IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)
ASIEDU JSC
GAEWU JSC
KWOFIE JSC
AMALEBOBA JSC
CIVIL APPEAL NO. J4/35/2024
25TH MARCH, 2026
MR. I . K. GYASI ………….. PLAINTIFF/APPELLANT/RESPONDENT
(SUBSTITUTED BY NANA BONSU ABABIO)
VRS
1. NANA OFOSU SARPONG KUMAMKUMA …… 1ST DEFENDANT/RESPONDENT
2. DAASEBRE OSEI BONSU II …… 2ND DEFENDANT/RESPONDENT/APPELLANT
(SUBSTITUTED BY NANA OTUO ACHEAMPONG)
JUDGMENT
ASIEDU, JSC:
[1.0]. INTRODUCTION
My lords, this is an appeal from the judgment of the Court of Appeal, Kumasi, delivered on the 21st December, 2023 in favour of the Plaintiff/Appellant/Respondent (hereinafter referred to as the Respondent). In the said judgment, the Court of Appeal set aside the judgment of the High Court, which judgment of the High Court had been delivered in favour of the Defendants therein. The 2nd Defendant/Respondent/Appellant shall hereinafter be referred to as the Appellant.
[2.0]. FACTS
By an amended writ and statement of claim issued out of the Registry of the High Court, Mampong, the Respondent claimed against the 1st Defendant and the 2nd Defendant/Respondent/Appellant (hereinafter called the Appellant) the following reliefs:
a. Declaration of title and recovery of possession of all that parcel of land situate and being at a place commonly known and called Jetiase (Agric) sharing BOUNDARIES with Samanpa Stream, Mampong Technical College of Education, Dotire Stream, Abuom Stream and Bonkrom Stream being part of vast land acquired by Kumwaa now property of Kumwaa family of Mpantuase.
b. An order of perpetual injunction restraining the defendants, their assigns, privies, workmen, labourers successors in title and any one claiming through them from having anything to do with the land described in relief ‘A’.
c. General damages against the defendants for trespassing unto (sic) the plaintiff’s family/stool land.
d. Any other relief(s) the Honourable Court deems fit to grant.
[2.1]. The Respondent averred that the Respondent is the Abusuapanin of the Kumwaa family of Mpantuase near Nsuta in the Ashanti Region, and commenced the instant action for himself and on behalf of the said family. It has been the case of the Respondent that the disputed parcel of land was acquired by the Respondent’s great grandmother, one Nana Atwiwetima (Awiwetiamah) through purchase from Beposohene Bira Appiadu. That the Respondent’s great grandmother purchased the disputed parcel of land together with and shared same with the then Nsutahene, Tabiri Hemanin. The Respondent averred further that the Respondent’s family is also known as Adakor, which is part of the Oyoko family of the Ashanti Kingdom. That at the time the Respondent’s great grandmother acquired the disputed parcel of land, the Kronti and Akwamu Stools of Nsuta had not been created. That subsequent to the creation of the Kronti and Akwamu Stools, the said Stools obtained the consent of the Respondent’s great grandmother, the owner of the disputed land, and settled on a portion of the land. That the Kronti and Akwamu Stools attorned tenancy to the Respondent’s great grandmother with an annual token of a pot of palm oil.
[2.2]. The Respondent alleged that Kumiwa, who succeeded the Respondent’s great grandmother, and became the queen mother of Nsuta, stepped down as queen mother following a misunderstanding that ensued between Kumiwa and one Oduro, then Nsutahene. That after Kumiwa stepped down as queen mother, she settled on the disputed parcel of land and all other settlers of the disputed land paid tribute to the “Kumiwa stool.” That sometime in 1936, the then Nsutahene went onto the disputed land and stopped the settlers on the land from attorning tenancy to the Kumiwa Stool. As a result, the Kumwaa family, per their representative, one Yeboah Okodieh (Aukordieh), took action against the Nsutahene and Mamponghene in the Asantehene’s Court ‘A’, and won the case against the Nsutahene and the Mamponghene. That the Kumwaa family of Mpontuase has, since winning the case against the Nsutahene and the Mamponghene, enjoyed exclusive possession of the disputed tract of land.
[2.3]. The Respondent averred further that the 1st Defendant and the Appellant herein, without the consent or authority of the Kumwaa family, started demarcating the disputed tract of land into building plots and selling parts thereof to prospective developers. That when the Respondent confronted the 1st Defendant following the 1st Defendant’s unauthorized activities on the disputed parcel of land, the 1st Defendant indicated that the 1st Defendant was on the land on the authority and blessing of the Appellant herein.
[2.4]. It has, therefore, been the case of the Respondent that, the Appellant herein, the Mamponghene, and all those claiming through the Appellant, are estopped from laying claim to the disputed parcel of land. The Respondent founded his plea of estoppel on the grounds that the subjects and tenants of the Kumwaa Stool have been in effective possession and occupation of the disputed land since 1941 without any hindrance whatsoever, and that the Respondent’s family, through their licensee, the Akwamuhene family, has granted portions of the disputed tract of land to various Government agencies without any hindrance. That unless restrained by the Court, the Appellant would continue to trespass onto the disputed parcel of land. The Respondent, therefore, prayed the trial High Court as by his amended writ and statement of claim identified above.
[2.5]. On the other hand, the 1st Defendant in his amended statement of defence, denied the Respondent’s material averments, and stated that the judgment referred to by the Respondent as having declared title to the disputed tract of land in the Respondent’s great grandmother, was set aside on an appeal lodged by the 2nd Defendant (Appellant herein). 1st Defendant averred that the parcel of land described in the Respondent’s amended writ and statement of claim, does not fall within or even share a boundary with the 1st Defendant’s stool land. The 1st Defendant averred also that the 1st Defendant was a caretaker chief for and on behalf of the 2nd Defendant (Appellant herein), and indeed demarcated the disputed tract of land, being repossessed lands from the Ministry of Food and Agriculture, on the authority of the Appellant herein. That the said parcels of land repossessed by the Appellant, are the bona fide property of the Appellant, the Appellant having sometime in 1954 alienated the said lands to the Government of Ghana, for research purposes by the Ministry of Food and Agriculture. The 1st Defendant averred further that considering that the Appellant granted the disputed land since 1954, a period of 66 years, to the Ministry of Food and Agriculture without any objection from the Respondent, the Respondent’s action was statute barred. The 1st Defendant averred that the Respondent was not entitled to the reliefs sought by the Respondent or at all, and counterclaimed against the Respondent as follows:
a. Declaration of title to and recovery of possession of all that piece or parcel of land sharing boundaries with Owuobuoho in the North, Biima to the East, Gyetiase, Bonkrong and Daaho to the South-West and then Botoku and Mampong Water-Works to the West.
b. Damages for trespass
c. An order of perpetual injunction to restrain the plaintiff, his agents, assigns, servants, workmen and all those claiming through him from interfering with the 1st defendant’s right to enjoy his Stool Lands.
d. Costs including legal fees.
[2.6]. In a similar vein, the 2nd Defendant (Appellant herein), in his statement of defence, denied the Respondent’s claims and asserted that the Respondent’s family lost the case referred to by the Respondent to buttress the Respondent’s claim to the disputed parcel of land, and that the disputed land is the Appellant’s Stool land. The Appellant averred, also, that in any case, the Respondent was estopped from making a claim to the disputed parcel of land, considering that the Respondent’s predecessor lost the case against the Appellant’s predecessor before Asantehene’s Court ‘A’. That the Respondent’s action was statute barred. The Appellant counterclaimed against the Respondent for the following reliefs:
a) A declaration that the 2nd Defendant [Appellant herein] is the allodial owner of the disputed land described by the Plaintiff as Jetiase (Agric) sharing boundaries with Samanpa Stream, Mampong Technical College of Education, Dotire Stream, Abuom Stream and Bonkrom Stream, which land 2nd Defendant granted same to 1st Defendant his privy to oversea on his behalf.
b) An order of perpetual injunction restraining the Plaintiff, his privies, agents etc. from laying claim to the said land and also interfering with the Defendants’ ownership and enjoyment of the disputed land.
c) General Damages for the inconvenience and embarrassment caused the Defendants by the grant of the interlocutory injunction on the land against Defendants at the instance of the Plaintiff.
d) Costs associated with the suit including Solicitor’s fee
e) Any order(s) the Honourable Court may deem fit.
[3.0]. JUDGMENT OF THE HIGH COURT
After Case Management Conference, the learned trial Judge scheduled the matter for hearing on the 21st, 22nd and 25th of October, 2021. The records show that on the 21st October, 2021, Counsel for the Respondent was absent in court. The court was informed that Counsel was bereaved. Consequently, the matter was adjourned to 25th October, 2021 for hearing to commence. On the return date of 25th October, 2021, Counsel for the Respondent was, again, absent in Court. Accordingly, the learned trial Judge put the Respondent, through his representative in court, to an election to either testify in the absence of Counsel or have the Respondent’s action dismissed as earlier forewarned by the court at the last adjourned date. The Court then proceeded (at pages 261-262 of Volume 1 of the ROA) as follows:
“The Witness has elected to not testify without his Counsel irrespective of the two options placed before him to either represent himself or have the action dismissed under Order 36, C.I 47. Having clearly elected not to represent himself without justifiable cause, the Court hereby invokes Order 36, C.I 47 to dismiss the Plaintiff’s action and the Defendants are presently at liberty to open their defence to the action forthwith.”
[3.1]. APPEAL FROM THE HIGH COURT AND APPLICATION FOR STAY OF PROCEEDINGS
Dissatisfied with the decision of the learned trial High Court Judge, the Respondent herein, by a notice of appeal filed on 11th November, 2021 (found at page 264 of Volume 1 of the ROA) lodged an appeal to the Court of Appeal. The grounds of the said appeal were that:
a. The Decision was against the weight of the evidence.
b. There is a miscarriage of justice when the trial judge dismissed the plaintiff’s action when he was informed that counsel for plaintiff has called the 1st defendant’s counsel about the death of Managing partner of his Law Firm Asempa Chambers.
c. The trial judge failed to consider the case of the plaintiff/appellant properly and entered judgment against them.
[3.2]. Subsequent to the notice of appeal, Counsel for the Respondent filed in the trial High Court a motion on notice for stay of proceedings pending the outcome of the appeal. The application was, however, withdrawn by Counsel, and proceedings in the High Court continued on the 1st Defendant’s and the Appellant’s defences and counterclaims.
My lords, it appears from the record that the Respondent’s appeal against the decision of the Court which dismissed the Respondent’s action on the 25th October, 2021, was not pursued after the Respondent’s application for stay of proceedings was withdrawn. The Respondent participated in the proceedings in the trial High Court, where his Counsel attended Court and cross examined the Defendants therein at the hearing on the counterclaims.
At the end of trial, the learned trial Court Judge, in a judgment delivered on the 14th March, 2022, found that the Appellant had led sufficient evidence in proof of Appellant’s claim of title to the disputed tract of land. The Court, therefore, gave judgment for the Appellant on the Appellant’s counterclaim.
[3.3]. Dissatisfied with the judgment of the trial High Court, this time after full trial on the Appellant’s counterclaim, the Respondent, once again, lodged an appeal to the Court of Appeal by a notice of appeal filed on the 11th May, 2022 (see pages 327 to 328 of Vol. 1 of the ROA). The following grounds of appeal were set out in the notice of appeal:
a. That the judgment is against the weight of evidence.
b. That the court erred in law when it held that the 2nd [Defendant] is the allodial owner of the disputed land described by the plaintiff as Jetiase (Agric) sharing boundaries with Samampa Stream, Mampong Technical College of Education, Dotire Stream, Abuom Stream and Bonkrom Stream when the 2nd defendant with different legal representation did not give evidence.
c. That the court erred in law when it relied on exhibit 10 and held that it points to the certainty of the land in dispute.
d. Additional grounds of appeal shall be filed upon the receipt of the proceedings.
An application by Respondent’s Counsel for leave to amend his grounds of appeal, was refused by the Court of Appeal in a ruling dated 22nd March, 2023 (pages 421 to 422 of Volume 1 of the ROA). The proposed amendment was to add ground (d) to read as follows:
“d. That the court erred in law when the judge assumed jurisdiction on 1st and 14th February 2022 after the registry of the court issued FORM 6 on 20th January, 2022. I have attached copy of the FORM 6 and marked same as exhibit NSB2.”
[4.0]. JUDGMENT OF THE COURT OF APPEAL
In the judgment of the Court of Appeal, delivered on the 21st December, 2023, the learned Justices of the Court of Appeal set aside the judgment of the trial High Court, which dismissed the Respondent’s suit on the 25th October, 2021. The learned Justices of the Court of Appeal reasoned that, in dismissing the Respondent’s action before the trial High Court, the learned trial Judge erred when the trial Judge purported to exercise jurisdiction under Order 36 of the High Court (Civil Procedure) Rules, 2004 (C.I 47) which jurisdiction was not available to the trial Court in the circumstances of the case. According to the Court of Appeal, while the absence of a party could constitute cause to dismiss the party’s claim or counterclaim, as the case may be, the absence of a party’s counsel at proceedings was not envisaged by Order 36 of C.I 47 to be a reason to dismiss a party’s suit or claim. The decision of the trial Court was, therefore, set aside on the basis that it was made without jurisdiction.
The Court of Appeal expressed themselves (at page 481 of Vol. 2 of the ROA) as follows:
“In the instant case the trial court in dismissing the plaintiff’s claim, stated it was acting under the jurisdiction conferred on it by the provisions of Order 36 r 1(2) of CI 47. A reading of Order 36 r 1(1) and (2) of CI 47 quoted above do not however give any such jurisdiction to a court to dismiss a party’s claim or counterclaim for failure of his/her Counsel to attend at the trial. We however recognize that a court has a duty to control its proceedings to ensure quick and efficient justice delivery, and that in pursuit of this duty, may invoke its inherent jurisdiction to dismiss a claim or counterclaim where counsel for a party fails to attend at the trial. This will however depend on the circumstances of each case. In Omaboe vrs Kwame (1978) GLR 226, CA, the Court affirmed the decision of the trial court which refused to set aside an order dismissing the appellant’s claim for non-attendance by his counsel at the trial based on the special circumstances of the case”
My lords, the tenor of the judgment delivered by the Court of Appeal is that, the appeal succeeded on the legal question of jurisdiction. Thus, the decision of the trial High Court granting the Appellant’s reliefs on the Appellant’s counterclaim, did not fall to be determined by the first appellate court on the merit, which appears to have been the invitation to the Honourable Court by the Respondent’s subsequent notice of appeal after judgment was delivered for the Appellant on the latter’s counterclaim.
[5.0]. APPEAL TO THE SUPREME COURT
By a Notice of Appeal (at pages 483 to 485 of Vol. 2 of the ROA), the Appellant formulated the following grounds of appeal against the judgment of the Court of Appeal:
a) The Court of Appeal erred when it set aside the judgment of the High Court dated 14th March, 2022 for lack of jurisdiction of the High Court.
Particulars of Error
(i) Failing to give the 2nd Defendant/Respondent the opportunity to be heard on the issue of the jurisdiction of the High Court in proceeding to hear 2nd Defendant’s counterclaim after dismissing the Plaintiff’s suit on stated grounds, a point raised suo motu by the Court of Appeal, before the Court of Appeal rested its decision on that point of law.
(ii) Having found that under the inherent jurisdiction of the High Court, the trial judge could dismiss the Plaintiff’s suit for stated reasons, the trial judge’s alleged misapprehension of the Rules of Court under which he dismissed the Plaintiff’s suit as claimed by the Court of Appeal, did not take away the jurisdiction of the trial court to proceed to hear the 2nd Defendant’s counterclaim.
(iii) The claim that the trial relied on Order 12 Rule 4 of CI 47 to dismiss the Plaintiff’s suit is not borne out from the Record of Proceedings before the High Court.
b) The Court of Appeal erred when it pronounced on the basis for the dismissal of the Plaintiff/Appellant’s suit by the High Court.
Particulars of Error
i) Failing to find that the dismissal of Plaintiff/Appellant’s suit was not the subject of the appeal before the Court of Appeal.
ii) Failing to find that the suit that was on appeal was the 2nd Defendant’s counterclaim and that it was the judgment on the counterclaim that was being alleged to be against the evidence adduced in that trial per the Notice of Appeal.
c) The judgment of the Court of Appeal is against the weight of the evidence adduced at the trial court.
[6.0]. APPELLANT’S ARGUMENT
In their statement of case filed on the 30th of April, 2024, Counsel for the Appellant has indicated that ground (a) (iii) of the grounds of appeal was abandoned. Counsel has submitted that, the High Court’s reference to the wrong Order, if at all, did not take away the jurisdiction of the Court to dismiss the Respondent’s suit in the circumstances of the case. That the closest the Respondent came on the lack of jurisdiction of the High Court was the Respondent’s claim that after the issuance of Form 6 in respect of the “interlocutory appeal”, the court lacked jurisdiction to deal with the case of the Appellant on the Appellant’s counterclaim. Counsel, however, addresses the issue at page 19 of the statement of case in the following terms:
“Suffice it to say that in the present suit, the counterclaim is a separate suit independent of the original suit. Therefore, when the trial judge dismissed the original suit of the Respondent and he appealed against same, the counterclaim stood untouched. Consequently, when Form 6 was issued it was in respect of the original suit of the Respondent. It is that original suit that the trial judge could not have entertained any application in respect of or purport to deal with in any other manner. What the trial judge dealt with was the counterclaims of the 1st Defendant and the Appellant herein which were not subject of any appeal. Without an order for stay of proceedings to deal with the counterclaim therefore, the High Court was within jurisdiction when it proceeded to hear the counterclaim of the Appellant.”
[6.1]. Counsel has also argued that the appeal before the Court of Appeal was not the appeal from the order of the trial High Court dismissing the Respondent’s suit, notice of which is found at page 264 Vol. 1 of the ROA. That the Respondent herein did not argue the grounds of appeal as contained in that “interlocutory appeal” before the Court of Appeal, in his appeal from the final judgment of the High Court. That as a result, the Appellant did not also make any submissions to meet the grounds of appeal as stated in the said interlocutory appeal. Counsel, therefore, submitted that “the Court of Appeal in pronouncing on the dismissal of Respondent’s case virtually dealt with the interlocutory appeal which was not before it. In effect the Court of Appeal substituted a case for the Respondent contrary to what Respondent presented in his appeal and proceeded to set aside the judgment entered for the Appellant on the substituted case”. (At page 20 of the statement of case).
Counsel has argued that, had the Court of Appeal dealt with the case put forward by the Respondent in the Respondent’s appeal as contained in the grounds of appeal, the Court of Appeal would have come to the conclusion that the judgment of the High Court was supported by the evidence on record before the High Court. That the exhibits tendered by the Appellant in the trial Court, support the case of the Appellant’s allodial title by way of documentary evidence, and overt acts of ownership over the disputed parcel of land since 1954.
Counsel, therefore, prays this Honourable Court to set aside the judgment of the Court of Appeal, and affirm the judgment of the trial High Court.
[7.0]. ARGUMENT OF RESPONDENT
In their statement of case filed on the 8th July, 2024, pursuant to leave granted by this Honourable Court, Counsel for the Respondent has argued that, since Form 6 was issued and served on the trial High Court on 20th January, 2022, the court with jurisdiction to deal with the matter was the Court of Appeal. The trial court, therefore, was bereft of jurisdiction to deal with the suit or any part of it after Form 6 was issued on the 20th January, 2021. The Respondent maintains that the trial High Court did not have jurisdiction to proceed with any part of the suit after Form 6 had been issued and served.
In response to the Appellant’s argument that the learned Justices of the Court of Appeal erred in raising the issue of jurisdiction suo motu without affording the Appellant the opportunity to be heard on the issue, Counsel for the Appellant has submitted that, the Court of Appeal, like any other appellate court, has a duty in rehearing a case on appeal, to examine the entire proceedings including all exhibits, and make findings of its own. That in doing so, the Court has the power to raise any legal issue that is unanswerable and make its decision on the issue.
Counsel has argued further that, the trial High Court could not rely on the evidence of 1st Defendant, who, being a caretaker of the disputed parcel of land for and on behalf of the Appellant, lacked capacity to assert a right over the property, to find in favour of the Appellant. That the Appellant, who did not personally lead evidence in the matter, could not properly have been found by the trial Court to have discharged the burden of proof in respect of the ownership of the disputed parcel of land.
Counsel, therefore, prays the Honourable Court to affirm the judgment of the Court of Appeal, and dismiss the instant appeal.
[8.0]. DETERMINATION OF THE APPEAL
My lords, it is my humble view that the main issue which arises from the judgment of the Court of Appeal, is whether the learned Justices of the Court of Appeal erred in coming to the conclusion that the trial Court Judge acted without jurisdiction under Order 36 of C.I 47.
Order 36 Rules 1, 2 and 3 of C.I. 47 provides as follows:
Failure to attend at trial
36. “1. (1) where an action is called for trial and all the parties fail to attend, the trial Judge may strike the action off the trial list.
(2) Where an action is called for trial and a party fails to attend, the trial Judge may
(a) where the plaintiff attends and the defendant fails to attend, dismiss the counterclaim, if any, and allow the plaintiff to prove the claim;
(b) where the defendant attends and the plaintiff fails to attend, dismiss the action and allow the defendant to prove the counterclaim, if any; or
(c) make such other order as is just.
Judgment given in absence of party may be set aside
2 (1) A Judge may set aside or vary, on such terms as are just, a judgment obtained against a party who fails to attend at the trial.
(2) An application under this rule shall be made within fourteen days after the trial.
Adjournment of trial
3.The Court may, if it considers it necessary in the interest of justice, adjourn a trial for such time, to such place, and upon such terms, as it considers fit.”
(Emphasis)
My lords, it does not seem to be in dispute, either from the submissions of both Counsel, or from the judgment of the Court of Appeal, that the trial Court was clothed with jurisdiction or power to determine or regulate how to proceed on a request for an adjournment by a party at a hearing. As such, it is not in contention that the learned trial High Court Judge had jurisdiction to dismiss the Respondent’s action when the Respondent appeared in Court but declined to lead evidence for hearing to proceed, on the basis that the Respondent’s lawyer was not in Court, particularly when the Respondent and his Counsel were obliged an adjournment with express indication by the trial Court that the Respondent’s action would be dismissed if, at the next date, Counsel fails again to attend court for hearing to proceed. The Court of Appeal reasoned, however, that in exercising the court’s power, the trial High Court Judge cited or relied on the wrong enactment. The Court of Appeal held, thus:
“In the instant case the trial court in dismissing the plaintiff’s claim, stated it was acting under the jurisdiction conferred on it by the provisions of Order 36 r 1(2) of CI 47. A reading of Order 36 r 1(1) and (2) of CI 47 quoted above do not however give any such jurisdiction to a court to dismiss a party’s claim or counterclaim for failure of his/her Counsel to attend at the trial. We however recognize that a court has a duty to control its proceedings to ensure quick and efficient justice delivery, and that in pursuit of this duty, may invoke its inherent jurisdiction to dismiss a claim or counterclaim where counsel for a party fails to attend at the trial. This will however depend on the circumstances of each case. In Omaboe vrs Kwame (1978) GLR 226, CA, the Court affirmed the decision of the trial court which refused to set aside an order dismissing the appellant’s claim for non-attendance by his counsel at the trial based on the special circumstances of the case”. (See page 481 of Vol. 2 of the ROA) (Emphasis).
My lords, in Omaboe v Kwame [1978] GLR 122-126, the Court of Appeal reasoned that it was within the discretion of the trial Judge under Order 36 Rule 19 of the High Court (Civil Procedure) Rules, 1954 (L.N.140A)(now revoked), with which Order 36 Rule 3 of C.I. 47 is in pari materia, to either accede to or decline a party’s request for an adjournment, and that the appellant therein, who was present in court but failed to present his case in the absence of his counsel, could not rely on Rule 18 of Order 36, LN 140A [now Rule 2 of C.I 47], to set aside the judgment of the trial court which dismissed the appellant’s case, for the matter to be restored to the cause list. That the judgment could not be set aside under the Rule since the appellant was present in court when the trial Court exercised its power to give judgment, and that the case was also not one for the proper exercise of the trial Court’s inherent jurisdiction to set aside or vary its judgment. It thus appears, with respect, that the learned Justices of the Court of Appeal in their judgment, the subject of the instant appeal, erred when their Lordships stated that the court in Omaboe v Kwame (supra) upheld the trial Court’s refusal to set aside its order dismissing the appellant’s case based on the special circumstances of the case. In fact, the appellant in that case could not take shield under Rule 18 of Order 36, LN 140A, because, the appellant therein was present, not absent, in court but failed to take advantage of the opportunity given him by the court to conduct his case. It appears, therefore, that the ratio in Omaboe v Kwame would apply squarely to the instant case. That is, the Respondent, who was present in court, could not even come under Rule 2 of Order 36 which is only applicable to a party who was absent at the trial.
My lords, even though the issue of jurisdiction was not raised in the Respondent’s Notice of Appeal to the Court of Appeal, it is my humble view that the legal point was properly raised, and considered by the Court, particularly in the light of the fact that no further or additional evidence was required to address the question. See Attorney General v Faroe Atlantic [2005-2006] SCGLR 271. It is, however, my respectful view that the Court of Appeal erred in reaching the conclusion that by citing a wrong rule of the applicable Order, Order 36, the trial Court committed a jurisdictional error. My lords, it is the position of the law as stated by this court in The Republic vs High Court (Commercial Division) Accra; Ex parte Environ Solutions & 3 Others (Dannex Limited & 5 Others – Interested Parties) [2019-2020] 1 SCLRG 1 that:
“The citation of the correct statutory provision pursuant to which a court process is filed is not a strict rule of procedure, the failure to comply with which will nullify the court process. The courts have a duty to do substantial justice to the parties in every case, so a court is not disabled from hearing a party on the sole ground that he cited the wrong statute in his process. In such cases, the court is required to consider the substance of the case presented through the process and if it alludes to a legal right which avails the party, the court will deal with the merits of the matter.”
My lords, a court does not lose its jurisdiction to deal with a matter before it simply because the court cited the wrong statute but came to the correct decision. The substance of the case presented to the court is what matters. Where a case is called, as in the instant matter, and a party is present but refuses to participate in the trial for the reason that his lawyer was not present, the court has every power under its case management functions to deal with the case in any manner which the court deems fit including adjourning the matter to another date or by striking it out and hearing the other party who was ready to be heard on his claim. The Court of Appeal therefore erred by holding otherwise. It is also important to point out that, the records show that the Plaintiff was given the opportunity in this case to state his case by giving evidence to the trial Court, but the Plaintiff refused to take advantage of the opportunity given him by the court on grounds that his lawyer was not present in court that day. The management of cases pending before a trial court, at all times, is in the hands of the trial judge and hence, a party cannot accuse a judge of a breach of the rules of natural justice where he spurns the opportunity given him to state his case. See Republic vs. High Court (Fast Track Division) Accra; Ex parte Ayikai (Akosoku IV Interested Party) [2015-2016] 1 SCGLR 289.
[8.1]. Issuance of Form 6 in Respect of Respondent’s Appeal against Dismissal of Respondent’s Action by the Trial High Court.
At page 478 of Volume 2 of the ROA, the Court of Appeal observed that:
“The record shows at page 284 that the trial Court became aware that the record in the appeal filed [against the decision on 25th October, 2021, dismissing the Respondent’s action], had been transmitted to the Registry of the Court of Appeal on 20th January, 2022. Although there is no indication that further cross examination of the 1st Defendant continued on 18th January, 2022, the entries at page 285 of the record of appeal shows that the 1st defendant was further cross examined on 1st February, 2022, and the matter adjourned for the parties to file their addresses within three weeks, with 14th March, 2022 being the date for judgment.”
It is noteworthy that the Court of Appeal did not come to a definite conclusion on the effect of the issuance of Form 6 on the proceedings at the trial High Court. The Court’s decision, therefore, was not founded on the question of the issuance of civil Form 6 following which, the Respondent herein contends, the trial High Court could not have properly proceeded to deal with the matter.
The appeal in respect of which Civil Form 6 was issued, was the appeal against the decision of the trial High Court which dismissed the Respondent’s action. The trial Court proceeded on the 1st Defendant and the Appellant’s counterclaims and delivered a final decision on the 14th March, 2022. A counterclaim is a separate and independent action in its own right and notwithstanding the fact that a Plaintiff’s action might have been discontinued, dismissed or withdrawn, a Defendant who has filed a counterclaim was at liberty to prosecute his counterclaim. See Fosuhene vs Atta Wusu [2011] 1 SCGLR 273. Considering therefore that a counterclaim is a separate action, independent of the Plaintiff’s original action, the issuance of Civil Form 6, in the circumstances of the instant case, could not take away the jurisdiction of the trial Court to proceed with the hearing of the counterclaims which culminated in the final judgment of the trial Court.
The basis of the Respondent’s challenge to the 1st Defendant’s capacity, and by extension to the evidence led by the 1st Defendant for the Appellant, is not properly made out. That the 1st Defendant was a mere caretaker and did not have capacity as a Defendant in the matter is, with respect, rejected. The 1st Defendant may not have been a necessary Defendant in the matter, especially when the 2nd Defendant joined the action. It is not only apparent from the record that it was the Respondent who sued the 1st Defendant, the presence or participation in proceedings of an otherwise unnecessary party, would not defeat or nullify the proceedings. This is the effect of Order 4 Rule 5(1) of the High Court (Civil Procedure) Rules, 2004 (C.I 47).
My lords, the evidence on record shows that the parties are laying claim to the same parcel of land, even though the parties raised some issues with the descriptions of the disputed parcel of land in their pleadings.
[8.2]. Considering that an appeal is by way of rehearing, and as such throws an invitation to the appellate court as this Honourable Court to review the record of appeal and form an independent opinion on the available facts and evidence, it is my humble view that it is within the power of this Court to examine the record and reach a conclusion on the merits of the case. Time would be saved and unnecessary expense avoided if this Honourable Court exercises its power under Article 129(4) of the Constitution, 1992, to examine the record of appeal in order to make a determination.
Article 129(4) of the Constitution provides that:
“129 (4) For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and jurisdiction vested in any court established by this Constitution or any other law.”
[8.3]. My lords, in arriving at the conclusion that the Appellant sufficiently discharged the burden of proof on the preponderance of probabilities in support of the Appellant’s ownership of the disputed parcel of land, the learned trial Court Judge referred to a series of exhibits (at pages 314 to 317 of Vol. 1 of the ROA), including a title certificate, an official search report from the Lands Commission, tendered by the 1st Defendant and Appellant herein, in support of their case. The learned trial Judge concluded at page 318 of Volume 1 of the ROA as follows:
“Of all the evidence tendered in support of the 2nd Defendant’s [Appellant herein] title, exhibit 9 (the Official Search Report from the Lands Commission, Kumasi), is my view, unequivocal proof of same. As per SECTION 35 of the EVIDENCE ACT supra:
“The owner of the legal title to property is presumed to be the owner of the full beneficial title.”
The trial Court relied also on exhibit 11 series, correspondence between the Appellant’s Stool and the Ministry of Food and Agriculture, showing that the Appellant’s Stool was, at all times material, acknowledged by the tenants on the land as the owner of the disputed land.
The learned trial Judge continued at page 319 of Vol. 1 of the ROA as follows:
“I am strongly persuaded that the 2nd Defendant has discharged his burden of proof to his title to the land in dispute. The Exhibit 11 series, speak for themselves. They are compelling pieces of evidence of the 2nd Defendant’s assertion of his possessory rights as the custodian of the disputed land. Exhibits 11A and 11B, are equally persuasive of the 2nd Defendant’s title to the land in dispute.”
My lords, it is my humble view that in the light of the evidence on record, the Respondent could not successfully impeach the Appellant’s claim of title to the disputed parcel of land.
[9.0]. CONCLUSION
From the foregoing, the judgment of the Court of Appeal, dated 21st December, 2023, is hereby set aside. The judgment of the High Court delivered on the 14th March. 2022, is hereby restored and affirmed.
(SGD.) S. K. A. ASIEDU
(JUSTICE OF THE SUPREME COURT)
(SGD.) A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. KWOFIE
(JUSTICE OF THE SUPREME COURT)
(SGD.) H. AMALEBOBA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JAMES MARSHALL BELIEB ESQ. FOR THE 2ND DEFENDANT/RESPONDENT/
APPELLANT WITH DERICK ADU-GYAMFI ESQ.
NANA SEKYERE-BOATENG ESQ. FOR THE PLAINTIFF/APPELLANT/
RESPONDENT.
