AWUDU AKUOGO v. ISSAKA NUHU & ORS
2022
COURT OF APPEAL
GHANA
CORAM
- V. D. OFOE, JA (PRESIDING)
- J. BARTELS-KODWO (MRS.), JA
- S. R. BERNASKO-ESSAH (MRS.), JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
- Evidence Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Ghana Court of Appeal, per V. D. Ofoe JA (presiding), with J. Bartels-Kodwo (Mrs.) JA and S. R. Bernasko-Essah (Mrs.) JA concurring, dismissed an appeal arising from a family land dispute in Misiga, Bawku Municipality. The plaintiff had consistently sued as head of the Akuogo family but admitted on cross-examination he had two elder brothers and that Kusasi custom recognizes primogeniture. After the matter was adjourned for judgment and defendants’ address challenged his capacity, he moved to amend his capacity to “principal member and acting head.” The High Court refused. On appeal, the court emphasized deference to discretionary rulings (Ballmoos v Mensah; Arthur (No2) v Arthur (No2)), found the application late, unsupported by evidence, and appearing to overreach, and held there was no basis to disturb the trial judge’s ruling, affirming the refusal and dismissing the appeal.
V. D. OFOE
This appeal is against the ruling of the trial High Court presided over by His Lordship Justice Boon delivered on the 24th May 2018 in which he refused the plaintiff/appellant’s (plaintiff) application to amend the capacity in which he sued the defendant/respondents( defendants). Let the plaintiff /appellant be referred to as plaintiff in this appeal and the defendants/ respondents be the defendants.
The application to amend was made when the case had been adjourned for judgment and the defendants had filed their written address in which they have questioned the capacity of the plaintiff to institute the suit.
The subject matter of the suit concerned land in Misiga within the Bawku Municipality.
A review of the record of appeal clearly indicated that the plaintiff, both in his pleadings and evidence in chief, maintained that he was the family head of the Akuogo Family of Misiga and sued for himself and for the Akuogu family as a whole. He was challenged to prove this assertion. In his cross examination he was made to admit that he has two brothers older than him who by the custom and tradition of the Kusasis should take the headship before him since their system operates ascension by primogeniture (oldest first). At the end of trial when the case was adjourned for judgment it appeared obvious from the records that the plaintiff could not have been the head of family as he had contended throughout the trial. This may have struck his counsel who applied to amend his capacity to read “suing as principal member and acting head of family of the Akuogo family of Misiga for himself and the Akuogo family as a whole” The reasons he provided for seeking the amendment we quote in extenso from his supporting affidavit to the application, paragraph 3 to 9: Refer to page 229 of the Record of Appeal:
“3. That all along I have always being acting and generally acknowledged by my family as the head of the family in view of the fact that my surviving elder brothers namely: AKUOGO ABANE and AKUOGO AWUNI SALAM are both not resident in Missiga and do not generally participate in our family matters.
4. That Akuogo Abane has been resident in the Republic of Cote d’Ivoir for close to 40 years and hardly comes home, whilst Akuogo Awuni Salam is a driver resident in Bolgatanga and sojourns in Techiman from time to time and also does not participate in family matters.
5. That consequently, I have over the years by necessity assumed the mantel acting as head of th