IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA- AD. 2026
CORAM: BAFFOE-BONNIE CJ (PRESIDING)
GAEWU JSC
KWOFIE JSC
AMALEBOBA JSC
ACKAAH-BOAFO JSC
CIVIL APPEAL
NO. J4/14/2026
8TH JULY, 2026
1. CHARLES BLANKSON-HEMANS ………… PLAINTIFFS/RESPONDENTS
2. JOSEPHINA BLANKSON-HEMANS APPELLANTS
VRS
PETER ENTI ……….. DEFENDANT/APPELLANT/RESPONDENT
JUDGMENT
KWOFIE JSC:
This is an appeal against the judgment of the Court of Appeal delivered on the 23rd November 2023. The Court of Appeal in that judgment, set aside the judgment of the High Court Accra, entered in favour of the plaintiffs and entered judgment in favour of the defendant in respect of the disputed land recovery of possession amongst other reliefs.
Dissatisfied with that judgment the plaintiff/appellants mounted the instant appeal on the 14th December, 2020 on the following grounds:
a) That the judgment is against the weight of the evidence
b) That the learned justices of the Court of Appeal erred in law when they proceeded to determine grounds (a) to (d) as contained in the defendants/appellants/respondents Notice of appeal dated 7th December 2021 notwithstanding the admission that they were defective inadmissible and unarguable in law
Particulars of error
i) That the Court of Appeal proceeded to determine the defective grounds of appeal and made findings of fact thereon notwithstanding the admission that the said grounds were defective, inadmissible and unarguable in law.
c) That the learned Justices of the Court of Appeal erred in law when they reversed the finding of fact made by the trial judge to the effect that the lease dated 7th September, 2000 relied upon by the defendant/appellant/respondent during the trial was procured through fraud.
Particulars of error
i) That the Court of Appeal failed to take cognizance of the evidence before the trial court which points to the fraudulent nature of the lease dated 7th September, 2000 procured by the defendants/appellants/respondent
ii) That the Court of Appeal misapplied the case of Adumuah Okwei vs. Ashietey Laryea (2011) 1 SCGLR 317 to the facts of the instant case thereby occasioning grave injustice to the plaintiff/respondents/appellants
d) That the learned justices of the Court of Appeal erred in law when they wrongly applied the legal principle of nemo dat quod non habet against the plaintiff/respondent/appellants grantor reversing the judgment of the learned justice of the High Court.
Particulars of error
i) That since on the totality of the evidence adduced at the trial the learned Justice of the High Court held that the defendant/appellant/respondent’s grantor perpetrated fraud in obtaining his lease, that automatically rendered the said lease null and void
ii) That once fraud was proved by the plaintiff/respondent/appellants, it vitiated every transaction that has its root to the fraudulent lease and that made the legal principle of nemo dat quod non habet in operative and therefore the learned Justices of the Court of Appeal applied it wrongly
e) That the learned justices of the Court of Appeal erred in law when they held that the learned justice of the High Court could not have decreed title in favour of the plaintiffs/respondents/appellants because the description of the land in the High Court judgment was nebulous and woefully insufficient, resulting in the Court of Appeal doing injustice to the plaintiff/respondent/appellant
Particulars of error
i) That error emanating from the court or its officials cannot be visited on an innocent litigant who has sought refuge from (sic) the fountain of justice
ii) That the land was specifically described in the reliefs endorsed on the amended Writ of Summons and the statement of claim issued by the plaintiff/respondent/appellants and consequently the Court of Appeal had jurisdiction to amend same even on appeal, instead of proceeding to occasion grave injustice on the plaintiff/respondent/appellants
iii) That the learned justices of Court of Appeal failed to exercise their discretion judiciously when they awarded general damages of GH¢30,000 in favour of the defendant/appellant/respondent.
The background to this appeal is that by a Writ of Summons issued at the High Court Accra on 24th January, 2017, the plaintiffs/respondent/appellants (hereinafter referred to as plaintiff) claimed against the defendant the following reliefs:
1) A declaration of title to all that piece or parcel of land described in paragraph 4 of the statement of claim.
2) An order for interim injunction restraining the defendant, his agents, servants, privies, assigns or howsoever described from continuing with encroaching on the said parcel of land.
3) An order of recovery of possession and ejectment of the defendant from the property
4) An order of perpetual injunction restraining the defendant, his agents, servants, privies, assigns, workmen, howsoever described from causing any acts of vandalism or in any way interfering with the plaintiff’s interest in the said land
5) Damages for trespass
The case of the plaintiffs was that the land in dispute was near their residence and was an open space which was later re-zoned for residential purposes. The plaintiffs said that after the re-zoning of the land they acquired it from the Martey Tsuru family by an indenture dated 24th September 2015 and paid for same. The plaintiffs say that they thereafter took possession of the land and submitted the documents for processing at the Lands Commission. The plaintiffs contended that the grant purportedly made to the defendant and his grantor was fraudulent as the land had been originally earmarked for an electricity sub-station and the surveyor who prepared the indenture for the defendant’s grantor was unknown to the Martey Tsuru family.
On the other hand, the defendant’s case is that the land in dispute was originally granted to one Mr. Kow Richardson by the Martey Tsuru family by a lease dated 7th September 2000 and Mr. Kow Richardson subsequently sold the land to him the defendant. According to the defendant, he was later confronted by the Nuumo Nmashie family who claimed to have obtained judgments from the High Court to the Supreme Court over portions of lands at Teshie including the land in dispute. The defendant claimed that he subsequently attorned tenancy to the Nuumo Nmashie family based on the judgments shown to him. The Nmashie family then executed an indenture in respect of the disputed land to him. It was his case that after the acquisition of the land in dispute in the year 2000, he took immediate possession, constructed a fence wall around the land and built a house on a portion of the land and put a caretaker on same who has been living there for over fifteen years (15) years without any protest from anyone. It is the case of the defendant that it was recently that the plaintiffs unsuccessfully tried to use force to take the land from him by breaking a portion of his fence wall. Defendant says he lodged a complaint with the Ghana Police and the Police Property Fraud Unit after which the plaintiffs instituted the suit at the trial High Court.
Judgment of the High Court
The High Court Accra entered judgment in favour of the plaintiffs in terms of the reliefs claimed on 18th November 2021 and restrained the defendant from having anything to do with the disputed land.
Judgment of the Court of Appeal
Dissatisfied with the judgment of the High Court, the defendant appealed against same to the Court of Appeal by a Notice of Appeal dated 7th December 2021 on the following grounds:
a) The trial judge erred in law in holding that the grant of the land in dispute to defendant/appellant’s grantor was procured by fraud when no proper fraud was pleaded, particularizes and proved by evidence beyond reasonable doubt.
b) The trial judge erred in law in decreeing title in the land in dispute for plaintiffs/respondents when the land had already been granted by the Martey Tsuru family to defendant/appellant’s grantor and when there was no valid site plan in the plaintiffs/respondents’ indenture at the time of its execution.
c) The trial judge erred in law in decreeing title in the land in dispute for plaintiffs/respondents when plaintiffs were not prudent purchasers as plaintiff/respondents’ ignored the structures and the caretaker of the defendant/appellant on the land and purportedly purchased same
d) The trial court erred in law and in fact in failing to hold that the plaintiffs/respondents’ action is not barred by the provisions of the Limitation Decree, 1972 (Act 54) when defendant/appellant and his grantor have been in possession of the land in dispute for over fifteen (15) years before the commencement of the action at the trial court.
e) The judgment is against the weight of evidence
f) Additional grounds would be filed upon receipt of the record of appeal.
No additional grounds of appeal were filed
The Court of Appeal reversed the judgment of the High Court in a judgment delivered on 23rd November 2023 and entered judgment in favour of the defendant. The Court of Appeal in its judgment took the view that the decision of the trial court could not be supported having regard to the evidence on record. The court accordingly declared title in the disputed land in favour of the defendant and also perpetually restrained the plaintiff’s and their assigns from interfering in any manner with the disputed land. The Court of Appeal also awarded general damages of Thirty Thousand Cedis (GH¢30,000.00) in favour of the defendant as against the plaintiffs.
Appeal to the Supreme Court
Dissatisfied with the judgment of the Court of Appeal, the plaintiffs have also mounted this instant appeal against the said judgment by a Notice of Appeal dated 14th December 2023 on the grounds already set out.
The reliefs the plaintiff seek from this court is a reversal of the whole judgment of the Court of Appeal dated the 23rd of November 2023 entered in favour of the defendants/appellants/respondents and the restoration of the entire judgment of the High Court entered in favour of the plaintiff/respondents/appellants.
In this judgment, plaintiffs/respondents/appellants shall be referred to as appellants and the defendant/appellant/respondent shall be referred to as respondent.
Arguments of appellants
Ground (b) The learned Justices of Appeal erred in law when they proceeded to determine grounds (a) to (d) as contained in the defendant/appellant/respondent’s Notice of Appeal dated 7th December, 2021 notwithstanding the admission that they were defective, inadmissible and unarguable in law.
Particulars of error
i) That the Court of Appeal proceeded to determine the defective grounds of appeal and made findings of fact thereon notwithstanding the admission that the said grounds were defective, inadmissible and unarguable in law”
In respect of this ground of appeal, the appellants submitted that the Court of Appeal having found that respondent’s grounds of appeal ie. Grounds (a), (b), (c) and (d) were defective, inadmissible and unarguable, ought to have dismissed the appeal. Appellants contend that instead of dismissing the appeal, the Court of Appeal nevertheless subsumed these inadmissible and defective grounds of appeal under the omnibus ground of appeal and proceeded to address these same grounds. The appellants forcefully argued that the Court of Appeal in subsuming these inadmissible grounds of appeal under the omnibus grounds of appeal lost sight of the fact that the respondent did not make any submissions in respect of the omnibus ground and relying on the cases of Awere Kyere vs. Foster (2003-2004) SCGLR 1050 and Djin vs. Musa Baako (2007-2008) SCGLR 686 submitted that the omnibus ground thus had been abandoned. Having been abandoned, it was wrong for the Court of Appeal to have subsumed the wrong and erroneous grounds of appeal under the abandoned omnibus ground of appeal and to sustain the defendants appeal. Counsel referred to the cases of Binga Dugbartey Sappor vs. Ekow Bosomprah (Unreported) J4/55/2020 dated 2nd December 2020 to further buttress his point.
Responding to the arguments of the plaintiff/appellant, the defendant/respondent submitted that a critical look at grounds (a) to (d) at the Court of Appeal would reveal that there were enough particulars of errors by the defendant/respondent in those grounds of appeal except that the respondent did not format it properly by heading them as particulars of errors. He added that in any case, an appeal is by way of re-hearing and the Court of Appeal, had the powers to consider all the evidence and matters raised at the trial court particularly when there was an omnibus ground of appeal that the judgment of the trial High Court was against the weight of evidence as contained in ground (e) of the Notice of Appeal of the respondent at the Court of Appeal.
In the case of Binga Dugbatey Sappor vs. Ekow Bosomprah (unreported) this Court speaking through Kulendi JSC stated:
“Before resolving the issues in controversy in this appeal we wish to point out that the appellant did not address this court on the first ground of Appeal, being that the judgment is against the weight of evidence: The duty of an appellant to sufficiently point out the lapses in the evidence and or the analysis thereof to demonstrate the allegation that the judgment is against the weight of evidence was elucidated in the case of Djin vs. Musa Baako (2007-2008) SCGLR 686 as follows:
“………… Having failed to address this court on the omnibus ground of appeal, we shall deem the omnibus ground abandoned. This is because, although, alleging that a judgment as against the weight of evidence requires us to scrutinize the entire record of appeal, as demonstrated from the cases cited above, the burden is on the appellant who alleges this omnibus ground of appeal to point us to those pieces of evidence on record which substantiate his or her claim. Appellant having failed so to do, this ground of appeal is hereby dismissed”
Also in the case of Awere Kyere vs. Foster (supra) 1050 where the appellant failed to address ground 2 in his statement of case, this Court held unanimously at page 1061 that:
“……… Counsel for the appellant abandoned ground (2) in his address. These grounds are accordingly dismissed”
The Court of Appeal itself in the case of Daniel Lassi vs. Francis Torsu & 2 others (Unreported) Suit No. H1/78/2011 dated 24th January 2013 where the appellant failed to make submissions on some ground of appeal, held that:
“Having clearly abandoned this ground of appeal by their failure to make any submissions thereon, the authorities demand that we give no consideration to it and simply dismiss it as abandoned. Refer to the unreported judgment of Kanyoke J.A. in the case of Serwaa vs. Mensah (2009) 9 GMJ 130 at 149 wherein his Lordship stated:
“Learned counsel for the appellant did not also argue grounds (c) and (f) of the grounds of appeal. It is deemed therefore that they have been abandoned and there is no need therefore to say anything about them in my judgment”
At page 103 of the Record of Appeal Vol. 3 in this instant appeal, the Court of Appeal stated in its judgment with regard on the defendants grounds of appeal as follows:
“By way of preliminary comment, it is observed that grounds (a), (b), (c) and (d) asseverate that the trial judge erred in law on various matters in her judgment without the appellant stating the particulars of the so-called errors. That omission on the part of appellant renders those grounds offensive of Rule 8(4) of the Court of Appeal Rules, C.I. 19 which states that where the grounds of appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.
Indeed, there are several cases in which this Court and the Supreme Court had impressed it upon legal practitioners as to the dire need to provide particulars of error of law alleged in grounds of appeal. For instance, in the case of Dahabieh vs. S.A. Tuiqui & Brothers (2001-2002) SCGLR 498, when striking out non-particularized allegations of error of law in the grounds of appeal, Adzoe JSC had this to say at page 504 of the Report:
“Clearly, the intention behind rule 6 of C. 16 (which is the same as rule 8 of C.I.19) is to narrow the issues on appeal and shorten the hearing; by specifying the error made by the lower court or by disclosing whether or not a point at issue had earlier been raised. By that way, both the court and counsel for the respondent would be enabled to concentrate on the relevant parts of the evidence in the record of proceedings (or the kind of law misapplied or not applied or distinguished) and not waste time on irrelevant parts of the evidence. With respect to questions of law, it is necessary that the respondent and his lawyers know well in advance what points of law are being raised so that they may prepare their case and marshal their authorities, while an indication that the point of law was or was not raised in the court below may help the court to resolve the issue faster”
As a matter of the law, where an appellant alleges misdirection or error of law in the grounds of appeal without specifying the particulars thereof, all such grounds become inadmissible and would be struck out and so in this case where the grounds alleging error of law fall foul of rule 8(4) of C.I. 19, they are rendered deserving of being struck out.”
Nevertheless, having determined that the defendant/appellant’s grounds (a), (b), (c) and (d) were defective and inadmissible, the Court of Appeal ought to have struck out those grounds of appeal. But instead of striking out those grounds, the Court of Appeal then made a volte-face and stated as follows:
“Nonetheless, in view of the fact that the matters mentioned in those inadmissible grounds of appeal touch and concern the evaluation of evidence, coupled with the fact that they could all be conveniently subsumed and considered under the omnibus ground as alleged by the appellant that the judgment of the trial court is against the weight of evidence which throws the case up for re-hearing, all the matters raised would be duly considered against the background that the respondents in their written submission took up the opportunity and addressed all the matters involved. In other words, this court will rehear the matter in terms of all the matters addressed by both parties in their respective written submissions in this appeal.”
The Court of Appeal also stated in its judgment at page 103 of the Record of Appeal that:
“The appellant lastly relied on the not unusual omnibus ground that the judgment is against the weight of evidence”
The position taken by the Court of Appeal in purporting to subsume the abandoned and inadmissible grounds of appeal under the omnibus ground of appeal prompted the plaintiff/appellant to submit as follows in his statement of case:
“On the totality of the above-cited authorities, it is our respectful contention that the Court of Appeal had no business proceeding to address the omnibus ground which had been abandoned by the respondent, let alone attempt to subsume all the defective grounds of appeal under it and address same with the ultimate aim of reversing the judgment of the trial High Court judge in favour of the offending party under the guise of substantive justice.
……….. The import of the judgment of the Court of Appeal therefore is to the effect that the Court of Appeal assumed the role of counsel for the respondent to argue the said abandoned ground of appeal and proceeded to determine same in the respondent’s favour”
The plaintiff/appellants submission must be seen in the context of the fact that the defendant/respondent abandoned the omnibus ground which was ground (e) by not making any submissions in respect of that ground: See pages 37 to 72 of Vol.3 of the Record of Appeal (ROA) which contains the defendant/respondent’s (appellant thereins) 36 page written submission and nowhere in the said written submission does the respondent (appellant therein) make any arguments or submissions in respect of ground (e) dealing with the omnibus ground thereby abandoning that ground of appeal.
Having abandoned the omnibus, ground, how could the Court of Appeal purport to subsume the inadmissible and non-compliant and void grounds of appeal under the non-existent omnibus ground of appeal to help the defaulting party?
In the case of Republic vs. Judicial Committee of the Central Regional House Chiefs; Ex parte Aaba (Supra) the appellant failed to exercise the right to file additional grounds of appeal on an issue before the Supreme Court. When the appeal came on for hearing, he invited the Supreme Court to consider grounds of appeal which were argued in the Court of Appeal but not repeated in the Supreme Court. Adzoe JSC, responding to the effect of breach of some provisions of the rules such as those dealing with appeals formulated the legal position in the following words at page 552:
“I find it difficult to accept that invitation. The Rule of the Supreme Court, 1996 (C.I.16) (and all other Courts) are there to be observed. They form an important component in the machinery of the administration of justice, and the courts must not, as a general rule, take lightly any non-compliance with them, even though technicalities are not to be permitted to undermine the need to do justice”
Also in the case of Dora Boateng vs. McKeown Investment Ltd. unreported J4/12A/2019 dated 5th February 2019 this court stated per Amegatcher JSC as follows:
“it is our understanding that the discretion given to the court to grant relief against non-compliance with rules should be exercised on a case-by-case basis having regard to the facts of a particular case, the conduct of the parties, the wording of the rules breached and the justice of the case. There are some breaches of the rules which the ever loving arms of the saving grace provided in the non-compliance provisions will embrace. Other breaches which are cardinal ought to be strictly enforced to save the rules from the danger of being wiped off the statute books for non-compliance. In the case before us, the rules were deliberately or recklessly ignored by the defendant. The approach adopted by the defendant was not a breach of the rules so to speak but a line of action unknown to the rules. The two are different. We do not think we should treat the two alike. In our opinion, of the defendant had exercised diligence, it would have saved itself from this predicament.”
It is worth noting that in this case the respondent’s ground (a), (b), (c), and (d) of the appeal were found to be void and inadmissible. The respondent had also abandoned ground (e) of his ground of appeal which was the omnibus ground of appeal to wit the judgment is against the weight of evidence. We are mindful as stated in the Dora Boateng vs. McKeown Investment case that the discretion granted to this court to grant relief against non-compliance with the rules should be exercised on a case by case basis obviously to avoid the appeal being determined by technicalities. In our view the respondent’s decision not to argue the omnibus ground of appeal clearly deprived him of the opportunity to be embraced by the saving grace provided in the rules. In our view the Court of Appeal was in error in subsuming the erroneous and inadmissible grounds of appeal under an abandoned and non-existent omnibus ground of appeal.
In our view, the appeal ought to have failed at the Court of Appeal which erred in allowing the appeal.
Accordingly we are of the view that ground, (b) of the appellant’s appeal succeeds and is dispositive of the appeal. The appeal succeeds and the judgment of the Court of appeal dated 23rd November 2023 is hereby set aside. The judgment of the High Court Accra dated 18th November 2021 is hereby restored.
(SGD.) H. KWOFIE
(JUSTICE OF THE SUPREME COURT)
(SGD.) P. BAFFOE-BONNIE
(CHIEF JUSTICE)
(SGD.) E. Y. GAEWU
(JUSTICE OF THE SUPREME COURT)
(SGD.) K. T. ACKAAH-BOAFO
(JUSTICE OF THE SUPREME COURT)
CONCURRING OPINION
AMALEBOBA, JSC:
INTRODUCTION:
1. This appeal underscores the principle that non- compliance with the rules governing an appeal can prove fatal and constitute a bar to the determination of a matter on the merits. In a plethora of cases including, F.K.A. COMPANY LIMITED & ORS V. NII AYIKAI AKRAMAH II & ORS: CIVIL APPEAL N0 J4/1/2016; 13TH APRIL 2016 and ATUGUBA & ASSOCIATES V. SCIPION CAPITAL (UK LTD & HOLMAN FENWICK WILLIAN LLP [2019], DLSC 6300, APRIL 3RD 2019 S.C, this Court has had cause to caution Counsel on the importance of compliance with the rules governing appeals, including the rules governing a proper formulation of grounds of appeal. It seems to me, however, that in certain instances, such as in this case, such caution has gone unheeded.
2. It is settled law that no party has an inherent right to an appeal. An appeal being a creature of statute, a party who seeks to exercise the rights afforded him by the statute, must comply with the conditions provided for by the enabling statute. A failure to so comply, could result in an unfavourable outcome for an appellant. SEE: SANDEMA NAB V. ASANGALISA and Others [1996 – 97] SCGLR 303 @ 307. It is important to clarify that the central issue in SANDEMA NAB V. ASANGALISA (supra), was not on non- compliance in formulating grounds of appeal. The central issue was whether or not, the Supreme Court could entertain an application for extension of time within which to apply for leave to appeal to the Supreme Court, from the Judgment of the National House of Chiefs. This Court in upholding an objection that the application was not properly before it, quoted with approval, the dictum of Akuffo Addo CJ in Nye v Nye [1967] GLR 76 @ 82 – 83 (CA -Full Bench), on the importance of compliance with rules or conditions governing an appeal, emphasising that a party had no right of appeal where the enabling statute did not grant such a right and where such a right was granted, it was only exercisable within the framework of the conditions imposed by the statute.
FACTUAL BACKGROUND
3. It is my view that a detailed narration of the facts of this case is not relevant for the determination of this Appeal. The brief facts of this case are that the Plaintiffs/Respondents/Appellants (hereinafter referred to as Plaintiffs) and the Defendant/Appellant/Respondent (hereinafter referred to as the Defendant), are in contest over a piece or parcel of land situate at Martey Tsuru in Accra. While the Plaintiffs describe the extent of their land as 0.17 of an acre, the Defendant describes his land as measuring 0.19 of an acre.
4. By their Amended Writ of Summons and Statement of Claim filed on 20th February 2018, the Plaintiffs aver that subsequent to a re-zoning, of the disputed land from a public land (reserved for an electricity substation), to residential, they acquired the land covering an area of 0.17 of an acre from the Martey Tsuru family, who are owners of the land, by a Lease dated 24th September 2015. The Plaintiffs say they subsequently took steps to register their title and have since obtained a Land Title Certificate covering the said parcel of land.
5. Though the Plaintiffs acknowledge that the Defendant traces his root of title to an earlier grant said to have been made to his grantor, one Kow Richardson by the Martey Tsuru family on 7th September 2000, they allege that the said Lease was fraudulently procured. Among the particulars of fraud provided by the Plaintiffs, was an assertion that at all material times when the Defendant’s grantor purported to have acquired the land from the Martey Tsuru family, same had been zoned as a public land for an electricity substation and that the Martey Tsuru family, never sold the disputed land, to Defendant’s grantor. In fact, the current Head of the Martey Tsuru family, PW2 in his testimony, sought to challenge the claim that his family had alienated the land in dispute to the Defendant’s grantor.
6. The Plaintiffs’ claiming to be rightful owners of the land and alleging that the Defendant has trespassed on their land, endorsed their Writ of Summons, for: a declaration of title to the land in dispute, recovery of possession of same, an order of perpetual injunction, damages for trespass and costs of the action.
7. By his Further Amended Statement of Defence filed on 1st March 2019, the Defendant denied that his grantor fraudulently acquired his Lease. The Defendant averred that his grantor in fact, validly acquired the land measuring 0.19 acres from the Martey Tsuru family in the year 2000 and alienated same to him in the same year. According to the Defendant, he has since been in possession of his land and caused his agent to construct some structures on the land, one of which houses his caretaker, who has been resident on the land in dispute for well over fifteen (15) years.
8. The Defendant says that while on the land, he also had cause to atone tenancy to the Numo Nmashie family, by making payments to them, when the said family confronted him with Judgments they purported to have obtained over Martey Tsuru lands. The Defendant asserted that there was never a period when he abandoned or vacated the land in dispute, on account of same being a public land, as alleged by the Plaintiffs. He admitted that the then Accra Metropolitan Assembly, now Accra Metropolitan Authority, had on one occasion, posted a stop work notice on the property and requested him to produce his permit, but all issues were resolved upon his visit to the offices of the Accra Metropolitan Assembly.
9. The Defendant filed a counterclaim seeking the following reliefs: a declaration of title to the land in dispute, recovery of possession of same, an order of perpetual injunction, damages for trespass, costs of the action, as well as a recovery of the full costs of structures which had been demolished by the Plaintiffs.
THE DECISION OF THE HIGH COURT.
10. After a full trial had been conducted, the High Court delivered its Judgment on 18th November 2021. The High Court concluded that the Plaintiffs had succeeded in establishing fraud in the procurement of the Lease of the Defendant’s grantor, dated 7th September 2000. The High Court also concluded that the Plaintiffs had succeeded in establishing a valid grant from the Martey Tsuru family who are owners of the land in dispute. On account of these and other findings contained in the Judgment of the High Court at pages 192 – 209 of the record of appeal (hereinafter referred to as the record), the High Court granted all of the reliefs sought by the Plaintiffs and dismissed the Counterclaim of the Defendant.
APPEAL TO THE COURT OF APPEAL:
11. Being aggrieved by the decision of the High Court, the Defendant mounted an appeal at the Court of Appeal. The grounds contained in the Notice of Appeal, dated 7th December 2021, are as follows:
Grounds of Appeal
a. The trial Judge erred in law in holding that the grant of the land in dispute to defendant/appellant’s grantor was procured by fraud when no proper fraud was pleaded, particularized and proved by evidence beyond reasonable doubt.
b. The trial Judge erred in law in decreeing title in the land in dispute for Plaintiffs/Respondents, when the land had already been granted by the grantor and when there was no valid site plan in the Plaintiffs/Respondents’ indenture at the time of its execution.
c. The trial Judge erred in law in decreeing title in the land in dispute for Plaintiffs/Respondents when Plaintiffs were not prudent purchasers as Plaintiffs/Respondents ignored the structures and the caretaker of the Defendant/Appellant on the land and purportedly purchased same.
d. The trial Court erred in law and in fact in failing to hold that the Plaintiffs/Respondents’ action is not barred by the provisions of the Limitation Decree, 1972 (Act 54), when Defendant/Appellant and his grantor have been in possession of the land in dispute for over fifteen (15), years before the commencement of the action at the trial Court.
e. The Judgment is against the weight of evidence.
f. Additional grounds would be filed upon receipt of the record of appeal.
12. In a unanimous decision dated 23rd November 2023, the Court of Appeal reversed the High Court’s decision and entered Judgment for the Defendant. Among the reasons given by the Court of Appeal for its decision was that, in addition to the failure to properly particularize fraud, the Plaintiffs had been unable to establish fraud in the procurement of the Lease dated 7th September 2000. The part of the said Judgment, which is essential to the appeal before this Court, is the Court of Appeal’s preliminary finding on the propriety of the grounds of appeal filed by the Defendant.
13. At pages 103 – 105 of the Judgment, the Court of Appeal concluded that Defendant’s grounds (a) – (d) of the appeal sinned against rule (8) 4 of the Court of Appeal Rules, 1997 (CI 19). Quoting from the Judgment in the case of DAHABIEH V. S.A TURQUI & CO [2001- 2002] SCGLR 498, the Court further found the said grounds of appeal, to be inadmissible. The Court of Appeal delivered itself in part as follows:
“By way of preliminary comment, it is observed that grounds a, b, c and d, asseverate that the trial Judge erred in law on various matters in her Judgment, without the appellant stating the particulars of the so-called errors. That omission on the part of the appellants renders these grounds offensive of Rule 8 (4) of the Court of Appeal Rules C.I 19, which states that where the grounds of appeal allege misdirection or error in law, particulars of misdirection or error shall be clearly stated. Indeed there are several cases in which this Court and the Supreme Court had impressed it upon legal practitioners, as to the dire need to provide particulars of errors of law alleged in grounds of appeal…as a matter of law, where an appellant alleges misdirection or error of law in their grounds of appeal without specifying the particulars thereof all such grounds become inadmissible and would be struck out and so in this case where the grounds alleging error of law fall foul of Rule 8 (4) of C.I 19, they are rendered deserving of being struck out. Nevertheless, in view of the fact that the matters mentioned in those inadmissible grounds of appeal touch and concern the evaluation of evidence, coupled with the fact that they could all be conveniently subsumed and considered under the omnibus ground as alleged by the appellants, that the Judgment of the trial court is against the weight of evidence, which throws up the case for rehearing, all the matters raised will be duly considered against their background that the respondents in their written submission took up the opportunity and addressed all the matters involved. In other words, in the interest of doing substantial justice in this delivery, this Court will rehear the matter in terms of all the matters addressed by both parties in their respective submissions in this appeal.”
14. In deciding to determine the said inadmissible grounds of appeal under the omnibus ground, the Court of Appeal overlooked an issue central to this Appeal. This issue is that in Counsel for Defendant’s thirty – five-page Written Address, he made no submissions or arguments on ground (e) of the Appeal, which alleged that the Judgment of the trial Court is against the weight of evidence on record. In view of the fact that the Court of Appeal had declared grounds (a) – (d) to be inadmissible, and since the Defendant did not make submissions on ground (e), was the Court of Appeal in error, by proceeding in this manner, in subsuming all inadmissible grounds under the said omnibus ground? This forms ground (b) of the Plaintiffs’ appeal to this Court.
APPEAL TO THE SUPREME COURT
15. Being dissatisfied with the decision of the Court of Appeal, the Plaintiffs filed an appeal in this Court on 14th December 2023. By the said Notice of Appeal, the Plaintiffs filed grounds (a) – (f) for determination of the appeal. It is my view that the only ground of appeal relevant to the determination of this appeal is ground (b) stated in the Notice of Appeal as follows:
(b) That the learned Justices of the Court of Appeal erred in law when they proceeded to determine grounds “A” to “D” as contained in the Defendant/Appellant/ Respondent’s Notice of Appeal dated 7th December 2021, notwithstanding the admission that they were defective, inadmissible, and unarguable in law.
Particulars of Error
i. That the Court of Appeal proceeded to determine the grounds of appeal and made findings of fact thereon, notwithstanding the admission that the said grounds were defective, inadmissible, and unarguable in law.
16. In his submissions on this ground, Counsel for Plaintiffs argued that upon a determination by the Court of Appeal that the grounds of appeal were inadmissible and that same were liable to be struck out, the Court of Appeal erred when it then decided to subsume those inadmissible grounds under the omnibus ground of Appeal. According to Counsel, the error committed by the Court of Appeal was further compounded, when it proceeded to determine the omnibus ground of appeal in the absence of any submissions whatsoever, from Counsel for the Defendant. Counsel for Plaintiffs argue that since Counsel for Defendant failed to make any submissions on the omnibus ground, he is deemed to have abandoned same. According to Counsel for the Plaintiffs, these errors of law by the Court of Appeal have occasioned a grave miscarriage of justice to the Plaintiffs.
17. Counsel for Defendant on his part argues that a careful consideration of grounds (a) – (d) of the Notice of Appeal filed in the Court of Appeal reveals that the particulars of the error complained of were sufficiently provided, save that the formatting and heading was not properly done. Counsel for Defendant urged this Court to look to substance and not to form. Counsel for Defendant further submits that assuming without admitting, that the said grounds of appeal did not contain sufficient particulars, since an appeal is by way of rehearing, the Court of Appeal rightfully exercised its jurisdiction in rehearing the matter, particularly so, because the Defendant had a ground (e), which alleged that the Judgment of the High Court was against the weight of evidence. According to Counsel for Defendant, the omnibus ground of appeal could not be said to have been abandoned, when upon the entirety of the submissions, both factual and legal arguments were made.
DETERMINATION OF THE APPEAL TO THIS COURT.
18. By virtue of Article 137 of the 1992 Constitution, the Court of Appeal has jurisdiction to determine appeals from the High Court. Section 11 of the Court’s Act, 1993, Act 459, restates this jurisdiction. Article 157 of the 1992 Constitution of Ghana empowers the Rules of Court Committee to “…by constitutional instrument, make rules and regulations for regulating practice and procedure of all Courts in Ghana”. The Court of Appeal Rules,1997 (C.I9), as amended, was made by the Rules of Court Committee, for practice and procedure in the Court of Appeal.
19. Rule 8 of CI 19 provides rules for the form of the Notice of Appeal and the formulation of grounds of appeal as follows:
“Notice and grounds of appeal.
(1) Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as “the notice of appeal”.
(2) The notice of appeal shall be filed in the Registry of the court below and
shall-
(a) set out the grounds of appeal;
(b) state whether the whole or part only of the decision of the
court below is complained of and in the latter case specify the part;
(c) state the nature of the relief sought; and
(d) state the names and addresses for service within the jurisdiction of all parties directly affected by the appeal.
(3) The notice of appeal shall be as in Form I provided in Part I of the Schedule to these Rules and shall be accompanied with sufficient number of copies for service on all parties.
(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.
(5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively.
(6) No ground which is vague or general in terms or which: discloses no reason-able ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the respondent.
(7) The appellant shall not, without the leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal upon such terms as the Court may think just.
(8) Notwithstanding sub rules (4) to (7) of this rule, the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on any ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground”.
20. The Court of Appeal’s determination that grounds (a) to (d) were inadmissible was premised on Rule 8 (4) of CI 19, which provides as follows: “Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”. The language of Rule 8 (6) states in part, that “…and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion or on application by the Respondent”. This Rule gives the Court of Appeal a discretion to strike out any ground of appeal not permitted by Rule 8 of CI 19.
21. It is also important to note where there is non– compliance with the rules contained in CI 19, the Court of Appeal has a discretion to waive same under Rule 63 of CI 19, which provides as follows:
“ where a party to any proceedings before the Court fails to comply with these rules or with the terms of any order or directions given or with any rule of practice or procedure directed or determined by the Court, the failure to comply shall be a bar to further prosecution of proceedings, unless the court considers that the non- compliance should be waived”.
22. Therefore, where an act of non – compliance with the Rules is one which is capable of being waived, the Court of Appeal may exercise a discretion to waive same. The exercise of such discretion is clearly on a case-by-case basis, depending on the nature and effect of the non – compliance. Where the non- compliance goes to jurisdiction or is a breach of the rules of natural justice, or a breach of statute (other than the rules), or an infringement of the constitution, same clearly cannot be waived. In REP. V HIGH COURT, ACCRA: Ex PARTE ALLGATE COMPANY LTD (AMALGAMATED BANK LTD INTERESTED PARTY), 2007 – 2008 SCGLR 1041, this Court in determining the effect of non – compliance under Order 81 of the HIGH COURT (CIVIL PROCEDURE) RULES 2004 (CI 47), stated the general position of the law on non -compliance of procedural rules.
23. Now, was the Court of appeal in error in its determination that the grounds of appeal were inadmissible? Indeed an assessment of grounds (a) – (d) of the appeal, reveal that same are not stated in the form required by Rule 8 (4) of CI 19, as determined by the Court of Appeal. Counsel for Defendant concedes this point. From the analysis in the immediately preceding paragraphs of this Judgment, the Court of Appeal had the discretion to waive the said non – compliance. However, the Court of appeal determined that the said grounds (a) – (d) of the appeal were not in compliance with Rule 8 (4) of CI 19. Having so determined, it did not proceed to waive the said non – compliance but further determined same to be inadmissible and liable to be struck out. The Court of Appeal in its determination that the grounds of appeal were inadmissible relied on the decision of this Court in DAHABIEH V. S.A TURQUI & CO (supra), wherein this Court had cause to strike out defective and inadmissible grounds of appeal.
24. Also, in the case of FAUSTINA TETTEH VS. T CHANDIRAM & CO. GH LTD & 3 ORS; CIVIL APPEAL NO; J 452/2018, this Court in striking out non – complaint grounds of appeal stated thus:
“The Appellant failed to particularize the errors alleged by the said grounds to enable this Court effectively address same as required by law. The errors alleged cannot be inferred sufficiently from the wording of the grounds to enable us address same. Accordingly, the offending grounds (1) – (10) will be struck out as they are non -compliant with the Rules of Court”.
25. The exercise of the Court of Appeal’s discretion is therefore supported by the CI 19 and precedents of this Court. A Court vested with a discretionary power must exercise same judiciously. The position of the law is that generally an appellate Court must be slow to interfere in the exercise of the discretion of a lower Court, unless it can be established that the Judge exercised the discretion wrongly, by among others misdirecting himself or herself, by relying on wrong and inadequate materials, and in taking into account irrelevant matters or ignoring relevant matters. Where an appellate Court finds that this discretion was wrongly exercised, it has a duty to interfere with same.
SEE: OWUSU V. OWUSU ANSAH [2007 – 2008] SCGLR 870.
KYENKYENHENE V. ADU [2003 – 2004] 1 SCGLR 142.
26. As already stated, having rightly found that the said grounds of appeal were not in compliance with Rule 8 (4) of CI 19, the Court of Appeal had the discretion to either waive the non – compliance under Rule 63 of CI 19, if it was of the view that same could be waived, or declare the said grounds of appeal inadmissible and strike same out. Having correctly exercised its discretion, in determining that the said grounds of appeal are inadmissible and liable to be struck out, this Court cannot interfere with same. Moreover, the finding of the Court of Appeal that grounds (a) – (d) of the appeal are inadmissible, is not a subject of the appeal before this Court.
27. Now, the Court of Appeal having found the said grounds to be inadmissible, and liable to be struck out, rather than strike them out, then sought to subsume them under the omnibus ground of appeal for determination. It is my view that where a ground of appeal has been determined to be inadmissible as done by the Court of Appeal, then that ground of appeal becomes incompetent and cannot be revisited for a determination of any sort. The definition of “inadmissible” by Black’s Law Dictionary (8th Ed), as “not allowable or worthy of being admitted”, supports this view. More importantly, had the Court of Appeal been right in seeking to subsume the said defective grounds of appeal under the omnibus ground, it ought to have critically examined each of the said grounds of appeal, to determine, whether all of the heads of errors of law, upon which the Defendant sought to impugn the Judgment of the High Court, are grounds which are legally permissible for determination under the omnibus ground.
28. Such an exercise by the Court of Appeal becomes necessary, as not all points of law are arguable under the omnibus ground of appeal. The extent to which a party whose sole ground of appeal is the omnibus ground, is permitted to argue points of law, has been clarified by this Court in ATUGUBA & ASSOCIATES V. SCIPION CAPITAL (UK LTD & HOLMAN FENWICK WILLIAN LLP, (supra), as follows:
“ based on the exception given by this Court in the Owusu Domena v. Amoah case [2015-2016, 1 GLR 790], the current position of the law may be stated that where the only ground of appeal filed is that the Judgment is against the weight of evidence. parties would not be permitted to argue legal issues if the factual issues do not admit of any. However, if the weight of evidence is substantially influenced by points of law, such as the rules of evidence and practice or the discharge of the burden of persuasion, or of producing evidence, then points of law may be advanced to help facilitate a determination of the factual matters. The formulation of this exception is not an invitation for parties to smuggle points of law into their factual arguments under the omnibus ground. The court would in all cases scrutinize such points so argued within the narrow window provided…”
29. The error of the Court of Appeal becomes even more grave, when the said omnibus ground under which it sought to subsume the said inadmissible grounds of appeal, had been deemed abandoned by the Defendant. The unfortunate position in which the Defendant in this case finds himself, is that, though in the Notice of Appeal filed on behalf of the Defendant, Counsel had canvassed the omnibus ground that the Judgment is against the weight of evidence as ground (e) , Counsel made no submissions on this ground, for reasons which are not obvious from the record. The settled position of the law is that where a ground of appeal is canvassed and no submissions or arguments are made in respect of same , the said ground is deemed to have been abandoned.
30. In applying this settled principle of law, this Court in BINGA DUGBARTEY SARPOR V. EKOW BOSOMPRAH civil appeal No J4/55/2020, DATED 2ND DECEMBER 2020, stated thus,“ having failed to address this Court on the omnibus ground of appeal, we shall deem the omnibus ground abandoned. This is because although alleging that a Judgment is against the weight of evidence requires us to scrutinize the entire record of appeal as demonstrated from the cases cited above, the burden is on the Appellant who alleges this omnibus ground of appeal, to point to us those pieces of evidence on record which substantiate his or her claim. The Appellant having failed so to do, this ground of appeal is hereby dismissed”.
31. In the appeal before the Court of Appeal, the omnibus ground of appeal became the sole issue after grounds (a) – (d) were found to be inadmissible by the Court of Appeal. Since the omnibus ground of appeal was deemed abandoned, for failure of Counsel for the Defendant to make any submissions thereunder, the appeal ought to have been dismissed. The Court of Appeal therefore erred in subsuming the said inadmissible grounds of appeal under the omnibus ground of appeal and proceeding to determine the matter on its merits.
32. Counsel for the Defendant argues that this Court should exercise some magnanimity and look to substance rather than to form. I am not unaware that in the case of INTERNATIONAL ROM LTD V. VODAFONE GHANA LIMITED V. VODAFONE GHANA LTD & FIDELITY BANK, CIVIL APPEAL NO: J4/2/2016, dated 6th June 2016, this Court having struck out all grounds of appeal as being defective, exercised magnanimity and substituted same with the omnibus ground of appeal, though same had not been canvassed by the appellant. In the said case AKAMBA JSC in part, stated as follows: “In order not to overly yield to technicalities to defeat the cries of an otherwise sincere litigant, we would and hereby substitute them with what emerges as the core complaint and general ground which is that the Judgment is against the weight of evidence. It does appear that the magnanimity exercised by this court in the obvious lapses and disrespect for the rules of engagement is either being taken as a sign of condoning or weakness hence the persistence of the impunity. It is time to apply the rules strictly.”
33. The circumstances in INTERNATIONAL ROM LTD V. VODAFONE GHANA LIMITED & FIDELITY BANK, are markedly different from the present case before this Court. In the International Rom case, the omnibus ground had not been canvassed at all, unlike in this case where same was canvassed and then abandoned. Furthermore, in the International Rom case, the issue of the inadmissibility or defectiveness of the grounds of appeal was first raised in the Supreme Court, in respect of the grounds contained in the Notice of Appeal filed in the Supreme Court. The Supreme Court therefore had the opportunity to at first instance consider same and exercise some discretion or magnanimity.
34. In this case, where there is a challenge to a decision of the Court of Appeal, on the grounds of appeal filed in the said Court, this Court is unable to interfere with the said finding or decision where the exercise of discretion was clearly not wrongful. In any case, as already stated, the decision of the Court of Appeal on the inadmissibility of grounds (a) – (d) is not a subject of this appeal. What is on appeal in this Court, by the Plaintiffs ground (d), is that having so declared the said grounds of appeal inadmissible, the Court of Appeal erred in proceeding to determine the very same grounds under the omnibus ground of appeal, more particularly so, when the omnibus ground of appeal had been abandoned. In the circumstances, this Court cannot exercise its sympathy jurisdiction in favour of the Defendant.
35. I must state at this stage that this Court ordinarily does not subscribe to a reliance on technicalities to drive away a litigant from the Judgment seat. Where therefore, in the exercise of its powers, this Court can save an appeal, it would lean towards substance rather than form. In the circumstances of this case, however, I have been unable to find any basis in law, by which this appeal can be determined on its merits.
36. I find it necessary at this stage, to reiterate the caution to Counsel engaged in any litigation in the Courts of our jurisdiction, to consider thoroughly, the rules of procedure governing the practice of law in our Courts, so as to comply with same. As provided for by Rule 5 (2) (e) of the LEGAL PROFESSION (PROFESSIONAL CONDUCT AND ETIQUETTE) RULES, 2020, “a lawyer has a duty to a client to promptly and diligently perform professional functions”. The diligent performance of this duty, in my view, requires that in litigation before our Courts, Counsel’s focus should be, not only on substantive law, but also on the rules of procedure through which the rights granted their clients by substantive law, are actualised.
37. Consequently, having determined that grounds (a) to (d) of the appeal are defective and inadmissible and in view of the fact that the omnibus ground, stated as (e) in the Notice of Appeal had been deemed abandoned, the Court of Appeal committed an error of law in proceeding to determine the appeal on its merits. In the circumstances, the appeal succeeds on ground (b). The Judgment of the Court of Appeal is hereby set aside in its entirety. In view of this conclusion, the other grounds of appeal become otiose. The Judgment of the High Court dated 18th November 2021, is hereby restored.
(SGD.) H. AMALEBOBA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
ROSENBERG OWUSU ADOKOH ESQ FOR THE PLAINTIFFS/RESPONDENTS/
APPELLANTS WITH WINDY ASIBI GERAH ESQ.
KWAME FOSU-GYEABOUR ESQ. FOR THE DEFENDANT/APPELLANT/
RESPONDENT
