This is a land suit filed by the Plaintiff on 14^th July 2010. He is seeking the following reliefs against the

Defendant from the Court:

a)    Declaration of title to a parcel of land at Teshie measuring an area of 0.22 acre.

b)    Recovery of possession

c)    General Damages for trespass

d)    Perpetual injunction against the Defendant, his agents, servants and privies and all persons claiming through him from entering, developing or in any way dealing with the subject matter land.

Per the records, initial attempts to serve the Defendant proved futile so the Plaintiff was compelled to serve the Defendant by substituted service. On 25^th November 2010, the Defendant entered appearance per his lawyer, James Abiaduka Esq. of Ebaa Law Consult and went to sleep. According to an African proverb, a tree that refuses to dance will be forced to do so by the wind. A motion on notice for judgment in default of defence was therefore filed by the Plaintiff. The application was later struck out when the Defendant on 6^th June 2011 filed his Statement of Defence.

On 12^th February 2012, the Court adopted all the following issues filed on 1^st November 2011:

Whether or not the land in dispute was granted to the Plaintiff’s grandfather. Martin Botchway Adjaye in 1951 and registered at the Deeds Registry as No. 1075/1959?

Whether or not Martin Botchway Adjaye put up a building on a portion of the said land?

Whether or not the Plaintiff’s mother inherited the land in dispute from Martin Botchway Adjaye?

Whether or not the Defendant is estopped in law from challenging Plaintiff’s title to the land?

Whether or not the Defendant’s claim of ownership of the land in dispute is statute-barred?

Whether or not the Plaintiff is entitled to his claim?

On 18^th February 2016, this Court, differently constituted, directed the parties to file their witness statements. Both parties complied with the Court’s Order, albeit belatedly. After successfully going through Case Management, the Court on 16^th October, 2018 took definite dates for the hearing of the case with Counsel for the parties. On the 24^th October 2018, which was slated for hearing, Counsel for the Defendant did not attend Court as well as his client. No reason was given for their absence. The Court began the hearing, the absence of the Defendant and his Counsel notwithstanding. After the Plaintiff has tendered his Witness Statement, the Court adjourned the matter to the 29^th October 2018 and caused a hearing notice to be issued and served on the Defendant to appear in Court to cross examine the Plaintiff. The counsel for the Defendant failed to attend Court and it was the Defendant who personally cross examined the Plaintiff on two occasions. On the first day he began to cross examine the Defendant, he brought it to the attention of the Court that his lawyer was down with stroke. The Court in adjourning the suit advised the Defendant to engage a new Counsel if he deemed it necessary, but he failed to do so. The Court could not rely on the letter written from the Chambers of the lawyer claiming the Defendant’s Counsel was sick, because it was not substantiated.

In the case of Mensah & Ors. v. Mensah & Ors. [1992-93] 4 GBR 1432, the Court of Appeal held at holding 4 thus: “The court had discretion to proceed in a trial or adjourn where a party or his counsel fell ill; there was no obligation to bring proceedings to a halt. It was a matter of common sense, not the dictates of the rule of court. In practice, a counsel or a party who felt sick would bring his condition to the notice of the court or counsel for the other side by the production of proper medical report”. (My Emphasis). In the case of Adjabeng v. Kwabla (1960) GLR 37, a medical report produced influenced the court to believe that the request for an adjournment was for a good reason. See also the case of Sasu v. Amua- Sekyi (1987-88) 2 GLR 221 at 240.

Similarly, Anin Yeboah JSC in the case of Republic v. High Court (Fast Track) Accra, Ex Parte Sian Goldfield Ltd. (2009) SC GLR 294 decided at page 209 as follows: "We understand the position of the law to be that all adjournments are subject to the court's convenience. Trial Courts are to exercise discretion in adjourning cases pending before the court…. A court of law is not bound to adjourn a case on the grounds that a lawyer for the party applying for the adjournment had officially written to the trial court to ask for an adjournment on stated grounds" The Defendant personally continued with the cross examination and completed at the subsequent hearing. When it was his turn to open his defence, he absented himself with no excuse. Perhaps, he feared that being alone in the ring of the litigation amphitheatre without any ‘legal coach’ by his side would be a daunting task to face the prowess of the Plaintiff with his team of lawyers. A Congolese proverbs goes: ‘A single bracelet does not jungle’. It is quite normal to feel tensed in the situation the Defendant found himself. He could foresee myriads of questions unleashed on him in cross examination. According to an African proverb: ‘It is only a stupid cow that rejoices at the prospect of being taken to a beautiful abattoir”.

The Court could only sympathize with the Defendant, but it could not wait for him till thy Kingdom come. It was thus compelled to close his case for him. Adinyira JSC in the case of Nana Ampofo Kyei Barfour v. Justmoh Construction Co. Ltd. & Others [2017] 113 G.M.J. 118 at pages 128-129 decided the principle in these words: “In the plethora of cases cited by counsel for the Plaintiff for example, Republic v. High Court (Fast Track Division) Accra; Ex parte State Housing Co. Ltd. (No. 2) (Koranten-Amoako Interested Party) [2009] SCGLR 185; Republic v. High Court (Human Rights Division) Accra, Ex parte Akita (Mancell-Egala & Attorney-General – Interested Parties) [2010] SCGLR 374 at page 379; where the Supreme Court held the principle of the audi alteram partem rule was inapplicable; it was clearly evident, on the face of the record that the party complaining of a breach of his/her right to be heard, was present in court on the day the case was adjourned for hearing or was served with hearing notice but chose not to be present either by himself or counsel to be heard on the due date.”

The Case of the Plaintiff

The Plaintiff is a son of the late Victoria Adjaye and gives evidence for himself and the other children of her late mother who are all beneficial owners of the disputed property. According to him, the land in dispute belonged to her late mother who died intestate in or around 1998 and it forms part of a larger tract of land originally granted to Martin Botchway Adjaye by the Teshie Stool in 1951. Martin Botchway Adjaye was the Plaintiff’s grandfather and he happened to be the father of the Plaintiff’s late mother. After the grant, the land was registered at the Deeds Registry as No. 1075/1959 on the 10^th January 1951. The said document was tendered and admitted in evidence as Exhibit ‘A’.

Martin Botchway put up a building on a portion of the land and remained in possession without any disturbance till his demise in 1978. His death witnessed the sharing of the property to his three children whose names are Nii Kobla Adjaye, Victoria Adjaye and Beatrice Adjaye. Apart from Victoria Adjaye, the Plaintiff’s mother, the other two siblings developed their individual portions without interference from anybody. It is the portion belonging to the Plaintiff’s mother which is in issue. The mother of the Plaintiff remained in undisturbed and peaceful possession for about twenty (20) years before she joined her ancestors. The land was inherited by the Plaintiff and his siblings after their mother’s death. In proof of this, the Plaintiff tendered Exhibit ‘B’, being a search conducted on the land. The Defendant once trespassed unto the land and hurriedly fenced it with wire. He then put some traders and artisans on it. This propelled the Plaintiff to issue a writ at the Circuit Court, Accra against the Defendant and his agents. The Court determined the matter and delivered Judgment in favour of the Plaintiff on 21^st October 2003. The Plaintiff recovered possession from the Defendant and proceeded to wall the land. The Defendant managed to set aside the judgment on the ground that he was not served with a copy of the Writ. Since then, the case docket has not been traced. Exhibits ‘C’ to ‘E’ comprising of some of the Court processes were tendered in evidence.

According to the Plaintiff, the Defendant has taken undue advantage of the situation and has broken a portion of the Plaintiff’s wall. The Plaintiff averred that his grandfather acquired the land about sixty years ago. Because it was duly registered, the Defendant’s grantor did not have any title in the land to grant to him. All attempts by the Plaintiff to stop the Defendant from committing any further trespass have proved futile. It is a fact that the failure of the Defendant to appear in Court to give evidence could affect his case. His Statement of Defence and Witness Statement filed on record cannot be considered. According to the Congolese, “those who are absent are always wrong”.

The Supreme Court decided in the case of Godka Groups of Companies v. PS International Ltd. (2001-02) SC GLR 918 at p. 921 thus: "Judicial evidence must be given by witnesses who before justifying must take an oath or affirmation that they would speak the truth". See the case of Osae v. Adjeifio (2008) 16 MLRG 1 at p. 7. Before the Plaintiff starts any jubilation because of the Defendant’s absence, he needs to be reminded of the African proverb which says; “A bowl should not laugh when a calabash breaks”.

Let me first comment on the reliefs sought by the Plaintiff. Order 11 rule 15 (1) of the High Court Civil Procedure Rules, 2004 (C.I. 47) provides: “A statement of clam shall state specifically the relief or remedy which the plaintiff claims, but costs need not be specifically claimed”. (My Emphasis). In respect of the first relief sought by the Plaintiff, he did not specifically describe the land, except to state that it has been described in the Statement of Claim. And when I checked the Statement of Claim, the Plaintiff again did not specifically state the reliefs he is seeking from the Court.

He stated: “WHEREFORE the Plaintiff claims as per the Writ of Summons”. In the case of Antwi v.  Amponsah and Another (1964) GLR 531, it was held by Hayfron-Benjamin J. at holding 1 that: "where a claim contained in a writ of summons is not repeated in the statement of claim, the plaintiff is deemed to have elected to abandon the claim.”

In the case of Unilever Ghana Ltd. v. Kama Health Services [2013-2014] 2 SCGLR 861, the apex Court held at holding 4 by Benin JSC as follows: “… Consequently, the claim for general damages endorsed on the plaintiff-respondent writ which had been left out completely in the statement of claim, was deemed to have been abandoned.”

In recent times, the Courts have somehow relaxed the rules and tend to interpret the writ and the statement of claim together. For that reason, a defect in a Writ may in appropriate cases be cured by the Statement of Claim. In the case of Hydrafoam Estates (Gh.) Ltd. v. Owusu (per lawful attorney) Okine & Ors. [2013-2014] 2 SCGLR 1117, Anin Yeboah JSC held at holding 1 thus: “The indorsement in the plaintiff’s writ of summons for an injunction, restraining the defendant from interfering with the plaintiff’s possession of the disputed land, was not for any substantive relief known in law. Such a claim would have been declared void in law. However, upon reading the writ together with the accompanying statement of claim the defect in the writ was cured by the statement of claim filed together with the writ.” See also the cases of Opoku (No. 2) v. Axes Co Ltd (No. 2) [2012] 2 SCGLR 1214 at page 1222, per Gbadegbe JSC & Agbo v. Rainbow Windscreen [1994-95] 2 GBR 859, C.A. In view of the liberal approach to the application of the rules of courts in recent times, I will overlook the deficiency in the writ and still consider the reliefs sought by the Plaintiff. I will however entreat lawyers to endeavour in the preparation of their pleadings, to specifically state the reliefs sought to avoid embarrassment and the bastardization of the rules, for nobody knows when the apex Court may strike. For instance, in the case of Ankomayi & Another v. Buckman & 2 Others (2014) 77 GMJ 146, the Supreme Court, per Akoto-Bamfo (Mrs.) JSC at page 162 cautioned: “Rules of Court are not ornamental pieces. They are meant to be complied with.”

Any lawyer who may treat Her Ladyship’s admonishment above lightly may, perhaps, revise his notes after listening to Adinyira JSC in the case of Nana Ampofo Kyei Barfour v. Justmoh Construction Co. Ltd. & Others [2017] 113 G.M.J. 118 at pages 128-129. Her Ladyship held: “… in Republic v. High Court (Financial Division) Accra, Ex Parte Tweneboah Kodua [2015] 81 G.M.J. 193 SC, the Supreme Court held per Akamba JSC: ‘There is an emerging tendency in practice today to consider that the rules of procedure indeed do not matter … Yet the rules of procedure are as integral as substantive law to the success of the trial process… Infringements of these rules without reasonable justification should be met with corresponding sanctions or denials”. See also the case of Ayikai v. Okaidja III [2011] SCGLR 205.

Whether or not the land in dispute was granted to the Plaintiff’s grandfather. Martin Botchway Adjaye in 1951 and registered at the Deeds Registry as No. 1075/1959?

According to the Plaintiff, the disputed land was granted to his grandfather by the Teshie Stool in 1951. The Defendant denied the Plaintiff’s averment in their pleadings. The onus fell on the Plaintiff to prove his assertion. The Plaintiff tendered in evidence an indenture with a view to proving the assertion. When I examined the document, I became confused. The Plaintiff appeared not to be too sure of whether the grantor of the land to his grandfather was a stool or a family.

At paragraphs 2 & 3 of his Witness Statement and Statement of Claim respectively, he was emphatic that it was the Teshie Stool which granted the land to his grandfather, Martin Botchway Adjaye. This fact was supplemented by the indenture admitted as Exhibit ‘A’. The said instrument was executed by Nii Ashitey Kamoa II, who is described therein as the Mantse of Teshie. I am unaware of the fact that the Teshie stool has been held not to have any land of its own. It has judicially been determined as a matter of law that Teshie lands are owned by the quarters. In the case of Hydraform Estates Ltd. v. Kumnipah & Agyemang (2014) 70 GMJ 48, it was held at page 57 as follows: “It is now the law that Teshie lands belong to the quarters and that the Teshie stool has no lands of its own. Therefore, it is only the head of a quarter and his elders who can validly and customarily alienate Teshie land to anybody or entity in Teshie and not the Teshie Stool.”

There was no explanation in the evidence of the Plaintiff that at the time the land was granted, the Teshie Stool held lands until a certain period before the situation changed. It is worthy to know that the very indenture relied upon by the Plaintiff sought to say that the Teshie Stool is the original grantor of the land creating the impression that the land is a stool land and not a family land. (See lines 10 and 23 of the indenture). This seemingly inconsistency as to whether the land was a family land or a Stool land was not clarified by the Plaintiff. And if the land was a family land, the family’s name was not mentioned anywhere in the instrument. The grantor was mentioned in Exhibit ‘A’ as the Teshie Division and nothing more.

I also realized that there is a stamp of the Land Title Registry dated 18^th June 2010 suggesting that the instrument was received recently in 2010. This too could not be explained. The indenture seems to resolve the issue in favour of the Plaintiff that indeed the land was gifted to Mr. M.B. Adjaye and it was registered. But there was an inconsistency which was not clarified. It has to do with the current status of the land. On the face of the site plan attached to Exhibit ‘A’; although the land bore the name of Mr. M.B. Adjaye, it had been acquired by the Government for the purpose of a Police Station. The search report tendered as Exhibit ‘B’ however disclosed that the disputed land was not a Government land. If the land was once acquired by the Government for a particular purpose, there should have been evidence led to show how and when it ceased to be a Government land. Per the two site plans tendered in evidence, M.K. Adjaye’s land shares boundary with another Government land. If by year 2001 when the search was conducted, the adjoining land continued to be a Government land, then the disputed land is more likely to remain a Government land.

The law is now settled that the 1992 Constitution did not de-vest lands that had been acquired by the Government prior to its promulgation. See the cases of Nene Dokutso Tei v. Lands Commission & Volta (Gh.) Investment Co. [2017] DLSC 2629 and Omaboe III v. Attorney General & Lands Commission [2005-2006] SCGLR 579.

The Court is now left in a limbo between deciding that the interest of Martin Botchway Adjaye in the land still subsists or that the land was acquired by the Government as the Plaintiff’s own document suggests. Ackah-Yensu J.A. in his discussion of the burden of proof on a party in the case of Deliman Oil Company Ltd. v. HFC Bank Ghana Ltd. [2016] 92 G.M.J. 1 at page 22 reproduced Lord Hoffman’s mathematical analogy in Re B [2008] UKHL 3 as follows: “If a legal rule required a fact to be proved (a ‘fact in issue’), a judge or jury must decide whether or not it happened. There is no room for a finding that it might have happened. The law operates a binary system in which the only values are 0 and 1. The fact either happened or it did not. If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof. If the party who bears the burden of proof fails to discharge it, a value of 0 is returned and the act is treated as not having happened. If he does discharge it, a value of 1 is returned and the fact is treated as having happened”. See also the case of Bakana Ltd. v. Osei & Anor. [2014] 77 GMJ 68 at page 86, per Kanyoke JA. Adopting the above principle, the doubt in the Plaintiff’s case on the issue that remains unresolved gets him a value of 0, thereby indicating that he could not discharge the onus on him in respect of the above issue.

Whether or not Martin Botchway Adjaye put up a building on a portion of the said land?

At paragraph 4 of the Statement of Claim, the Plaintiff claimed his grandfather put up a building on a portion of the land. The Defendant denied the assertion at paragraph 4 of his Statement of Defence, hence an issue was joined on that fact. Plaintiff who had alleged that his grandfather put up a building on the land had the duty to prove the allegation. All the Plaintiff did in his evidence was to virtually repeat the assertion he had made in his pleadings which had been denied.

He stated as follows:

“(3) In his life time Martin Botchway Adjaye put up a building on a portion of the land and remained in possession without any let or hindrance for years till his death in 1978…“Appau JSC also held in the case of Emmanuel Osei Amoako v. Standford Edward Osei (substituted by Bridget Osei Lartey); Civil App. No. J4/3/2016 dated 1^st June 2016, S.C. (Unreported) as follows: “Respondent, did not go beyond his rhetorical statements … Judgments must be based on established facts not mere rhetoric or narrations without any supporting evidence that can sustain the claim”.

In this case, the Plaintiff could have explained the type of building his grandfather put on the land and the number of rooms. He could even have told the Court how the building was constructed, when the construction began and was completed, the contractor who was engaged and all that, but he did none of that, apart from merely saying that a building was contracted. A photograph of the house on the land could even have been tendered. Therefore, I do not consider the issue herein as having been proved.

Whether or not the Plaintiff’s mother inherited the land in dispute from Martin Botchway Adjaye?

It is the Plaintiff’s case that his mother inherited the land in dispute as part of her share with her siblings from their late father and she remained in possession for twenty (20) years until her death in 1998. What the Plaintiff was required to prove here were the fact of inheritance by her mother and her possession for twenty (20) years. Apart from the Plaintiff saying that his mother inherited land belonging to Martin Adjaye Botchway, she could not tell how the so called inheritance took place. The Plaintiff merely asserted that the property was passed on from his grandfather to his mother as an inheritance. The Plaintiff ought to have established that her mother became a beneficiary under a will or upon a grant of letters of administration or a gift inter vivos. When I carefully examined the Plaintiff’s exhibits tendered in Court to substantiate his assertions, I discovered that the Plaintiff’s mother was never a beneficiary to his father’s interest in the land as the Plaintiff wants this Court to believe. In the search report tendered as exhibit ‘B’, it is indicated that the land which was gifted by Nii Ashitey Kamoa II to Martin B. Adjaye on 10/1/51 was conveyed by Martin B. Adjaye’s administratrix by name Beatrice F. Adjaye to Gilbert F. Kpornu and Comfort N. Neequaye on 31^st March 1993 and 22^nd September 1993 respectively.

The Plaintiff’s mother, Victoria Adjaye and her two siblings never had any portion of the land granted them after the death of Martin Botchway Adjaye, according to the search report tendered by the Plaintiff. The sister to the Plaintiff’s mother, Beatrice F. Adjaye was the only person out of the three siblings whose name is mentioned in the search report and even at all, she was not a beneficiary. She only played the role of an administratrix and conveyed the property to two persons named above who became the beneficiaries. I must say that there is a site plan attached to the search report which mentions the names of the Plaintiff’s mother and her two siblings. It looks very suspicious. When one compares it with the search report, it is difficult to reconcile the beneficiaries and the land described therein as they seem to be inconsistent.

I am compelled to choose the search report over the site plan because it is an official document emanating from the Lands Commission, while the site plan does not even have a date and it appears self-serving. It is not certified as coming from an official source. I would not have subjected it to critical scrutiny if it was consistent with the content of the search report. Moving on with the possession of the Plaintiff’s mother which had to be proved, it was evident that the Plaintiff fumbled in doing so. His evidence was bereft of the actual possession or the nature of possession he is alleging. Was the possession in the form of farming? Did her mother put up a structure on the land? These were all not explained. Answers to the above questions become necessary, because the photographs tendered by the Plaintiff as exhibits ‘F’ and ‘G’ portray the land as vacant and undeveloped. The Plaintiff is now seeking to develop it and has allegedly constructed a fence wall around it. The inheritance and the possession are questions of fact that could have been established with credible evidence. In the case of Vanghan Williams v. Oppong [2015] 84 GMJ 171, Adinyira JSC at page 175 decided: “. . . evidence of possession is essential in a claim for trespass and recovery of possession, there must however be clear and cogent evidence in support and not mere assertion” In the light of the above, it is my view that the Plaintiff has been unable to lead evidence to establish the issue herein.

Whether or not the Defendant is estopped in law from challenging Plaintiff’s title to the land?

It is unclear which type of estoppel the Plaintiff is alleging. Counsel for the Plaintiff in his written address referred to section 26 of the Evidence Act, 1975 (NRCD 323) which has to do with estoppel by own conduct and statement. The Defendant never made any admission that the Plaintiff is the owner of the land so I wonder how the said provision can apply in this case.

Counsel further referred to section 25 (1) of the Land Registry Act, 1962 (Act 122) and submitted that registration of deed constitutes actual notice. Again, I have my doubts as to whether that amounts to estoppel in this case. The point is misleading because the indenture executed for Mr. M.B. Adjaye was allegedly registered in 1951 even before the Land Registry Act, (Act 122) was enacted in 1962. In the case of Moses Essien & 257 Ors. v. The A.G. [2016] 96 G.M.J. 149, Benin JSC at page 167 held: “If an Act of Parliament is not expressed to have retroactive effect, parties and the court have no right to apply it to the facts of a case … ”

It should be noted that an indenture executed before 1962 was not bound to be registered and if it was registered at all, it did not serve the same purpose of notice as one registered under Act 122. See the case of Coleman v. Tripollen & 4 Ors. [2014] 70 G.M.J. 20, per Owusu J.A. at pages 42-43. If the estoppel the Plaintiff is relying upon is estoppel per rem judicatam, because he said a judgment was entered in his favour, I am afraid, it may also fail. His evidence suggested that the judgment he obtained at the Circuit Court was set aside on the ground that the defendant was not served with the Writ of Summons. That being the case, the issue of res judicata would not apply. For a person to be affected by a judgment, it has to be a final and a subsisting judgment. It should not be a judgment that has been set aside. In the case of Mensah v. Lartey (1963) 2 GLR 92, the Supreme Court decided: “For res judicata to apply, the judgment must be valid & subsisting”

Also, in the case of In Re Speedline Stevedoring Ltd; Republic v. High Court, Accra, Ex Parte Brenya (2001-02) SCGLR 775, it was held: “For a judgment to operate as res judicata, it must be valid and subsisting, that is, it must be a final judgment delivered by a court of competent jurisdiction. Otherwise, the judgment cannot operate as res judicata to bind the parties to it.” See also Dintie v. Kanton IV [2008] 18 M.L.R.G. 136, S.C. per Ansah JSC. Although the initial judgment obtained by the Plaintiff was set aside for non-service on the Defendant, the Plaintiff nonetheless, continued to rely on it. He appeared discontent and angry with the Circuit Court for giving the Defendant the opportunity to contest the matter on its merits. It is trite learning that a party who is not served with the proceedings of an action is not bound by whatever orders that may be given. The orders become a nullity.

In the case of In re Kumi (Dec’d); Kumi v. Nartey (2007-08) SCGLR 623 at 632-633, Adinyira JSC held: "As said earlier, it is trite law 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 proceedings to enable him appear and defend himself. This is the essence of justice. Failure by the court or tribunal to do so would be a breach of the rule of civil procedure and natural justice. A judgment or order procured under such circumstance is in our view, a nullity" See the cases of The Republic v. High Court, Land Division, Accra, Ex Parte Nii Moi Morton, Civil Motion No. J5/21/2016, dated 28^th July 2016, S.C. and Nana Ampaa-Andoh VIII (Substituted by Albert Kobina Koomson) v. Paramount Stool of Breman-Essiam (Substituted by Nana Efuwa Esiwa II) & 2 Others (Enyan Denkyira Stool & 2 Others - Claimants) [2018] DLSC 200.

The law also is that the burden of proof is on the party alleging that the other party has been served. In the case of Re Yendi Skin Affairs, Andani v. Abdulai [1982-83] GLR 1080, the Supreme Court held at holding 3 as follows: “Where the issue of service of a document became crucial in the determination of a matter, as in the instant case, the party alleging service, or relying on the service for success, assumed the duty to prove it strictly.”

Adade JSC stated: “I have heard it said that this being a civil matter, the standard of proof required must be the civil standard, i.e. proof on a balance of probabilities. I agree but I also think that there are varying gradations on this scale of balance and, without seeking to lay down any specific rule, where proof of service is concerned, I think the proof must be of the highest order possible, approaching, if not equal to, the criminal standard of proof beyond reasonable doubt. This in my view, must be the reason why service is always required to be authenticated by a sworn affidavit.”

Similarly, in the case of Y.K. Quartey v. John Hammond, Civil Appeal No. 17/99, dated 23/12/99, (Unreported), the Court of Appeal held per Essilfie-Bondzie J.A. thus: “Where the service of a document became crucial in the determination of a matter, as in the instant case, the party alleging service or relying on the service for success assumes the duty to prove it strictly” See also the case of Republic v. High Court, Accra; Ex parte Addae Atchewerebuo & Ors (Daasebre Asare Baah III & Ors. – Interested Parties) (The Attorney-General & Anor. – Third Parties) [2010-2012] 2 GLR 609, S.C. at holding 1, per Dotse JSC. I do not think the Plaintiff was able to prove service of his writ in that case, otherwise, the Court would not have set aside the judgment. Better still, the Plaintiff could have appealed against the order setting aside the Judgment if he felt aggrieved. In the absence of any appeal against the order, it is my view that the allegation that the Defendant was actually served is vexatious and ought to be struck out under Order 11 rule 18 (1) (b) of the High Court Civil Procedure Rules, 2004, C.I. 47.

Further, the Plaintiff in relying on the previous proceedings tendered in evidence the writ of summons at the Circuit Court, the entry of judgment and the writ of possession as Exhibits ‘C’, ‘D’ and ‘E’ respectively. Let me say here that they are irrelevant to the determination of the merits of the case. Apart from their propensity to prejudice the minds of the Court, they serve no other useful purpose. I regret to say that the invitation extended to me to consider the previous proceedings in the determination of the merits of this case does not look too attractive to me and I ignore them. I am also at a loss as to why this action was instituted in the first place when a similar action had been already been instituted at the Circuit Court. The reason given by the Plaintiff for not pursuing the Circuit Court suit appears untenable. When a court’s docket cannot be traced, the practice is not for another action to be instituted, but for the parties and their lawyers to notify the Registrar of the Court and furnish him with their copies of the processes for a new docket to be generated. The issue herein is decided against the Plaintiff for not having been proved.

Whether or not the Defendant’s claim of ownership of the land in dispute is statute-barred?

The plea of limitation was raised by the Plaintiff in this case. He was therefore expected to lead cogent and credible evidence to establish it. I consider it inappropriate for the Plaintiff to raise the issue of limitation against the Defendant, since the latter is not the one who instituted the action. He did not even file a counterclaim.

Section 10 (1) of the Limitation Act, 1972 (NRCD 54) provides:

“(1) A person shall not bring an action to recover a land after the expiration of twelve years from the date on which the right of action accrued to the person bringing it, or if it first accrued to the person through whom the first mentioned claims to that person”.

It is the Plaintiff who is claiming the land in this case. The defence of limitation of action, in my respectful view is not for the Plaintiff to cling unto. It is rather a legal principle which acts as a shield and not a sword. The U.K. House of Lords held in the case of Haward & Others v. Fawcetts (a firm) & Others (2006) UKHL 9 that limitation is a defence and it is a creature of statute. Our Supreme Court does not appear to share a contrary position. In the case of Bogoso Gold Ltd v. Nkrakwa (2010) 33 MLRG 57, Gbadegbe JSC held at page 60 that it is the Defendant’s responsibility to raise the defence of limitation.

Limitation defence is not primarily premised on long possession of land only. It rather rests on adverse possession and avails a non-owner who is able to deal with a property for over twelve years, without the true owner taking steps in court to oust him. Dennis Adjei J.A. at page 114 of his book, Land Law, Practice & Conveyancing in Ghana (second edition) wrote: “Under the Limitation Act, a person claiming to be in adverse possession must prove either discontinuance by the legal owner followed by possession or dispossession. The disposition of the owner of the land by the trespasser is normally referred to as ‘ouster’ of the paper owner who should have been in possession of his or her land has been ousted from the land by the trespasser. A trespasser who takes possession of land owned by another person and remains in possession for an uninterrupted period of twelve (12) years to the exclusion of the owner will have adverse possession and the title of the owner will be extinguished”.

From the facts of this case, the Plaintiff is relying on the fact that his grandfather registered the land and lived on it for over sixty (60) years. I believe what he ought to have done was to rely strongly on possession to pursue his claim and not adverse possession which rather tends to suggest that his grandfather was a trespasser on the land, but has been able to live on it for many years. The Court would thus dismiss the issue of limitation raised by the Plaintiff against the Defendant as legally incompetent.

Whether or not the Plaintiff is entitled to his claim?

There are fundamental challenges confronting the Plaintiff’s action. The first is on his capacity to bring this action. Although the capacity of the Plaintiff was not expressly raised by the Defendant, he tacitly attacked it. At paragraph 1 of the Plaintiff’s Statement of Claim, he stated:

“(1) The Plaintiff is a son of the late Victoria Adjaye and brings this action on his own behalf and on behalf of all the children of the said Victoria Adjaye (deceased) who are the beneficiary owners of the land in dispute”.

The above paragraph hinging on the Plaintiff’s capacity to commence the action was denied by the Defendant at paragraph 2 of his Statement of Defence. When capacity of a Plaintiff is denied he has a duty to establish it. This is a common legal principle known to any average lawyer. “It is only a child who does not know that the private part of a cow is a meat”, says an African proverb. In the case of Sarkodie II v. Boateng II (1982-83) GLR 715, it was held: “It is elementary that a party or petitioner whose capacity is put in issue must establish it by cogent evidence . . . but it is no answer for a party against whom a serious issue of locus standi is raised to plead that he should be given a hearing on the merits, because he has a cast iron case against his opponent.” See also the case of Ambrose Danso-Dapaah v. Falcon Crest Investment Ltd & 2 Ors. [2015] 89 GMJ 148, C.A. at 166-167.

We need not to lose sight of the fact that capacity is a legal issue which can be considered suo motu by the court, even if it is not raised by the parties. In the case of Nai Otuo Tetteh & Another v. Opanin Kwadwo Ababio (Dec’d) (Substituted by Naachie Awo Chocho Botwe IV & Another, Civil App. No. J4/30/2017, 14^th February 2018, S.C. (Unreported), Pwamang JSC held: “The Court of Appeal was right in saying that where a party to court proceedings alleges a certain capacity and he is challenged, then he is required to prove it with evidence. It is equally correct to say that the challenge to the capacity of a party to proceedings can be raised by the court suo moto”.

Per paragraph 1 of the Statement of Claim, the Plaintiff sued not for himself only, but for his other siblings. That makes it a representative action. The law is clear that where a Plaintiff is suing in a representative capacity, it has to be stated on both the endorsement of the writ and all subsequent processes and authorities abound on it. In the case of Nkua v. Konadu & Boateng (2009) SCGLR 134 at page 138; [2008-2009] 2 GLR 562, Anin Yeboah JSC speaking for the apex Court held: “In civil actions, usually commenced by writ of summons, if a party to the suit initiates an action in a representative capacity, such a proceeding ought to be fully endorsed on the writ and appear in subsequent processes filed.”

In the case of Ghana Muslims Representative Council v. Salifu (1975) 2 GLR 246, it was held at holding 3 by the Court of Appeal as follows: “In a representative action, it was necessary both in the writ and in all subsequent pleadings, to state clearly that the parties were suing or being sued in their representative capacity, on behalf of the members of a defined class. The representative capacity should also be stated in the title of both the writ and the statement of claim and not merely in the endorsement of the writ on the body of the pleadings.” See also Ex parte Aryeetey (2003-04) SCGLR 298 at holding 2. When a Plaintiff sues in a representative capacity, he cannot take things for granted. It has to be proved by evidence. In the case of Chapman v. Ocloo & Kporhanu (1957) 3 WALR 84, Ollenu J. (as he then was) decided: “Where a party has been challenged on his authority to sue in a representative capacity, he is duty bound and mandated to prove that, indeed he has such authority and cannot hope to succeed on the merits of the case without first satisfying the court on the important preliminary point of capacity.” See also the case of Nyamekye v. Ansah (1989-90) 2 GLR 152 at page 153, CA.

In this case, there is no indication on the writ and the address as well as subsequent processes that the Plaintiff is suing in a representative capacity. The endorsement on the writ seemed to suggest that the Plaintiff wants a declaration that the land in dispute belongs to him alone. If indeed the other siblings of the Plaintiff are aware of the suit, I believe that when the Defendant challenged him, he could have called at least one of the siblings to attest to the fact that they mandated him to sue on their behalf. The Plaintiff could not mention the exact number of his siblings he was representing and name just one person in his evidence. In my view, merely repeating what has been stated in his pleadings which had been denied cannot amount to proof in law.

In the case of Ackah v. Pergah Transport [2011] 31 GMJ 174, the Supreme Court held per Adinyira JSC: “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility, short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the existence of a fact is more reasonable than its non-existence. This is the requirement of law on evidence under sections 10 (1) and 2 and 11 (1) and 4 of the Evidence Act, 1975 (NRCD 323. “

Plaintiff in his evidence claimed that he and his siblings inherited the disputed land from their mother. As to how they inherited it after their mother’s death, he did not explain. Having earlier found in this Judgment that the interest of the Plaintiff’s grandfather, M.K. Adjaye in the land if at all, did not devolve unto the Plaintiff’s mother, the Plaintiff also could not have inherited it from her. The Plaintiff relied on the composite plan drawn by the Surveyor. Since he traced his land from a non-existent title of her mother, he cannot be said to be the owner of the land.

Further, it does appear that the Plaintiff is using the siblings to get the reliefs for himself. At the Circuit Court, he claimed he was acting for himself and his other siblings. However, when he filed his entry of Judgment, he demanded the Judgment benefit for himself. When he was subjected to cross examination by the Defendant on 29^th October 2018 in this Court, the Plaintiff’s answers to questions posed to him confirmed the point. It went thus:

“Q: Since you are claiming nobody sold that land to you, how did you come by that land?

A: I got the land through inheritance”.

Also, on 1^st November 2018, when the Plaintiff was asked to show evidence that the land was gifted to him, he answered: “I told the Court that I inherited that land”. Our elders have warned, that the one who eats alone cannot discuss the taste of the food with others. In concluding, I have to say that apart from the capacity of the Plaintiff which could not be established, the evidence led to prove that his mother acquired an interest in the land in dispute which devolved upon him was very shaky and unconvincing.

The burden on the Plaintiff under the law is double-edged. Akamba JA (As he then was) in the case of Kwaku Mensah Gyan & I Or. v. Madam Mary Armah Amangala Buzuma & 4 Ors. (Unreported) Suit No. LS: 794/92 dated 11^th March, 2005 explained: “What is required is credible evidence which must satisfy the two fold burdens stipulated by our rules of evidence, N.R.C.D. 323. The first is a burden to produce the required evidence and the second, that of persuasion. Section 10 & 11 of N.R.C.D. 323 are the relevant section … This burden is not met merely by tendering the exhibit G in evidence with all its ambiguities, lingering doubts and lack of explanation.”

Since the Plaintiff could not lead credible and satisfactory evidence in this case to establish his title, it seems to me that the Defendants’ failure to appear in Court to cross examine the Plaintiff is of no moment. I cannot dance to the rhythm of the Plaintiff by granting him the reliefs he is seeking from this Court. I warned the Plaintiff earlier not to begin his jubilation simply because his opponent ‘fled from the battlefield’. The Haitians say: “You should not insult the alligator until you have crossed the river.”

Consequently, the action of the Plaintiff is dismissed in limine.

ALEXANDER OSEI TUTU J.

(JUSTICE OF THE HIGH COURT)