IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
OPANIN KWAKU DUAH AND KWABENA ADADE (PLAINTIFFS/APPELLANTS)
OPPONG ASAMOAH - (Defendant/Respondent)
DATE: 28 TH NOVEMBER, 2018
SUIT NO: H1/68/2017
JUDGES: MARIAMA OWUSU J.A (PRESIDING), HENRY A. KWOFIE J.A, AMMA GAISIE J.A
HENRY KWOFIE J.A
This is an appeal against the judgment of the High Court Kumasi dated the 30th of July 2015. By a Writ of Summons filed on 25/02/2005 the plaintiffs/appellants claimed against the defendant/respondent the following relief:
1. A declaration that the properties devised under the Will of the late Kwabena Nyantakyi are his self-acquired properties and perpetual injunction restraining the defendant, his privies agents and servants from interfering with them.
The 1st plaintiff is the surviving executor of the last Will and Testament of the late Opanin Kwabena
Nyantakyi (deceased) who died testate on 5th May 2004. The 2nd plaintiff is a member of the testator’s family and one of the beneficiaries named in his Will. The defendant is a nephew of the testator. In his last Will and testament, the testator devised all his properties to named beneficiaries. After his death, the defendant claimed that not all the properties devised in the testator’s last Will were his self-acquired properties. The plaintiffs contending that all the properties were his self-acquired properties and he had the testamentary capacity to devise them in the manner he did, commenced an action against the defendant.
The defendant on the other hand contended that the testator who was a member of his family had made an intervivos gift of one of the disputed properties to his matrilineal family whilst a house at Atwima Koforidua was not the self-acquired property of the testator. The defendant accordingly counter-claimed as against the plaintiffs as follows:
a) A declaration that the following properties belonged to the defendant family:
i) First floor consisting of two flats of his H/No. 20, Patasi Kumasi
ii) A portion of his Wansamire cocoa farm together with a cottage thereon now given under his Will paragraph 6(c) to his daughter Abena Antwiwaa
iii) House No. 88, Koforidua-Atwima
b) Recovery of possession of the properties in dispute or any part thereof from the plaintiffs.
c) Perpetual injunction to restrain the plaintiffs, their agents, workmen/servants and assigns from in any manner dealing with the properties in dispute or any part thereof.
The High Court Kumasi gave judgment in favour of the defendant/respondent in terms of his counter claim.
Aggrieved by the said decision, the appellants filed an appeal on the 12th of August 2015 on the ground that:
i) The judgment is against the weight of evidence.
The notice of appeal is at page 80 of the Record of Appeal. The relief sought from this Court is an order setting aside the judgment and for judgment to be given in favour of the plaintiffs/appellants. The appellant on the 29th day of June 2017 filed on additional ground of appeal pursuant to leave granted on the 27th of June 2017. The additional ground of appeal was that:
“the defendant not being the head of family, lacks the requisite capacity to counterclaim for a declaration of title to the disputed properties in favour of his family”
In his written submissions, Counsel for the plaintiffs/appellants has sought leave to abandon the original ground of appeal filed on 12/08/2015 and rather argue only the additional ground of appeal filed on 29th June 2017 that is that “The defendant not being the head of family cannot counterclaim for a declaration of title to the disputed property in favour of his family”
Accordingly, the original ground of appeal filed on 12/08/2015 that is that the judgment is against the weight of evidence is hereby struck out as abandoned.
Arguing the sole ground of appeal, counsel for the plaintiffs submitted that upon service of the Writ of Summons on the defendant, he also filed a statement of defence and counterclaim. He asserted that a counterclaim is a separate action where the defendant who counterclaims then becomes the plaintiff and the original plaintiff then becomes the defendant. He asserted that capacity can be raised at any time even on appeal and maintained that not being the head of family, the defendant/respondent has no capacity to counterclaim for a declaration of title to the disputed property. Counsel referred to the case of Nyamekye Vs. Ansah (1989/90) 2 GLR 153 and submitted that as a general rule, the head of family as representative of the family was the proper person to institute an action for the recovery of family lands. Counsel also referred to Order 4 rule 9(4) (5) (6) and (7) of the High Court (Civil Procedure) Rules 2004 and submitted that the procedure set out in that rule was not complied with by the defendant before filing his counterclaim and prayed for the judgment of the trial Court to be set aside.
Responding to the submissions of Counsel for the plaintiffs/appellants, counsel for the defendant/respondent submitted that the contention by the plaintiffs that the defendant cannot succeed on his counterclaim as he is not the head of family is not tenable. He asserted that the action was to determine whether the properties devised in the Last Will and testament of the testator Kwabena Nyantakyi were the personal properties of the testator and not a suit for recovery of family property properly so called. The defendant could thus succeed on his counterclaim as he was able to prove that the said properties were family property. Counsel further submitted that the trial judge in his judgement did not gloss over the issue of capacity and rightly held that since the capacity of the respondent had not been challenged he would proceed to determine the case on its merits. He added that it is only where the issue of capacity is raised that a plaintiff or a defendant/counterclaimant is required to give evidence to prove that he has the requisite capacity to sue. Counsel asserted that as the appellants failed to raise the issue of the respondent’s capacity, the trial judge was right in entering judgement in favour of the respondent.
Finally, he submitted that the appellants never challenged the capacity of the respondent for him to have the opportunity to demonstrate that he had the capacity to bring the counterclaim.
In the case of Sarkodie Vs. Boateng II (1982-83) GLR 715, the Supreme Court dealing with the issue of capacity held at page 724 that:
“It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence”
Also in the case of Akrong Vs. Bulley (1965) GLR 469 it was held at page 476 by the Supreme Court per Apaloo J.SC as follows:
“I need hardly say that I reached this conclusion with no relish especially as the plaintiff made out an unimpeachable case of negligence against the defendant on the merits. But the question of capacity, like the plea of limitation is not concerned with merits for as Lord Greene M.R. said in Hilton Vs Sulton Steam Laundry (1946) K.B. 65 at page 73 C.A.
“Once the axe falls it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitation (and I would myself add or an unanswerable defence of want of capacity to sue) is entitled, of course, to insist upon his strict right”
Indeed, the issue of capacity is crucial and the law is clear and settled that where a person’s capacity and authority to sue is raised or questioned, it lies upon him to satisfy the Court that he has been duly authorised to do so. Capacity can be raised at any time of the proceedings, indeed even on appeal.
In his judgment, the trial judge was not oblivious of the issue of the capacity of the defendant to counter-claim for the disputed properties on behalf of his family. The trial judge resolved the issue of the defendant’s capacity as follows at page 75 of the Record of Appeal:
“Now the difficulty with the counterclaim of the defendant is that he is not an executor in the will of his uncle Opanin Nyantakyi. It is admitted he is a beneficiary under the will. In paragraph 8 (d), he and others were devised a parcel of land at Wasaw. That is not his concern in the counterclaim. Instead, he claims the disputed properties for his family, but he has not led any evidence to establish that he is the head of his family so as to be equipped with the requisite capacity to mount an action in respect of properties he claims belong to his family. I have seen the reply and defence to the counterclaim. The plaintiffs have not raised any issue about the capacity of the defendant to claim the disputed properties for his family. Consequently, that was not an issue in this trial. The Court will thus ignore the capacity of the defendant whilst it considers the merits of the case”
Counsel for the plaintiffs/appellants has taken issue with the trial judge’s decision to ignore the issue of defendant/respondent’s capacity as same was not raised by the plaintiffs in their pleadings.
In my view the starting point for a determination of the issue of capacity of the defendant is to look at the pleadings filed by the parties in this case. The foundation of pleadings as indicating the role of the Court was described by Master I.H. Jacobs in his article “The Present Importance of Pleadings” in Current Legal Problems (1960) pages 171 to 174 thus:
“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings. ……….. For the sake of certainty and finality, each party is ………… by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus, knows the case he has to meet and cannot be taken by surprise at the trial. The Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the Court to enter upon an enquiry into the case before it, other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.
Indeed, the Court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be enter the realms of speculation ……….. Moreover, in such event, the parties themselves or at any rate one of them, might well feel eggrieved; for a decision given in a claim or defence not made, or raised, by or against a party is equivalent to not hearing him at all and may thus be a denial of justice ………..
The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead”
In the case of Frabina Ltd Vs Shell Ghana Ltd (2011)1 SCGLR 429 holding 2 it was held that:
“(2) The essence of pleadings was interalia, not only to inform the opposing party of the case it would meet, but also to put the opposing party on notice so as to prepare its case in response to the facts pleaded against it…………..
Furthermore, by raising the case of the refundable deposit for the first time and so belatedly in the Supreme Court, the defendant had not been given the opportunity to adduce evidence or plead facts in defence of its stand”.
Also see the case of Hammond Vs. Odoi (1982-83) 2 GLR 1215 at 1235 S.C. where Charles Crabbe J.S.C. stated that:
“Pleadings are the nucleus around which the case - the whole case - revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the Court as well as for the parties. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case”
The record shows that the defendant filed his statement of defence and counterclaim on 15/03/2005 (pages 5 and 6 of the ROA). It was in the counterclaim that the defendant asked for a declaration that the disputed properties (listed as a(i), (ii), and (iii) belong to the defendant’s family and recovery of possession of the properties amongst other reliefs.
The record shows that the plaintiff filed a Reply and defence to the counterclaim on 24/03/2005 (See page 7 of the ROA). Nowhere in the reply and defence to the counterclaim did the plaintiff raise the issue of the capacity of the defendant to claim those properties as family property.
In the case of Hall Vs. Eve (1876) 4 Ch. D 341 at 345 James L.J stated with regard to purpose of a reply as follows:
“The main purpose of a reply in pleadings is to raise in answer to the defence any matters which must be pleaded by way of confession and avoidance, or to make any admissions which the plaintiff may consider it proper to make. The reply is the proper place for meeting the defence by confession and avoidance”
In the application for Directions filed on 27/04/2005 (page 8 of the Record of Appeal) the capacity of the defendant to claim the disputed properties for the family was not even set down as an issue and thus no issue was joined between the parties as to whether or not the defendant had capacity to claim the disputed properties on behalf of the family.
Order 11 rule 13 of the High Court (Civil Procedure) Rules 2004 (C.I.47) dealing with admissions and denials provides:
“13(1) Subject to sub-rule 4 of this rule, any allegation of fact made by a party in the party’s pleadings shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as denial of it.
(2) A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication.
(3) Subject to sub rule (4), every allegation of fact made in a statement of claim or counterclaim which the party on whom it is served does not intend to admit shall be specifically traversed by the party in the party’s defence or defence to counterclaim and a general statement of non-admission shall not be a sufficient traverse of them”
Referring to the above rules i.e. Order 11 rule 13 the learned author Kwame Tetteh in his book Civil Procedures, A Practical Approach stated at page 137 that:
“Where the plaintiff’s authority to litigate on behalf of the family is not denied in a pleading, it would be deemed to be admitted and the burden of proof would be discharged without further evidence”
Needless to say, the same principle applies to a defendant whose authority to claim family property is not denied. If the plaintiffs had in their reply and defence to counterclaim challenged or raised the issue of the defendant’s capacity to claim the disputed properties as family property, the defendant would have been put on notice to respond to the facts pleaded against him. By raising the issue of the defendant’s capacity to counterclaim for the disputed properties as family properties at this stage on appeal, the defendant has not been given the opportunity to adduce evidence or plead facts in defence of his stand – see on this the case of Hammond Vs. Odoi (Supra) at page 1235.
In my view, to uphold the plaintiff’s case on appeal on the ground that the defendant has no capacity would be indulging in speculation and conjecture and would be equivalent to not giving the defendant a hearing. This would be tantamount to a denial of justice.
Counsel for the appellants also submitted that the defendant should have complied strictly with the procedure set out under Order 4 rule 9 (4), (5), (6) and (7) of the High Court (Civil Procedure) Rules 2004 C.I. 47 which provides as follows:
“Order 4 rule 9
(4) where any member of the family sues under sub mile
(3) a copy of the writ shall be served on the head of family.
(5) A head of family served under sub-rule (4) may within three days of service of the Writ apply to the Court to object to the writ or to be substituted as plaintiff or to be joined as plaintiffs
(6) If the head of family is sued as representing the family but it appears that he or she is not properly protecting the interests of the family, any member of the family may apply to the Court to be joined as defendant to or in substitution for the said head
(7) An application under sub-rule (5) or (6) shall be made on notice to the parties in the action and shall be supported by an affidavit verifying the identity of the applicant and the ground on which the applicant relies”
A reading of the said provision shows that it applies where the head of family is unable, refuses or fails to take action to protect the interest of the family and a member of the family therefore sues on behalf of the family. In that case, then a copy of the Writ of Summons must be served on the head of family. As stated in the book Civil Procedure; A Practical Approach (Supra) page 140, the purpose of the rule is to offer the family head the opportunity to respond to the charge of inaction in the administration of the affairs of the family. The fact that the rule says “a copy of a Writ of Summons shall be served on the head of family” clearly shows that it applies only to a situation where a member of the family who is not the family head sues on behalf of the family by a writ of summons. A counterclaim is not the same as a writ of summons and in my view Order 4 rule 9 of (C.I.47) is inapplicable in respect of a counterclaim.
The sole of ground of appeal challenging the capacity of the defendant fails. It is unnecessary to evaluate the evidence led at the trial in this appeal as the appeal relates only to the issue of capacity of the defendant and not the merits of the case. In any case, the evidence on record support the findings and the decision of the trial judge on the merits.
Accordingly, the appeal fails and is dismissed.