GLOVER vs. GLOVER [1997-1998] 2 GLR 717

CASES REFERRED TO

(1) Nyamekye v Ansah [1989-90] 2 GLR 152, CA.

(2) Ghana Muslims Representative Council v Sa4lif’u [1975] 2 GLR 246, CA.

(3) Ayiwah v Badu [1963] 1 GLR 86, SC.

(4) Mahama Hausa v Baako Hausa [1972] 2 GLR 469, CA.

(5) Ghana Cocoa Marketing Board v Agbettoh [1984-86] 1 GLR 122, CA.

[p.719] of [1997-1998] 2 GLR 717

(6) Atta v Adevor [1976] 2 GLR 343, CA.

(7) Kwantreng II v Klu [1991] 2 GLR 93, CA.

(8) Dove v Wuta-Ofei [1966] 1 GLR 299, SC.

(9) Mamudu Wangara v Gyato Wangara [1982-83] GLR 639, CA.

(10) Pappoe v Wingrove & Co Ltd (1922) DCt ‘’21–’25, 20.

(11) France v Quartey (1925) DCt ‘’21–’25, 194.

(12) Nancy v King (1950) DC (Land) ‘’48–’52, 242.

(13) Brown v Darko [1961] GLR 539.

(14) Kwan v Nyieni [1959] GLR 67, CA.

(15) Hagan v Kotey [1961] GLR 594.

(16) Sabbah v Worbi [1986] GLR 87.

(17) Boafo v Gyetua [1962] 1 GLR 4.

(18) Boakye v Broni and Domfe (1958) 3 WALR 475.

(19) Kwao llII v Ansah llII [1975] 2 GLR 176.

APPEAL from judgment of the High Court, Accra which, inter, aliha held that the respondent had capacity to file representative suit in court in respect of land which was acquired by his deceased mother during her lifetime for the reason that the respondent had in 1959 been given the registrar’s authority to administer the estate of the deceased intestate. The facts are fully set out in the judgment of Wood JA. Peter Ala Adjetey for the appellant.

A Q A Acheampong for the respondent.

Wood JA. The parties herein are brothers of the full blood. In February 1983, the plaintiff-respondent (hereinafter referred to as the respondent) issued a writ against the defendant-appellant (hereinafter referred as the appellant) for:

“(1) A declaration that the purported sale and conveyance of land with building thereon and constituting the estate of their late mother is void and of no effect.

(2) Recovery of possession of the said land.

(3) Perpetual injunction restraining the respondent and his privies from ever laying adverse claim to the said property.”

I will deal with the capacities in which the respondent instituted the action in due course. In so doing however, he put up a very simple claim. He maintained that when his mother, the late Mercy [p.720] of [1997-1998] 2 GLR 717 Enon Mathias, died possessed of the subject matter, he applied for and was granted letters of administration to administer the said estate as trustee for himself and his brothers and sisters. He complains that in the course of time, the appellant laid adverse claim to the said property by demolishing a two-roomed building on the land, building on another part of the land for his exclusive occupation and enjoyment and finally disposing of the entire land with other buildings thereon to one John Abeyea. The appellant did not merely file a defence but he also counterclaimed for the following reliefs:

“(1) A revocation of the said letters of administration on the grounds that they were wrongfully and unlawfully obtained.

(2) An order that the Administrator-General takes over the administration of the estate.

(3) An order for account.”

In his defence however, he among other things challenged the capacity in which the respondent instituted these proceedings. By the paragraph (2) of his statement of defence he contends that:

“(2) The plaintiff has no right in law to bring this action as sole administratrixadministrator of the estate of the late Mercy Enon Mathias and has no legal authority to bring this action on the behalf of the named brothers and sisters.”

Then by the paragraph (3) also he asserts that: “there has been no family meeting at which plaintiff had been unanimously appointed to bring these proceedings.”

Yet, another strong defence he put up was this: that his mother never died possessed (I believe as owner) of the subject matter. He maintained that what she was granted was a mere customary lease and licence by the original owners to use for purposes the deceased thought fit. The case he put up was that when a swish building his mother had erected on the land fell into ruins, sometime after his mother’s death, the licensors revoked the licence and sold him the land. His counterclaim was based on the allegation that the respondent did not obtain the letters of administration in conformity with the requirements by the law. The appellant who was clearly dissatisfied with the decision which went in respondent’s favour has appealed to this court on a number of grounds.

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I propose as far as practicable to deal with the various grounds in the same order in which they were argued. It was submitted with respect to additional grounds (6) and (7) that the foundation of the judgment with regard not only to capacity but also with regard to the reçspondent’s alleged entitlement to the disputed property, was clearly erroneous. As far as the question of the capacity in which he instituted the action as administrator was concerned, the appellant counsel’s argument is that since under the law that existed at the time of the grant of exhibit A empowered the respondent to administer only the personaltypersonality and not the realty of their late mother, the learned trial judge’s finding that exhibit A conferred power on him to administer the subject matter was clearly wrong in law. Consequently, it was urged that his conclu sion that the respondent had the capacity to sue as the sole administrator of the subject matter is also erroneous.

What was respondent counsel’s reply to these submissions? First, it was counsel’s contention that the respondent’s action was brought by virtue of the registrar’s authority given under Order 60, r 43 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) and that nothing under the rules under which exhibit A was grant ed limit the powers of the holder to administer only moveablesmovables. We were therefore invited to hold that exhibit A conferred power on the respondent to administer both the personaltypersonality as well as the realty of their deceased mother. Consequently it was urged that he is entitled in law to bring these proceedings in his capacity as administrator. Secondly it was submitted that all the authorities relied on by appellant counsel were clearly distinguishable from this present case. It was also urged that whereas those cases dealt with the vesting of properties, we are in this case dealing with administration of the deceased’s estate. In counsel’s view then, once he tendered the exhibit A, they had done all that was necessary in proof of his capacity as administrator.

Now, since the submissions made with respect to additional ground (8) also raises the issue of whether or not the respondent succeeded in proving the other capacities in which he sued, I propose to deal with that ground at this stage. It reads: “On the totality of the evidence, the plaintiff failed to establish his case which should consequently have been dismissed by the learned trial judge.” It was contended by counsel for the appellant that although the capacity in which the respondent instituted the action was clearly challenged, he failed to prove any semblance of

[p.722] of [1997-1998] 2 GLR 717 authority. It was argued that on the contrary, the appellant (on whom the initial burden of proving his lack of capacity did not rest) rather led evidence to demonstrate that the respondent had no authority from the head of family to institute these proceedings in respect of the subject matter, which clearly is family property. The argument on the other hand is that he proved this other capacities as well.

It is plain from the pleadings that the appellant challenged the capacities in which the respondent sued. He did so by the paragraphs (2) and (3) of his statement of defence which I have already quoted in extenso. It is trite learning that where the authority of a person to sue in a representative capacity is challenged and thereby put in issue, he succeeds in the action only if he satisfies the court on this vital preliminary issue, namely that he is indeed clothed with that capacity: see for example Nyamekye v Ansah [1989-90] 2 GLR 152, CA.

The one matter which created some difficulty for me is the capacity in which the respondent instituted the action. The title of the writ itself reflects only one capacity and that is as adminis trator of estate of late Mercy Enon Mathias. There is no endorse ment on the writ disclosing any other capacity. The law requires that both the title as well as the endorsement in the writ of summons must clearly state the capacity in which a representative action is being brought. The authority for this proposition is the well-known case, Ghana Muslims Representative Council v Salifu [1975] 2 GLR 246 at 259, CA. It does also follow that if the action is being brought in more than one capacity, those other capacities must also be stated. It is unfortunate that counsel for the respondent failed to comply fully with the law as far as the writ of summons was concerned. In the case of the statement of claim however both the title and the pleadings disclose three capacities in which the action is instituted. First, in his capacity as administrator; secondly on his own behalf as a beneficiary, and thirdly on the behalf of his other brothers and sisters who are co-beneficiaries. But even more unfortunate is the fact that although on 7 February 1990, the learned trial judge granted him leave to amend the title of the writ to show these two other capacities; counsel again failed to file the pursuant amendment even though the court, it appears, adjourned for this very purpose. It is not surprising then that appellant counsel has invited us to conclude that because the respondent failed to file the necessary

[p.723] of [1997-1998] 2 GLR 717 amendment within the time stipulated, by implication from the court’s order, or even within fourteen days of the order, if we look at the position that the court did not set any time limit, the amendment became ipso facto void: see Order 28, r 7 of LN 140A; Ayiwah v Badu [1963] 1 GLR 86 at 88-89, SC; Mahama Hausa v Baako Hausa [1972] 2 GLR 469 at 477, CA; and Ghana Cocoa Marketing Board v Agbettoh [1984-1986] 1 GLR 122, CA. We have therefore been urged to limit the capacity in which the action is brought to what appears on the writ, the title and the endorsement, that is in his capacity as administrator.

The argument of counsel for the appellant on the legal consequences of the respondent’s failure to comply with Order 28, r 7 is unassailable. Little wonder counsel for the respondent did not answer the points raised. But perhaps even more regrettable is the fact that he failed even at that stage of the hearing of the appeal to take advantage of the clear provisions of the “ipso facto rule” and apply for extension of time to enable them comply with the order. That this court has power in appropriate cases to extend time is beyond controversy. As far back as 1976, this court had taken this view in the case of Atta v Adevor [1976] 2 GLR 343, CA. The court however declined to extend time not because it lacked authority, but because on the peculiar facts of that case it would result is an injustice to the other side. In another Court of Appeal case however—Kwantreng II v Klu [1991] 2 GLR 93, CA–—the applicant for extension of time met with success for the court did not think any surprise or miscarriage of justice would be ocassionedoccasioned thereby. As I have already lamented, the respondent counsel made no application to us for the time to be extended. In the result the true position would appear to be that he was proceeding in only one capcity, that of the administrator.

But even though this appears to be the true legal position, it is equally true that this court has power either on application or suo moto to make such amendments as would: (1) enable it do substantial justice to the parties; (2) help avoid a multiplicity of suits. Thus in Dove v Wuta-Ofei [1966] GLR 299, the then Supreme Court, relying on the above principles on its own motion, rather than dismiss the appeal on the ground also that nothing showed the action was brought also on behalf of the respondent’s wife, amended the title of the suit by adding to the name of the plaintiff “for himself and on behalf of the plaintiffs wife.” Again in Mamudu Wangara v Gyato Wangara [1982-83] GLR 639, CA

[p.724] of [1997-1998] 2 GLR 717 the court on its own motion, in order to settle the real controversy between the parties and avoid a muliplicity of actions, amended the plaintiffs writ to include the proper remedy which he ought to have sought.

I think that rather than ask the respondent to go back and commence fresh proceedings with respect to the other capacities (that is, provided he would not be caught by the Limitation Decree) I would overcome this initial difficulty by amending the title and the endorsement on the writ to include the two otheri capacities in which, from the statement of claim, the respondent sought to institute this action. I do not think such a course of action would bring about any surprise, or injustice or lead to any miscarriage of justice. In his statement of claim he does clearly, both in the title and pleadings, bring out these other capacities. The appellant cannot seriously say he has been taken unawares or jeopardised, for when he filed his defence he plainly, in paragraphs (2) and (3) in particular, challenged all the three capacities in which he sought to bring the action. Again, he titled the statement of defence in the same manner that the respondent did in his statement of claim, and filed a defence that adequately and carefully challenged those various capacities, spelling out the issues or the basis on which the case was to be fought. Having settled the issue of the capacities in which the action is brought, I now proceed to determine whether he proved all or any of them.

I am in complete agreement with counsel for the appellant that before the coming into force of the Administration of Estates Act, 1961 (Act 62) on 7 June 1961, when a person died, whether testate or intestate, his self-acquired immovable property did not devolve on his personal representatives, ie executors or administrators, but on the devisee or his family respectively. The respondent’s evidence clearly shown that their mother died on 22 July 1957. Exhibit A which properly speaking is a registrar’s authority, was granted him in 1959 while Act 63 came into force on 7 June 1961. Nothing in the Act stipulates that it was to have retrospective effect. It does follow that when the respondent obtained exhibit A, it empowered him to administer only the personaltypersonality or moveablesmovables oif the deceased mother. The following cases in particular state the law clearly. In Pappoe v Wingrove & Co Ltd (1922) DCt ‘’2l–’25, 20, the second defendant on the death of one Allotey. obtained letters of administration to administer his estate. He thereupon let certain premises of the deceased to the first defendant. The plaintiff

[p.725] of [1997-1998] 2 GLR 717 lost an action to recover the rents on the grounds that he was the deceased’s successor for the simple reason that he failed to prove he had been appointed successor. One of the questions the court had to determine was the effect of the grant of letters of administration to the second defendant as regards the deceased’s immoveables. The court concluded at 23 that: “the administrator so granted letters does not, by reason of these letters, obtain control over the real estate of the deceased, although he has such control by reason of the Native Law and Custom, independently of such letters.” See also France v Quartey (1925) DCt ‘’2l–’25, 194. True, this case dealt with a will but the existing law which was clearly stated was that real property vests in the devisee not the personal representative. Nancy v King (1950) DC (Land) ’48 –‘51, 242 did not state a different proposition of law. It was again held that as the Land Transfer Act of 1897 was inapplicable in our jurisdiction, realty vested in the devisee not the executor.

Lastly, contrary to respondent counsel’s contention, the case of Brown v Darko [1961] GLR 539 affirmed the well-known principle of law that before the coming into force of the Administration of Estate Act, 1961 (Act 63), immoveable property did not vest in the personal representative. It is true that the case dealt with the vesting of property in the devisee. But as prayed for by the plaintiff, to be able to order the executor to convey the immoveable property by deed to him, the court had to deal with the critical issue of whether or not as executors they were under a legal duty of obligation to assent to or execute the deed. Having taken the position, and rightly too, that real property did not vest in the executors but the devisee, the court concluded it could not compel the executors to assent to or execute the deed. In any case the administration bond, exhibit D, clearly spells out what property the holder was to administer. It plainly limits it to personal property.

Finally, let me point out that the mere fact that the rules of the High Court, particularly Order 60, r 43 (1), does not specifically state that the grant shall be limited to personalities only and therefore it does apply equally to realty does not change the position of the law. I think the correct approach is to find out what the substantive law says on the matter, and then interpret the subsidiary legislation in the light of the substantive law. So that where the substantive law does not vest immoveables in the personal representative, it would be palpably wrong to interpret

[p.726] of [1997-1998] 2 GLR 717 the rules otherwise. In my judgment then, exhibit A conferred authority on the respondent to administer only the personaltypersonality and not the realty of their deceased mother. They cannot therefore rely on exhibit A in proof of his capacity as administrator of the subject matter. More importantly, the exhibit A does not vest title of the subject matter in the respondent. Unfortunately, the judge concluded that the title of the plaintiff to the land by virtue of exhibits A and B remained in no way inpeachedimpeached.

But what of the exhibit B? This question takes me to the ground (3) of the additional grounds of appeal. I reproduce it:

“There is absolutely no evidence that the judgment, exhibit B, tendered on behalf of the plaintiff was in proceedings of which defendant was aware or to which he was a party and the learned trial judge erred in basing his judgment on the said exhibit B.”

Two arguments were proferredproffered in support of this ground, one of which is not so apparent on the face of the ground as stated. Counsel for the respondent in his reply however made our task relatively easier by conceding the points that the trial judge was in error when he drew the inferences and conclusions that he did draw. And the reason was simply this, that there is no evidence that the appellant was a party to the proceedings in exhibit B, or that he was aware or ought to have been aware of the proceeding but did not intervene to challenge the respondent’s capacity, or that he took some other steps such that he can properly be bound by the judgment which his opponent maintains declared him as the administrator of the property. If anything at all the answers his own witness, the first plaintiff witness, gave to the following questions makes it difficult for one to conclude that he was fully aware of these proceedings. I reproduce them:

“Q Do you remember any dispute arising between who and who?

A Between Yaya Titus Glover and Kalimu Titus Glover.

Q At the time, did any of the brothers accompany or join Kalimu Titus Glover to the court?

A Yes.

Q Was the defendant Badu Titus Glover, also among the brothers at the time.

A No”

[p.727] of [1997-1998] 2 GLR 717

In my humble view then, assuming exhibit B declared him administrator of the subject matter, it cannot bind the appellant such that it stops him from relitigating his capacity as adminis trator of that estate. It does follow that the learned trial judge’s conclusion that: “The title of the plaintiffs to the land by virtue of the letters of administration and exhibit B remained in no way impeached or assailed” is wrong and cannot be made to stand.

I now turn to the other two capacities in which he sued. The law clearly is that on the death intestate of Mercy Enon Mathias the property became family property. The basic rule of law is that the proper person to sue with regard to family property is the head of family. Of course there are exceptions to this general rule. I would also emphasise that the famous case of Kwan v Nyieni [1959] GLR 67, CA which formulated these principles never presented a closed list of exceptions. The learned justices in their wisdom only presented a few of these, leaving the door open for other possible exceptions. Nonetheless the general rule of law remains intact and it is this that “the head of family as representative is the proper person to institute a suit for recovery of family land.”

The respondent’s own evidence on the record show that he is not the head of family. I reproduce below the relevant evidence on the point:

“Q Do you know Gilbert Titus Glover?

A Very well, he is my elder brother.

Q Where is he now?

A He is dead.

Q During his life time what was he in the family?

A He was head of family.

Q When did he die?

A He died two years ago.

Q So until his death he was head of family?

A Yes.

Q You know that at the time of your mother’s death Gabriel was the most senior son?

A Yes.

Q And it was he who took control of your mother’s estate.

A He entrusted everything to me.

Q When your mother died it was Gabriel or not who took control of your mother’s estate?

A Yes.”

[p.728] of [1997-1998] 2 GLR 717

His own witness, the first plaintiff witness, confirmed the fact that the respondent was not the head of family. Again, exhibit 1 puts the matter beyond every shadow of doubt. Gilbert Glover became the head of family on the death of their mother. It seems to me also that he acted in that capacity when he could, authorising the respondent to act on his behalf only when he was in no position to do so. This is why we find from the paragraph (4) of exhibit 1 that the respondent was given a limited power to act on behalf of Gilbert Glover, such as the power to represent him in a “suit involving the property of both our father and mother.” Even so, the power was revoked. The point I would wish to emphasise is that the evidence shows that respondent was not the head of family, neither had the head of family empowered him to act on his behalf generally and all matters affecting family property, or even in these proceedings. See Hagan v Kotey [1961] GLR 594. Sabbah v Worbi [1966] GLR 87 would require a member of the family who institutes an action in protection of family property to prove the special circumstances which had constrained him, and not the head of family, to institute the action. But the respondent did not either in his evidence-in-chief nor cross-examination bring himself under any of the exceptions under the general rule. He did not tell us why he had to institute the action in his capacity as beneficiary, nor why his brothers and sisters also had to sue in that capacity. Again, when the appellant had clearly pleaded that there was no family meeting at which he was appointed to institute the proceedings, he failed to lead evidence showing he had so been authorised. True, he did refer to a family meeting he held prior to commencing these proceedings but he confesses he did so in his capacity as administrator. The evidence does not show that it was a family meeting which was called to authorise him to sue for himself and on the behalf of other beneficiaries.

I agree that the respondent failed to prove any of the capacities in which he instituted this action and the appeal ought to be allowed for these reasons alone.

However, other serious errors on the part of the learned trial judge were pointed out which I intend to deal with. With respect to grounds (4) and (5), it was argued that the trial judge erred when he held that the parties are agreed that title to the subject -matter is vested in the deceased. The argument as I understand it is that because he failed to appreciate the fact that one of the critical issues for determination was whether or not the deceased died

[p.729] of [1997-1998] 2 GLR 717 possessed of the subject-matter, he failed to evaluate the evidence led on both sides and to come out with a primary finding on the issue. In the circumstances we have been urged to order a retrial.

For my part, I do not think the criticism levelled against the trial judge is wholly justified. While it may be true that he did give the impression in the opening paragraphs of the judgment that there was no dispute as to what interest the deceased originally obtained from the Odoi Kwao family, he did rocogniserecognise the fact that the relief sought by the respondent necessitated a determination of whether or not title has been proved. This, he found for the respondent. I think what he meant was that there is no dispute that the deceased was the first to go on to the land, that is the first to acquire an interest in the land. Nonetheless, even if he fell into error (i) in so concluding and (ii) more importantly, as is borne out by the original grounds (1) and (2) and additional ground (i), he failed to evaluate the evidence led at the trial. He failed to assign reasons for preferring one claim to the other. I would however not order a retrial. I would find out whether there is strong evidence of title in favour of the respondent and which is apparent on the record; or differently put, is supported by the record.

I should think that from the state of the pleadings the burden of proving that the deceased acquired only a customary licence from the Kwao Family, and that this licence was revoked with the result that title then became vested (by way of purchase) in him (the appellant), rests on the appellant and not the respondent. A look at the evidence of the appellant’s representative show he never led a shred of evidence in proof of these matters. All he did was to tender the indenture exhibit 3 as proof of title. No member of Kwao Family was called to testify to these matters either. So, as against the appellant’s testimony that in 1974 he had acquired title in the land, we have the evidence of the respondent, confirmed by his witness, that well before 1974 the Odoi Kwao Family had completely divested itself of its interest in the land and their deceased mother had acquired a valid title in the land. While I concede that in this regard the respondent has led conflicting evidence on the root of title (in cross-examination he first spoke of a customary gift but subsequently claimed the mother acquired the land by purchase) the authorities demonstrate that the claim ought not to be dismissed solely on the basis of such discrepancies, particularly where there is some other independent testimony in proof of title, such as for example evidence of long and or

[p.730] of [1997-1998] 2 GLR 717 interrupted or undisputed user, and where there has not been pleaded any specific root of title. Indeed, even in these cases where there has been pleaded one root of title and another is proved, the courts have been slow to dismiss the claim solely on the basis: see Boafo v Gyetua [1962] 1 GLR 4 at 6. Although the Supreme Court reversed the decision in the case for a different reason, it approved the above principle. See also Boakye v Bronix and Domfe (1958) 3 WALR 475; and Kwao II v Ansah II [1975] 2 GLR 176.

Therefore, although I would not say that exhibits A and B are evidence of the respondent’s title, I should think his evidence, that of his witness, the first plaintiff witness which included the evidence of long use well after his mother’s death–almost twenty three years before the appellant acquired the land, is conclusive proof of the fact that title to the land was vested in their mother at the time of her death. The Kwao family having divested itself of this land could not validly convey same to the appellant. I am unable however to give judgment in the respondent’s favour for the reasons already given, namely that he was unable to prove the capacities in which he sued. I will however, dismiss the counterclaim for the simple reason that he failed to establish the claims.

Sapong JA. The plaintiff claims:

“(a) A declaration that the purported sale and conveyance of land with building thereon and constituting the estate of Mercy Enon Matthias, of which the plaintiff is the lawful administrator, which conveyance is registered in the Land Registry as No 3520/1982 is void and of no legal effect.

(b) Recovery of possession of the said land with all the buildings thereon.

(c) Perpetual Injunction restraining the defendant and his privies from asserting or claiming title thereto.”

The defendant did counterclaim as follows:

“(1) Revocation of the said letters of administration wrongfully and unlawfully obtained by plaintiff and takes over the administration of the estate for and behalf of the beneficiaries of the late Mercy Enon Matthias.

[p.731] of [1997-1998] 2 GLR 717

(3) An order that plaintiff renders an account of all monies received by plaintiff from the estate for and on behalf of the beneficiaries.

(4) Further or other reliefs the court deems appropriate.”

The plaintiff had judgment delivered in his favour. The defendant dissatisfied comes to this court for redress.

The capacity of the plaintiff was seriously challenged by the defendant. If the plaintiff is proved to have no capacity, then clearly a retrial has to be ordered and not otherwise. The plaintiff contends his authority to sue stems from exhibit A. Learned counsel for the appellant says exhibit A is a registrar’s authority and which is limited only to personaltypersonality, iei.e. movables and not immovables. He calls in aid Order 60, r 38 (1) of the High Court (Civil Procedure) Rules, 1954 (LN 140A). What does this rule say?

“38 (1) The person to whom administration is granted shall give bond, with two or more responsible sureties, to the Chief Registrar of the Supreme Court, to enure to the Chief Registrar for the time being conditioned, for duly collecting, getting in and administering the personal property of the deceased.”

(The emphasis is mine.) Learned counsel for the respondent contends that Order 60, r 43 (1) of LN 140A is the rule that applies. Order 60, r 43 (1) of LN 140A says:

“43. (1) Where the estate of a deceased intestate does not exceed one hundred pounds in value, it shall be lawful for the Registrar of the Court to authorise the person entitled to administration on his filing a true inventory of the estate and on his entering into a bond in the form prescribed by rule 38 of this Order, to administer the estate without the necessity for applying for and taking out letters of administration.”

He contends further that the rule talks of estate simpliciter. It does not say movables or immovables.

I do say that Order 60, r 43 (1) of LN 140A is limited to small estates and not big estates. One can administer a big estate only by obtaining letters of administration and not the registrar’s authority. The estate under review is land and the registrar’s authority does not extend to land but moveable poropnerties.

[p.732] of [1997-1998] 2 GLR 717

In the result, I do say the plaintiff had no capacity to sue in respect of the land (immoyveable) property concerned. That being so, and on this ground alone, I allow the appeal and set aside the judgment.

I therefore do not think it necessary to consider the other grounds of appeal. I also dismiss the counterclaim.

Afreh JA. By his writ of summons issued on 13 February 1983, the plaintiff-respondent (hereinafter referred to as the respondent) claimed:

“(a) A declaration that the purported sale and conveyance of land with buildings thereon and constituting the estate of the late Mercy Enon Matthias, of which the plaintiff is the lawful administrator, which conveyance is registered as Land Registry No 3520/1982, is void and of no legal effect.

(b) Recovery of possession of the said land with all the buildings thereon.

(c) Perpetual injunction restraining the defendant and his privies from ever asserting or claiming title thereto.”

After the pleadings, the following issues were set down for trial:

“(a) Whether or not house No D2/25 is and remains family property being administered by the plaintiff.

(b) Whether or not the defendant’s title to the house No D2/25 is valid.

(c) Whether ‘or not the defendant’s purported title to house No D2/25 was obtained by fraud.

(d) Whether or not the defendant’s counterclaim is maintainable.”

In his counterclaim the appellant had claimed:

“(1) Revocation of the letters of administration which he alleged had been wrongfully and unlawfully obtained by the respondent.

(2) An order that the Administrator-General should intervene and take over the administration of the beneficiaries of the estate of Mercy Enon Matthias.

(3) An order that respondent should render an account of all monies received by plaintiff from the estate for and on behalf of all the beneficiaries of the estate.”

[p.733] of [1997-1998] 2 GLR 717

The trial judge entered judgment for the plaintiff against the defendant on all the three reliefs indorsed on the writ of summons and dismissed all the counterclaims of the appellant. It is against this decision that the defendant has brought the instant appeal. There are three original ground of appeal that:

“(1) The judgment is against the weight of evidence.

(2) The learned trial judge erred in holding that the defendant acquired no valid title in the land which could be registered at the Land Title Registry.

(3) The learned trial Judge erred in holding that the land in dispute belong to the plaintiff.”

Counsel for the appellant also filed and was given leave to argue eight additional grounds of appeal. In my view, these additional grounds are mostly elaborations on the original grounds of appeal although some of them raised interesting questions of law. The only major new issue raised by the additional grounds is the capacity of the respondent to bring the action.

The facts of this case are simple and mostly undisputed. The six respondents and the appellant were the children of one Mercy Enon Matthias who died intestate in 1957. In 1943 she obtained by way of gift from the Nii Odoi Kwao family a piece of land in Nima. The respondent accompanied her when she went to acquire the land from the Odoi Kwao family to whom she paid ten pounds (E£10). She went into possession and built a swish house on the plot, comprising a main building and an outhouse. In 1974, by a deed of conveyance, one John Abbeyea, who claimed to be the head and lawful representative of the Nii Odoi Kwao family, with the consent and approval of some principal elders of the family, conveyed the said land to the appellant for a consideration of ¢2,000. The deed did not mention that there was a building on the land. There was no recital that the family had revoked a previous grant of the land to the mother of the respondents and the appellant.

The appellant registered the instrument issued to him by the Nii Odoi Kwao family and proceeded to build a house on a portion of the disputed land. It is this acquisition the respondent challenged by bringing this action.

In my view, in considering whether the judge was right in giving judgment in favour of the respondent, the basic matter that must be determined is the nature of the interest acquired by the

[p.734] of [1997-1998] 2 GLR 717 mother of the parties and the effect of her death intestate on that interest. The respondent in effect contended that it was a gift which passed whatever interest the Nii Odoi Kwao family had in the land to their mother. The defendant on the other hand main tamined that all that she acquired was a licence which the Nii Odoi Kwao family revoked when the swish building fell into ruins. In my view, the evidence supports the respondent’s contention. She built a permanent structure on it. There is no evidence that the Odoi Kwao family objected to that, something they would have done if she only had a customary leave or licence. They did not revoke the licence during her life time and it seems they did not declare their reversionary interest in the land when she died. As I have already said there was no recital in the deed of conveyance to the appellant that the grantors, Nii Odoi Kwao Family, had revo ked a previous grant because the building on the lead had fallen into ruins as the appellant averred in his statement of defence.

In contrast, the appellant failed to adduce satisfactory evidence in support of his case. The Nii Odoi Kwao family who could have thrown some light on the nature of interest it gave to Mercy Enon Matthias and the reasons for selling the same land to the appellant more than 30 years later was not called to give evidence. There is no evidence they revoked a licence given to the parties’ mother. The appellant himself did not give evidence; he was residing in Britain. His attorney was most unconvincing in his evidence; and in the end, in his written address, claimed Enon Matthias had given the land to her daughter, the attorney’s wife, by a gift inter vivos.

The conflicting claims of the appellant and his own attorney seriously undermined any credibility that could be attached to the claim of the appellant. Apart from all this, the reason allegedly given for the re-entry of the Nii Odoi Kwao family onto the land has no basis in law. Even if the swish building was in ruins and was a health hazard, that, without more, could not justify revoca tion of the alleged licence.

In my view, the only reasonable conclusion one can come to on the evidence on record is that the interest Mercy Enon Matthias, the mother of all the parties, acquired in 1943 was not a licence but a freehold, a heritable interest. Therefore on her death intestate, the land along with the buildings on it became family property. As such, no member of the family could expropriate or appropriate it or part of it to his exclusive use, possession or

[p.735] of [1997-1998] 2 GLR 717 ownership without the consent of the other members of the family. At the time the Odoi Kwao family conveyed it to the appellant it was still family land of the Titus Glover family. The family was in possession of the land as freeholders and not as licencees. The Odoi Kwao family had ceased to have any legal interest in the land and could not convey a valid title to anyone: nemo datquod non habet. Therefore the purported sale of the land with the building thereon was a nullity.

Counsel for the appellant, Mr P A Adjetey, strenouslystrenuously argued that the respondent had no capacity to bring the action. His main reason for this was that respondent claimed to have bought the action as the sole administrator of the estate of Mercy Enon Matthias by virtue of the registrar’s authority given in 1959 under Order 60, r 43 the High Court (Civil Procedure) Rules, 1954 (LN 140A). Mr Adjetey argued, rightly is my view, that under the law that existed at that time, the letters of administration or a registrar’s authority vested only the personal or moveable property of the deceased intestate in the donee of the letters of administra tion or registrar’s certificate. His real or immovable property, vested directly in his heir. In support of this law Mr Adjetey cited the cases of Pappoe v Wingrove & Co Ltd (1922) DCt ’ ‘21–’25, 20; France v Quartey (1925) DCt’ ‘ 21-25, 194; Nancy v King (1950) DC (Land) ’ ‘48–’ 51, 242; and Brown v Darko [1961] GLR 539. The learned trial judge therefore erred when he said the respondent had title to the lead because he had been given letters of administration.

But this does not means that the respondent had no capacity to bring the action. As I have said, on the death intestate of Mercy Enon Matthias the land with the buildings thereon became family property. It seems the family appointed the respondent to adminis ter her estate or allowed him to administer and hold himself out as the administrator. The registrar’s authority was given to him alone with his brothers Gabriel (who was supposed to be the head of family) and Matthias merely standing as sureties. And any challenge to the respondent’s authority as administrator appeared to have ended with the settlement of the dispute between him and his brother Yaya which was adopted in the consent or declaratory judgment delivered by Sarkodee-Addo J (as he then was) on 16 March 1960. In that judgment, the respondent was described as the “administrator and trustee for the benefit of himself and his

[p.736] of [1997-1998] 2 GLR 717 brother (including the defendant) and his sisters–the survivors of their deceased mother intestate.”

It was argued that the appellant herein was not a party to that suit and did not accompany the respondent to court, and therefore he was not bound by it. I think the appellant was bound by it. That judgment was a judgment in remin rem because it determined the ownership of the property in dispute between the respondent herein and Yaya, and what is more relevant in the instant appeal, the status of the respondent–as the administrator of the estate of the mother of the parties.

During the trial the appellant tendered in evidence, as exhibit 1, a statutory declaration made by Gabriel Titua Glover. He declared himself as the head of both his father’s family and mother’s family. He stated that “due to other occupation and illness, I gave to my younger brother, Kalimus Titus Glover, to represent me in a suits (sic) involving both of our father and mother.” He went on to say that now that he had recovered he wished to revoke the said power. On the basis of this declaration it was argued that on the authority of Kwan v Nyieni [1959] GLR 67, CA the respondent ceased to have authority to pursue the matter.

I do not attach much value to this declaration. The written power of attorney was not tendered in evidence so it is not possible to determine its scope. The declarant Gabriel was not called to testify on or tender it or the statutory declaration. It says the power of attorney was given in respect of a suit involving thec properties of both the father and the mother. In the instant case, the father’s property is not involved. Moreover it is not clear by ort against whom the suit was brought. So it cannot be concluded that it was referring to the instant suit. In view of the ambiguous naturce of the declaration, it cannot take away the status of the respondenti as administrator of the estate of the mother of the parties and his nright to bring this action or his own behalf and that of thec co-beneficiaries of the estate.

After the alleged revocation, Gabriel did not take any action to take over or discontinue the proceedings. He allowed the respondent to proceed with it on his behalf and the other co -beneficiaries (apart from appellant) of their mother’s estate. In my view if after the trial he had gone to court to challenge the capacity of the respondent, he could have been estopped under section 26 of the Evidence Decree, 1975 (NRCD 323).

[p.737] of [1997-1998] 2 GLR 717

It is clear from the statement of claim that the respondent was suing in a representative capacity. A person who brings a representative action should clearly state that he is suing in that capacity on behalf of a specified class of person in (1) the title of the writ of summons and statement of claim, (2) the endorsement to the writ of summons and (3) in the body of pleadings; see Ghana Muslims Representative Council v Saliflfu [1975] 2 GLR 246 at 248 and 257-259, CA. In this case the representative capa city was not stated in the title of the writ of summons and endorse ment to the writ but this was done in the title of the statement of claim and in the body of the statement. The defect in the title of the writ was however corrected when with leave of the court the title was amended by the addition of the word “as” before “sole administrator” and the words “for himself and on behalf of four brothers and a sister.” So the representative capacity was clearly stated in the writ and the statement of claim. The respondent gave evidence that before he applied for letters of administration in 1959 members of the family including appellant met and authon rised him to do so. This was supported by the evidence of Matthias. His representative capacity was recognised by the consent judgment of Sarkodee-Addo in 1960, and none of his brothers and sisters challenged it until these proceedings were instituted.

In my view the representative capacity of the respondent was clearly established and the fact that he described himself as sole administrator did not destroy or affect it. The attack on the capacity of the respondent should therefore fail.

There is only one small issue to dispose of. One additional ground was that on the whole the trial of this suit was unsatisfac tory and consequently the judgment is unsafe and ought not to be allowed to stand. Counsel did not argue it fully. There is no basis for it. I believe the only ground for it was that some documents were or appeared to be missing from the record. But the errors or deficiencies of the registry should not be described as unsatisfac tory trial.

In any case the defects in the record of proceedings appear to be minor. There was ample information which have enabled us to give comprehensive consideration to submissions of counsel. And after considering their submissions I think the appeal should be dismissed.

Appeal allowed.

SA