(1) This appeal lies from the judgment of the High Court Accra dated the 26th day of January, 2015.

(2) In the High Court Accra, the Plaintiff/Respondent (hereinafter referred to as the Respondent) sought against the Defendants the 3rd of whom is the only Appellant herein the reliefs endorsed in the statement of claim at page 36C of the record as follows:

a. A declaration of title to all that piece or parcel of land described in the schedule to the endorsement to the writ of summons.

b. Recovery of possession.

c. An order expunging from the records of the Lands Commission Secretariat all statutory declarations made by the Defendants.

d. An order of accounts of all lands belonging to the Plaintiff’s family which the Defendants jointly or severally had disposed of to others.

(3) We must place on record that whereas an earlier statement of claim can be found at page 3 of the record, we are unable to understand the procedure by which the Respondent herein filed another statement of claim without an endorsement whether or not the earlier had been amended with or without leave of the Trial Court as the rules pursuant to Order 16 of [C.I.47] may allow. Though it appears from the 3rd Defendant’s statement of defence that  an order for amendment of the statement of claim was made the amendment was not so endorsed by the Respondent.

(4) Be that as it may, without any objection pursuant to Order 81 Rule 2, the Defendants who presumably had no issues with the Respondent’s conduct contested the action on the merits. The 3rd Defendant being the only Defendant who has mounted this appeal, we shall in this judgment refer to his defence of the action at the Trial Court as and when it is relevant.

(5) In her statement of claim at the Trial Court, the Respondent pleaded inter alia as follows:-

“(1) The Plaintiff is a Family Stool within the Ga Rural District of the Greater Accra Region.

(2) Plaintiff says that the entire land described in the schedule to the endorsement to the writ of summons has been in the possession of the family from time immemorial.

(3) Plaintiff says that sometime in 1978, one Musah was appointed the caretaker over the lands and he regularly accounted to the stool family.

(4) Plaintiff says that Musah appointed two persons, namely Ibrahim Bunzu alias Ibrahim Mind Yourself and one Seidu Sisala to assist him in his caretakership role.

(5) Plaintiff says that sometime in 1991 Musah the caretaker died. The two others were asked to continue as caretakers for the stool.

(6) Sometime after the death of Musah, the two gentlemen who continued as caretakers were invited before the elders to give an account of their stewardship. They admitted having sold twenty (20) building plots and thereafter they started misbehaving so the family formally removed them from their positions and instituted action against them for inter alia accounts in Suit No.2/02/92 as amended.

(10) Plaintiff says that when land registration reached Ga Rural it applied for registration. It obviously presented a site plan since for a stool land, there were no documents and there had previously not been need for stools to register their lands.

(11) Plaintiff says the Land Title Registry refused to proceed with the processing of the application on the grounds that searches have revealed that the Defendants have registered various statutory declarations on the land.

(12) Plaintiff says that a Statutory Declaration declaring title is a self-serving document and does not show a clean title to land.

(13) Plaintiff says that those statutory declarations were surreptitiously made and therefore the stool could not have challenged same. They were never published prior to registration which subsequently became the practice and continues to the present.

(14) Plaintiff says that it is unjust for the family lands to be lost forever merely on the basis that Defendant without notice had made statutory declarations to the effect that they are owners of the various parcels of lands covered by their statutory declarations”. Hence the reliefs sought in the Trial Court.

(6) The Appellant herein (3rd Defendant) at the Trial Court contested the Respondent’s action per a statement of defence (page 36E of the record) in which he pleaded inter alia as follows:-

“4. Paragraphs 4, 5 and 6 of the Amended Statement of Claim are denied. Even if Musah Ibrahim Bunzu (otherwise called Ibrahim Mind Yourself) and Seidu Sisala were ever appointed accounting caretakers over any land of the Plaintiff’s family, (which is denied) they were all material times, like their appointors trespassers on the 3rd Defendant’s land.

6. The 3rd Defendant makes no admission as to paragraphs 10, 11 and 12 of the amended statement of claim. The Chief Registrar of the Land Title Registry has the statutory discretion to refuse to proceed with the processing of the Plaintiff’s application for title registration on grounds which include the prior registration of the Statutory Declaration of the 3rd Defendant’s family.

7. Paragraphs 13 and 14 of the amended statement of claim are denied.

The mere non-publication of Statutory Declarations of the 3rd Defendant’s family registered ahead of the Plaintiff’s family’s unsuccessful application for title registration does not make the 3rd Defendant family’s statutory declarations surreptitious, especially as at the time of registration of the 3rd Defendant’s Statutory Declarations non-publication of statutory declarations was the practice of the Land Title Registry as the Plaintiff’s own paragraph 13 admits.

8. Further as to paragraph 14 of the amended statement of claim, the Defendant’s family (Tungma We or Abola Piam or Royal) being a Stool Family house from which the Ga Mantse is nominated, elected and installed as Ga Mantse (unlike the Plaintiff’s family’s ancestors) migrated with the other three (3) Stool Families from which a Ga Mantse is installed in rotational succession to the Ga paramount Stool as the earliest of the Ga families along with the Asere Division or quarter of Accra from Ayawaso to the Coast of Accra. Together with Asere and subsequent or migrants (from Otutu in the west, who formed Ablekuma) the 3rd  Defendant’s family became  from the 1660’s the ancestral allodial owners together with Asere and Ablekuma of the tract of land subsequently called Sowotuom, the northern part of which is bounded by Nsekina, well before the historic battle which in 1773 expelled the Akwamu people from the Ga Rural Area.

9. By reason of the foregoing matters, the Plaintiff has no right of action for any of the reliefs it claims or ever at all, and its action ought to be dismissed with cost”.

(7) After the Respondent’s reply, the Trial Judge was invited to resolve the following issues from the Respondent’s application for directions based on the pleadings aforesaid.

“(1) Whether or not Abbeyman Family Stool is a family stool in the Ga District.

(2) Whether or not the Queenmother of Abbeyman Naa Dodi Akaibi II is the acting Mantse and occupant of the Stool and so has capacity to sue on behalf of the Stool.

(3) Whether or not Abbeyman was founded by Plaintiff’s ancestor Nii Abbey.

(4) Whether or not Sowutuom land is part of Abbeyman land.

(5) Whether or not 3rd Defendant’s Family ever has any interest or title to Abbeyman land.

(6) Whether or not Plaintiff is entitled to the claims”.

(8) We must place on record that in our view, issue 2 settled by the Respondent is clearly one which invited the Trial Court to determine a cause or matter affecting chieftaincy albeit it has been linked with the issue of the Respondent’s capacity. Having fundamentally raised the question of the Respondent’s status as Acting ‘Mantse’ (Chief) or occupant of a stool, the jurisdiction of the Trial Court and this court had been clearly ousted by Section 57 of the Courts Act 1993 (Act 459).  Secondly, we also notice that from the factual matters deposed  to in the respective pleadings of the parties, there has not been in our view sufficient pleading to assist the Courts in the effectual and complete determination of the real dispute between the parties, the crucial issue being one of the contestation over ancestral lands.

(9) Having so observed, the Trial Judge appeared to have sufficiently comprehended the facts in issue and the dispute between the parties in determining the Respondent’s claim one   way of the other. In doing so, he delivered himself inter alia as follows:-  “On the totality of   the evidence on record, judgment is entered in favour of the Plaintiff for relief (a) as varied by this court, and reliefs (b)(c) and (d) as endorsed on the Amended Writ of Summons”.

(10) It is from this judgment that the Appellant (3rd Defendant at the Trial Court) by notice filed on 29/1/2015 appealed to this court and has set out his grounds of appeal as follows:-

(11) GROUNDS OF APPEAL:

“(1) The judgment is against the weight of the evidence on the record.

(2) The Learned Trial Judge misdirected himself by failing to appreciate that the legal burden of proof lay throughout the trial on the Plaintiff/Respondent who ought to succeed on the strength of his own case and not on the weakness of the Appellant’s case”.

We have to place on record that even though the Appellant gave notice that additional grounds of appeal will be filed upon the receipt of the record of appeal, no such additional grounds had been filed at the time the submissions of counsel were adopted by this court.

(12) Before we proceed to discuss the grounds of appeal filed, we intend to deal with three crucial issues which have arisen from the approach of both parties to this appeal. They are  in the nature of non-compliance with the statutory ground rules of this court. Being legal grounds this court has the power upon the authorities to raise them suo motu and deal with same. See the cases of PHILLIPS VS. COPPING [1935] IKB 15 at 21 & TINDANA (NO.2)  VS. CHIEF OF DEFENCE STAFF & ANOR [2011]2 SC GLR 732.

(13) The first of these issues arising which is not of any material consequence is the Respondent’s notice of intention to rely on preliminary objection filed on 21/7/2017.  In  that notice, the Respondent purports to take an objection on the following grounds:-

i. The filing of a reply by the Appellant is in breach of Rule 20(5) of [C.I.19].

ii. The impugned process does not constitute res-judicata between the parties in the appeal.

iii. The facts of the instant appeal are distinguishable from the facts of the decision filed by the Appellant. And the decision is not binding on this court.

(14) Two procedural issues arise. Firstly, the filing of a process by the Appellant outside the time limits allowed by this court without leave of court where leave ought to have been obtained renders the process incompetent and a preliminary legal objection on the issue may not even be necessary. Secondly, we notice that the Appellant’s submission has some documents attached. They are in two main categories (a) court proceedings, boundary settlement agreement  and  court  rulings  and  judgments.          The court proceedings and agreements are inadmissible in this appeal as they constitute fresh evidence which the Appellant is seeking to rely on without due process. We will ignore them. The rulings and judgments constitute part of our law in accordance with Article 11(1)(e) of the constitution. If the said rulings and judgments are relevant, they ought to have been referred to in the written  submission  to  further  anchor  the  arguments  of   the  Appellant. Otherwise, we cannot   look   at   them in  isolation. That is all we need say about the Respondent’s preliminary objection as well as the Appellant’s approach in procedure.

(15) The other fundamental procedural issue with respect to the Appellant are in two legs. Firstly, we observe in the Appellant’s written submission that in the closing paragraphs, the Appellant has raised the issue of want of proper capacity by the Respondent. At paragraph 112 page 44 of the Appellant’s written submission it was submitted as follows:-

“My Lords, the issue of capacity of the Plaintiff was also not answered by the Plaintiff/Respondent and it is most unfortunate that the Trial Judge concluded that it had been abandoned. The alleged Abbeyman Family Stool was challenged to be non-existent. Secondly it sued in the said name-Abbeyman Family Stool simpliciter contrary to the provisions of Order 4 Rule 9, their action should have therefore failed at that point and we respectfully urge this court to so find”.

(16) There are serious procedural issues with the way the Appellant has handled this foundation issue which questions the juristic status of the Respondent. From our examination of the pleadings of the parties at the Trial Court, the issue was never raised   and therefore was not set down for determination as it ought to have been. Indeed, the Appellant had averred in paragraph 9 of his Statement of Defence that the Respondent has no right of action for the reliefs she sought and not that she lacked capacity to prosecute them. These legal challenges are substantially different as they give rise to different legal consequences if well founded.

(17) Secondly, from the Appellant’s own submission, the Trial Court made a pronouncement on the issue when it was said to have found that it had been abandoned.  If the Appellant was  of the view that the Trial Judge was erroneous in its conclusion, the proper step the Appellant ought to have taken would have been to challenge  the  pronouncement specifically by formulating a specific ground of appeal therefrom. From the  notice  of  appeal filed, the Appellant did not.

(18) In this court, the Appellant could have taken out a notice of preliminary objection to have the issue of the Respondent’s capacity determined. The Appellant did not. To raise it in the written submission is to ambush the Respondent. In the case of ALFRED AGBESI WOYOME VS. ATTORNEY GENERAL Civil Appeal No.H1/42/2017 dated 8/3/2018 this court deprecated the practice of counsel who raise legal objection for the first time in their written submission when procedural provision has been made by the rules of court  pursuant to Rule 16(1) of [C.I.19]. And the issue of capacity being one which affects the jurisdictional competence of the court, if properly raised, the Trial Court would have been obliged to resolve it before proceeding.  Not having properly raised it in this court we do   not think the issue is live to be determined nor do we agree with the Appellant’s allegation  of non-proper endorsement having by itself stated on the face of his notice of appeal that  the Respondent was acting “Per Naa Dodi Akaibi II”. The said endorsement in the Appellant’s notice of appeal without more, is sufficient evidence that the Respondent’s endorsement as a party is demonstrably proper.

(19) At this stage, we wish to emphasize the legal position as this court held in the case of ABOAGYE FRIMPONG & ANOR VS. MEG, 94  VIA  VALLE  BAGNATA  ROME  (SUING) PER LAWFUL ATTORNEY [2013]58 GMJ 131 is that “there is a clear destination between jurisdiction and capacity as there are situations where one will necessarily affect proceedings and not vice versa. A court which lacks competent jurisdiction cannot purport to exercise one, not even to pronounce on the capacity of the parties. The law is that where the issue of the court’s jurisdiction is raised it is an issue touching on the competence of the court rather than the rights of the parties in the subject matter of litigation”.

(20) From the pleadings of the Appellant at the Trial Court, no issue was raised about the jurisdictional competence of the court to entertain the Respondent’s action. What was raised which the Trial Court held as abandoned was that of the Respondent’s capacity in relation to the insufficiency of the endorsement and description of the Respondent. That in our view was cured by the endorsement on the face of the judgment and the notice of   appeal filed by the Appellant himself by the addition of the words “suing Per Naa Dodi   Akaibi II its Queen mother and Regent”. Not having been made a ground of appeal, it is conclusive and cannot be re-opened by the Appellant in his written submission.

(21) The other crucial procedural issue is the formulation of Ground 2 of the Appellant’s grounds of appeal which clearly allege misdirection against the Trial Judge. This ground is by no means proper and admissible and there are a plethora of case law authorities on the point.

(22) Rule 8(4) of [C.I.19] as amended provides that: “Where the grounds of an appeal allege misdirection or error of law, particulars of the misdirection or error shall be clearly stated”. The significance of the above rule was emphasized by this court in the case of ZABRAMA VS. SEGBEDZI [1991]2 GLR 221 & LAWRENCIA ADAMS VS. COFFEY INTERNATIONAL LTD. Civil Appeal No.HI/171/6 dated 23/2/2017. In the earlier case Kpegah J.A (as he then was) held at page 226 as follows:-

“I do not think it meets the requirements of these rules to simply allege misdirection” on the part of the Trial Judge. The requirement is that the grounds stated in the Notice of Appeal must  clearly and concisely indicate in what manner the Trial Judge misdirected himself either on the law or on the facts. To state in a notice of appeal that “the Trial Judge misdirected himself and gave an erroneous decision” without specifying how he misdirected himself is against the rules and renders such a ground of appeal inadmissible. The rationale is that a person who is brought to an Appellate forum to maintain or defend a verdict or decision which he has got in his favour, shall understand on what ground it is impugned”.

(23) Significantly, the statement on the law reproduced above was cited with approval in the case of DAHABIEH VS. S.A. TURQUI BROS. & ORS. [2001-2002] SC GLR 498 SC.   As    this court is bound by its final decisions and that of the Supreme Court on questions of law pursuant to Articles 136(5) and 125(3) of the 1992 Constitution respectively as well as the rules of the court, we cannot gloss over the clear violation of Rule 8(4) of the rules [C.I.19] in the formulation of Ground (2) of the Appellant’s ground of appeal. Same being  inadmissible, it is unarguable. It is hereby accordingly struck out.

(24) The only surviving ground in this appeal therefore is one that alleges the omnibus ground in that, the judgment is against the weight of the evidence on record. We need not fully reproduce the tall list of the legal authorities whenever an Appellant makes such general allegation in a notice of appeal. Suffice it to say however that in the consideration of this ground of appeal, an appropriate starting point is the scope of authority of this court as provided in Rule 8(1) of [C.I.19] in that “an appeal to the court shall be by way of rehearing”. The often cited case law authority on this scope is the decision of the Supreme Court in TUAKWA VS. BOSOM [2001-2002] SC GLR 65 where the Court per Sophia Akuffo JSC (as she then was) defined the duty of an Appellate Court where the omnibus ground of appeal is alleged as follows:- “An appeal is by way of rehearing where the Appellant alleges in his notice of appeal that the decision of the Trial Court is against the weight of evidence. In such case, it is incumbent upon the Appellate Court in a civil case to analyze the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decisions, so as to satisfy itself that, on the preponderance of probabilities, the conclusions of the Trial Judge are reasonable and amply supported by the evidence”.

(25) APPELLANT’S SUBMISSIONS:

In the written submission of the Appellant a number of issues substantially legal in nature were raised. As a matter of precision and conciseness required by the rules of this court, these grounds could have been distinctly set out by way of an amendment of the grounds of appeal or by filing additional grounds subject to the leave of this court. We shall however consider them as matters of mixed law and fact under the omnibus ground.

(26) (a) IDENTITY OF LAND IN DISPUTE:

(i) The Appellant submitted that in the recitals of the pleadings by the Trial Judge on the face of the judgment appealed from, the Trial Judge’s reproduction of the schedule which provides the identity of the land in dispute is different from the land described by the Respondent’s witness at the trial i.e. PW1. According to the Appellant by the description of the land proferred by PW1, Sowutuom  is a boundary owner and therefore it cannot turn out to be the subject matter in dispute. To anchor this submission, the Appellant has referred to Exhibit ‘A’ a site plan described as composite. It was further argued that Exhibit ‘A1’ is not only selfserving but it shows that the land claimed by the Respondent has nothing to do with Sowutuom and that the Respondent had failed to prove that the Appellant had laid any claims whatsoever to   any portion of the land claimed by the Respondent. Consequently the action by the Respondent ought to have failed.

(ii) It is further submitted that the report of the surveyor had made the Appellant’s position even clearer because the said report has nothing to do with Sowutuom which is a mere boundary referring to Exhibit ‘J’. The Appellant submitted that the evidence of PW3 a witness for the Respondent supported the case of the Appellant as it exposed the Respondent as the person dealing unlawfully with Sowutuom lands in a  manner inconsistent with the interest of the Appellant and his Abola Piam Tunma We.

(iii) Finally, the Appellant submitted on this issue that the Respondent never alleged that the Appellant was claiming or encroaching Olubu lands which at any rate is a community adjoining Oshiuman lands and not Sowutuom.

(27) (b)EFFECT OF LAND TITLE REGISTRATION ACT 1986