his opponent.”
In roads have been made by the Evidence Act, 1975 (NRCD 323) to this old common law principle. See Sections 10, 11, 12, and 14. Section 11 (1) provides;
“For the purpose of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party”.
It is correct to say that in an action for a declaration of title to land the burden of proof is on the plaintiff and he must prove his case on the preponderance of probabilities. This is where the defendant has not counterclaimed. But where the defendant has counterclaimed, like in the present case, the latter equally bears the burden of proof of his counterclaim against the plaintiff. See the case of JASS CO. LTD VS. APPAU  SCGLR 265 holding (1) of the headnotes which reads:
“The burden of proof is always on the plaintiff to satisfy the Court on a balance of probabilities in an action for a declaration of title to land. Where the defendant has not counterclaimed and the plaintiff has not been able to make out a sufficient case against the defendant, then the plaintiff’s claims would be dismissed. Wherever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant, just as it was used to evaluate and assess the case of the plaintiff against the defendant”.
But even where the defendant has not counterclaimed, there is an obligation on the defendant to proof his defence. See the case of In Re Ashalley Botwe Lands, Adjetey Agbosu 420, 425 holding (5), where it was held that;
“…… The burden of producing evidence in any given case was not fixed, but shifted from party to party at various stages of the trial, depending on the issue (s) asserted or denied”.
In the words of Brobbey JSC:
“the effect of sections 11(1) and 14 and similar sections in the Evidence Decree, 1975, may be described as follows. A litigant who is a defendant in a civil case does not need to prove anything, the plaintiff who took the defendant to Court has to prove what he claims he is entitled to from the defendant, At the same time, if the Court has to make a determination of a fact or of an issue, and that determination depends on evaluation of fact and evidence, the defendant must realize that the determination cannot be made on nothing. If the defendant desires the determination to be made in his favour, then he has a duty to help his own cause or case by adducing before the Court such facts or evidence that will induce a determination to be made in his favour.
The logical sequel to this is that, if he leads no such facts or evidence, the Court will be left with no choice but to evaluate the entire case on the basis of the evidence before the Court, which may turn out to be only the evidence of the plaintiff. If the court chooses to believe the only evidence on record, the plaintiff may win and the defendant may lose. Such loss may be brought about by the default on the part of the defendant. In the light of the statutory provisions, literally relying on the common law principle that the defendant does not need to prove any defence and therefore does not need to lead any evidence may not always serve the best interest of the litigant even if he is a defendant” (our emphasis)
In any event, the defendant in the instance suit filed a counterclaim and therefore, he has an obligation to prove his counterclaim. Relating the burden of proof as provided for in the Evidence Act, the trial judge in his judgment held that the plaintiffs led scanty evidence to support their claim to House No. H1 2, Hiakosi. Nonetheless, he ordered recovery of possession in favour of the plaintiffs.
This is what the trial judge said:
“Regarding House No. H1 2, Hiakosi, the plaintiffs led very scanty evidence in this regard save to say Kwadwo Boampong built it and nothing more”. See page 82 of the Record of Appeal.
Having found that the plaintiffs led scanty evidence on the acquisition of the house, the logical conclusion was to have dismissed the plaintiffs’ claim to House No. H1 2, Hiakosi as having failed to prove same. Ground (B) of the appeal succeeds and it is hereby allowed.
This brings us to Ground (C). The complaint under this ground is that plaintiffs failed to prove or call any of their adjoining boundary owners as required in a claim for declaration of title to land and therefore their claim to the farmstead should have been dismissed.
From the record of appeal, the claim of the plaintiffs for declaration of title to the farmstead at Boadwowa is not one of a boundary dispute. The parties are claiming the land as having been acquired by each party’s ancestor. Whilst the plaintiffs claim the land through their great grandmother Yaa Korkor, the defendant claims the land through his grandfather Opanin Kwaku Armah. He says the property has devolved unto him as the customary successor. The evidence of the parties is in the nature of traditional history. The test was laid down by the Privy Council in the case of Adjeibi Kojo Vs. Bonsei 3 WALR 257 which was cited with approval by our Supreme Court in the case of Ago Sai & Ors Vs. Kpobi Tetteh Tsuru III  SCGLR 762, 764 holding (1).
“It is well settled that where in a land suit, the evidence as to title to the disputed land was traditional and conflicting (as in the instant case). The surest guide was to test such evidence in the light of recent acts to see which was preferable.
Using this test to the case under consideration, the 1st plaintiff under cross examination admitted the cottage in the farmstead in the land in dispute is called Armah’s cottage. This is what he said;
“Q. Kwaku Armah built a cottage on the farmstead with his two brothers.
A. Is not correct, that cottage is named after Kwaku Armah.”
From the question and answer, the logical inference is that Kwaku Armah acquired the farmstead and built a cottage in it hence the name. This recent act supports the defendant’s case as against that of the plaintiff.
From the forgoing, the defendant proved his counterclaim on the preponderance of probabilities and his counterclaim should have succeeded and the plaintiffs’ claims dismissed.
Ground (c) of the appeal succeeds and it is hereby upheld.
The judgment of the trial Court together with the consequential orders are hereby set aside.
Judgment is hereby entered in favour of the defendant on his counterclaim for;
A Declaration of title and recovery of possession of House No. H12 Hiakosi-Bontefufuo, Ashanti.
Declaration and recovery of possession of the farmstead situate and lying at Boadwowa (Kobiri Afuom) sharing boundaries with the properties of Opanin Kwaku Abora, Opanin Kwame Owuo, Kwadwo Ntidwoo, Kwadwo Asamoah, Kwadwo Fordwoo, Akwasi Addai, Kwabena Nsowah, Kwame Nsowah.