IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
HO - A.D 2018
KPALIGA KWASI KUMASSAH & ANOR - (Defendants/Appellants)
ROBERT KPRZUXE & ANOR - (Plaintiffs/Respondents)
DATE: 28 TH FEBRUARY, 2018
SUIT NO: H1/05/17
JUDGES: ACQUAYE J.A (PRESIDING), GYAN J.A, MRS. M. AGYEMANG J.A
MR. OBED WORDE FOR THE DEFENDANTS/APPELLANTS
MR NELSON MAWUTOR KPORHA FOR THE PLAINTIFFS/ RESPONDENTS
SAEED K. GYAN, J.A:
This is the second successive appeal in this case by the Defendants/Appellants herein. The Defendants first appealed against the judgment of the District Court, Anloga, to the High Court, Denu. Having found no favour with the High Court they decided to have another bite at the appeal cherry by their instant action.
The judgment of the Denu High Court from which the instant appeal derives was delivered by Alex Owusu-Ofori, J on 21st October 2015. The Notice of Appeal was filed on 18/01/2016.
The previous appeal filed against the Denu District Court, which the Defendants lost, had two grounds of appeal, namely:
1. The Judgment is against the weight of the evidence adduced.
2. The trial magistrate erroneously applied the legal principles of estoppel, laches and acquiesance in the case”.
In the instant appeal, the Defendants filed only one ground of appeal with the traditional indication that further grounds would be filed upon the receipt of the record of appeal.
The only ground of appeal filed was stated thus:
“(a) The Learned Judge erred in law when he held that capacity falls flat in the face of necessity”.
Contrary to the original indication, no further or additional grounds of appeal appear on the record to, have been filed by the Defendants/Appellants.
In concluding his judgment the Learned High Court Judge delivered himself thus:
“ The only issue before this court in the consideration of the appeal is whether or not the trial Magistrate rightly or wrongly made a finding of fact which form his decision to rule that the disputed land belongs to the Respondent which was a subject of a gift made to their mother Paulina Tsigbe by one Johannes who was childless and she took care of.
A careful look from the evidence available before the Court did not show the trial Magistrate faulting in anyway.
In the case of FOSUA & ADU-POKU MENSAH (2009) SCGLR pg. 310, it was held among other per Dotse JSC “An appellate court such as this court may interfere with the findings of fact of a trial court where the latter failed properly to evaluate the evidence or make the proper use of the opportunity of seeing or hearing the witnesses at the trial where it has drawn wrong conclusions from the accepted evidence or where its findings are shown to be perverse.
This goes to support the fact that when none of these situation exist then the appellate court has no business disturbing the findings of the trial court, and this I have set out to do.
I tried to restrain myself from commenting on the issue of capacity since the appellant gave a clear indication of abandoning it but since an appeal is by way of re-hearing and the issue of capacity is the lifeblood of every litigation, I cannot simply gloss over it.
It was made amply clear that the land the subject matter of litigation was a subject of a gift made to the
Respondents mother and on whose demise it devolved unto the children.
They occupied same and were only challenged when they tried to erect corner pillars. I share with the view expressed by Counsel for the respondent that nothing stops them from going to Court to protect their property which was in danger when there were clear indication that the appellants want to take away the land from them forcefully. Necessity comes into play here and the issue of capacity falls flat.
On this reason I will hold that the arguments advanced are not compelling enough to warrant the Court over turning the decision of the trial Magistrate.
I will accordingly dismiss the appeal as it has no merit”.
The Defendants having found this determination of the Denu High Court to be offensive and unsatisfactory, they have, accordingly, had recourse to the Court of Appeal seeking an order “setting aside the Judgment”, on the basis of the single ground of appeal set out above.
The background to this case may be set out as follows:
The two Plaintiffs in the case are siblings who by the indorsement on the writ of summons claimed to be suing for themselves and on behalf of “other issues of PAULINA TSIGBE – (Deceased)”
The Plaintiffs sued the two Defendants, jointly and severally, in connection with a piece or parcel of land situated at Anloga -Afatome seeking the following reliefs:
“1. Declaration that all that piece or parcel of land situate, lying and being at Anloga-Afatome as accurately described in the schedule here under is the property of Plaintiffs’ mother- Paulina Tsigbe -Deceased which said land devolved unto Plaintiffs through outright inheritance and should be treated as such.
2. Recovery of possession
3. Estoppel on grounds of laches and acquiesance.
4. General Damages for unlawful Trespass
5. Plaintiffs further seek an order of perpetual injunction restraining the defendants themselves, their Assigns, persons claiming title through the Defendants from or in any manner dealing with and or entry onto the land the subject matter of the instant suit”.
The Plaintiffs set out the boundaries of the land in dispute in the manner thus:
On the west by the property of Ali Dedzoe
To the North by Shiku Dedzoe
To the South by the 1st Defendant
On the East by one Fiamefle Ketor/Dzedoe Akpoxolo.
The Plaintiffs instituted the action without the assistance of Legal Counsel.
Upon being served with the Writ of Summons the Defendants, by themselves, applied to the District Court for an order for pleadings to be filed in the case, following which the Plaintiffs filed their statement of claim on 7/5/2012. The statement of claim was not filed by a Lawyer.
It was the case of the Plaintiffs that the land in dispute was originally part of a large parcel of land belonging to the late Dedzo Abraham Akpoxolo of Anloga. According to the Plaintiffs, upon the death of the said Apkoxolo his aforesaid large parcel of land was according to custom, shared among his male children, including one Johannes Dedzo, and that the land in dispute was the portion which went to the said Johannes Dedzo.
The Plaintiffs contended that one of the daughters of Dedzo Abraham Akpoxolo was Ableworyibor or Lena Dedzo who begat a number of children, including Paulina Tsigbe, who had seven children. The Plaintiffs are children of Paulina Tsigbe.
The Plaintiffs averred that their mother lived with Johannes Dedzo from the age of 12 years, after her mother died, and served the said Johannes Dedzo, who never married and who had no issue till his death. Johannes Dedzo adopted their mother as his daughter and, accordingly, it was he who gave out their mother in marriage. They averred further that Johannes Dedzo in his life time gifted the land in dispute to their mother, Paulina Tsigbe. According to the Plaintiffs, part of the gifted land was later sold by a brother of Johannes called Totsi Dedzoe, but the controversy was settled when their mother permitted the purchaser, called Klogo, to keep the land sold to him while she remained in full possession and control of the remaining land till her death when the said land devolved on her children, including the Plaintiffs.
The Plaintiffs maintained that when they decided to develop the land which they had inherited from their mother the Defendants resisted and even destroyed the sand and blocks which they placed on the land. Additionally, one of the children of the 1st Defendant assaulted the 1st Plaintiff in an effort to prevent the development of their said land. The Plaintiffs said, in the circumstances, they first lodged a complaint with one Togbui Sabah, but the Defendants rejected the arbitration thereby compelling them to institute the court action in order to protect the land and assert their interest in the said land from the invasive and trespassory conduct of the Defendants.
The Defendants filed a statement of defence and counterclaim on 15/5/2012. The Defendants equally did so without retaining legal Counsel.
The 1st Defendant is the biological father of the 2nd Defendant.
It was the case of the Defendants, as contained in their statement of defence, that the disputed land was first acquired by the great, great grandfather of the 1st Defendant called Etse Gbedze and that they came to own the land in dispute by way of inheritance traced to Etse Gbedze through the latter’s children and their descendants, before the said land finally devolved on the 1st Defendant.
According to the 1st Defendant, upon inheriting the land, he exercised rights of possession and ownership for over 55 years by way of cultivating the land and even building a house thereon without let or hinderance. Further more, the 1st Defendant had been on the land long before the Plaintiffs’ father came from Abor to marry the Plaintiffs’ mother.
The defendants maintained that the 1st Plaintiff had acknowledged the 1st Defendant’s possession of the land in dispute. The Defendants denied the Plaintiffs’ allegation of an attempted arbitration before Togbui Saba and rather charged the Plaintiffs for committing offensive acts and trespassory conduct in connection with the disputed property. The Defendants contended that the Plaintiffs’ father had purchased land and built a house for the mother of the Plaintiffs, arguing that were the land in dispute owned by their mother, the Plaintiffs’ father would not have purchased land somewhere else. The Defendants, therefore, concluded that the Plaintiffs action was frivolous and wholly without merit. Accordingly, they counter-claimed, seeking a declaration of title to all that piece and parcel of land at Afatome Anloga being “the inherited property of the Defendant” and having the following boundaries:
In the west with the properties of Atsu Klogo and Saworkpor Adzaklo.
On the South with Dufa Fiati Kumassah/Kloklotsu Kumassah
On the east with Korkui Dzogbana Ocloo and
On the North with Akpoholo Dedzo/Wutsika Woadzro.
The defendants also sought an order of perpetual injunction; “estoppel on grounds of laches and acquiesance” as well as damages for trespass.
It is worth noting that the Defendants in paragraph 1 of their statement of defence made certain admissions in connection with the statement of claim. Of particular significance is their admission of paragraphs 12 and 20 thereof.
Paragraph 12 stated thus:
“The Plaintiffs asseverate that after the demise of the said Yohanes, Johannes younger brother called Totsi Dedo unlawfully sold a portion of Paulina’s land to a carpenter called Klogo at Anloga.” And paragraph 20 is to the following effect:
“20. Plaintiffs say that they have hips (sic) of sand and
moulded cement blocks on their land in dispute in order to start a construction work but Defendant and children did scatter all the sand on the land”.
At the trial, the 1st Plaintiff gave evidence for himself and on behalf of the 2nd Plaintiff. The Plaintiffs called one witness, Peace K. Tsigbe, the sister of the Plaintiffs’ mother.
The 1st defendant gave evidence for himself and on behalf of the 2nd defendant. The Defendants also called one witness, Daniel S. Kumassah, the son of the 1st Defendant.
The trial Court organised a locus in quo. The Court also called one witness, CW1, Francis Kumassah, who was described as a person “found on the land during the locus inspection”, but who turned out to be one of the 1st Defendant’s sons.
In the judgment delivered by the District Court, the trial Magistrate preferred the case of the Plaintiffs to that of the Defendants and, consequently, gave judgment in favour of the Plaintiffs and dismissed the Defendants’ counter-claim.
The court “entered judgment on behalf of Plaintiffs as owners of the land in dispute for them to recover possession of it”. The court also made an order of perpetual injunction against the Defendants. However, the court declined to grant general damages for trespass.
As noted above, the Defendants’ appeal against the District court judgment was dismissed by the Denu High Court as being without merit, whereupon the Defendants further appealed to the Court of Appeal.
The appeal to the High Court was based on two (2) grounds, namely, that the judgment was against the weight of evidence and further that the trial court had erroneously applied the legal principles of estoppel, laches and acquiesance to the case.
In the instant appeal before the court of Appeal, the Defendants have elected to rely on only one (1) ground of appeal, which they formulated in the manner as follows:
“(a) The learned Judge erred in law when he held that capacity falls flat in the face of necessity”.
On 1/8/2017 the Defendants/Appellants through their Lawyer filed their written submission.
Counsel argued that by their pleadings and also by way of evidence led, it was the case of the Plaintiffs, at the trial court, that they inherited the land in dispute from their deceased mother, who, according to Counsel for the Defendants/Appellants, had “herself inherited it from another line of inheritance”.
Counsel maintained that, in the light of the above situation, and considering that the Plaintiffs’ claims included “a prayer for declaration of title to a parcel of land”, the Plaintiffs had a legal duty to “show and demonstrate that they are clothed with the required capacity to institute the action for declaration of title”
According to counsel, the Plaintiffs “did not prove or establish that they have any such capacity”. It was the view of Counsel that to the extent that the Plaintiffs traced their root of title to their late mother, they were “required to show by what means the property passed from the said deceased to them”.
Counsel for the Defendants/Appellants argued further that the Plaintiffs were to satisfy the Court that they had complied with the terms of sections 96 (1) and (2) of the Administration of Estates Act, 1961 (Act 63).
Counsel maintained that the Plaintiffs/Respondents herein did not apply for Letters of Administration in respect of the estate of their late mother and, accordingly”, “they also do not have any document vesting the said land in them”.
Counsel argued further as follows:
“The law is very clear. In the absence of being vested with the property of the demised (sic) mother, the Plaintiffs are not clothed with any capacity to institute any legal action in respect of the estates of their mother”.
For the above proposition of the law, counsel relied on Sections 1(1) and 2(1) of Act 63. Counsel further called in aid the Supreme Court case of Okyere (Deceased) (substituted by) PEPRAH V. APPENTENG and ANOR. (2012) 1SCGLR 65 as well as the case of Conney v. Bentum-Williams (1984-86) 2 GLR 301.
Interestingly, and significantly, Counsel for the Defendants/Appellants indicated further his understanding of the law in relation to this case as follows:
“It is therefore clear that before the decision in PEPRAH V. APPENTENG (supra), Abban J as he then was had ruled in CONNEY V. BENTUM that with the coming into force of Act 63, it was only after probate had been granted to the executor that the provision of the will could be carried out and after the grant of probate, a beneficiary of any real estate under the will must have a vesting assent executed in his favour by the executors under the Administration of Estate Act 1961 (Act 63). The emphasis therefore is that the existing law requires a party suing in respect of a demised property to have a vesting assent” (emphasis provided).
It seems to be the firm conviction of Counsel for the Defendants/Appellants that in so far as the Plaintiffs/Respondents did not show that they had a Vesting Assent in relation to the land in dispute they “lacked capacity to institute the action in the first place at the time they did”.
Counsel, consequently, called upon this court to “apply the law” and to so hold.
Counsel for the Defendants/Appellants proceeded further to valiantly argue that the Learned Judge of the appellate High Court below “failed to uphold the time tested principle of stare decisis” in not following the decision of the Supreme Court in the OKYERE case (supra).
In chastising the Learned High Court Judge for his egregious error or remiss, Counsel drew attention of this court to the admonishing made by Francois J and Kpegah J. (as they then were) respectively in the cases of SOGBAKA V. TAMAKLOE (1973) 1 GLR 25 AND BAIDEN V. TANDOH AND ORS (1991) 1 GLR 98 to the effect that it was dangerous to allow the authority of precedent to be whittled away by “gradual piece meal judicial nibbling”.
Most strangely, however, is the manner in which Counsel for the Defendants/Appellants concluded his legal submissions.
Counsel delivered himself thus:
“ My Lords the Plaintiffs do not have any capacity to sue and or be sued. Capacity goes to root, my Lords. The foundation of their action should collapse and all other actions precedent on same should as well collapse.
This also means the Defendants/Appellants/Appellants cannot mount action against the Plaintiff in respect of the estates of their late mother at the time. The parties therefore ought to revert to the status quo ante”. (emphasis provided).
In spite of the above stated conclusion, Counsel for the Defendants/Appellants still found courage to pray that the court of Appeal should “uphold the appeal” and “set aside the judgment of the High Court, Denu……”
In this regard it is important to point out that the Defendants/Appellants had themselves filed a counterclaim in respect of the disputed property which they contended that the 1st Defendant had customarily inherited from his predecessors.
In his written submissions filed on behalf of the Plaintiffs/Respondents on 28/8/2017, which he erroneously titled: “Written Submission filed by Counsel for and on behalf of the Defendants/Respondents”, counsel for the Plaintiffs/Respondents/Respondents (herein after referred to simply as Plaintiffs/Respondents or as Plaintiffs or Respondents) maintained that the Plaintiffs sued the Defendants/Appellants/Appellants (referred to hereafter as Defendants/Appellants; Defendants, or Appellants) in a representative capacity and as customary successors of their late mother, Paulina Tsigbe, whose property, by way of gift, they had inherited and by reason of which they were entitled to defend against or protect from encroachment by or loss to the Defendants/Appellants herein.
To that extent, Counsel for the Plaintiffs/Respondents argued that the contention that the Plaintiffs had no capacity, in the first place, to sue the Defendants was legally flawed and wholly misconceived. Counsel argued that since the appeal is simply anchored on the issue of capacity and nothing else, the appeal must fail as being without merit in law or fact.
Counsel for the Plaintiffs/Respondents relied on the celebrated case of KWAN V. NYIENI (1959) GLR and BUKURUWA STOOL V KUMAWU STOOL (1962) 1GLR 353 to justify the action of the Plaintiffs, in so far as the law in Ghana authorises a member of the family or stool to take steps to protect or preserve the family character of landed property which stood the risk of being lost to the family or stool as a matter of necessity.
Counsel argued that the property in dispute, as inherited property of the Plaintiffs and their other siblings, had assumed the nature and character of family property by reason of which all or any of the persons in the class of customary successors or beneficiaries could, in law, commence action against anyone who threatened their right to or interest in the property which they had inherited.
Counsel for the Plaintiffs/Appellants also argued that, in this regard, the capacity in which the Plaintiffs sued the Defendants clearly falls outside the ambit and provisions of section 96 (1) and 2(1) of the Administration of Estates Act, 1961 (Act 63), being the Legislation which the Defendants/Appellants essentially rely upon to ground their instant appeal.
It was the opinion of Counsel for the Plaintiffs/Respondents that, as customary successors, and in relation to the property which they had inherited from their mother, by way of custom and tradition, the Plaintiffs/Respondents did not require a Vesting Assent in connection with that property before commencing action in Court to protect or preserve the collective right of the Plaintiffs, or to prevent the property from being improperly or unlawfully lost to the Defendants/Appellants.
Counsel drew attention to Order 4, rules 12(1) and 13(3) of the High Court (Civil Procedure) Rules, 2004 (C.I.47) which enables persons with a beneficial interest to be made parties to proceedings in appropriate cases.
Furthermore, or additionally, Counsel for the Plaintiffs//Respondents argued that on the authority of GHANA MUSLIMS REPRESENTATIVE COUNCIL V. SALIFU (1975) 2 GLR 246, the Plaintiffs were clearly entitled to sue the Defendants/Appellants herein, as they did, “in their representative capacity on behalf of the members of a defined class”. Counsel pointed out that the Plaintiffs had sued the Defendants seeking a declaration that the land in dispute was the property of their late mother which had devolved on her children by way of inheritance and should consequently “be treated as such”.
That being so, Counsel for the Plaintiffs/Appellants submitted that “the provisions of section 96 (1) of the Administration of Estates Act, 1961 (Act 63) did not “take away the right” of the Plaintiffs, as “beneficiaries and personal representatives in the instant case to take the necessary remedial measures to protect and preserve the said property for their joint benefit as tenants in common”
Strangely enough, Counsel for the Plaintiff then proceeded to draw attention to certain pieces of evidence on record and to spill considerable ink in legal arguments to purportedly counter the supposed “submission by Counsel for the Defendants that the Plaintiffs have not led corroborative evidence to establish that the land was gifted to their late mother by Yohanes Dedzo”.
Needless to say, this excursion by Counsel for the Plaintiffs/Respondents is clearly an exercise in futility.
The Defendants/Appellants herein, in the instant appeal, raised and argued only one ground of appeal which touched on the issue of the Plaintiffs’ capacity to institute and prosecute the action before the trial District Court.
The present appeal does not go to the merits of the case. It is, therefore, difficult to find the reason or purpose for this clearly extraneous misadventure by Counsel for the Plaintiffs/Respondents.
In the circumstances, I feel compelled to strike out the said extraneous submissions commencing from the statement: “ I now submit on the merit of the case”, on page 11 of the Plaintiffs/Appellants written submissions to and inclusive of the whole of page 15 of the said written submissions.
As noted at the beginning of this judgment, this is an appeal against the concurrent judgment of the District Court and the High Court by the Defendants/Appellants/Appellants herein.
There is a solid body of high legal and judicial authority on how a second Appellate Tribunal should handle or deal with a concurrent judgment. In other words, what should be the attitude of the second Appellate Court where the lower appellate court had concurred in the findings of the trial Court?
In the Supreme Court case of OBRASIWA II and others V. OTU and Another (1996-97) SCGLR 618 Acquah JSC (as he then was) who delivered the unanimous judgment of the Court relied on his earlier judgment in the case of ACHORO V. AKANFELA ( 1996-97) SCGLR 209 and stated the broad legal principles, which were contained in the Court’s holding as follows.
“ ……….. a second appellate Court would not interfere with the concurrent findings of the lower courts unless it was established with absolute clearness that some blunder or error which had resulted in a miscarriage of justice was apparent in the way in which the lower tribunal had dealt with the facts. The error would include: an error on the face of a crucial documentary evidence; a misapplication of a principle of evidence; and finally, a finding based on an erroneous proposition of law such that if that proposition was corrected the finding would disappear. However, it was not enough that the blunder or error per se was established; it must further be established that the said error had led to a miscarriage of justice.”
See also DOE V. OPOKU- ANSAH (1997-98) 2GLR 149 ( PER AMPIAH JSC); KOGLEX LTD (NO.2) V. FIELD (2000) SCGLR 175; KYENKYENHENE V. ADU (2003-2004) SCGLR 142 at page 154.
Fortunately, in the instant appeal, this court is not being called upon to deal with the merits of the case, as was the situation in the two lower courts. I have already set out above the grounds of appeal the Defendants/Appellants/Appellants herein relied on at the first appellate tribunal, namely, the High Court.
Clearly, it would be said that the Appellants, at this Court of Appeal, have abandoned altogether any objection based on the facts or merits of the case as established by the evidence on record and the findings of the trial Court which were concurred in by the High Court.
They now purport to rely solely on a narrow technical legal objection related to the Plaintiffs/Respondents/Respondents supposed want of capacity in instituting the action in the first place.
Of course, they are wholly within their rights to do so; and they would succeed if the plank they are now riding on is firm and solid enough to carry them safely to their destination.
Solely relying on the issue of capacity, however, precludes the determination of the appeal on the merits of the case.
Thus, Kpegah JSC admirably stated the law when he delivered himself in the unanimous decision of the Supreme Court in REPUBLIC V. HIGH COURT, ACCRA; EX PARTE ARYEETEY (ANKRAH INTERESTED PARTY) (2003-2004) SCGLR 398 at page 405 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 legal right to sue. This includes the submission that the requirement also enables a 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 therefore puts the validity of the writ in issue. It is a proposition familiar to all Lawyers that the question of capacity, like the plea of limitation, is not concerned with merits so that if the axe falls, then a Defendant, who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist on his rights: see AKRONG V. BULLEY (1965) GLR 469, SC”. Kpegah JSC also cited the case of SOKPUI II V ABGOZO III (1951) 13 WACA 241.
Further on in his judgment, Kpegah JSC, additionally, pointed out thus:
“……….. 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, in our view, to taking an action against a non-existent defendant. But if the representative capacity is not challenged naturally a Plaintiff assumes no such burden”.
A careful examination of the record shows, however, that the issue of the Plaintiffs’ representative capacity was not raised on the pleadings. Nor was the question raised on the evidence during the trial.
As pointed out earlier, the parties were not represented by Lawyers at the trial District Court. Nonetheless, it was the Defendants who applied for pleadings to be ordered and the Court granted their prayer.
The Plaintiffs, from the very beginning, indorsed their writ with their representative capacity in the manner as follows: “suing for themselves and on behalf of the other issues of Paulina Tsigbe (Deceased)”.
The Plaintiffs had also indicated, in the first relief they sought, that the land in dispute was land belonging to their late mother which had devolved on them “through outright inheritance and should be treated as such”.
It is worth pointing out, however, that the 1st Defendant tried to raise the question of capacity in course of the plenary trial through his cross examination of the 1st Plaintiff. The challenge of the Plaintiffs’ capacity was not as to their representative capacity, as the following line of cross-examination reveals:
“Q. can you tell the Court the name of the person who showed you your mother’s land
A. Nobody showed me my mother’s land.
Q. can you mentioned (sic) the name of the person before whom you purportedly summoned me.
A. Togbui Sabah
Q. Put- You two never summoned me before anybody at Dzito
A. Not correct
Q. Put-You are not a son of Dedzo, you are rather his grandson, so you do not have any capacity to sue me for his property. (emphasis provided)
A. Though I am not (sic) his grandson, I still have an interest in his property through my mother.
Q. Put-Your father is from Abor, so you have no interest in Dedzo family property.
A. Though my father comes from Abor, the land in dispute belonged to my mother, and has nothing to do with my father.
Subsequently, the 1st Defendant asked the 1st Plaintiff further as follows:
“Q, Did your father not buy land else where from one of my uncles and built a house on it for your mother.
Q. why did he not build for her on her own land which was then available
A. It is because he had several wives and he built that house for all of them”.
It will be noted that it was the Plaintiffs’ case that the land in dispute was originally part of a large tract of land acquired by and belonging to one Dedzo Abraham Akpoxolo of Anloga, who had many children of both sexes.
Upon the death of the said Dedzo Abraham Akpoxolo, his said land was shared among his male offspring, including one Johannes Dedzo. According to the Plaintiffs, the land in dispute was part of the portion “allocated to Johannes Dedzo”, a brother to their mother’s mother, one Ableworyibor Lena Dedzo, whose father was also Dedzo Abraham Apoxolo. Johannes Dedzo never married and had no issue either. The Plaintiffs’ mother, Paulina Tsigbe from the infant age of 12 years lived with and served Johannes Dedzo till he died. Johannes adopted their mother as his daughter and it was he who gave her hand in marriage, by reason of which Johannes made an inter vivos gift of his portion of his father’s land (allotted to him) to Paulina Tsigbe, their mother.
According to the Plaintiffs, upon the death of Johannes Dedzo one of his brothers called Totsi Dedzo sold part of Johannes’ land which was gifted to their mother to a carpenter called Klogo, but the controversy which ensued was amicably settled when their mother allowed the said Klogo to retain the portion of land sold to him, while she retained the rest of the land, which is now the property in dispute in the instant case. The Plaintiffs maintained that that land, which was gifted to their mother, is what has devolved upon them and their siblings by way of inheritance following the death of their mother, Paulina Tsigbe.
The fact of the gift was corroborated and confirmed by PW1, Peace Kwawukumey Tsigbe, sister of the Plaintiffs’ mother.
As the record shows, the trial District Court preferred the case of the Plaintiffs to that of the Defendants and, accordingly, entered judgment in favour of the Plaintiffs, while dismissing the Defendants’ counter-claim in its entirety. As previously pointed out, the Defendants’ appeal to the High Court was equally dismissed as being unmeritorious, whereupon they have further appealed to this court on the sole ground of capacity.
Now, in the instant appeal, can it be said that the Defendants/Appellants/Appellants have succeeded in establishing that the impugned judgment is wrong, based on the ground of appeal filed in this case before this Court?
It is obvious that the Appellants, through their legal counsel, fundamentally anchor their argument, contained in their written submission, filed on 1/8/2017, on the contention that the Respondents herein lacked the capacity to institute the action, in the first place, because they did not possess a Vesting Assent in relation to the property in dispute, in so far as the said property belonged to the Plaintiffs’ late mother and they derived their interest or title from their deceased mother.
Counsel for the Appellants pointedly stated as follows:
“Throughout the trials from the District Court to the High Court, the Plaintiffs never produced any Vesting Assent to show that the property in respect of which the issue(sic) out the Writ was ever vested in them. There was no evidence to suggest that Letters of Administration in respect of the said Estate was ever applied for and granted to them by any court of the land. This is contrary to the law and same cannot be grossed (sic) over.” (emphasis provided)
To buttress his submissions, counsel for the Defendants/Appellants called in aid two Ghanaian Superior Court cases. These are; OKYERE (SUBSTITUTED BY) PEPRAH VS. APPENTENG OF
ADAMPA (2012) 1SCGLR, SC; AND CONNEY VS. BENTUM WILLIAMS (1984-86)2 GLR 301, PER ABBAN JA (as he then was).
It seems to me, with the greatest respect, that the submission of counsel, and hence the position taken by the Defendants/Appellants in this appeal, can only be characterised as misconceived in law and based, clearly, on “slippery precedents”.
The judicial authorities which Counsel for the Appellants so heavily relies upon relate to property or estates which are the subject of WILLS or Testamentary dispositions. In contrast, the Plaintiffs maintained, at all material times, that the land in dispute devolved on them by custom, by way of customary or traditional inheritance. They contended that they commenced the action for the purpose of protecting the family character of the property in dispute which was being lost to their family by reason of the conduct of the Defendants/Appellants herein.
The two courts below took the view that, in the circumstances of the case, the Plaintiffs were entitled to take action to protect both the land and their beneficial interest in the said land. I find no error in the said position taken by both Courts below. It is trite law, within our jurisdiction, that a person with an interest in an estate, such as a beneficiary, can take an action in respect of the said estate even where there is no formal grant of letters of administration provided the action taken is aimed at protecting the estate or property from being wasted or lost. See In re Appau (Deceased); APPAU V. OCANSEY (1993-94) 1GLR 146.
In their two very valuable books, namely: “Ghana Land Law And Conveyancing” (2nd edition)” and “Practical Draftsman”, the very Learned authors; BJ da Rocha and CHK Lodoh (both mournfully remembered) helpfully discuss the matter of “ASSENTS”.
For purposes of elucidation, I would take the liberty to quote extensively from the aforesaid publications for their full terms and effect.
On page 339 of “Practical Draftsman”, the learned authors state as follows:
“An assent is a written consent of the personal representative(s) of a testator to the vesting of immovable property devised to a beneficiary under the will of the testator, in the beneficiary concerned. It is provided in section 96(1)of Administration of Estates Act, 1961, that “a personal representative may assent to the vesting…… in any person who… may be entitled thereto, either beneficially…. Of any estate or interest in immovable property to which the testator or intestate was entitled or over which he exercised a general power of appointment by his will, and which devolved upon the personal representative.” The word “may” is used to confirm the power of the personal representative to convert the immovable property into money to pay off the debts of the testator’s estate where necessary. This implies that the personal representatives may only assent to the vesting of any property in a beneficiary after they have completely paid off the debts of the deceased including all pecuniary legacies.
The devises are vested in the devisees by the personal representatives by means of a vesting assent. Such an assent operates to vest in the devisee the estate or interest to which the assent relates, and unless a contrary intention appears, the assent relates back to the date of death of the deceased.
The law enjoins a beneficiary in whose favour a vesting assent is made to require the personal representative to write a notice of the assent on the probate or letters of administration. An assent is an instrument within the meaning of section 36 of Land Registry Act, 1962 and it must therefore be registered to give it legal efficacy. No stamp duty is, however, payable on vesting assents.”
And on pages 313-314 of the book, “Ghana Land Law And Conveyancing” the following passage also appears in connection with “ASSENT”.
“After the coming into force of the Administration of Estates Act, 1961 (Act 63) on 7 June, 1961, these gifts (granted in or connected with WILLS) do not vest automatically in the devisees and the legatees. The personal representatives of the deceased must assent to the vesting of the devises in the beneficiaries before such beneficiaries can deal with the gifts as they like. For at the death of the testator, the testator’s movable and immovable properties devolve on his personal representatives with effect from the date of the testator’s death. Such personal representatives are deemed in law to be the deceased testator’s heirs and assigns within the meaning of all trusts and powers. The law further empowers the personal representatives to convert into money any movable and immovable property of the deceased for the purpose of paying off all the testamentary and administration expenses, debts and other liabilities of the deceased and also provide for any pecuniary legacies bequeathed by the will of the deceased. This implies that the personal representatives may only assent to the vesting of any property in any beneficiary after they have completely paid off the debts of the deceased estate including pecuniary legacies. With regards to devises, the personal representatives must vest such gifts in the beneficiaries concerned by means of a vesting assent. Such a vesting assent relates back to the date of death of the deceased unless a contrary intention appears. An assent under Act 63 must be in writing and name the person in whose favour it is made. If the assent relates back to the date of death of the deceased, the person in whose favour it is made, is entitled to all benefits and subject to all the burdens in relation to the particular property from that date. A person in whose favour an assent is made must ensure that the personal representatives enter a notice of the assent on the probate or letters of administration or annex a copy of the assent to such documents. In the case of Conney V. Bentum-Williams, the Court of Appeal held inter alia as follows: “At the death of the testator, his will would just become operative and no more. For his intention as expressed in the will did not have any legal effect until the will had been admitted to probate. It was only after probate had been granted to the executor that the provisions of the will could be carried out. After the grant of probate, a beneficiary of any real estate under the will must have a vesting assent executed in his favour by the executors under the Administration of Estates Act, 1961 (Act 63), sections 1 (1), 2(1) and 96(1). Until that was done, any purported sale of the real estate by the beneficiary or the devisee would be of no legal consequence and the purchaser thereof would not have a valid title ….” The Court of Appeal held further that: “Even after the vesting assent had been executed, it would still not have any legal efficacy until after it has been registered under the Land Registry Act, 1962 (Act 122)…”.
From the foregoing, it appears to me to be quite obvious that Counsel for the Defendants/Appellants/Appellants herein had misread, misunderstood or otherwise misinterpreted the relevant provisions of the Administration of Estates Act, 1961 (Act 63) in relation to the sole ground of appeal which the Defendants/Appellants were relying on to prosecute the instant appeal.
That being so, the appeal must necessarily fail, as being without merit in law.
Ironically, the Defendants/Appellants themselves, at all material times, were similarly relying on the 1st Defendant’s alleged customary succession to the land, not only by way of a defence but also in order to prosecute their counter-claim.
Little wonder that Counsel for the Defendants/Appellants in concluding his written submission tellingly, and perhaps fatally, conceded as follows:
“This also means the Defendants/Appellants/Appellants cannot mount action against the plaintiff in respect of the estates of their late mother at the time. The parties therefore ought to revert to the status quo ante”.
Now, if one should go by the logic of Counsel for the Defendants/Appellants above, the inevitable conclusion is that both parties had failed on the alleged question of capacity upon which the Appellants had signally and exclusively invested their hopes of success in the instant appeal.
The “status quo ante” then, as suggested by Counsel for the Defendants/Appellants/Appellants herein, is that both the trial District Court and the appellate High Court below had entered judgment, on the merits, for the Plaintiffs/ Respondents/Respondents herein.
Clearly, as Shakespeare would classically have put it, Counsel for the Defendants/ Appellants had obviously “hoisted” his clients on their “own petard”.
I may just in passing, at this point, draw attention to the fact that Counsel for the Defendants/Appellants/Appellants herein had, in his Written submission, most strangely veered into a long discussion on the subject of stare decisis.
The issue of stare decisis raised by Counsel in his written submission is nothing but an irrelevant and unproductive red herring which should be and is hereby summarily dismissed as a stage curiosity. It simply has no place in law in the instant appeal.
In the event, the Defendants/Appellants/Appellants’ appeal wholly fails as being insipid, unmeritorious and, in the circumstances of this case, clearly frivolous.
Consequently, the appeal is hereby dismissed and the judgments of the trial District Court and the appellate High Court below are duly upheld and, accordingly, confirmed.