NENE GBORVU AYIKU IV & NUMO LARTEY AYIKU vs. NUMO LARTEY AYIKU & NENE TETTEH EYUM III
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (LAND DIVISION)
    TEMA - A.D 2016
NENE GBORVU AYIKU IV AND NUMO LARTEY AYIKU - (Plaintiff)
NUMO LARTEY AYIKU AND NENE TETTEH EYUM III - (Defendant)

DATE:  9TH DECEMBER, 2016
SUIT NO:  E1/33/2015
JUDGES:  ALEXANDER OSEI TUTU J. SITTING AS JUSTICE OF THE HIGH COURT
LAWYERS:  ERNEST KUSI ESQ. HOLDING ANDY APPIAH KUBI ESQ. BRIEF FOR THE PLAINTIFFS
FRANK NARTEY ESQ. FOR THE FIRST DEFENDANT
JUDGMENT

Background Facts

The Plaintiffs launched this action against the first defendant on March 13, 2013. The facts that culminated in the initiation of the suit briefly are that the first defendant’s family members are disposing of their (Plaintiffs) family lands without their consent and concurrence. Regrettably, the plaintiffs overall head of their Larkpleh family of Prampram, Numo Alfred Quaye who doubles as the head of the Ayikuwem Division had failed to act. The affected Oklewem and Ayikuwem Divisions met and tasked the plaintiffs to take action to protect their lands.

 

After the first defendant had entered an appearance with a defence, an order of joinder was granted by the Court adding Nene Tetteh Ayum III to the suit as the second defendant. Plaintiffs first amended their writ of summons and statement of claim to include the second defendant. It is instructive to know that the amendment of the writ of summons and the statement of claim was sought and filed twice; one in 2014 and another in 2015. On each occasion, the first defendant amended his statement of defence and counterclaim to respond to the plaintiffs claim accordingly. The Plaintiffs’ reply to the First Defendant’s Statement of Defence and Counterclaim was not exempted from the amendment. In the final amended writ of summons, the plaintiffs sought for:

a. A Declaration of title to land of 2,706.211 acres (1,095.203 hectares) at Prampram,

b. Perpetual injunction,

c. Recovery of possession,

d. Damages for trespass,

e. Costs and

f. Any further order(s) that the court may deem fit.

 

The Plaintiffs’ Pleadings

In their pleadings, the Plaintiffs aver that they bring this action in their personal and representative capacities as principal members of their respective Divisions of Oklewem and Ayikuwem, being the two Divisions within the Larkpleh family. They aver that whereas Numo Paul Lartey Ayiku is the head of the Oklewem Division, Numo Alfred Quaye holds dual positions as the head of the Ayikuwem Division and the overall Larkpleh Family, contrary to the defendants’ claim that Nene Tetteh Ayum III is the head of the Larkpleh family of Prampram. Nene Tetteh Ayum III, the second Defendant was mentioned by the Plaintiffs, rather as the Divisional Chief of Larkpleh. Plaintiffs further denied the first Defendant’s averment of being the Head of the Kleh Quarter of Prampram. In the claim to the land, the Plaintiffs pleaded that their Larkpleh ancestors first settled at Prampram before being joined by the other families. These other families like the Kleh Quarter are their licensees.

 

Plaintiffs stated in their reply that the defendants’ family members have recently started alienating their family lands at Prampram without their consent and concurrence, hence the commencement of the action for declaration of title, damages for trespass, recovery of possession and perpetual injunction in respect of “ALL THAT PIECE OR PARCEL of land lying, situate and being at Prampram and known as site for LARKPLEH FAMILY OF PRAMPRAM in the Ningo - Prampram District of the Greater Accra Region of the Republic of Ghana the boundary whereof commencing northwesterly by the property of Larkpleh Family of Miotso at a pillar marked LF/11 which forms part of the boundary of the aforementioned site and thence on a bearing 77 22 for a distance 4,222.09 feet to a pillar marked IL/1 and thence on a bearing 77 5 for a distance 7,426.9 feet and northeasterly by property of Loweh Adainya Family of Ningo to a pillar marked GCP EP.14/55/18 and thence on a bearing of 174 for a distance 1,058.2 feet to a pillar marked GCP EP. 14/55/17 and thence on a bearing of 1741,716.6 feet to a pillar marked GCP EP.14/55/16 and thence on a bearing of 167 7’ for a distance 1,0616.1 feet to a pillar marked GCP EP. 14/55/15 and thence on a bearing 167 6 for a distance 2,029.5 feet to a pillar marked GCP EP. 14/55/13 and thence on a bearing 147 21 for a distance 729/4 feet to a pillar marked GCP EP.14/55/6 and thence on a bearing 214 45 for a distance 324.10 feet to a pillar marked GCP EP.14/55/7 and thence in a bearing 279 31 for a distance 221.8 feet to a pillar marked LF/A5 and south easterly by the property of Larkpleh Family and trunk road to Ningo and thence on a bearing 216 55 for a distance 2,044.6 feet to a pillar marked LF/A4 and thence on a bearing 227 38 for a distance 2,144. 9 feet to a pillar marked LF/A3 and thence on a bearing 231 6 for a distance 264.8 feet to a pillar marked LF/A2 and thence on a bearing 239 for a distance 4,772.6 feet to a pillar marked LF/A1 and thence on a bearing 281 for a distance 155.1 feet to a pillar marked LF/J2 and south westerly by the Prampram Council and a trunk road from Dawhenya and thence on a bearing 307 49 for a distance 4,628.6 to a pillar marked LF/J1 and thence on a bearing 336 20 for a distance 730.8 feet to a pillar marked SGGA.956.01/12 and thence on a bearing 346 30 for a distance 8,338.3 feet to a pillar marked LF/11 which makes the point of commencement and thus containing an area of 2,706.211 acres (1,095.203 hectares) all of which said piece of land is more particularly delineated on the plain attached hereto and thereon showed edged pink.”

 

The First Defendant’s Pleadings

The first defendant also counterclaimed for:

i. Declaration of title to land of 2,193.57 acres also at Prampram,

ii. Perpetual injunction

iii. Recovery of possession and

iv. Costs.

 

The First Defendant began their pleadings by attacking the capacity of the Plaintiffs. He emphasized that Numo Alfred Quaye is the head of Ayikuwem; while he (first Defendant) is the head of the Kle Tsokunya Clan and Kle Quarter of Prampram. He avers that there are no Divisions in Prampram by name Ayikuwem or Oklewem and that it is the Larkpleh Family with second defendant as their head, which collectively owns lands at Prampram and not the Divisions. It was pleaded that the lands in issue form part of the First Defendant’s Family Land following a Memorandum of Understanding duly executed in November 2011 between the Larkpleh Division and the First Defendant’s Kleh Division.

 

First Defendant described their land as “All that piece and parcel of land situate at Upper Prampram in the Ningo Prampram District in the Greater Accra Region containing an approximate area of 2,193.57 acres and bounded on the one side by the Okle We Family land and the Abia Family land, on another side by the Taa Stream and Ningo Family land; on another side by the Mandela Motor road and by the Miotso Family Land and at Lalue Doortso and on one side by Prampram Dawhenya Motor Road.”

 

He denied the historical account of the Plaintiffs as not finding support in various documents like the Jackson Report and the Extracts from D.C. Akwapim Quarterly Reports (C.S.M.P. 16778/1920). He contended that it was the ancestors of the Kle Family who first settled on the land in 1726 in Upper Prampram and they have since occupied same without the consent or permission of any person or group whatsoever. The first Defendant bemoaned that the Plaintiffs have rather encroached on their family land.

 

The Second Defendant’s Pleadings

The second Defendant’s main contention was that he is the supreme head of the Larkpleh family and so is the custodian of all Larkpleh lands. The disputed area, according to his Defence, belongs to the first Defendant’s family and it is not part of Larkpleh lands. He claimed that his Larkpleh ancestors migrated from the Old Ningo Kingdom to first settle at Lower Prampram in 1680, while the first Defendant’s Division settled at Upper Prampram in 1726 and both families have since lived on their respective lands, shared common and clearly defined boundary till date as captured in a Memorandum of Understanding signed by both Families or Divisions.

 

The Issues

At the close of pleadings, the issues raised by the parties and which were adopted by the court and set down for determination were:

 

i. Whether or not the first Plaintiff has capacity to institute the instant action.

ii. Whether or not the second Plaintiff has capacity to institute the instant action.

iii. Whether or not there are Divisions in Prampram by name Ayiku Wem or Okle wem

iv. Whether or not Numo Paul Lartey Ayiku is the head of Oklewem.

v. Whether or not Numo Alfred Quaye is the head of Larkpleh Unit.

vi. Whether or not Plaintiffs’ family own the instant subject-matter

vii. Whether or not the Head of Larkpleh family always comes from Ayiku Wem or Okle Wem

viii. Whether or not the position of the head of Larkpleh is distinct from the Chief of Larkpleh

ix. Whether or not all lands in Prampram were originally owned by Larkpleh family only

x. Whether or not the Plaintiffs’ ancestors migrated from the Ningo Kingdom

xi. Whether or not first Defendant’s Division is entitled to grants of the instant subject-matter

xii. Whether or not plaintiffs’ instant action is statute-barred

xiii. Whether or not the Plaintiffs are entitled to their claim.

xiv. Whether or not the first Defendant is entitled to his counterclaim.

xv. Any other issue or issues arising from the pleadings.

 

THE CASE OF THE PLAINTIFFS

First Plaintiff testified on behalf of the Plaintiffs and called witnesses of a total of five (5) in support of their case. In proving his case, the first plaintiff described himself as a principal member of the Larkpleh Family and one of the two members appointed by the said family to institute the action on behalf of the family, since the Head of the Family, Numo Alfred Quaye was not so much committed in protecting the lands of Larkpleh. Five sub-families comprising of Osham Wem, Adimli Wem, Agbazo Wem, Obonu Wem and Anumansa come under the two main Divisions of Ayiku Wem and Okle Wem to constitute Larkpleh Family. At a family meeting held at which the head, Numo Alfred Quaye was present, the Plaintiffs were appointed to sue to prosecute the recovery of the family land stated at paragraph 7 of the Amended Statement of Claim filed on the 5th of March, 2014 from the defendants. Plaintiffs tendered the resolution of the family meeting as exhibit ‘A’ and a principal member of the family by name Numo Paul Lartey Ayiku deposed to facts in an affidavit filed in the Court confirming the Plaintiffs appointment by the family, which was tendered as exhibit B. The second Plaintiff is the spiritual head (Wulomo) of the Larkpleh Family presiding over the Ayikuwem Shrine and is the custodian of all lands belonging to the Larkpleh family; so by the history, tradition and custom of the Larkpleh family, he is a signatory and witness to any grant of family land by the head of the Larkpleh family of Prampram.

 

In tracing their ownership of the land, he contended that the ancestors of the Larkpleh Family were the first setters on the Prampram land and have been in effective control, possession and ownership of such lands, including the disputed land, since time immemorial. For this reason, their family members have engaged in various activities on the disputed land, including (but not limited to) hunting, fishing in the adjoining sea and farming till date. Some landmarks on the disputed land are the Tan Lagoon, Tanya Well and palm trees belonging to members of the Larkpleh Family of Prampram. Some of the ancestors of their family further migrated to settle at Prampram Lower Town. First Plaintiff told the court that it was the ancestors of their family who granted some of their land to the Europeans to build a fort, called Fort Venon, later turned into a police station.

 

The Plaintiff tendered various documents retrieved from National Archives, including extracts of the Jackson Report. The First Plaintiff described the defendants as coming from different families (Kley Tsokunya and Larkpleh respectively), so they have no common interest in the land in dispute as Kleys and Larkplehs have their separate lands. Grants of some of the lands sold by the First Defendant and his family members without the Larkpleh’s family consent and concurrence were tendered in evidence as exhibits. The first Plaintiff claims that their family does not share any boundary with the first defendant’s family. The first defendant’s family members were granted land by the Plaintiffs’ ancestors as licensee, but they have now colluded with the second Defendant to deprive the Plaintiffs’ family of their property, in order to benefit out of it. Some rulings and judgments of various courts were also tendered by the first plaintiff.

 

Moses Awuley Gberbie (PW1) testified as a member of the Ayikuwem Family of Prampram. He claimed Larkpleh Family consists of Oklewem and Ayikuwem with smaller families under them. He denied being a signatory to any Memorandum of understanding in year 2000 on behalf of Ayikuwem Family, since he was then living at Apam in the Central Region. Although he was asked by Numo Alfred Quaye to sign a document in year 2012 as a witness, he did not understand its content.

 

Nene Osabu Omensu IV (PW2) described the disputed land as sharing boundary on the south with Prampram Ningo Lands, on the West by Prampram/Dawhenya road, on the North by the Oklewem Family of Larkpleh land and on the East by Ningo Land belonging to the Lower Adainya of New Ningo. He is the Tsile Asafoatse (Chief Warrior) of Prampram and has been the Chairman of the Committee on land disputes of Prampram Traditional Council from 1996 to 2008. He affirmed most part of the evidence of the Plaintiffs; including Larkpleh family being the first settlers who granted the lands to the subsequent settlors, also that Numo Alfred Quaye is the head of the Ayikuwem family and the overall Larkpleh family and the fact that the first defendant’s family members are ‘refugees’ and licensees of the Plaintiffs’ family.

 

Okyeame Naah Kojo Fordi III {PW3) came to testify to distinguish between the position of the chief of Larkpleh and the head of the Larkpleh family. He claimed to have been a one-time chief of Larkpleh, but was not the head of Larkpleh family. He also testified that Numo Alfred Quaye was present when they appointed the plaintiffs.

 

Michael Enam Dordor (PW4) is a grantee of the Plaintiffs’ Family. He tendered deed of the land granted him by the Plaintiffs’ family. He does not know the Defendants and has been in possession of the land since the grant. He described the boundaries of the land.

 

Numo James Akornor (PW5) claimed his family shares boundary with the Larkpleh Family on the western side of the subject-matter and confirmed that Numo Alfred Afedi Quaye is the Larkpleh and Ayikuwem family head.

 

THE CASE OF THE FIRST DEFENDANT

The first Defendant defended the action per his lawful attorney, Nii Ayiku Oblerh IV. First Defendant claims to be the head of both the Kley Tsokunya clan and Kley Quarter of Prampram. He describes the land as bounded on the South by the Oklewem Family of Larkpleh and the Abia Family; on the East by the Tan Lagoon and Ningo Land; on the north through the Mandela Road, Miotso and Lalue Doortso and to the West by the Prampram-Dawhenya motor road.

 

He traced the history of the Kley Quarter upon their migration from Shai after the destruction of the Shai Kingdom by the Akwamus to settle on the land they have counterclaimed for, variously referred to as Kley or Upper Prampram. He tendered series of ancient documents as exhibits to support his assertion. The Larkplehs also migrated from old Ningo Kingdom to settle at Lower Prampram and they named the place ‘Larkpleh’. It is this place that they have always occupied. Both Kleys and Larkpleh relinquished portions of their respective lands as Cemetery for the Prampram Traditional Area. The Kleys have for a long time been exercising acts of possession and ownership without any let or hindrance from anybody. And for the past thirty (30) years, they have consistently granted portions of the divisional or quarter lands to third parties, who have developed them into houses, schools, estates, factories etc. as depicted by exhibit 4 series.

 

In 2002, the boundary between Kleh and Oklewem of Larpleh was confirmed. It was some years later that the second plaintiff’s family started laying claims to portions of the first Defendant’s land, which led to various suits. Eventually, the Kleh and Larkpleh Quarters executed a Boundary Confirmation Report, of which the latter was duly represented by the second defendant being its lawful head and other principal members. First Defendant asserted that Numo Alfred Quaye is the head of the Ayikuwem family, but is not the head of Larkpleh Quarter. In concluding his evidence, he stated that the land granted some Europeans by the Plaintiffs’ ancestors was at Lower Prampram, which is outside the land the subject matter in dispute.

 

THE CASE OF THE SECOND DEFENDANT

George Tetteh Lartey spoke as the lawful attorney of the second Defendant. The Attorney described himself as the Chairman of the Larkpleh Youth Association and a principal member/elder of the Larkpleh Quarter. The principal and attorney are both from the Okle Wem family within the Larkpleh Quarter. The crux of his Defence was that the second Defendant is the overall head of the Larkplehs and their ancestors led by Lartey Okle from the Okle We family in the 17th Century migrated from the Old Ningo Kingdom to settle at Lower Prampram, which they named Larkpleh and they have remained there till date. He explained that because the leader was from the Okle We family, the head of the Larkpleh Quarter has at all material time being drawn from the Okle We family. He discounted Numo Afedi Quaye as the head of Larkpleh, claiming he only heads the Ayiku Wem family. He maintained that Larkpleh Quarter has eight (8) units as follows: (1) Okle Wem (2) Ayiku Wem (3) Oshan Wem (4) Osheku Wem (5) Adimle Wem (6) Agbazo Wem (7) Obonu Wem and (8) Anumansa Wem. The Larkplehs and the Kley Qauarters have a common boundary which is well set out and evidenced by documentary proof he tendered of which the Larkplehs were duly represented. The second Defendant affirmatively stated that the land in dispute which is at Upper Prampram does not belong to their Larkpleh Quarter, but rather the first Defendant’s Quarter.

THE CAPACITY OF THE PLAINTIFFS

Defendants challenged the capacity of both plaintiffs to institute the present action. It is the law that capacity is a fundamental legal requirement which every plaintiff must possess before he can institute an action. Where it is lacking, the plaintiff cannot be heard, no matter the merits of his action. In Ambrose Danso-Dapaah v. Falcon Crest Investment Ltd & 2 Ors. [2015] 89 GMJ 148, the Court of Appeal, per Dzamefe J.A. at pages 166-167 held The authorities abound that however iron cast one’s case may be, once he is not clothed with capacity, the court will give him no audience … since capacity goes to the root of a case, it can be raised anytime even on appeal.See Fosua v. Dufie [2008-2009] 2 GLR 1 at 31, per Ansah JSC.

 

Further, where the action is brought by the plaintiff or petitioner in a representative capacity, such as in this case, the plaintiff or petitioner is required to establish that he has the requisite representative capacity. Ollenu J. (as he then was) in Chapman v. Ocloo & Kporhanu (1957) 3 WALR 84 long ago held: “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.” The principle still holds good in modern times.

 

In Asamoah v. Fritz (2013) 53 GMJ 158 at 177, Mariama Owusu J.A. conceded:Admittedly, capacity goes to the root of a case. The law is that a party whose capacity to initiate proceedings is challenged has to establish it before his case can be considered”. See Asante Appiah v. Amponsah alias Mansah (2009) SCGLR 90, holding (2); Fred Robert Coleman v. Joe Tripollen & Ors. [2014] 70 G.M.J. 20 @ 40 and Numo Nortey Adjeifio (Substituted by Nii Adjei Sankuma) 2 Ors. v. Nii Mate Tesa (Substituted by Daniel Markwei Mamah & 5 Ors. [2012] 48 G.M.J. 65 @ 86, per Akamba JA (As he then was). The two Plaintiffs in this court are contesting their families’ lands on behalf of their families. It is therefore not inappropriate to consider the law on their capacity to maintain an action on family lands. The starting point is from the case of Kwan v. Nyieni [1959] GLR 67, where it was emphasized that the head of family is the proper person to institute an action on behalf of the family to recover family lands. Various exceptions like; where the head of family is not acting due to disinterest arising out of his personal interest or otherwise, or where there is division in the family, or where the head himself is deliberately disposing of the family property for his personal gain and the property is being lost to the family, any member of the family can be authorized by the family or upon proof of necessity, commence an action to preserve the family character of the property. The principle has been applied in a number of cases like Amponsah v. Kwatia [1976] 2 GLR 189; Yormenu v. Awute [1987] 1 GLR 9; Manu v. Nsiah [2005-2006] SCGLR 25 and In Re Neequaye (Decd); Adee Kotey v. Kootso Neequaye [2010] SCGLR 348.

 

In Adjetey Agbosu & Ors. v. Kotey & Ors. [2003-2005] 1 GLR 685, Wood JSC (as she then was) speaking for the Supreme Court held at holding 2 that a non-head of family may only be able to bring the action under only two grounds. Firstly, the member of the family must have been authorized by the family. And in the absence of such authorization, upon proof of necessity, which has to be justified by the person as the second ground.

 

Order 4 rule 9 of the High Court Civil Procedure Rules, 2004, C.I. 47 has come to supplement the rule. It provides:

 

“(2) The head of family in accordance with customary law may sue and be sued on behalf of or as representing the family.

(3) If for any good reason the head of family is unable to act or if the head of a family refuses or fails to take action to protect the interest of the family any member of the family may subject to this rule sue on behalf of the family.

(4) Where any member of the family sues under subrule (3) a copy of the writ shall be served on the head of family.

(5) A head of family, served under subrule (4) may within three days of service of the writ apply to the Court to object to the writ or be substituted as plaintiff or be joined as plaintiff.”

 

Justice Dennis Adjei in his invaluable book, Land Law Practice and Conveyancing in Ghana pointed out at page 42 that “The above quoted rule has brought the laws on a family member who may sue on behalf of the family to a more benevolent stage. It is an improvement on the customary law which had its peculiar problems”. I am sorry to say that I am unable to see any serious modification of the court rules over the customary laws. I say so because, under the subrule a family member who wants to sue on behalf of the family is still expected to justify his action by providing ‘good reasons’, which I believe, the person may not be judged too differently from the customary law exceptions. It appears the highly respected Court of Appeal Judge oversimplified the point, especially when he made these seemingly sweeping statements: Any member of a family can now sue over a family property and the only requirement is that he shall serve a copy of the writ on the head of family.

 

I do not think C.I. 47 has made it easier for a non-family head to sue on behalf of his family. The service of the writ on the head of family is not the only requirement as we are been made to believe. If at all, C.I. 47 has rather taken the requirement to another level or has raised the bar. In my humble view, the first requirement is to first justify the action by the member and non-head by providing good reasons for suing on behalf of his family as provided under subrule (3) and after that hurdle has been crossed, the additional requirement of serving the head of family under subrule (4) is complied with. It is common knowledge that under the old law, it was enough to provide ‘the good reason’ under the exceptions for bringing the action and that was all. There was no mandatory rule for the service of the writ on the head of family. Even though C.I. 47 came into being in 2004, the Supreme Court in this very year in the case of Samuel Oblie & Ors. v. Tetteh Lancaster, Civil Appeal No. J4/29/2015, dated 15th March 2016, S.C. (Unreported) still reiterated the old customary law position and did not postulate any new and different rule under the era of C.I. 47. Appau JSC speaking for the apex court of the land and relying on the Agbosu v. Kotey supra, which was decided before the advent of C.I. 47 held: Under customary law, which is part of the common law of Ghana, it is axiomatic that it is the Head of Family who has capacity to sue and be sued in matters concerning family property. The only exceptions to this rule have been well-established in the cases of Kwan v. Nyieni [1959] GLR 67 @ 68 … This Court in the

 

In Re Ashalley Botwe Lands case cited (supra) explained the principle as follows: “the general rule recognized in Kwan v Nyieni, namely, that the head of family was the proper person to sue and be sued in respect of family property was not inflexible. There are situations or special circumstances or exceptions in which ordinary members of the family could in their own right sue to protect the family property, without having to prove that there was a head of family who was refusing to take action to preserve the family property. The special or exceptional circumstances include situations where: (a) a member of the family had been authorized by members of the family to sue; or (b) upon proof of necessity to sue”. The Court of Appeal had similarly charted the same path not too long ago under this current C.I. 47 in the case of Kai v. Kissiedu [2010-2012] 2 GLR 57, C.A.

 

It is clear that the justification for bringing the action by the non-family head has not been curtailed even after the coming into force of C.I. 47 in 2004. With this background, the duty of the Plaintiffs in this Court in establishing their capacity is twofold. First, the plaintiffs are to either provide the proof that they have been so authorized by the families or establish the necessity for their bringing the suit. Thereafter, they are to prove that they served their head of family with copies of the writ of summons.

 

(a) Were the Plaintiffs so authorized by their families or was there a necessity for bringing the action?

 

Right from the onset of this suit, the Plaintiffs put their capacity on the line. They are suing for lands belonging to Larkpleh family of Prampram, but they came only on the tickets of two gates; Oklewem and Ayikuwem as the endorsements on the writ and the claim indicate. The plaintiffs are here in court to represent their respective families of Okle Wem and Ayiku Wem headed by Numo Paul Lartey Ayiku and Numo Alfred Quaye respectively. For the avoidance of doubt, I will reproduce paragraphs 1 and 2 of their amended Statements of Claim filed on 21-04-2015 here for its full effect.

“(1) The 1st Plaintiff is the Aflangatse (Flagbearer) and a principal member of the Oklewem division of the Larkpleh family of Prampram and brings this action for himself and on behalf of the Oklewem division of Larkpleh having been so appointed by the other members of the said Larkpleh family of Prampram.

(2) The 2nd Plaintiff is also a principal member of the Ayikuwem division of the Larkpleh Family of Prampram and brings this action for himself and on behalf of the Ayikuwem division of Larkpleh family of Prampram having been so appointed by the other members of the said Ayikuwem family of Prampram.”

 

I understand that to mean Okle Wem appointed the first Plaintiff to represent only the interest of the Okle Wem Family and Ayiku Wem also appointed the second Plaintiff to represent the interest of Ayiku Wem. The duty of the plaintiffs was to show how their respective families authorized them. In their effort to do so, they tendered exhibit ‘A’ as the document empowering them to commence this present action. A careful perusal of the representative capacity in which plaintiffs mounted this action vis-a-vis exhibit ‘A’ betrays them. Per the capacity I earlier mentioned which was disclosed on the writ, the first plaintiff is only in this court to represent the sole interest of Oklewem Quarter, while the second plaintiff is for the Ayiku wem Quarter only. It stands to reason that Ayiku Wem did not appoint the first Plaintiff and Okle Wem also did not appoint the second Plaintiff.

 

Additionally, nowhere in the writ or claim is it mentioned that other gates or divisions of Larkpleh family, apart from the two, appointed the Plaintiffs. Plaintiffs emphatically at paragraph 3 of their amended reply to statement of Defence and Defence to Counterclaim of the 1st Defendant filed on 21st October 2015 averred that Larkpleh family of Prampram is constituted by two divisions. Plaintiffs’ counsel at pages 14 and 15 submitted that in their reply to the first Defendant’s Defence and Counterclaim filed on 27th July 2015, Plaintiffs stated that they were appointed by other members of their respective divisions of Larkpleh. I am unable to fathom why the plaintiffs would refer to this process to canvass their point when it was subsequently amended on 21st October, 2015? Counsel further built his argument at page 14 on the amended statement of claim filed on 5th March 2014. Meanwhile, there was a further amendment of the Plaintiffs’ writ and claim in 2015.

 

As I said, the Plaintiffs had maintained in their pleadings and writ that they were in court for their two families, but during the trial, they tendered exhibit ‘A’ to persuade the court that all the other gates or divisions of Larkpleh appointed them. Is that not surprising or a departure from their own writ and claim? After joining issues on the divisions with the first defendant, Plaintiffs then turn around in their reply to the second defendant’s defence to say that Larkpleh consists of other families, two of which were Oklewem and Ayikuwem. I am not very enthused at all with the way the Plaintiffs and their counsel conducted this case. They seem to have started the litigation on a weak footing, but tried to reshape their case as it progressed. It is of little wonder that there were several amendments of their writ and claim, which ended up confusing them. Order 11 rule 10 of C.I. 47 does not permit a party to depart from his earlier pleadings and if the party wants to do that he needs to amend. In Frabina Ltd. v. Shell Ghana Ltd., Civil Appeal No. JA/31/2009, S.C. dated 23 June 2011, Brobbey JSC decided that it is simply not enough to fight the case on one basis and along the line adopt another position. See Adehyeman Industries Ltd. v. Mensah [2010-2012] 2 GLR 37, Kanyoke J.A. at holding 1.

 

Plaintiffs’ last amended statement of claim in 2015 did not address the fact that Larkpleh has more than two divisions/gates. In the last of the pleadings he filed on 2nd October, 2015 (Reply to Statement of Defence and Defence to Counterclaim of the first Defendant), they still maintained that Larkpleh family of Prampram has two divisions. I am here again unable to understand why the Plaintiffs pursued their case in two different directions.

 

A careful look at the resolution of the family (exhibit ‘A’) does not suggest that the other divisions or gates are under Okle Wem and Ayikuwem. They appear to exist independently, hence they were all described as Gates just like the Okle wem and Ayiku wem in the exhibit. There is even an issue as to the number of gates in Larkpleh. Are they seven or eight?

 

If the plaintiffs are here on the ticket of two families, the question is; how can only two families fight for the entire Larkpleh lands? On the contrary, if they were in court for the whole Larkpleh Quarter, why would they describe themselves only as representing their individual families? And if they knew that it was enough for only the two families to contest the whole Larkpleh Quarter, why did they obtain the mandate of the other families or gates in exhibit ‘A’ in bringing this action? It is gleaned from the document that even not all the families were involved in authorizing the plaintiffs. Why were the various families/gates not represented equally? Whereas some had as many as four representatives, others had two and some one. It is noticeable that the Adimli family was not represented. Akwerh Tetteh Wayo whose name appeared on the document for the said Adimli family did not sign. The reason was not explained to the court. There is even a question mark of the capacity of those who signed. If the families were empowering the Plaintiffs, I believe it should have been the duty of the heads and not ordinary members. If Plaintiffs had cause to question the Memorandum of Understanding on ground that those who signed for Lakpleh were not having the mandate of the family to do so; what is the guarantee that those who are not heads but have signed exhibit ‘A’ have the mandate to sign for their respective gate/division? Where a family has various divisions, does the law allow for some of the divisions to be excluded from taking vital and important decisions affecting all of them? I do not think so! Dennis Adjei in his book supra at page 27 wrote: “A land owned by two or more families shall be alienated by all the heads of the families concerned. An alienation by some of the heads of families without the consent of one or more of the families which jointly own the property is void.”

 

Plaintiffs instituted this action in year 2013. The exhibit ‘A’ bears an attestation by a Commissioner for Oaths in 2015. What is the purpose of the authentication by the Commissioner for Oaths, since the document was not deposed to under oath? The closes reason which comes to my mind is that, perhaps, the Commissioner for Oaths verified the signatures of those who signed. If that is the case, then the document which was executed in 2015 would be invalid to the extent that the Plaintiff had no authority from the Larkpleh Family in year 2013 when they commenced the action. And it was after they had come to the court to meet the challenge from the defendants that they dubiously prepared exhibit ‘A’. It i the law that capacity must be had at the time of instituting the action and cannot be acquired after the commencement of the suit. See the cases of Akrong v. Bulley (1965) GLR 469 SC holding (1) and Nassiru Abdulai Banda v. Colonel Ayisi; Civil Appeal No. J4/1/2013, dated 7th May 2014, (Unreported). Plaintiffs further purport that exhibit ‘A’ is a power of attorney. cannot consider it as such, to the extent that it had no witness as required by sections 1 (1) and (2) of the Power of Attorneys Act, 1998 (Act 549). The Plaintiffs should not think thei signatures were witnessed by a Commissioner for Oaths, because the law does not allow Commissioners for Oaths to serve in their capacity as witnesses. See the cases of Asante Appiah v. Amponsah @ Mansah (2009) SC GLR 90 and Muhammed Sani Bello (Suing Pe his Lawful Attorney, Ernest Amoo-Dodoo v. Asumadu Nyarko (2011) 36 GMJ 86. Exhibi ‘A’, being the Resolution of the Family was further thrown in doubt when Okyeame Naah Kojo Fordji III, PW3, who was alleged to be one of the signatory to the document mounted the box to deny of any such document. What else do we need again to doubt the genuineness o the document? Nothing more! I find on the whole that the Plaintiffs had no authority of the Larkpleh family at the time they instituted the action.

 

On the other ground of necessity, Plaintiffs could not substantiate or give any good reason. As counsel for the first Defendant submitted, Plaintiffs had by their own exhibit ‘B’ affirmed tha the head of Larkpeh family has been performing his duties conscientiously. Counsel referred to paragraphs 6 & 7. These paragraphs read:

“(6) That Numo Alfred Quaye is the head of both the Ayikuwem Family and the larger Larkpleh clan o Prampram, whose installation I observed and participated.

(7) That Numo Alfred Quaye has since performed his duties in the dual capacities to the admiration both the elders and the entire membership of Larkpleh clan” (Emphasis is mine).

 

As if these were not enough, the first Plaintiff in Court under cross examination reiterated page 3 of the proceedings that Numo Alfred Afedi Quaye has since assuming headship Ayikuwem and Larkpleh performed his duties to the satisfaction of both elders and the enti membership of Larkpleh. The Court of Appeal, per Kanyoke J.A. again in the case of Addico Prah [2009] 9 GMJ 65 @ 90-91, C.A., held that a party may be estopped by his own pleadin and declarations and perhaps, this is one of such situations. That being so, then there was business for the Plaintiffs coming to court to litigate family lands when the head has been ve responsible performing his duties to the admiration of all. In other words, the ‘good reaso condition for coming to court and their appointment by the family could not established.

 

(b) Was the writ served on the head of family?

Apart from faltering in proving the first essentials, I do not think the Plaintiffs did not fail again in establishing this second issue. Before I deal with it, I believe it would be appropriate to consider who is the supposed head of Larkpleh family. Whereas, plaintiffs contend that it was Numo Alfred Quaye, Defendants assert it is the second Defendant. Plaintiff in an attempt to do so, tendered an affidavit by the head of the Okle wem Family. Again, I was surprise that counsel for the Plaintiffs brought such an affidavit in evidence instead of bringing the person in court to testify. Such an affidavit would have been relevant if the trial was fought by affidavit evidence or the depnent was unavailable or it was being used to impugn the credibility of the opponent as his own document. In the absence of any of the above, the actual deponent should have appeared in Court to testify and be cross-examined on it. The law is not receptive to evidence not subjected to cross-examination. See Quarcoo v.

Welbeck [2008-2009] 2 GLR 498 at 519, per Quaye JA and Mansah v. Nimo [1961] GLR 511. Some of the exhibits like exhibit ‘T’ tendered by the Plaintiffs had second Defendant styling himself as the head of the Larkpleh family. If Plaintiffs have had cause to tender them for the court to rely on them; why do they turn around to dispute the content of document they themselves had tendered? The scales generally tilt in favour of the second Defendant as the head of the Larkpleh family.

 

It has been noticed earlier on in this judgment that, it is now a mandatory requirement under our laws that a copy of the writ should be served on the head of family if the action is instituted by a non-head of family. The Plaintiffs have the duty to prove the service of the process. Throughout their evidence in chief, the first plaintiff’s who spoke on behalf of the second plaintiff did not lead any such evidence of serving their supposed head of family. The counsel for the plaintiff in his address submitted that the plaintiff under cross-examination in an answer to a question said the head of the Larkpleh family was served with a copy of the writ. Counsel went on to say that the Defendants’ counsel after the answer by his client asked no further questions on the service and this is an indication that he was satisfied with the answer. I find that submission by the counsel for the Plaintiff surprising. Is it under cross-examination before one establishes his case? I think not. Adade JSC in the case of Nartey v. Mechanical Lloyds Assembly Plant Ltd. (1987) 2 GLR 314 @ 344 stated that it is for any plaintiff who comes to court to make out a case first for the court to consider, otherwise, he fails. See also Esseney Socrates Kwadjo v. Speedline Stevedoring Co. Ltd. [2016] 92 GMJ 66 @ 90, per Kanyoke J.A.

 

I believe once the Defendants had challenged the Plaintiffs on their capacity, whether they asked any question or not about it under cross-examination, the Plaintiffs still had the duty to prove it, otherwise they fail. It is after they had led satisfactory evidence of the service that the Defendant would lose, if they were unable to rebut the assertion. What credible evidence did the Plaintiffs lead apart from answering under cross-examination that they served the head of the Larkpleh family? Nothing! It was just a bare answer. In the case of Mrs. Vivian

Aku-Brown Danquah v. Samuel Lanquaye Odartey, Civil App. No. J4/4/2016 dated 29th June, 2016, S.C. (Unreported), Pwamang JSC decided: … it must be pointed out that suggestions put to a witness by counsel in cross examination which are denied by the witness do not constitute evidence of proof of the matters suggested by the cross examiner.

 

 

 

Also, in Emmanuel Osei Amoako v. Standford Edward Osei (substituted by Bridget Osei Lartey); Civil App. No. J4/3/2016 dated 1st June 2016, S.C. (Unreported), Appau JSC held: “Judgments must be based on established facts not mere rhetoric or narrations without any supporting evidence that can sustain the claim”.

Where service of a process is in issue, the person alleging the service is required by law to prove it strictly (my emphasis). Essilfie-Bondzie J.A. explained the law on dispute over service of a process in the case of Y.K. Quartey v. John Hammond; Civil Appeal No. 17/99, dated 23/12/99, C.A. (Unreported) that:Where the service of a document became crucial in the determination of a matter … the party alleging service or relying on the service for success assumes the duty to prove it strictly

The Supreme Court in Re Yendi Skin Affairs, Andani v. Abdulai [1982-83] GLR 1080, similarly held at holding 3: 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 J.S.C. even canvassed a higher and stricter standard when he 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.” I perfectly agree with him when he said that where proof of a service is concerned, the sworn affidavit is sine quo non to its proof. I only disagree on the point which suggests that there are three standards of proof. Our laws, unlike that of United States (US), only recognize two standards; a proof on the preponderance of probabilities in civil cases and a proof beyond reasonable doubt in criminal cases. In US, apart from the two standards, they have a third standard, which is proof upon a probable cause, that is a proof in between the two; it is above the proof on the preponderance of probabilities but not up to the standard of the proof beyond reasonable doubt as we have in criminal cases.

 

Denning J. (as he then was) in Miller v. Minister of Pensions [1947] 2 ALL ER 372 held thus: “If the evidence is such that the tribunal can say ‘we think it more probable than not’ the burden is discharged, but if the probabilities are equal it is not.” In Danso-Dapaah v. Falcon Crest Investment Ltd. & 4 Ors. [2015] 89 GMJ 148 @ 172, Dzamefe J.A. decided: Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, example, by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness, he proves it by producing other evidence of fact and circumstances from which the court can be satisfied that what he avers is true.See also Comfort Darko v. Julian Darko [2016] 97 GMJ 153 @ 158, C.A. and International Rom Ltd. v. Vodafone Ghana Ltd. & Anor. Civil App. No. J4/2/2016 dated 6 June 2016, S.C. (Unreported).

 

Since the Plaintiffs are required to prove it strictly, it was not enough for them to have just said the head of family had been served. When was he served? What proof was shown? As Adade JSC noted above, the best evidence of proving service was to tender the affidavit of service. In 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, the Supreme Court, per Dotse JSC at holding (1) held: “.. In the instant case, the depositions referred to by the interested parties in the affidavit of the applicants could not be substituted for a properly conducted search, evidencing proof that the processes emanating from the court … had been served on the applicants….Accordingly, proof of the service of the orders of the court prior to 13 May 2009 had not been properly made out.”

 

Nothing like that was done in this case. I agree with Dennis Adjei in his book supra when he stated at page 42 that: “The name of the head of family should be endorsed as one of the people to be served with the writ even though he is not a party.” The Head of family’s name appeared nowhere on the writ and it was not likely he was served, in the absence of an affidavit of service. Where a person is required to be served and he was not served, the jurisdiction of the court properly cannot be invoked. A court infringes on the audi alteram partem rule of natural justice when it hears a case in the event of non-service of a process on a person supposed to be served.

 

When the Supreme Court had the opportunity to espouse the law in the case of The Republic v. High Court, Land Division, Accra, Ex Parte Nii Moi Morton, Civil Motion No. J5/21/2016 dated 28th July 2016, Pwamang JSC noted: The natural justice rule of giving a party a hearing before making an order that would affect that party is not concerned with the merits of the case of the party to be affected. Though the interested party claimed applicant was served, the evidence shows that he was not so there was a violation of the natural justice principle of audi alteram patem.” See Samuel Kakra Mensah v. Christopher Kwablaligbidi [2014] 75 GMJ 157 @ 192-193, Ofoe J.A; Barclays Bank v. Ghana Cables (1998-99) SCGLR 1, per Acquah JSC and Amoo v. Akowuah [2012] 52 GMJ 27 @ 46, S.C.

 

Granted Numo Alfred Afedi Quaye, who Plaintiffs claim to be the overall head of Larkpleh family and the Ayikuwem gate was served, what about the head of Okle wem, Numo Paul Lartey Ayiku, since first Plaintiff, per the writ is representing Oklewem family? This court’s jurisdiction can properly be invoked after the head of the appropriate family of the Plaintiffs had been served. In other words, it is a condition precedent for the assumption of my jurisdiction. In Heward-Mills v. Heward Mills (1992-93) GBR 234, it was held: Where a statutory condition must be complied with before a court can have Jurisdiction to make an order, failure to comply with such a condition will leave the court with no discretion to make any order or orders in the matter".

In other words, capacity is a condition-precedent to the assumption of jurisdiction. The Nigerian Court of Appeal could not have put it any better when in the case of Ostankino Shipping Co. Ltd. v. The Owners of the MT ‘Bata 1’, Suit No. CA/L/925/07, dated 12th January 2011, it decided: “Since the appellant lacked legal capacity to institute the action ab initio, it follows also that the court lacked the competence to entertain the action instituted by the appellant. Issue of jurisdiction is very fundamental. That it is a condition precedent to the exercise of jurisdiction that a competent party is before the court. Once there is a defect in competence, it is fatal and the proceedings are nullity.” Counsel for the Plaintiffs had urged on the court to disregard the want of capacity and proceed to deal with the substance. He argued that capacity can be amended in appropriate circumstances. It is true and I wish I could do that now, but that is only possible in instances where the Plaintiff actually had the capacity, but had not been properly described in the endorsement and which would not occasion any injustice. In Assemblies of God Church v. Obeng (2011) 32 GMJ 132 SC; [2010] SCGLR 300 @ 305, the Court formed the view that in order to do substantial justice, it would be manifestly unjust to non-suit plaintiff church because they added the words ‘Executive Presbytery’ to their name on the writ of summons. See also Ceasar v. T.K.H. (2006) 8 MLRG 116 @ 133, Per Owusu-Ansah JA and Birih v. Asempah (1992) 2 GLR 416.

 

The present case is different. The court cannot bestow the capacity on a person where the person does not have it. The Plaintiffs in this case just lack the capacity and any attempt at accommodating them would most likely lead to the setting aside of this judgment.

 

THE DESCRIPTION OF THE LAND CLAIMED BY THE PLAINTIFFS

On the description of the land, I do not want to deal with it except to say that the Plaintiff did not lead any evidence in proof of the land. I notice that most lawyers fall into the unconscious trap when leading their witnesses to say that they rely on some paragraphs in their pleadings instead of specifically restating them in the witness box. In this case, it was at paragraph 5 of his witness statement that he indicated he was relying on the land described in the schedule under paragraph 7 of the Amended Statement of Claim. I must say here that it is wrong. It is not enough for a party to mount the box to say that he relies on facts or paragraphs contained in his pleadings. The party is specifically required to lead evidence on the facts stated in the pleadings before they can become part of the evidence. In the case of Aryitey v. Ayele (1962) 1 GLR 225, it was held at holding (1) "a mere assertion on oath by a party to a suit that he relies on a statement he had previously filed does not make that statement evidence in the proceedings, That party's case will be judged on the rest of the evidence, if any, produced by him." It means therefore that the Plaintiff led no evidence on the exact land claimed for the court to have known which land they were seeking.

 

Since the crux of this matter is on the Plaintiffs want of capacity, I see no reason why I should waste time on the other issues. But in view of the fact that the first Defendant also counterclaimed, I will only touch on the issue pertaining to his counterclaim.

Whether or not the first Defendant is entitled to his counterclaim?

Am I enabled at this stage to grant the first Defendant’s counterclaim as counsel for the first Defendant has submitted? I think not! It is the law that where the Plaintiffs’ capacity is in want, the court is not enabled to deal with the merits of the case, including that of the Defendants. In the case of Huseini v. Moru (2013 -14) 1 SC GLR 363, the Supreme Court held per Baffoe Bonnie JSC at holding 2 as follows: Since the attorney lacked capacity to issue the writ because the power of attorney was void, the defendant would also not pursue his counterclaim. Even though a counter claim is a separate action from the claim in the peculiar circumstance of this case, the bottom of the case had been knocked off for want of capacity. If there was no capacity to sue because of the defective power of attorney, then there was no capacity to defend the action.”

 

I will end this judgment by adopting the decision of Essilfie-Bondzie J.A. in the case of Samuel Odoi Quashie v. Yemoley Baakan in Suit No. H1/92/2004, dated 26-03-2004, (Unreported) when he held: “I hold that having failed to disclose clearly his capacity to sue, the plaintiff's action ought to fail.” In the circumstance, the case of the Plaintiffs is thrown out for its fundamental incompetence – lack of capacity.