NAI KOFI ASHIAW vs. KWAKU SAMPA & 6 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2017
NAI KOFI ASHIAW - (Plaintiff/Appellant)
KWAKU SAMPA AND 6 OTHERS - (Defendants/Respondents)

DATE:  30TH JANUARY, 2017
CIVIL APPEAL NO:  H1/46/16
JUDGES:  HONYENUGA J.A. (PRESIDING), GYAN J.A., SUURBAAREH J.A.
LAWYERS:  MR. RAPHAEL ALIJINA FOR THE PLAINTIFF/APPELLANT
MR. VICTOR YAWKSON FOR THE DEFENDANTS/RESPONDENTS
JUDGMENT

HONYENUGA, J.A.

This is an appeal filed by the plaintiff/appellant (hereinafter referred to as the plaintiff) against the judgment of the High Court, Winneba dated the 26th day of February, 2016. The said court had dismissed the plaintiff’s claim and entered judgment in favour of the defendants/respondents (hereinafter called the defendants).

 

The facts of this appeal were that the plaintiff has been the head of Yorkor family in the Awutu Traditional Area for 30years. Without notice to the plaintiff, he heard rumours that he was removed as the head of the family. As a result he caused his lawyer to write a letter to the Awutu Traditional Council to ascertain the truth. The Traditional Council through its Registrar replied to the said letter and confirmed that the plaintiff was indeed removed as head of his family. Later, the family constituted by the defendants also wrote to the plaintiff confirming his removal. The plaintiff claiming that his removal was wrongful and unlawful caused the instant writ of summons which was accompanied by a statement of claim to be issued against the defendants jointly and severally as follows:-

“(a) A declaration that he is still the validly nominated, elected and installed Head of the Yorkor family of Awutu;

(b) A declaration that his purported removal as the Head of the family is wrongful and unlawful to the extent that he was not given an opportunity to defend himself before he was purportedly removed by the sdefendants;

(c) An order of perpetual injunction restraining defendants and their assigns from further holding out 1st defendant as Head of the family and/or from in any manner interfering with plaintiff’s functions, duties, roles and privileges as Head of the family; and

(d) Cost”.

 

The defendants entered conditional appearance but later filed a statement of defence and averred that because the plaintiff was not performing his duties as the head of family he was removed on the 4th day of September, 2011. They also averred that the plaintiff was served with a letter that in his place the first defendant was appointed as the head of family.

 

An Application for Direction was agreed and taken with the following issues:

“(i) Whether or not plaintiff was lawfully removed as Head of the family;

(ii) Any other issue(s) raised by pleadings of the parties”.

 

In line with Order 32 of C.I. 47, the parties filed their written statements together with their witnesses. At the trial the plaintiff’s Attorney was cross-examined but called no witness.

However, the 1st defendant testified on behalf of the defendants and was cross-examined.

The defendants called one witness.

 

Upon hearing the parties and their witnesses, the learned trial judge on the 26th day of February, 2016 delivered judgment, dismissed the plaintiff’s case and entered judgment for the defendants although they filed no counter-claim. The judge also awarded cost of GH¢10,000.00 in favour of the defendants against the plaintiff.

 

Aggrieved by the judgment of the trial judge, the plaintiff on the 29th day of February, 2016 filed the instant appeal based on the following grounds:-

“(a) The judgment is against the weight of the evidence;

(b) The trial judge erred in making of fact that plaintiff/appellant was properly or lawfully removed as Head of family;

(c) The trial judge erred in awarding excessive cost against plaintiff/appellant; and

(d) Additional appeal ground(s) may be filed upon receipt of appeal record”.

 

It is noted that no additional grounds were filed and they are considered abandoned.

 

Learned counsel for the plaintiff argued the three grounds of appeal together because he thought that they were closely related and involve the application of a common set of facts and the relevant law. Learned counsel referred to Djin v Musa Baako [2007-2008] SCGLR 686 and Tuakwa v Bosom [2001-2002] SCGLR 61 at 65 whose effect is that an appellant has the singular duty to embark upon ad execute a meticulous legal marathon race of running the appellate court through the entire appeal record while pointing out errors in the judgment at every material turn of the race. If the appellant is able to execute his legal marathon task as required of him, the duty is then placed on the appellate court to thoroughly scrutinize the record in coming to its decision either to affirm or to set aside the impugned judgment. Counsel referred to the sole issue set down for trial but on page 94 of the record of appeal, the trial judge wrongly stated that two issues were set down for trial. Counsel contended that at page 94 of the judgment, the trial judge abandoned these issues and somehow strongly propounded his own third issue to help him misapply the evidence on record. Counsel referred to page 94 of the record of appeal with a quotation, and contended that the trial judge seems to suggest that the defendants pleaded in their defence that they invited the plaintiff but he failed to appear before the defendants to answer the charges. Counsel further contended that from the pleadings, it was not the case that it was the defendants that invited the plaintiff and he was removed as head of family when he failed to appear to answer charges before the defendants. Counsel referred to paragraph 7 of Exhibit ‘I’ at page 49 of the record of appeal which is the same as Exhibit ‘C’ on page 35 of the record of appeal where the defendants stated that they allegedly sent for the plaintiff but they could not find him. He also referred to page 82 of the record of appeal where the 1st defendant testified and was under cross-examined. He also referred to the cross-examination of DW1 at page 85 of the record of appeal. Counsel contended that from the cross-examination, there is no doubt that the plaintiff was not at the meetings that purportedly removed him as head of the family. Counsel quoted from page 95 of the record of appeal being part of the trial judge’s judgment which supported his contention.

 

However, the learned trial judge on page 96 of the record of appeal misapplied the evidence of the 1st defendant. He stated that instead of the learned trial judge rejecting the evidence of the witness, he rather praised him for being truthful. Counsel stated that that evidence was hearsay evidence which was contrary to section 117 and 116 of NRCD 323.

 

Likewise the 1st defendant’s allegation that some of the elders told him that the plaintiff was notified of the meeting was a hearsay statement as he stated that he was not present at the meeting. Counsel stated that the holding of the trial judge that that evidence constitutes the evidence of 1st defendant elders ought to pass the tests of credibility and admissibility to sustain their case. Counsel referred to Zabrama v Segbedzi [1991] 2 GLR 221 and Nortey (No.2) v African Institute of Journalism and Communication & Ors. (No.2) [2013-2014] 1 SCGLR 703 and submitted that the defendants did not lead credible evidence to have called the trial court into action. Counsel contended that inferences and findings of fact of a trial judge must find expression on the evidence on record and cited Koglex Ltd. (No.2) v Field [2000] SCGLR 175 in support. He referred to page 7 of the judgment and stated that the inference of the trial judge cannot be supported by the evidence on record. Counsel also submits that a question asked of a witness under cross-examination is not evidence to support a finding of fact and cited Republic v Ben Okeke 3 Others [2009] 25 MLRG 145 in support. Counsel submitted that the trial judge was wrong in drawing inference from the question posted by counsel for the plaintiff in cross-examination in arriving at the finding of fact. Counsel further referred to page 8 of the judgment and submitted that the trial judge’s finding could not be supported because he believed that the plaintiff was invited by the defendants to attend the meeting. He also referred to Exhibit ‘I’ the letter from the plaintiff’s lawyer to ascertain his removal and the reply from the Registrar of the Traditional Council Exhibit ‘C’ which informed the plaintiff about the meeting and those present which contradict the trial judge’s findings. He stated that in resolving the actual issue of lawful or unlawful removal the trial judge was called upon to find out if the plaintiff was given an opportunity to be heard before he was removed from his post. Counsel referred to page 4 of the judgment where the trial judge correctly stated the law and also that the trial judge found that the plaintiff was not at the meeting that purportedly removed him as head of the family which supported paragraph 7 of Exhibit I. Counsel submitted that from the evidence of the 1st defendant and DW1, there is no doubt that the plaintiff was not invited to attend a meeting. He referred to page 8 of the judgment found on page 99 of the record of appeal where the trial judge found that even if the plaintiff was invited, the invitation was at short notice and submits that this would not be a proper notice in law to justify his removal. He referred to the evidence of DW1 in cross-examination at page 86 of the record of appeal. Counsel contended that giving opportunity for the plaintiff to answer the charges means giving him reasonable time to prepare and appear with his lawyer if he so desired to defend himself. He cited Republic v Ghana Railway Corporation; Ex parte Appiah [1981] 1 GLR 752 in support. Counsel also referred to page 98 of the record of appeal and submits that giving short notice to the plaintiff and arriving after the meeting was over meant he could not be heard as he complained. Counsel says this would also mean that the trial judge was substituting a case for the plaintiff and that it meant his lack of appreciation of the principles of natural justice. Counsel cited Koglex Ltd. (No.2) v Field (No.2) (supra) with the effect that the trial judge cited the wrong principles of law. On the issue of adequate notice if any at all would only be one of the factors for the trial judge to consider in determining whether the plaintiff was given an opportunity to defend himself. Counsel stated that the defendants did not lead evidence on the nature of the alleged invitation and led no evidence on whether the appellant was informed of any charges he was to face. He contended that merely informing the plaintiff of a meeting without giving him the charges would not be in line with the fairness and reasonableness. He cited Awuni v West African Examination Councial [2003-2004] 1 SCGLR 471, Halsbury’s Laws of England (4th Edition) to support his contention. Counsel also cited Mosi v Bagyina [1963] 1 GLR 337; at 347 to the effect that taking a decision affecting a person without giving him an opportunity to defend himself was void as it was in breach of his right to be heard.

 

Finally, counsel for the plaintiff submitted that the finding of fact that the plaintiff was lawfully removed as head of the family is unjustified and cannot be supported by the record. Counsel cited Komey v Onanka [1962] GLR 52 at page 53 by Ollenu J (as he then was) and submitted that the 1st defendant’s purported installation as head of family is unlawful but also that there cannot be two persons acting as head of one family at one point in time. Counsel prays that the judgment of the trial court be reversed and the appeal allowed.

 

Learned counsel for the defendants on the other hand stated that an appeal is by way of rehearing and cited the dictum of Lord Wright in Davies v Powell Duffryn Associated Colleries Ltd. (No.2) [1942] AC 601 at 616-6117 H.L. in support of his contention. Learned counsel identified two questions in this appeal namely:-

1. Whether the plaintiff was properly or lawfully removed as Head of Family; and

2. Whether the 1st defendant had validly been installed as the Ebusuapanyin of Awutu Yorkor family.

 

Counsel stated that the plaintiff had not questioned his removal and had not presided over any function as head of family until he brought the present action.

 

Counsel stated the facts of the case and further stated the case for both parties including DW1. Learned counsel for the defendants contended that where a party’s testimony stands unchallenged, it is the duty of the court to accept it and enter judgment in favour of the party whose testimony is unchallenged and unrebutted. Counsel cited Seidu v Agricultural Development Bank [1992] 1 GLR 5360549 and the dictum of Siriboe JSC in Asante v Bogyabi [1966] GLR 232 SC at 240 in support of the evidence of DW1 that the plaintiff failed to attend the meeting as he had always done. According to counsel, the plaintiff neither failed to challenge that statement in cross-examination nor led evidence to rebut same. Counsel contended that since the plaintiff failed to appear to answer any charges against him, the family cannot wait in perpetuity and were right in to go on with their customary function. Counsel therefore further contended that where a party is given opportunity to lead evidence in support of his stand or in defence of allegation against him but deliberately declines to avail himself of that opportunity the court will bill entitled to proceed with the trial to conclusion and make deductions, draw conclusions or make findings of fact on the basis of the evidence adduced at the trial. He cited Re West Coast Dyeing Industry Ltd; Adams Tando [1984-86] GLR 561 CA in support.

 

Counsel stated if the plaintiff had indeed performed his duties as the head of family, he would have been present or known of the exercise being carried out and therefore the plaintiff’s evidence that he did not know of the exercise is not tenable. Further, he stated that the plaintiff’s testimony that he was not invited and informed of any charges is equally not tenable. Counsel then referred to the customary procedure for the appointment and removal of a head of family or a successor as stated in In re Estate of Kwabena Appianin (Decd); Frimpong v Anane [1965] GLR 354 SC. Counsel recounted the events which led to the appointment of head of family and the role he is playing as the new family head without challenge. Counsel referred to section 26 of NRCD 323, for the plaintiff has not questioned or challenged the 1st defendant for performing the functions of Ebusuapanyin.

 

Now, learned counsel for the plaintiff indicated in his written submissions that he had argued the three grounds of appeal together. The grounds of appeal are that: (a) The judgment is against the weight of the evidence, (b) The trial judge erred in making [a finding] of fact that plaintiff/appellant was properly or lawfully removed as Head of Family and (c) The trial judge erred in awarding excessive cost against plaintiff/appellant. A perusal of the grounds of appeal argued by the learned counsel for the defendants revealed that he argued grounds (a) and (b), but not ground (c). In the circumstances, ground (c) would be considered abandoned as having not been argued. I would therefore consider grounds (a) and (b) as the grounds of appeal as argued in my judgment. The position of the law is that when an appellant complains that the judgment is against the weight of evidence, it is incumbent upon him to point out the weaknesses in the judgment by demonstrating that there were certain pieces of evidence on record if applied in his favour could have changed the decision in his favour or that certain pieces of evidence were wrongly applied against him in the lower court. See Abbey & Ors. v Antwi [2010] SCLR 17 where the Supreme Court held that an appellant who complains that the judgment is against the weight of evidence must either point out the weaknesses in the judgment by demonstrating that there were certain pieces of evidence on record, which if applied in his favour, could have changed the decision in his favour or certain pieces of evidence have been wrongly applied against him. After the appellant satisfied the appellate court as stated in the decision in Abbey & Ors. v Antwi, (supra) then it would be incumbent upon the appellate court to entertain the appeal as by way of rehearing and would be enjoined to review the whole record of appeal and decide whether the conclusions reached by the trial court are supportable. In Djin v Musa Baako [2007-2008] SCLGR 686 where the Supreme Court made the position succinctly clear and held that when a judgment is challenged on the ground that it is against the weight of evidence, then the appeal is by way of rehearing and the appellate court is enjoined to review the record and decide for itself whether the conclusions reached by the trial court are supportable. See also Tuakwa v Bosom [2001-2002] SCGLR 61 at page 65.

 

In this appeal, I would look out for any pieces of evidence which had been wrongly applied against the plaintiff and also to treat the appeal as by way of rehearing, review the evidence on record and decide whether the conclusion reached by the trial court are supportable.

 

Before I proceed, I would deal with a matter of the critical issue raised by the learned trial judge disregarding the issue(s) set down for trial in the application for directions stage.

 

The law is that an appellate court would be slow to set aside a decision given by a trial court where the key complaint is in respect of its conduct of the application for direction, short of a miscarriage of justice. In Armah v Hydrafoam Estates (Gh) Ltd. [2013-2014] 2 SCGLR 1551 Holding (1), the Supreme Court delivered itself as follows:-

“(1) At the summons for directions, the trial judge is required to identify the core issue(s) for trial. He does this with the aid of the lawyers but he/she takes sole responsibility for whatever decision he/she takes. The judge is required to examine the pleadings carefully and to determine what issue(s) would completely determine the case before him/her. In the course of doing this, it is legitimate to set down one issue only for trial if that issue is identified as the real issue or often called the ultimate issue. And, if in the course of determining the ultimate issue or where there are two or more issues initially set down for trial, other ancillary or collateral matters arise, the party is entitled to apply and the trial judge is empowered to amend the issue(s) by adding to it/them; and in general, to vary the original order(s) at any time before judgment. That flexibility is permitted by virtue of rule 9(2) of Order 32 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), in view of the fact that summons for directions is largely a case management tool; and as such, it should hardly, if ever, be used to upset a court’s decision on the merits, unless it has resulted in a miscarriage of justice. ….

This is just to indicate that an appellate court should be rather slow to set aside a decision given by a trial court where the key complaint is in respect of its conduct of the summons for directions, short of a miscarriage of justice”.

 

Further, the Supreme Court in Nyamah v Amponsah [2009] SCGLR 361 had earlier held in holding (1) that it is the duty of the trial court to make pronouncement in the reliefs that a party seeks. Therefore the trial court is to ensure that the issue it sets down for determination would aid it in making justifiable decisions on the reliefs sought.

 

Counsel for the plaintiff’s complaint was that the learned trial court had abandoned the only issue set down during the application for directions, added a second issue not agreed upon and formulated a third issue which he called the most critical and crucial issue in order to misapply the evidence. The issue set down for hearing in the application for directions under Order 32 of C.I. 47 was:-

“(a) Whether or not plaintiff was lawfully removed as Head of Family.

(b) Any other issue(s) raised by the pleadings”.

 

However, in recording the issues as set down for hearing during the application for directions, the trial judge rather wrongly stated them in his judgment as:-

“(1) Whether or not plaintiff was lawfully removed as Head of Awutu Yorkor family.

(2) Whether or not the 1st defendant had validly been installed as the Ebusuapanyin of Awutu Yorkor family”.

 

The critical issue as the trial judge called it which he thought could aid him to dispose or make a justifiable decision was stated at page 95 of the record of appeal as follows:-

 

“AS TO WHETHER OR NOR (SIC) THE PLAINTIFF WAS INVITED BY THE DEFENDANTS TO ANSWER DESTOOLABLE CHARGES PREFERRED AGAINST

THE PLAINTIFF ON THE 4TH DAY OF SEPTEMBER, 2011 AT THE FAMILY HOUSE AT AWUTU BREKU”.

 

It is my considered opinion arising from the decisions of the Supreme Court as stated supra that it is within the domain of the trial judge to identify the real issue or the ultimate issue which will ensure that the issue set down for determination would aid him in making a justifiable decision. In this instance, what should be considered is whether the issue the trial judge set down had aided him in coming to the decision that he arrived at so long as this did not result in a miscarriage of justice. A perusal of the main or critical issue set down by the trial court reveal that it did not help him arrive at a justifiable decision. I think that if the trial judge had restricted himself to the only issue agreed upon at the application for directions stage, it would have aided him to resolve the issue(s) in this appeal. I would therefore formulate the main issue as:

 

“Whether or not the plaintiff had been lawfully removed as head of the family”.

 

The learned trial judge concluded that:-

“From the analysis made supra, I am of the considered opinion that the plaintiff was invited by his elders to answer the destoolable charges but at the time of the meeting plaintiff was not present”.

 

Could the finding and or conclusion of the trial judge be supported by the evidence on record? It is trite that the findings of a trial court ought not to be set aside unless they were unsupported. See Re Okine (Decd) Dodoo & Ors. Okine & Ors. [2003-2004] 1 SCGLR 582 Holding (1). What was the evidence adduced by the parties? The plaintiff’s attorney who also tendered the witness statement tendered Exhibit ‘A’ the Power of Attorney, Exhibit ‘B’ the letter from the lawyer of the plaintiff to the Awutu Traditional Council on information as to the headship of the Yorkor family, Exhibit ‘C’, the reply from the Registrar of the Awutu Traditional council and Exhibit ‘D’ the letter of destoolment of the plaintiff by the defendants. A reference to the plaintiff’s witness statement revealed that the plaintiff was unaware that he was removed as the head of the family he had headed for over thirty years until he received the letter from the Registrar of the Traditional Council. He stated that no notice was given him to attend a meeting nor were any charges preferred against him. He stated that on the 4th September 2011, he was at the family house but nobody invited him to any meeting. In cross-examination, the plaintiff’s case was intact.

 

The 1st defendant gave evidence on behalf of the defendants after filing his witness statement. He stated that the plaintiff was the head of family for thirty years but he was later on 4th September 2011, made the Head of family after the plaintiff was destooled. He tendered Exhibit ‘I’ the destoolment letter. He stated that the plaintiff failed to perform his duties and so destooled with customary rites performed for him to become the head of family. He was also introduced to the Awutu Traditional Council and was received by the Omanhene and his Chiefs and recognized as the new head of the family. He also stated he performed all the customary rites expected of the head of Yorkor family. In cross-examination, he admitted that he was not present when the plaintiff was removed as the head of family and that he did not take part in it. He testified that he was not present and therefore cannot know whether the plaintiff attended the meeting. He admitted that Exhibit ‘I’, paragraph 7 indicate that the plaintiff was not at the meeting.

 

The DW1 knows the 1st – 6th defendants and tendered his witness statement. He stated in his witness statement that the plaintiff was destooled on 4th September 2011. He stated further that the plaintiff had failed to perform his functions. He stated that the family consisting of the three gates including himself met at the family house and the plaintiff was summoned to appear before the family to answer charges of his misconduct to the family but he failed to attend. He listed the charges which were read out to the family and destoolment processes were followed and plaintiff was destooled. The 1st defendant was then appointed as the new head and he has since been performing his duties as such. In cross-examination, he admitted that the plaintiff was not present at the meeting. He also testified that the plaintiff was invited on the day the meeting was held. When asked who invited the plaintiff to the meeting, he said it was the elders who invited him. When asked that the plaintiff did not appear at the meeting because he did not get the message, he answered that he could not tell.

 

The law on the procedure for convening a family meeting for election or deposition of a head of family was stated in In Re Estate of Kwabena Appianim (Decd); Frimpong v Anane [1965] GLR 354 SC. The facts were that the plaintiff applied for letters of administration, claiming to be the newly elected successor to the estate of one Appianin, deceased. He claimed that the successor to this estate previously elected by the family had been deposed for misconduct, at a family meeting convened to consider complaints which the family had against him and that the plaintiff had been appointed to replace him. The defendant who was the previous successor and head of family denied that he attended any such family meeting. However, the plaintiff’s story that the defendant attended the meeting but left soon after his deposition was preferred by the trial judge who granted the plaintiff the letters of administration he sought. From this judgment, the defendant appealed to the Supreme Court. It was held, dismissing the appeal that:-

 

“In matters such as the appointment and removal of a head of family which are of vital importance to a family, all the principal members of the family are entitled to a hearing, and opportunity should be given to all of them so that those of them who wish to be heard can exercise their right. This means that notice of the proposed meeting and the gist of the purpose of the meeting should be given to all the principal members. On the evidence in this case, the trial judge was right in his finding that a family meeting with the above requirements had been convened and that it had properly deposed the defendant as successor and head of family and appointed the plaintiff in his stead. Lartey v Mensah [1958] 2 WALR 410 and Abakah v Ambradu [1963] 1 GLR 456, SC applied”.

 

It was also stated in the above Supreme Court judgment that if members are informed that a meeting is being convened to inquire into the conduct of the head, it is implied that if complaints made against the head are substantiated at the meeting, the natural resulting step is his deposition, followed by the appointment of another head to take his place. Indeed it will be most unreasonable that a meeting is being convened specifically to depose a head when no investigations have been held into any charges or allegation made against him. To do so is to prejudge the issue, condemning a man before he was heard. Further it is noted that the deposed head of family was present to defend himself. It was after his deposition that he left and a new head of family was appointed.

 

Moreover, it is trite that a person cannot be found guilty or liable by an order or judgment unless he had been given fair notice of the trial or proceeding to enable him appear and defend himself. See In re Kumi (Decd); Kumi v Nartey [2007-2008] 1 SCGLR 623, Holding one. It is therefore important to state that a deposition of a Head of family or a Chief is often a contentious issue and must necessarily comply with the rules of natural justice. The deposition cannot be valid if the investigation or the trial or the meeting breaches the rules of natural justice. Furthermore, the Supreme Court in Pobee Tufuhene Elect of Apam v Yogoo [2013-2014] 1 SCGLR 208 Holding (1) succinctly stated the position of the law that:

 

“(1) … to deny a party the opportunity to prove his case in the circumstances of the instant case, offended the basic rules of natural justice. Thus the denial of the defendant-appellant of that basic right had the effect of invalidating the decision of the Judicial Committee; and indeed the proceedings on which it was founded. Republic v High Court, Accra, Ex parte Osafo [2011] 2 SCGLR 966; Republic v High Court, Accra, Ex parte Salloum (Senyo Coker Interested Party) [2011] 1 SCGLR 574 at 585; and Republic v High Court, Accra, Ex parte Okaidja III (Ayi Bonte II Interested Party), Supreme Court, CN JS/3/2013, 13 November 2012 unreported cited”.

 

Indeed a breach of the audi alteram partem rule constitutes a serious fundamental error and had the effect of invalidating a decision in a denial of the constitutional right to be heard and to defend oneself in proceedings.

 

 

In the instant appeal, the plaintiff in paragraph 4 of the statement of claim pleaded that the plaintiff’s right to be notified of the meeting, charges preferred against him and to prepare to defend himself were denied him as follows:-

 

“4. Plaintiff contends that his purported removal as the Head of family was wrongful and unlawful because he was not served with any charges to answer; he was not notified of any misconduct on his part; he was not notified of any pending proceedings before any person or body; and he was not given an opportunity to defend himself before he was purportedly removed as the Head of the family”.

 

In his witness statement, the plaintiff’s attorney stated in paragraph 5 as follows:-

 

“Last year I had information within the family that Nai Kofi Ashiaw was removed as abusuapanyin. I then told him that I had information that he was removed as Abusuapanyin. When he heard the news he looked worried. He did not understand why somebody would want to remove him as abusuapanyin. He did not also know who would want to remove him as abusuapanyin. He was not summoned before elders of the family for doing anything wrong”.

 

Exhibits ‘B’, ‘C’ and ‘D’ to support his case. The defendants in paragraph 6 of their statement of defence pleaded that:-

 

“Defendants aver that for many years plaintiff fail to perform the said duties as a result of which plaintiff was removed as ebusuapanyin on the 4th day of September 2011 and immediately served a letter to that effect”.

 

The 1st defendant who filed his witness statement for and on behalf of the defendants repeated this paragraph 3 and tendered Exhibit ‘I’. DW1 stated in paragraph 4 of his witness statement that the plaintiff was summoned to appear before the 3 gates including himself met at the family house and the plaintiff was summoned to appear to answer charges of his misconduct but he failed to attend. DW1 stated clearly that after the list charges were read to the family and the plaintiff was destooled with the performance of customary rites. Exhibit ‘I’ tendered by the 1st defendant reveals that the plaintiff was not notified of the meeting and did not also attend the meeting, for it stated:-

 

“7. That he was sent for on Sunday 4th September, 2011 at the family’s final gathering to come and explain to the entire family his negative actions but he was nowhere to be found”.

 

Exhibit ‘I’ contradicts the evidence of both the 1st defendant and DW1 that the plaintiff was notified but did not attend the meeting to depose him. In cross-examination, the 1st defendant at pages 82, 84 and 85 of the record of appeal stated as follows:-

“Q. Were you present at the meeting?

A. No.

Q. The meeting that took place on 4th September 2011, the plaintiff had no notice.

A. I can’t tell. The kingmakers (sic) can tell.

Q. Put to you that the plaintiff had no notice of you allege destoolment as Head of family.

A. He had notice”.

 

It is interesting that the 1st defendant was inconsistent in answering questions relating to notice to the plaintiff. DW1 on the other hand contradicted the 1st defendant that the plaintiff was notified in cross-examination as follows:-

“Q. At the meeting the plaintiff was not present.

A. Yes.

Q. He was not present because he was not aware of the meeting.

A. No, he was invited the day the meeting was held.

Q. Were you the one who inform the plaintiff of the meeting.

A. No, it was the elders.

Q. On the day in question when the meeting was held and the plaintiff was sent for. He was not able to appear because he did not get the message.

A. I can’t tell.

Q. The plaintiff was to be informed of this charges at the meeting.

A. Yes”.

 

Indeed the trial judge rightly made a finding at page 95 of the record of appeal that the plaintiff was not present at the meeting to remove him as follows:-

 

“It not (sic) that the plaintiff was not present at this said meeting which the defendants claimed to have removed the plaintiff as Abusuapanin. All the parties in this suit do agree that on that fateful day i.e. 4th September, 2011 and at the family house at Awutu Breku the plaintiff was not present when the defendants proceeded with the proceedings and announced the removal of the plaintiff as Abusuapanin”

 

Exhibit ‘I’ exposed the defendants and DW1 as untruthful witnesses. It is also to be noted that although both the 1st defendant and DW1 stated that the plaintiff was notified to attend the meeting, both relied on the elders as those who served the plaintiff with the notice. For instance at page 86 of the record of appeal, the DW1 stated his in cross-examination as follows:-

“Q. Were you (sic) the one who inform the plaintiff of the meeting?

A. No, it was the elders”.

 

At page 96 of the record of appeal, the learned trial judge wrongly observed in his judgment thus:-

 

“The 1st defendant led evidence on his behalf and on behalf of all the other 6 defendants. In both his evidence in chief and cross-examination he was emphatic that the plaintiff had notice of the said meeting. The 1st defendant was however very truthful when he admitted under cross-examination that he was not personally present at the meeting which the defendants claimed to have destooled plaintiff. He however said that as for the sort of notice that was given to the plaintiff, his elders can tell”.

 

Further, the learned trial judge wrongly made a finding at the same page 96 of the record of appeal that:-

 

“To ascertain the evidence of the 1st defendant elders about the sort of invitation that was extended to plaintiff we must refer to the evidence of the 1st defendant elders who are parties to the suit. Where therefore on the evidence of these elders? Since the 1st defendant gave evidence on his behalf and on behalf of these said elders, the evidence of the said elders is the evidence which was given by the 1st defendant on their behalf. The evidence that was perceived by the 1st defendant is that he was not present at the said meeting however the evidence which the 1st defendant gave on behalf of his elders that is the other defendants is that the plaintiff was given Notice of the meeting”.

 

The trial judge was utmostly wrong to have come to this conclusion by the finding that he made since the evidence of both the 1st defendant and DW1 fell within the ambit of hearsay evidence contrary to section 117 of NRCD 323.

 

In this instance, it was not sufficient for the defendants and DW1 to repeat their allegations when the plaintiff had denied any notice to him and therefore the burden shifted on to them to prove the particular elder who notified the plaintiff of the meeting. In any case, the defendants are all elders of the family and it was incumbent to have called or stated the particular elder to testify in prove of their allegation. It is not credible or realistic that all the elders informed the plaintiff of the meeting. The defendants failed to lead credible evidence as required by law. See Nortey (No.2) v African Institute of Journalism and Communications & Ors. (No.2) [2013-2014] 1 SCGLR 703. See also Zabrama v Segbedzi [1991] 2 GLR 221 CA. It is clear that the plaintiff was not given notice nor was he given his right to be heard. It is therefore my finding that the defendants failed to neither lead any credible evidence nor prove that the plaintiff was given notice of the meeting but failed to attend to be heard in answer to charges levelled against him. The learned trial judge’s findings are therefore unsupportable. The acts of the defendants thus breached the plaintiff’s constitutional right to be heard and the breach of the audi alteram partem rule.

 

Moreover, an appellate court must not interfere with the findings of fact made by a trial court, unless the finding of fact were wholly wrong and unsupportable by the evidence. In Amoah v Lokko & Alfred Quartey [2011] SCGLR 505, where the Supreme Court held that:-

 

“The appellate court can interfere with the findings of the trial court if they were wrong because (a) the court had taken into account matters which were irrelevant in law; (b) the court had excluded matters which were critically necessary for consideration; (c) the court had come to a conclusion which no court properly instructing itself would have reached and (d) the court’s finding were not proper inferences drawn from the facts”

 

See also In Re Okine (Decd) and Another v Okine & others (supra). In this appeal, the trial judge further at page 98 of the record of appeal stated as follows:-

“I now consider the question put to DW1 under cross-examination on the 10th December 2015.

 

Q. You invited the plaintiff while you were at the meeting.

A. He was invited the day the meeting was held.

 

The import of the question which counsel for the plaintiff put to PW1 is that the plaintiff was invited but perhaps not timely but a time when the meeting was being held.

 

The answer given by DW1 suggests almost the same thing. The inference I draw from the question the plaintiff put to DW1 is that the plaintiff was really invited but not timely”.

 

The trial judge’s inference cannot be supported by the evidence on record because counsel for the plaintiff put the question to the witness as contained in his witness statement. In paragraph 7 of Exhibit ‘I’, tendered by the defendant it was stated that the plaintiff was sent for but he was nowhere to be found and it meant that the message did not reach the plaintiff. It was then that counsel sought to test the allegation in DW1’s evidence-in-chief that the message was sent to the plaintiff.

 

It is trite that a question asked of a witness under cross-examination is not evidence which supports a finding of fact. In Republic v Ben Okeke & 3 Others [2012] 25 SCGLR 1105 at page 1120, the Supreme Court held among others thus:-

 

“A suggestion made during cross-examination does not constitute evidence and the judge is not obliged to direct the matter to the jury for consideration. Kugblenu v The Republic [1969] CC 160 CA”.

 

It is therefore my finding that the trial judge was wrong in drawing inference from a question posed by counsel in cross-examination in arriving at the finding of fact that the plaintiff was invited by the invitation at short notice. Moreover, the trial judge sought to capitalize on an averment by the plaintiff in his witness statement that he was in the family house on 4/9/2011 when he stated at page 99 of the record of appeal as follows:-

 

“No family member needs any special permission before going to the family house but in my view the plaintiff’s presence at the family house in the 4/9/2011 was not incidental. Plaintiff had pleaded that on that very day i.e. 4/9/2011 but not on the invitation of anybody is an afterthought. In my opinion the plaintiff went to the family house on the 4/9/2011 on the invitation of the elders but as I said early (sic) perhaps due to short notice at the time he got there when the meeting of his elders which removed the plaintiff was over. Plaintiff had not pleaded short notice of his invitation which could have availed him from the predicament he is now facing”.

 

The conclusion or finding of the trial judge is unsupported by the evidence on record. The trial judge’s conclusion that the plaintiff was at the family house at short notice but the meeting was over is mere conjecture. He even contradicted himself when he stated that no member of the family need an invitation to be in the family house. On the contrary, a perusal of the plaintiff’s witness statement revealed that in paragraph 9 of witness statement he stated that:-

 

“on the 4th day of September 2011, Nai Kofi Ashiaw was at the family house at Awutu Bereku but he was not invited by anybody. He did not receive any document from anybody that he was removed as abusuapanyin. Until he got the letter from the Registrar, he was not informed of any charges against him before he head (sic) that he was removed as abusuapanyin”.

 

It was clear that from the plaintiff’s witness statement above, that he meant that although he visited the family house, it was not on the invitation by anybody. It is on record that the plaintiff had to instruct his lawyer to write Exhibit ‘B’ to the Registrar of the Traditional Council who also replied in Exhibit ‘C’ before the plaintiff got to know that he was removed as the head of family. Exhibit ‘I’ from the family written after the meeting, informed the plaintiff that he was removed. It was thus clear that the trial judge’s finding and inferences were unsupported by the evidence on record and therefore wrong.

 

Furthermore, it is on record that the defendants did not lead evidence on the nature of the alleged invitation to the plaintiff and no evidence was led to indicate that the plaintiff was informed of the charges he was to face to enable him defend himself. Merely informing the plaintiff of a meeting if I were to go by the trial judge’s finding without giving him the charges he was to face would infringe the natural right principle of fairness and reasonableness. In Awuni v West African Examination Council [2003-2004] 1 SCGLR 471 at 489, the Supreme Court held that:-

 

“The phrase “to act fairly and reasonably” in my opinion necessarily imports a duty to observe the common law maxim of audi alteram partem and other principle of natural justice which is very much part of our jurisprudence and are implicit in the constitutional provisions in Article 23. Because I cannot contemplate how a person could be said to have acted fairly and reasonably if he did not give either notice or hearing to another who was entitled to such notice or hearing before taking a decision which adversely affects his rights, neither can I contemplate a situation where a person could be said to have acted fairly and reasonably if he acted as a judge in his own cause or gave a biased and perverse decision”.

 

In the instant appeal, the plaintiff was neither given notice of the meeting to remove him as the head of family to enable him prepare to defend himself nor was he given a hearing before he was removed as head of family. This is contrary to the plaintiff’s right to be given notice, to be given charges he was to face and to prepare to defend himself. The defendants actions in removing the plaintiff breached the principles of natural justice. It is therefore my finding and holding that the conclusions and findings of the trial judge were wholly unsupportable and that the purported removal of the plaintiff is wrong and unlawful.

 

Moreover, I reject the submission of counsel for the defendants that since there is evidence that the plaintiff did not challenge DW1’s testimony that the plaintiff failed to attend the meeting as he had always done, the trial court was right in accepting the evidence as unchallenged and unrebutted. It is my considered opinion that this reasoning is utmostly wrong because the fact that the plaintiff did not attend earlier invitations did not mean that he ought not to be invited to face and defend charges preferred against him before he was removed. As earlier stated this would be in breach of the rules of natural justice to be heard and fair hearing.

 

Finally, I would uphold the submission of counsel for the plaintiff that the removal of the plaintiff as head of the family is unjustified and cannot be supported by the evidence on record. Since the purported meeting of the family was held without notice to the plaintiff as required by law to remove him, any purported appointment of the 1st defendant as the new head of family is unjustifiable and unlawful. This meant that since the plaintiff is the substantive head of family and has not been removed any purported installation of another is void ab initio. See Komey v Onanka [1962] GLR 52 at page 53 where Ollenu J. held clearly that:-

 

“So long as the substantive holder of an office has not been removed, has not resigned or abdicated or died, the office cannot be vacant, and any purported installation of another person into that office is void ab initio”.

 

In the instant appeal therefore, the purported removal of the plaintiff is unlawful and unjustifiable.

 

The learned trial judge entered judgment for the defendants on a non-existent counter claim and observed as follows:-

 

“Out of practice most of our courts decision always refused to enter judgment for defendant who has not counter-claimed if the plaintiff loses the action. I think that is the wrong position of the law because in every action there should a winner and a loser. Once the plaintiff has lost the action, the defendants had won even though they have not counter claimed. The said judgment the defendant receives when plaintiff lose his case but the defendants had not counter-claim is called nominal judgment”.

 

The trial judge cited Duagbor v Akyea Djamson [1984-86] CA and Banka v Djane [1989-90] GLR 510, CA in support of his contention. I must state that the trial judge wrongly stated the principle whereby a defendant could be granted a counterclaim although none was filed. Further, the Court of Appeal’s decisions in Duagbor & Ors. v Djanie & Anor. cited by the trial judge to justify his granting to the defendants is also utmostly wrong. In Duagbor v Djamson (supra), the plaintiff failed to lead satisfactory evidence on his claim of declaration of title among others but because the co-defendant counter-claimed judgment was entered for the co-defendant as against the plaintiff. Banga v Djanie was a case in which the plaintiff in a land matter could not establish his claim but relied on the weakness of the defendants’ case and his claim was dismissed even on appeal. It is thus clear that the trial judge cited the wrong authorities to back his wrong principle of law. The correct principle of law which the trial judge wanted to state was that a court may proceed to grant the defendant judgment on his counterclaim even if he did not expressly apply for it. See Hanna Assi (No.2) v Gihoc Refrigeration & Household Products Ltd. (No.2) [2007-2008] 1 SCGLR 16. In Holding (1) the Supreme Court held that:-

 

“(1) …. In the instant case, the majority of the ordinary bench erred in affirming the decision of the Court of Appeal which had held that in the absence of a counterclaim, the trial court had no jurisdiction to grant the reliefs of declaration of title and recovery of possession of the disputed property to the defendant i.e. the applicant. Those reliefs were clearly established on the evidence. In such a situation, the essential consideration was whether there was surprise or unjust denial of opportunity to meet the matter concerned. In the absence of such unsatisfactory features, it would be unjust to allow the majority decision to stand. Gihoc Refrigeration & Houseold Products Ltd. v Hanna Assi [2005-2006] SCGLR 458 varied. Tsatsu Tsikata v Attorney-General (No.2) [2001-2002] SCGLR 620 at 651; and Warehousing & Forwarding Company of East Africa Ltd. v Jafferarali & Sons Ltd. [1964] AC 1 at 10 PC cited”.

 

By the Supreme Court decision it meant that a counterclaim could be granted a defendant who had not counterclaim where those reliefs were clearly established on the evidence and the consideration was whether there was surprise or unjust opportunity to meet the matter concerned. In the instant appeal, the evidence on record did not merit the trial judge to grant a counterclaim to the defendants together with a heavy cost of GH¢10,000.00 against the plaintiffs. The award of the counterclaim together with the cost awarded the defendants is wrong both in law and fact. The counterclaim is hereby dismissed. All the grounds of appeal succeed.

 

In conclusion, the appeal succeeds and judgment is entered for the plaintiff on his reliefs claimed. The counterclaim in favour of the defendants is hereby dismissed and GH¢10,000.00 costs awarded against the plaintiff is hereby set aside. The judgment of the High Court, Winneba dated 26th day of February, 2016 is hereby dismissed.

 

(SGD.)

C. J. HONYENUGA

(JUSTICE OF APPEAL)

 

(SGD.)

S. K. GYAN, J.A.       I agree             S. K. GYAN

(JUSTICE OF APPEAL)

 

(SGD.)

G. S. SUURBAAREH, J. A. I also agree     G. S. SUURBAAREH

(JUSTICE OF APPEAL)