• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  ACCRA - A.D 2017
  

KORKOR MENSAH - (Plaintiff/Respondent)

vs.

ROBERT TETTEY MENSAH & ORS - (Defendants /Appellants)

JUDGMENT

---

MARIAMA OWUSU, J.A.:

On 24^th June, 2016, the High Court, Accra gave judgment for the plaintiff for the reliefs she endorsed on her writ of summons.

 

In her judgment, the trial Judge stated in part that;

“The next issue is whether or not the property can be shared. It is a fact that the land forms part of a larger stretch of land that belonged to Nii Annang Nukpa, the plaintiff is the great granddaughter of Nii Annang Nukpa. It is an undisputed fact that the elders of Nii Annang Nukpa decided to divide the land into three (3) equal parts and share same among the three (3) branches of the family. After the sharing among the Nii Annang Nukpa family, it ceased to be ancestral land.

 

It is a fact that the other two branches of the family have shared their portions of land among their members. The land for the Nii Kwei Kumah Mensah’s branch belongs to plaintiff and her deceased brother. To the plaintiff, the land will have to be shared into two (2) equal parts. Her deceased brother Tettey Mensah’s children are therefore entitled to their father’s portion. Notwithstanding that her brother is deceased, she has every right albeit, being a female member of the family to demand her fair share of the land. Half of the land given to Kwei Kumah Mensah’s children and that will be about 59 acres. Her desire for her fair share of the land is further strengthened by the fact that precedent had been set as the other family members – Amar Kofi’s children have shared their portion of the land given to them just as the Alokoto Commey’s family has done. Nothing stops the Kwei Kumah Mensah family from sharing theirs.”

 

Dissatisfied with the decision of the trial court, the defendants appealed to the Court of Appeal on as many as twelve (12) grounds. They are:

a. The judgment is against the weight of evidence

b. The Judge erred when she confused the issues for determination before the court and veered into non-issues and made her findings on same.

c.The Judge totally erred when she failed to consider the case of the defence and the counterclaim.

d. The court misdirected itself and determined the case on emotions and gender biases instead of considering the matters on their merits.

e. The Judge erred when she assumed jurisdiction over interpretation of the constitution and erroneously concluded that the appointment of males as head of family in a patrilineal society is gender bias and unconstitutional and for that matter same void.

f. The Judge misdirected herself on the salient issues before the court and concluded that the assertion that in a patrilineal society, it is males who are considered heads of family is gender discriminatory and unconstitutional.

g. The Judge erred when she ordered the defendants to render accounts of sale of land when there was nothing in evidence to support that the defendants made any sale.

h. The Judge erred when she concluded that land measuring 119 acres the subject matter of litigation was the family property of Kwei Kuma Mensah but ordered that the property should be divided among 2 members of the said family i.e. the plaintiff and the defendants’ deceased father.

i. The Judge erred when she ordered the land measuring 119 acres to be shared amongst Tettey Mensah and Korkor Mensah, children of Kwei Kumah Mensah even though she had concluded and rightly so that the land is not the personal property of Kwei Kumah Mensah but a family property.

j. The Judge erred when she concluded that by dividing lands owned by Nii Nukpa Family, into 3 branch unit families comprising Annang Nukpa’s descendants, the land ceases to be ancestral family land and for that matter same can be divisible.

k. The Judge erred when she claimed that the defendants had applied for Letters of Administration to administer the land measuring 119 acres in the face of the overwhelming evidence before the court that the land measuring 119 acres situate at Sasaabi was not part of the inventory of properties the Letters of Administration was to administer.

l. The Judge also erred when she failed to take into consideration the circumstances under which the Vesting Assent was prepared and also the fact that same was cancelled by the High Court differently constituted upon the application of the 1^st defendant when the effect of the Vesting Assent was explained to him.

m. Additional Grounds of Appeal may be filed upon receipt of the record of proceedings.

 

The relief sought from the Court of Appeal is to set aside the entire judgment and judgment entered for the defendants on their counter-claim instead.

 

Before dealing with the arguments canvassed in support or against the appeal, I will give a brief background of the case.

 

The plaintiff/respondent in this case (hereinafter referred to as plaintiff) claim is for:

 

Declaration that the plaintiff is the proper person to take control of the father Kwei Kumah Mensah’s land after the death of his elder brother who was the father of the defendants.

 

An order of the court dividing the 119.47 acres of land into two equal parts giving one half to the plaintiff, and the other half to the defendants as their father’s share.

 

The defendants should account for all the lands sold/leased so far.

 

Perpetual injunction to restrain the defendants, their agents, assigns and lessees from going into the land until the final determination of the suit.

 

In the 22 paragraph statement of claim which accompanied the writ of summons, the plaintiff averred that the defendants are the children of her late brother Tettey Mensah. The plaintiff averred further that her great grandfather by name Nii Annang Nukpa has a large tract of land at Saasabi near Oyibi on the Accra Dodowa road measuring about 355.93 acres. This land according to plaintiff was shared among three grandchildren of Nii Annang Nukpa, namely, Amar Kofi, Kwei Kumah Mensah and Alokoto Commey.

 

It is the case of the plaintiff that she is the only surviving child of Kwei Kumah Mensah. That after the death of her brother Tettey Mensah, the latter’s children (the defendants) took control of the land and started selling same without reference to her. She therefore summoned the defendants before the elders of the family at Tema but the defendants refused to attend to the invitation by the chief fisherman. The plaintiff concluded that, the defendants say plaintiff is a woman and therefore has no right to inherit the land hence this action.

 

The defendants/appellants (hereinafter referred to as defendants) in their statement of defence whilst admitting most of the plaintiff’s averments averred that, the land was shared among three (3) branches of the family and not grandchildren. They averred further that, the plaintiff was not permitted to share the property because she was not qualified to do so, as only male members of the family are qualified by custom to carry out the task of administering property acquired by male members. The defendants continued that, after the death of Tetteh Mensah, his eldest son who happens to be the 1^st defendant became his customary successor and took over the management and control of the property.

 

The 1^st defendant admitted leasing part of the property but averred that, he did so with the consent of the principal members of the family to enable him have funds to prosecute and defend civil actions relating to the property.

 

On the alleged refusal of the defendant to attend to the elders of Tema meeting, they averred they did attend the meeting conveyed by Nii Adjei Tsamey. At the said meeting, the plaintiff insisted that the property be shared. The 1^st defendant concluded that he explained that the property was not meant to be shared among individuals and that if the plaintiff needed land for building or other purpose, her needs would be attended to. They therefore maintained that the plaintiff is not entitled to her claims.

 

See paragraphs 1 – 25 of the amended statement of defence pursuant to an order granted by the court and filed on the 29^th January, 2015.

 

At the trial, the plaintiff testified through her Attorney and called one witness. 1^st defendant also testified and called two (2) witnesses.

 

As stated supra, the plaintiff’s claim was upheld hence this action.

 

In arguing the appeal, counsel for the appellants argued grounds (b), (f) and (h) together and submitted that, from the evidence on record, the property, the subject matter of the suit is family property. This, the trial Judge in her judgment rightly concluded as such, but came to the erroneous finding that, when the property was divided in 2007 amongst the three (3) branches, same ceased to be an ancestral property and for that matter divisible among the individuals.

 

According to counsel, these findings were not only bad but a very dangerous proposition of customary law. This is because, the division of the land in 2007 was for the respective branches to hold but not lose its essence of family property. Consequently, the holding by the trial Judge that after the division of the land to the three (3) branches it ceases to be an ancestral property is not supported by any law. This is because, family property at any stage is indivisible.

 

He cited the case of Ashirifi & Ors. Vs. Golightly & Anor. “The Kokomlemle Consolidated Cases” DC (Land) 48 – 51 at page 312, 374. Counsel continued that, the divisibility of the land did not make same personal property of Kwei Kuma Mensah to be distributed in accordance with the Intestate Succession Law, 1985 (PNDCL III).

 

Therefore, the portion of land that went to Kwei Kuma Mensah’s family shall be held by the said branch family for its members, dead, living and unborn. In this regard, the finding by the trial Judge that because Kwei Kuma Mensah had only two children, the plaintiff and her brother being the father of the defendants and therefore could share the land is a misconstruction of the law. Consequently, the order by the trial Judge that the said portion of the Kwei Kumah Mensah family land should be divided into two among the plaintiff and defendants’ father should be set aside.

 

Additionally, counsel submitted, the trial Judge misdirected herself when she concluded that the assertion that in patrilineal society it is the males who are considered heads of family is gender discriminatory and unconstitutional.

 

On grounds (c), (d) and (e), counsel for the defendants argued that, the trial Judge failed to consider the case of the defence and counterclaim but rather determined the case on emotions and gender biases without due consideration to the merits of the case. This is because the system of inheritance of the parties who are Ga-Adangbe is patrilineal. In patrilineal systems, the heads have always been the senior-most male member of the family. In view of this, when the land was shared in 2007, the defendants’ father, Tettey Mensah was the senior-most male in that family and for that matter the head of that family and the caretaker of the family property including the land in dispute.

 

Upon his death, the 1^st defendant became the senior-most male member of the branch family and he took over the caretaker-ship of the land for the benefit of the entire family.

 

The plaintiff as a female member cannot be the head of their family in the face of the existence of male members. She only has a right and a life interest in the property the subject matter of this action. Her claim for the land to be shared is an aberration of customary law usage, counsel for the defendants submitted. This is especially so, since by Article 11 (3) of 1992 Constitution of Ghana, the Laws of the country include Customary Law; and “Customary Law” in the said Article means the rules of law which by custom are applicable to communities in Ghana. Counsel for the appellant then launched into the expose of what patrilineal and matrilineal family consist. He concluded on these grounds that, if the property is divided among two people as being suggested and or ordered by the court, the implication would be that, the plaintiff being a female member of this patrilineal society takes half of the family property of Nii Annang Nukpa and passes same over to her children who are not members of the family.

 

That position according to counsel will whittle away the family property and eventually kill the Annang Nukpa family and this is not the positon of customary law.

 

On the issue of a head of family being the senior-most male member in the patrilineal family, counsel for the defendants submitted that, the defendants’ evidence was corroborated by DW1. Secondly, that the practice is not inconsistent with any provision of the Constitution for the trial Judge to declare same void. Consequently, this finding should be set aside. Indeed, counsel submitted, by declaring that the above custom is null and void, the trial Judge assumed the jurisdiction over the interpretation of the Constitution when she concluded that, the appointment of males as head of family in patrilineal societies is gender bias and unconstitutional.

 

On ground (k) which deals with the 1^st defendant and her mother applying for Letters of Administration to administer the land measuring 119 acres, counsel for the defendants submitted that, per the inventory attached to the application for Letters of Administration, the property disclosed as belonging to their late father is land situate at Dodowa which has a face value of ¢1000. Therefore, the finding by the trial Judge that the defendants applied for Letters of Administration to administer land measuring 119 acres is clearly not supported by the evidence on record and same should be set aside.

 

On ground (i) of the appeal, counsel for the defendants submitted that, the trial Judge erred when she failed to take into consideration the circumstances under which the vesting assent was prepared and the fact that it was subsequently cancelled by the High Court upon an application by the 1^st defendant when its effect was explained to him. Besides, PW1, Annang Armah started disposing off the land he succeeded to. According to counsel for the defendants, the vesting assent was made to stop the sale by PW1. He concluded on this point that the vesting assent has since been set aside.

 

On Issue ‘G’, the ordering of defendants to render account of sale of the land, counsel for the defendants submitted that, there is no evidence on record that the latter sold land as the plaintiff did not prove this allegation in the face of the denial of that allegation by the defendants. Counsel continued that, Exhibit ‘F’ tendered by the plaintiff is not enough evidence that land has been sold by the 1^st defendant. Allowing farmers to farm on the land does not constitute sale that divests interest in the land from the family. He concluded on this ground that, there is overwhelming evidence on record that the defendants have not sold any land. The judgment is therefore against the weight of evidence on record. Counsel for the defendants invited us to reverse the judgment of the trial court and enter judgment for defendants.

 

In response to the above submissions, counsel for the plaintiff stated the respective case of the parties and the issues set down for trial at the High Court. He then submitted that from the judgment in contention, there is no indication that, the trial Judge confused the issues for determination and veered into non-issues to make her findings. Counsel continued that, after taking the issues set down for trial one by one, the trial Judge then considered whether or not the property can be shared. He argued that this is one of the issues seriously canvassed by the defendants, that the land cannot be shared. Meanwhile, 1^st defendant himself has taken part in the sharing of the 377 acres of land into three parts. He is the one who instructed the surveyor to prepare the indenture covering 119 acres which is the Kwei Kuma Mensah’s portion of the 377 acres of land in his personal name. When

 

PW1refused to sign Exhibit ‘C’ and ‘E’, 1^st defendant and Daniel Tettey Commey sued the only surviving head of family for an order directed at the defendant in that case (PW1 herein) to sign the Indenture Exhibit ‘C’ and ‘E’.

 

Counsel for the plaintiff submitted that, the defendants’ father and his uncles agreed to share Nii Annang Nukpa family land, the defendant did not challenge them that the land is family land/property and could not be shared.  He took over the portion given to his father and aunt, the plaintiff and proclaimed himself as the head of Kwei Kumah Mensah family. If the 1^st defendant is the customary successor to his deceased father, Tetteh Mensah, that does not make him an automatic Head of Kwei Kumah Mensah’s family. He cited the case of Nartey Vs. Nartey & Anor. (1962) 1 GLR 184.

 

On Ground ‘G’, the sale of land, counsel for the plaintiff submitted that, 1^st defendant in his affidavit in opposition to an application for injunction filed admitted the sale of the land. Therefore, same was proved.

 

Counsel for the plaintiff concluded that, the trial Judge did justice to all the issues and claims in this case in respect of the facts and the applicable law. He therefore invited us to affirm the judgment of the trial court.

 

In this appeal, counsel for the defendants filed as many as twelve (12) grounds of appeal including the omnibus ground that the judgment is against the weight of evidence with a rider to file Additional Grounds of Appeal upon receipt of the record of appeal. Let me put it on record that, no additional Ground of Appeal was filed.

 

Out of the 12 Grounds of Appeal, six (6) grounds are related to the sharing of the land of Nii Annang Nukpa. Two grounds relate to the appointment of males as Head of Family in a patrilineal society.

 

From the evidence on record, it is not in dispute that the ancestor of the parties Nii Annang Nukpa owed a large track of land at Saasabi near Oyibi on the Accra Dodowa raod measuring 355.93 acres. Equally, not in dispute is the fact that this land was shared among three grandchildren of Nii Annang Nukpa namely; Amar Kofi, Kwei Kumah Mensah and Commey Alokoto. It is also a fact that the plaintiff is the only surviving child of Kwei Kumah Mensah. Per the plaintiff’s writ of summons, she is seeking a declaration that, she is the proper person to take control of her father Kwei Kumah Mensah’s land after the death of her elder brother who is the defendants’ father.

 

The defendants admitted the fact that their ancestor, Nii Annang Nukpa of the parties owed a large track of land at Saasabi measured 377.784 acres. The defendants also admitted that this land was shared among three branches of Nii Annang Nukpa family.

 

The bone of contention by the defendants is that, the land being family property cannot be shared and or divided among individuals. The basis of their position is that, this idea of sharing runs contrary to customary law, specifically the customary law of the Ga-Adangbes which the parties belong.

 

From the evidence on record, the land was shared during the 3^rd generation and the original people who the land was shared among are deceased. If the land has been shared among three branches of the family, then the family character of the land is affected so to speak. In her judgment, the trial Judge held that:

 

“With the sharing of the land among the various family units within the Nii Annang Nukpa’s family, the shared land ceases to be ancestral land but now ownership and possession of the land is vested in smaller unit of the Kwei Kumah family of which the principal persons were the plaintiff and her late brother, Tettey Mensah. It is the opinion of the court that the portion granted to the plaintiff and her late brother has moved from “ancestral property” to property of the current members in the Kwei Kumah Mensah’s family. It is not the personal property of the defendants’ father Tetteh Mensah. Tetteh Mensah’s children and wife can only be entitled to the portion that is given to their late father/husband…”

 

We agree entirely with the trial Judge on the above findings and or statement. This is because, there is evidence on record that, the other two branches of the family have shared their portion among their siblings and or beneficiaries. Therefore, a precedent has been set. PW1 testified to the effect that, he is in charge of Armah Kofi’s portion of the land when the land of their ancestor Nii Annang Nukpa was shared among three branches of the family. This is what he said:

“Q: You said this land belong to Nii Annang Nukpa was shared. How was it shared?

A. It was divided into 3. Armah Kofi portion, I am in charge, Nii Kwei Kumah Mensah, the plaintiff and her deceased brother who is the brother (sic) defendant, they were in charge and Tettey Alokoto, it was Tettey Commey who also oversee such land.

Q. So you said Tettey Mensah the defendants’ father is deceased.

A. Yes my Lord.

Q. Who is supposed to take care of that land now?

A. The land was supposed to be in the hand of the plaintiff but the defendants are claiming the land from the plaintiff.

Q. You said Nii Armah Kofi portion was given to you. What did you do with it?

A. My Lord, this Samuel Tettehfio Armah who is deceased so I gave his portion to his children.

Q. What about the one which is being taken care by Daniel Tettey Commey, what is the position?

A. When I gave that portion to him, it was for him and the father’s children. We all have paternal siblings so when I give it to you, I tell you it is for you and your paternal siblings that was the message that follows when I give you the land.”

 

This piece of evidence was not challenged in cross-examination and it is deemed admitted for all intents and purposes.

 

Besides, rank within a patrilineal family is determined by relative proximity in consanguinity to the founder of the family. See the case of Yawoga Vs. Yawoga and Atutuno [1958] 3 WALR, 309 where it was held in holding (ii) that;

 

“Rank within a patrilineal family is determined by relative proximity in consanguinity to the founder of the family. The principal members of the family of a deceased person are all those surviving members of the class which is closest in consanguinity to the deceased, but so that on the death of a member of this class, his rank as a principal devolves upon his eldest child. Thus, a grandchild of a deceased person is not, in patrilineal areas, a principal member of the deceased parent, or unless he has been accorded the position of a principal by reason of his achievements or services to the family.”

 

Ollenn J. delivering the judgment of the Court had this to say:

 

“Succession in the tribe to which the plaintiff and the first defendant belong is patrilineal and it is admitted that upon the death of the said Yawoga, his family, who became entitled to the property, consisted of his children and their descendants.

 

The plaintiff admits that the 1^st defendant is the head of the said family and that the only other child of Yawoga is one Afua Yawoga. Now, according to native custom, rank among members of a family is determined by the relative proximity of a member to the founder of the family or the remotest ancestor that is remembered in the family. Therefore, children of a deceased person rank first with equal status as the principal members of the family. Next in rank are the children. Upon the death of any one of the deceased person’s children, that child’s own children step into his or her shoes (our emphasis) and the head among those grandchildren takes position among the uncles and aunts as a principal member of the family to fill the gab (our emphasis again) …”

 

From the quotation supra, principal members of a family in a patrilineal society or family consist of males and females. In that case, family land was sold and the plaintiff sought to challenge the sale on the ground that the consent and concurrent of the principal members of the family was not sought, it was held that Afua Yawoga being a principal member of the Yawoga family’s consent was sought and therefore the sale was valid and proper.

 

The case cited supra, clearly negates the defendants’ assertion that females do not inherit property in a patrilineal family. Besides, the disputed property is not the self-acquired property of the appellants’ late father for the 1^st appellant to succeed to.

 

After the sharing of Nii Annang Nukpa’s land among the three branches of his family, the share that went to the respondent and her brother, they held same as tenants in common. See Section 14 (3) of the Conveyancing Act, 1973 (NRCD 175). The Section provides that:

 

“A conveyance of an interest in land to two or more persons, except a conveyance in trust, creates an interest in common and not joint tenancy.”

 

Explaining the nature of tenancy in common, B.J. da Rocha and C.H.K. Lodoh in their Book, “Ghana Land Law and Conveyancing”, at page 267, paragraph 2, said, “Unlike joint tenants, tenants in common hold the property in undivided shares i.e. each tenant in common has a distinct share in the property which has not yet been divided among the co-tenants…”

 

The Authors continued that:

 

“When a tenant in common dies, his interest passes under his Will or intestacy. A tenant in common may also dispose of his share in the property inter vivos. The person to whom his share is disposed steps into his shoes and becomes a tenant in common with the others. Only unity of possession is essential in tenancy in common.”

 

From the authors point of view, the present state of the Law in Ghana is that where a grant of land is made to two or more persons, it is presumed to be made to them as tenants in common in equal shares unless a contrary intention is expressed in the grant. The Authors continued that:

 

“A tenancy in common may be determined by:

 

Partition;

 

Sale; and

 

The acquisition by one tenant, whether by grant or operation of law, of the shares vested in his co-tenants.”

 

See page 269 of the Book referred to supra.

 

From the Act quoted supra and the explanation offered by the Authors of the Book, “Ghana Land Law and Conveyancing”, the defendants’ father and the respondent held the disputed property as “Tenants in Common”. This is so because the sharing of the Nii Annang Nukpa’s land among the three branches of his family was done on 25^th March, 2007 after the coming into effect of the Conveyancing Act. See page 311 of the Record of Appeal, the affidavit in opposition of Robert Tettey Mensah, the 1^st defendant.

 

In the case of Adabla Vs. Kisseh [1972] 1 GLR 43; this Court, differently constituted held that, the court has power to order a partition of family land. Lassey, JA, said inter alia that “partition can be ordered (a) where it is advantageous to the whole family and (b) if the property itself is capable of being partitioned.”

 

In the words of Azu Crabbe JSC;

 

“a claim for partition of communal land is a matter for the discretion of the court and where there is a proper exercise of that discretion, the court ought not to interfere unless there is some specific customary law that forbids partitioning.”

 

This was a case where the appellants and the respondents occupied adjoining land which they owned communally for many years in harmony. As a result of some differences which grew up among some families of the two tribes, the respondents sued the appellants for partition of the communal land between them; the appellants contested that action on the grounds that the court was not competent to decree the relief sought which they contended was unknown to custom. Judgment was given in favour of the respondents and the appellants appealed to the Court of Appeal. The appeal was dismissed. In holding (2), the Court held that:

 

“There was no evidence that the custom of the locality forbade partitioning and the parties themselves had already shared the land in such a way as to facilitate partition. Communal ownership was no longer advantageous so partition was the only practicable solution. The trial Judge exercised his discretion properly.”

 

Relating the case cited supra to the case under consideration, the land of Nii Annang Nukpa was shared among three branches of his family. Two out of the three branches have shared theirs. The defendants insisted the idea of sharing land is alien to the Ga-Adangbe custom. But from the record of appeal, DW1, Elizabeth Tsotso Armah who in her evidence said a woman does not take care of a male’s property but a woman can inherit, said they grew up to know that if a woman should take care of a male’s property, the woman goes out to marry to another family and goes along with the properties into that family. Her evidence can hardly be authority that family property cannot be shared or that women do not take care of male’s property. Customary Law is a question of Law for the Court and not a question of fact. See The Courts Act, 1993 (Act 459) section 55 (1) thereof.

 

From the foregoing, the respondent’s claim for a partition of the disputed land is grounded in law i.e. the Conveyancing Act, (NRCD 175).

 

There is no merit in Grounds (f), (g), (h), (i) and (j) and they are accordingly dismissed.

 

This brings us to Grounds (b), (c), (d) and (e) of the appeal.

 

The complaint under these grounds are that, the trial Judge misdirected herself and determined the case on emotions and gender biases instead of considering the matters on their merits.

 

We have gone through the entire record of appeal and we have come to the conclusion that, the trial Judge went through the issues set down for trial and came to the right conclusions. For instance, we have already agreed with the trial Judge that if the ancestral land of Nii Annang Nukpa was shared among the three branches of family, then the land of each branch ceases to be ancestral land which cannot be shared.

 

Secondly, from the case of Yawoga Vs. Yawoga quoted supra, male and female members are considered principal members of the family that must be consulted before the disposal of family land. Therefore, the defendants’ assertion that females cannot manage family property is not supported. Thirdly, the Supreme Law of the land, the 1992 Constitution Article 17 (1), (2) and (3) thereof frowns on discrimination including discrimination based on gender. In particular, Article 17 (2) states;

 

“A person shall not be discriminated against on grounds of gender (our emphasis) race, colour, ethnic origin, creed, social or economic status.”

 

Besides, in the case of Soonboon Seo Vs. Gateway Worship Centre [2009] SCGLR 278, the Supreme Court held that, in matters of jurisdiction, matters relating to application of principles of trust and equity, every court in Ghana is court of both common law and equity. Thus, all courts must apply laws of Ghana specified in Article 11 (1) of the 1992 Constitution. Their Lordships held in holding (2) that:

 

“Whilst one may speak of the jurisdiction of a court in a cause or matter, or as to the original, appellate or supervisory jurisdiction of a court, one cannot speak of the jurisdiction of a court as to which of the laws of Ghana it has the power to apply in a cause or matter competently before it. Hence, as an example, even in the lowest court, it is expected that the provision of the 1992 Constitution be observed and adhered to (our emphasis) although there are applicable limitations as to proceedings to enforce or interpret the 1992 Constitution. Thus, although in the enforcement of an individual’s fundamental human rights and freedoms enshrined in Chapter 5 of the 1992 Constitution, Article 33 gives original jurisdiction to the High Court, it does not mean that in determining a matter before it, a district court may not apply a relevant provision of the 1992 Constitution to uphold human rights or freedoms.” (our emphasis)

 

The trial Judge was thus right when she said that “the defendants’ assertions are inconsistent with the Constitution of the Republic of Ghana and therefore to the extent of the inconsistency void.”

 

In so holding, the trial Judge was not interpreting the Constitution.

 

Grounds (b), (c), (d) and (e) of the appeal fail and they are hereby dismissed.

 

This brings us to Ground (k), the Letters of Administration.

 

The argument advanced in support of this ground is that, per the inventory attached to the Letters of Administration, the 119 acres of land situate at Saasabi is not part of the properties of the deceased Tettey Mensah. Therefore, that finding is clearly not supported by the evidence on record.

 

This argument flies in the face of the vesting assent captured at page 318 of the record of appeal as documentary evidence must be preferred to oral evidence. The law is that:

 

“It was settled law that documentary evidence should prevail over oral evidence. Thus, where documents supported one party’s case as against the other, the court should consider whether the latter party was truthful but with faulty recollection…”

 

See the case of Fosua & Adu-Poku Vs. Dufie (deceased) & Adu-Poku Mensah [2009] SCGLR 310, 311.

 

In the words of Atuguba JSC;

 

“Given the high evidential potency of documentary evidence in the eyes of the law, the trial Judge should have given cogent reasons for doubting the veracity of Exhibit 2, being the undertaking given by the late Kwaku Poku.”

 

Relating the case cited supra to the case under consideration, the said Vesting Assent talks about Nii Annang Family land and schedule ‘A’ says the land is about 337.054 acres. Secondly, the inventory at page 331 talks about land at Dodowa value Gh¢9,000.00. the land in dispute is described as being at Saasabi near Oyibi on the Dodowa road. Thirdly, the defendants in their defence acknowledged that the disputed land is Kwei Kumah Mensah’s share of the Nii Annang Nukpa Family land. Therefore, the identity of the land is not in dispute. It forms part of the property of Tettey Mensah.

 

From the foregoing, the trial Judge properly evaluated the evidence on record and came to the right conclusion. Ground (a) also fails and it is hereby dismissed.

 

The entire appeal lacks merit and it is accordingly dismissed. The judgment of the High Court together with the consequential orders are hereby affirmed.