KINGSFORD ODOI CHARWAY VS JAMES OKPOTI MENSAH
2022
COURT OF APPEAL
GHANA
CORAM
- SUURBAAREH G. S. (MR.) J.A (PRESIDING)
- WOOD MERLEY (MRS) J.A.
- JANAPARE BARTELS-KODWO (MRS.) J.A.
Areas of Law
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Janapare A. Bartels‑Kodwo authored the Court of Appeal’s judgment allowing an appeal by a principal elder of the Nii Adjei Charway Family of La over land at Oyarifa. The High Court had dismissed his claim for want of capacity and declared the writ a nullity, also dismissing the Respondent’s counterclaim. On appeal, the court applied the rehearing standard, finding the family head was old and had authorized the Appellant by handing him land documents; the interpreter’s use of “power” did not mean a formal power of attorney was required under Order 4 rule 9. Distinguishing Kwan v Nyeni and Asante‑Appiah v Amponsah, the court held the Appellant had capacity. On the merits, witnesses from neighbouring La families and the linguist of Oyarifa, together with a surveyor’s composite plan and the Respondent’s inability to identify the land or produce boundary owners, showed the Appellant’s superior title. Registration alone did not cure the Respondent’s defective root of title. The counterclaim was dismissed and reliefs (i)–(iv) and (vi) were granted to the Appellant.
BARTELS-KODWO, J. A:
The Plaintiff/Appellant instituted an action at the trial court describing himself as a member and principal elder of the Nii Adjei Charway Family of La on his own behalf and on behalf of the family.
This action was against the Defendant/Respondent for recovery of land which forms part of the Nii Adjei Charway Family at Oyarifa.
The parties in this judgment will be referred to as the Appellant and the Respondent.
On the 30th of April 2018, after a full trial the trial court dismissed the Appellant’s action for want of capacity to bring the suit and declared the Writ a nullity.
It also dismissed the counterclaim of the Respondent having declared the Writ a nullity.
It is against the judgment of the trial court which is at pages 236A - 236M that this appeal is brought.
Though the Notice of Appeal contained three grounds of Appeal the Appellant before this court argued only the first ground being that: ‚The trial judge was wrong in dismissing the Plaintiff’s action on the ground that he had no capacity to bring this action on behalf of Nii Adjei Charway Family when the defendant did not by his defence raise the issue of Plaintiff’s capacity to institute that action on behalf of the Nii Adjei Charway Family.
It is trite learning that an appeal is basically a re-hearing as created by statute, see rule 8 of C. I. 19, The High Court (Civil Procedure Rules) 2004. In the Court of Appeal case of BAKANA LTD. V. ALBERT OSEI AND THE OFFICIAL LIQUIDATOR OF GHANA AIRWAYS, C. A. , Civil Appeal No: H1/28/2014, delivered on 12th June, 2014. This is how the court expressed the appeal mandate: “An appellate court as a rehearing court is to hear an appeal as if same the hearing were the original hearing of the case and hence may comprehensively review the whole case by analyzing the entire record of appeal, taking into account the testimonies and all the documentary evidence adduced at the trial before arriving at the decision, so as to satisfy itself that, on a preponderance of probabilities, that the conclusions of the trial judge are reasonably or amply supported by the evidence. ”Learned Counsel for the Appellant in arguing the appeal submitted that though the court took evidence on the ownership of the land, the court took the stand that in civil litigation the issue of capacity was very important hence the court did not determine the substance of the matter that was before it being whether or not the land tract in issue belonged to the Plaint