IN THE SUPERIOR COURT OF JUDICATURE
IN THE SUPREME COURT
ACCRA – A.D. 2026
CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING)
PROF. MENSA-BONSU (MRS.) JSC
KULENDI JSC
KWOFIE JSC
ADJEI-FRIMPONG JSC
CIVIL APPEAL NO. J4/36/2026
15TH APRIL, 2026
NII ASHITEY SAASABI II …… PLAINTIFF/RESPONDENT/RESPONDENT
VRS
1. BASHIRU IBRAHIM AGORO ….. 1ST DEFENDANT/APPELLANT/APPELLANT
2. ALIDU AGORO ….. 2ND DEFENDANT/APPELLANT/APPELLANT
3. ABUBAKARI YUNUS AGORO ….. 3RD DEFENDANT/APPELLANT/APPELLANT
JUDGMENT
KWOFIE JSC:
My lords, this is an appeal against the judgment of the Court of Appeal delivered on 1st February, 2024 wherein the Court dismissed the defendants/appellants appeal and affirmed the judgment of the trial High Court, Accra. Still dissatisfied with the judgment of the Court of Appeal, the defendant/appellants launched the present appeal to the apex court per a Notice of Appeal dated 23rd April 2024 on the following grounds:
a) The decision is against the weight of evidence.
b) The learned justices of the Court of Appeal erred in law when they held that the respondent didn’t need to specify on the Writ of Summons and Statement of claim the capacity in which he instituted the action in the High Court.
Particulars of error of law
The decision that in a representative action the plaintiff does not need to state specifically in the Writ of Summons and Statement of claim the capacity in which he institutes the action.
c) The learned justices of the Court of Appeal erred in their decision that the respondent’s action is not statute – barred.
d) The learned justices of the Court of Appeal erred in their finding that the land in dispute is Saasabi Stool land.
The Background
By an amended Writ of Summons filed on the 8th of October 2020, accompanied with an amended statement of claim, the plaintiff claimed against the four (4) defendants as follows:
a) Declaration of title to all that piece or parcel of land situate, lying and being between Nungua lands to the West, Adegon lands to the South and Adenkesu lands to the East, and the Krowe, Nii Annang Nkpa, Nii Ashitey Akotiapong and Nii Ashitey Kwadzobo family lands to the North covering an area of 2147.15 acres or 874.75 Hectares.
b) Recovery of possession of all that piece or parcel of land described in paragraph 8 of the statement of claim
c) Perpetual injunction against the defendants, their agents successors, agents and all those claiming through the defendants
d) Damages for trespass to all Saasabi stool lands trespassed upon by the 1st, 2nd and 3rd defendants
e) An order directed at the Lands Commission to cancel the plotting of Saasabi lands which was done in the name of the 1st, 2nd and 3rd defendants grandfather Alhassan Agoro
f) Declaration that the 4th defendant is not the head of the Nii Annang Nkpa family which had contributed part of the Nii Annang Nkpa family land and put same under Saasabi Stool.
Plaintiff’s case:
It is the plaintiff’s case that he is the Chief of Saasabi and the Head of the Saasabi family. The plaintiff asserts that Saasabi is one of the Tema villages and the lands of Saasabi were acquired by their ancestors through farming, hunting and settlement. The fact of Saasabi being a Tema village is shown on the Tema Boundary Plan that was drawn in 1970 by the Regional Survey Department of the Greater Accra Region. The plaintiff asserts that as the chief of Saasabi, he has sued other people in respect of Saasabi lands and has obtained judgments in his favour, albeit for the people of Saasabi. He states that Saasabi lands cover an area of 2147.15 acres or 874.75 hectares.
It is the plaintiff’s case that the boundary between Tema Lands, of which Saasabi forms part and Nungua lands was, at the request of the Ga chiefs to the colonial government in the year 1904, demarcated by one Crowther and it stretches from Sakumono to Saasabifio and which boundary is shown on a map. The plaintiff further asserts that in the year 1928, the Gold Coast survey pillars made by Jackson J. showed that Saasabi lands were located to the North of Adigon. The lands of Saasabi, Adenkesu, Kpone/Appolonia and Adigon share a common boundary at a baobab tree known as “shajo Konsonkonson”
The plaintiff asserts that the 1st to 3rd defendants have, with the help of armed policemen, entered Saasabi lands and cleared large portions thereof and are claiming that they got the land from the people of Obosomase in the Eastern Region of Ghana. The plaintiff asserts that the Obosomase people do not have any lands in the area.
It is further the plaintiff’s case that the 4th defendant is not the head of the Nii Annang Nkpa family but the head of the family is one Nii Annang Amarh also known as Ataa Asah. It is the plaintiff’s case that the Nii Annang Nkpa family contributed part of its land to the Saasabi stool and after the said contribution, the Nii Annang Nkpa family was left with about 337 acres of land which was shared between the three branches of the Nii Annang Nkpa family. The 4th defendant’s father however refused to share the portion of their family land with his sister (4th defendant’s aunt) and the sister took the case to court, with the 4th defendant and his brother as the defendants, and the Supreme Court finally decided the case in favour of the aunt and directed the 4th defendant and his brother to transfer 59 acres of the land to her.
The plaintiff therefore asserts that the 4th defendant does not have any interest in Saasabi stool lands for him to make a claim in respect of the said lands. If anything at all, the 4th defendant can only benefit from his portion of the 337 acres of land that was shared between the three branches of the Nii Annang Nkpa family and nothing more. The plaintiff therefore prays the court to grant him the reliefs endorsed on his writ of summons.
1st, 2nd and 3rd defendant’s case/defence
The 1st, 2nd and 3rd defendants initially filed their statement of defence on 19th October 2018 and this was amended a couple of times with the last amendment made on 19th June, 2019. As is to be expected, they denied the entirety of the plaintiff’s case before this court.
It is the case of the 1st to 3rd defendants that the land over which the plaintiff has sued them is not Saasabi land but it is rather situate at Adenkesu-dzorka village. They assert that their grandfather Alhassan Agoro purchased the land in dispute from the Aduana Abrade family of Obosomase in the year 1977 and he was issued with title deeds which he duly registered in the Lands Commission. Their grandfather took possession of the land and engaged in food crop farming also burnt charcoal and constructed temporary dwelling places on the land without interruption from any quarters.
The 1st to 3rd defendants assert that they are administrators and beneficiaries of the estate of their grandfather Alhassan Agoro and that during the lifetime of their grandfather, they assisted him in his farming activities. They further assert that their grandfather introduced them to the Mankrado of Obosomase and after the death of their grandfather, the Mankrado and his principal elders have acknowledged and recognized their interest in the land.
It is the case of the 1st to 3rd defendants further that the Aduana family of Obosomase owns about 20,321 acres of land which stretches through Mensah Bar to Dortsido near Apolonia and it includes many villages and they share boundary with Aburi, Tutu, Ahwerease, Kpone, Apolonia, Kyenku and Prampram lands. The said lands are referred to as New Obosomase and they have made grants of the land to a number of people including one Nene Tormekpe.
It is the further case of the 1st to 3rd defendants that Saasabi lands belong to the people of Ahwerease in Akwapem and Ahweriase shares boundary with Obosomase. They assert that Tema lands’ end at Zenu and the people of Saasabi are settlers on Ahwerease land on license from the Ahwerease people as confirmed by the Jackson Report.
They further assert that the plaintiff lacks capacity to institute the present action and that the plaintiff’s action is situate barred.
4th defendants’ case/defence
Trial in this suit commenced on 8th October 2019 and the plaintiff closed his case on 14th February 2020. The 1st to 3rd defendants opened their defence on 16th March 2020. In the middle of giving their evidence, just before the legal vacation, counsel for the 4th defendant brought an application seeking to join the 4th defendant as a party to the suit. The said application was heard and granted on 13th August, 2020 by the trial court, differently constituted. This led to an amendment of pleadings and some witness statements and the recall of some witnesses for further cross-examination by counsel for the 4th defendant.
After the amended Writ of Summons and statement of claim as a result of the joinder was served on the 4th defendant, the 4th defendant filed his statement of defence on 2nd November 2020. It is the case of the 4th defendant that the Nii Annang Nkpa family are the founders of Saasabi and that though the inhabitants of Saasabi are all settlers from Tema, Saasabi is not a Tema village. He also denied the existence of any demarcation between Tema and Nungua as stated by the plaintiff in his statement of claim.
He further asserts that the Nii Annang Nkpa family had never ceded any part of its lands to the Saasabi stool. He also asserts that the land being claimed by the 1st to 3rd defendants is situate at Adenkesu which belongs to Obosomase. He also asserts that the plaintiff is aware of his ownership of the land in dispute which dates back to about 200 years.
The 4th defendant also asserts that the plaintiff does not hail from the appropriate lineage and he cannot therefore be a chief of Saasabi. The 4th defendant therefore asserts that the plaintiff lacks the capacity to institute the present action. The 4th defendant therefore counterclaimed against the plaintiff for the following reliefs:
i) Declaration of title to the tract of land lying, situate and being at Saasabi as described in paragraph 16 of the statement of claim (sic)
ii) An order for perpetual injunction to restrain the plaintiff, his agents, workmen and assigns from entering the land.
The parties will be described by their designations at the trial court.
Judgment of the High Court
At the end of a full trial, the trial High Court entered judgment for the plaintiff and dismissed the 4th defendant’s counterclaim.
The court held that the plaintiff had been able to prove that the land in dispute belonged to the Saasabi Stool. The court further reasoned that the composite plan prepared on the orders of the Court clearly supported the plaintiff’s version of the case. The court further held that the plaintiff as chief of Saasabi had sued the defendants in his capacity as such chief.
Appeal to The Court Of Appeal and Judgment of The Court Of Appeal
Dissatisfied with the judgment of the trial court, the 1st, 2nd and 3rd defendants mounted an appeal against same to the Court of Appeal on several grounds including amongst others:
a) The judgment is against the weight of evidence
b) The trial court erred in law when it held that the plaintiff’s action is a representative action
c) The trial court erred in its finding that the land in dispute is Saasabi Stool land and not Obosomase land
d) The trial judge erred in law when he held that the plaintiff’s action is not statute-barred
e) Further grounds may be filed upon receipt of the Record of Appeal.
In a judgment delivered on the 1st of February 2024, the Court of Appeal unanimously dismissed the appellant’s appeal and affirmed the decision of the trial court. The Court of Appeal agreed with the decision of the trial judge that from the composite plan prepared out of the survey instructions provided by both parties, the land in issue falls within the Saasabi Stool land and not Obosomase land. The Court also agreed with the trial Court that the plaintiff sued in a representative capacity.
Appeal to The Supreme Court
Still dissatisfied with the judgment of the Court of Appeal, the defendants launched the present appeal to the apex Court per a Notice of Appeal dated 23rd April 2024 on the following grounds:
a) The decision is against the weight of evidence
b) The learned justices of the Court of Appeal erred in law when they held that the respondent didn’t need to specify on the writ of summons and statement of claim the capacity he instituted the action in the High Court.
Particulars of error of law
The decision that in a representative action, the plaintiff does not need to state specifically on the Writ of Summons and Statement of Claim the capacity in which he institutes the action
c) The learned Justices of the Court of Appeal erred in their decision that the respondent’s action is not statute-barred
d) The learned Justices of the Court of Appeal erred in their finding that the land in dispute is Saasabi stool land.
Before proceeding to summarise the arguments of the appellants and respondents in respect of the various grounds of appeal, it is important to critically look at the grounds of appeal of the appellants particularly grounds (c) and (d). At the risk of sounding repetitive 1 set out the said grounds of appeal as follows:
Ground (c) The learned Justices of the Court of
Appeal erred in their decision that the
Respondent’s action is not statute-barred
Ground (d) The learned Justices of the Court of
Appeal erred in their finding that the land in dispute is Saasabi Stool land.
It is obvious that these 2 grounds of appeal do not comply with Rule 6(2) (f) of the Supreme Court Rules (C.I.16) which provides as follows:
“6 (2) A notice of civil appeal shall set forth the grounds of appeal and shall state
(f) The particulars of any misdirection or error in law, if so alleged.
In the case of Faustina Tetteh vs. T. Chandiram & Co. Ghana Ltd. & 4 others, Civil Appeal No. H1/63/2017 dated 19th April 2019, this Court held dismissing grounds 1 to 10 of the appellant’s ground of appeal due to the non-compliance with Rule 6(2) (f) of C.I. 16 per Marful Sau JSC as follows:
“Rule 6(2) (f) of the supreme Court Rules C.I. 16 requires an appellant who alleges error of law as a ground of appeal to provide the particulars of error alleged. This Court has in several decisions expressed the need for practitioners to strictly comply with the rules that regulate proceedings in the court. Besides it is trite that appeals are conferred by statute and for that matter parties who intend to excise their right to appeal, must strictly satisfy the provisions of the Statute conferring the right and rules of procedure regulating the appeal”.
His Lordship further continued:
“In Dahabieh vs. S. A. Turqui of Bros (2001-2002) SCGLR 498, this Court speaking through Adzoe JSC reiterated why appellants who allege error of law as ground of appeal ought to provide particulars thereof. At page 504 of the Report the learned justice delivered himself as follows;
“we think that having regard to Rule 6, grounds (i) and (ii) as set out above do not comply with the Rules. Clearly, the intention behind Rule 6 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 on been raised. By that way, both the court and counsel for the respondents would be enabled to coccentrate on the relevant parts of the evidence in the record of proceedings and not waste time on irrelevant parts of the evidence. With respect to questions of law, it is necessary that the respondent and his lawyer know well in advance what points of law are being raised so that they may prepare their case and marshal their authorities”.
The Court of appeal has similarly held in Zabramah vs. Segbedzi (1991) 2 GLR 221 explaining the effect of non-compliance with Rule 8(2) of the old Rules of that court, which is mutatis mutandis with Rule 8(4) of C.I. 19 per Kpegah JA. (as he then was) that:
“I must say without any fear of contradiction that ground (2) embodied in the notice of appeal is objectionable and inadmissible as a legitimate ground to be urged in this court ……….. The implication of these rules is that an appellant, after specifying the part of the judgment or order complained of, must state what he alleged ought to have been found by the trial judge, or what error he made on point of law. I do not think it meets the requirement of these rules to simply allege “misdirection” on the part of the trial judge. The requirement is that the grounds stated in the notice of appeal must clearly and concisely indicate in what manner the trial judge misdirected himself either on the law or on the facts. To state in a notice of appeal that “the trial judge misdirected himself and gave an erroneous decision” without specifying how he misdirected himself is against the rules and renders such a ground of appeal inadmissible …..”
In grounds C of the grounds of appeal, the appellants state that the learned justices of the Court of Appeal erred in their decision that respondent’s action is not statute-barred. The same goes for ground D of the appeal wherein the appellant states that the learned justices of the Court of Appeal erred in their finding that the land is Saasabi Stool Land. In both cases, no particulars of the error alleged were set out and the nature of the error committed by the learned justices of the Court of Appeal were not specified making the 2 grounds of appeal inadmissible. Accordingly grounds (c) and (d) of the notice of appeal are hereby struck out as being non-compliant with Rule 6(2) (f) of C. I. 16.
I will now deal with ground (b) of the appeal that is.
(b) The learned justices of the Court of Appeal erred in law when they held that the respondent didn’t need to specify on the Writ of Summons and statement of Claim the capacity in which he instituted the action in the High Court.
Particulars of Error of Law
The decision that in a representative action the plaintiff does not need to state specifically in the Writ of Summons and Statement of Claim the capacity in which he instituted the action.
Arguing the ground of appeal counsel for the appellant referred to the judgment of the Court of Appeal specifically page 91 of Vol. 4 of the ROA where the court stated:
“In our minds even if the plaintiff did not specifically state that he was acting in a representative capacity in the writ, because of his position as the chief and his statement that he was acting for and on behalf of the Stool is enough to cure that defect, even if it is at all. The plaintiff’s capacity is derived from, the fact that he is a chief, gazetted as such, and he can sue in respect of Saasabi lands without expressly stating on the Writ or Statement of Claim that he is acting for and on behalf of the stool so far as his designation as a chief is clear on the Writ or in the pleadings”
Counsel for the appellants then referred to Order 2 Rule 4 of the High Court (Civil Procedure) Rules 2004 (C.I. 47) and submitted that the Court of Appeal’s position that the plaintiff did not need to state in the writ that he was suing for and on behalf of the stool was erroneous. Counsel further submitted that where a plaintiff intends to initiate an action in a representative capacity, he must indorse the said capacity on the Writ and referred to the cases of Madina Shopping Mall Association vs. Rosehill Gh Ltd. & 2 others (2012) 36 MLRG 81 at page 106 and Kakraba vs. Amidu (1987-88) 2 GLR 59. He stressed that from the title of the Suit, the indorsement on the Writ of Summons and the Statement of Claim in this case, nowhere is it stated that plaintiff/respondent instituted the action in a representative capacity. He asserted that the plaintiff instituted a personal action claiming the relief endorsed on the Writ of Summons.
Counsel for the plaintiff/respondent countered the arguments of counsel for the appellants and submitted that the Writ of Summons filed by the plaintiff read together with the statement of claim leaves no room for any doubt that the plaintiff as chief of Saasabi was mounting a representative action. He referred to Order 4 rule 9(1) of C.I. 47 and various paragraphs of the statement of claim and the cases of Opoku & others (No. 2) vs. Axes Co. Ltd. (N0. 2) (2012) 2 SCGLR 1214, Ghana Muslim Representative Council vs. Salifu and others (1975) 2 GLR 246 and asserted that the Court of Appeal was right in affirming the decision of the trial judge that the plaintiff had sued in a representative capacity. Counsel further submitted that the respondent sued on behalf of the Saasabi Stool as the chief without expressly stating same in the Writ, but this failure to indicate expressly his representative capacity on the Writ does not change the action of the plaintiff from a representative action to an individual action.
Order 2 rule 4(1) of the High Court (Civil Procedure) Rules 2004 C.I. 47 provides
Order 2 (4) Indorsement as to capacity
i) Before a Writ is filed it shall be indorsed
a) Where the plaintiff sues in a representative
capacity, with a statement of the capacity
in which the plaintiff sues,
b) Where a defendant is sued in a
representative capacity, with a statement of
the capacity in which the defendant is sued”
Also Order 4 rule 9(1) of C.I.47 provides:
“The occupant of a stool or skin or, where the stool is vacant, the regent or caretaker of that stool or skin may sue and be sued on behalf of or as representing the stool or skin”
In the amended Writ Summons filed in the trial High Court by the plaintiff after the joinder of the 4th defendant by the order of the court, the plaintiff described himself thus at page 296 of vol. 2 of the ROA:
“AMENDED WRIT OF SUMMONS PURSUANT TO ORDER FOR JOINDER
Nii Ashitey Saasabi II — Plaintiff
The Chief of Saasabi
The Chief’s Palace
Saasabi – Near Oyibi
And
1. Bashiru Ibrahim Agoro
H/No. 9 Madina, Wasington
Accra
2. Alidu Agoro
H/No 6 Near Adenta
Accra
3. Abraham Yuni Agoro
Order 4 rule 9(1) of C.I.47 which did not exist in the old Civil Procedure Rules 1954 (LN140A) clearly permits the occupant of a stool or skin or the regent or caretaker where the stool is vacant to sue and be sued on behalf of or as representing the stool. This provision thus clothes the occupant of a stool or skin to represent the stool or skin and also be sued on behalf of stool or skin.
The endorsement on the amended Writ of Summons and the pleadings in the Suit leave no room for any doubt that the land the subject of litigation in this suit is Saasabi stool land. Indeed there seems to be no doubt about this fact from the pleadings in this case. There is also no doubt that the plaintiff Nii Ashitey Saasabi II is the gazetted Chief of Saasabi.
The defendants/appellants have contended in their Statement of case that from the tile of the suit, the endorsement on the Writ of Summons and Statement of claim, nowhere is it stated that the plaintiff/respondent herein instituted the action in a representative capacity and that it is obvious from the title and the endorsement on the Writ of Summons that the plaintiff the Chief of Saasabi, instituted a personal action claiming the reliefs endorsed on the Writ of Summons.
The plaintiff/respondent however contends otherwise.
The issue of the capacity of the plaintiff was raised at the trial court when the defendants sought to have the action dismissed by the court for want of capacity.
In a ruling delivered in respect of the issue of capacity of the plaintiff, the trial judge after referring to Order 4 rule 9(1) of C.I.47 delivered himself thus:
“it appears that it was in pursuant of the said position that the plaintiff in this suit brought this action. My understanding of this provision is that for a stool to be properly before the court, the action must necessarily involve the chief or occupant of the stool. Counsel for the defendants’ motion has raised issues with regard to the form such an action should take. Should the action be brought in the chief’s stool name only or should it be brought in the chief’s stool name but with a statement to the effect that he is suing on behalf of the stool or as representing the stool as suggested by counsel for the defendants?”
The trial judge continued:
“There is no dispute that the plaintiff is the chief of Saasabi. When giving his evidence in chief, the plaintiff tendered in evidence an extract from the National Register of Chiefs attesting to the fact that he is the chief of Saasabi as Exhibit A. There is also no dispute that the action that he has brought is in respect of Saasabi lands. As the chief of Saasabi, and on the strength of the authorities he is properly before the court. Whatever decision the court gives will be binding on the Saasabi stool and the people as held by the Supreme Court in Republic vs. Lands Commission: ex parte Vanderpuge Orgle Estates (1998-99) SCGLR 677, he is the agent of the stool and when he acts he acts for and on behalf of the stool. Anytime he acts as a chief, he is representing the Saasabi people and acting for the Saasabi stool. All that he needs to show to the court is that he has been duly nominated and installed as the chief in accordance with customary law. When this is established and this has already been established in this case, he has the capacity to represent the stool and to litigate on behalf of the stool. His capacity is therefore derived from the fact that he is a chief and as a chief, he can sue in respect of Saasabi lands without expressly stating on the Writ or statement of claim that he is acting for and on behalf of the stool so far as his designation as a chief is clear either on the writ or on the pleadings”
The same issue of the capacity of the plaintiff was again raised on appeal at the Court of Appeal and the decision of the Court of Appeal has already been set out earlier wherein the Court of Appeal stated in their judgment thus:
“In our minds, even if the plaintiff did not specifically state that he was suing in a representative capacity on the Writ, because of his position as the chief and his statement that he was acting for and on behalf of the stool is enough to cure that defect even if it is at all. The plaintiff’s capacity is derived from the fact that he is chief, gazetted as such, and he can sue in respect of Saasabi lands without expressly stating on the Writ or statement of claim that he is acting for and on behalf of the Stool so far as his designation as a chief is clear on the Writ or in the pleadings. We hold that the plaintiff had capacity to institute this case. We do not think the trial judge erred in holding so. We do not also think this ground of appeal is meritorious and same is dismissed as lacking merit”
We think that their Lordships of the Court of Appeal took a rather simplistic view of the issue of the representative capacity of the plaintiff raised by the appellants. While it is true that the plaintiff was the chief of Saasabi and he had stated under cross-examination that he was acting for and on behalf of the stool, that in our view was not enough to cure the defect in the Writ of Summons and the Statement of claim in respect of the representative capacity of the plaintiff.
We are also of the view that the trial judge also took an equally simplistic view of the capacity of the plaintiff when he stated that all that the plaintiff needs to show to the court is that he has been duly nominated and installed as the chief in accordance with customary law.
It is correct that Order 4 rule 9 of C.I. 47 provides that the occupant of a stool or skin may sue and be sued on behalf of or as representing the stool or skin, but in our view that does not mean that a chief who sues in respect of the stool or skin property is thereby precluded from stating on the Writ of summons and statement of claim that he is suing in a representative capacity ie. that he is suing for and on behalf of the stool. This is so because it is possible for a stool occupant to use his stool name to sue in respect of a private property or to institute a private action.
It is worth pointing out that Order 2 rule 4 of the High Court (Civil Procedure) Rules 2004 C.I. 47 is a re-enactment of Order 3 rule 4 of the old High Court (Civil Procedure) Rules 1954 (L.N. 140A) on representative action.
In the case of Ghana Muslims Representative Council and others vs. Salifu and others (1975) 2 GLR 246 the Court of Appeal as the highest Court of the land then had occasion to deal with how a representative action ought to be framed or couched. That was a case in which the plaintiffs suing in a representative capacity to enforce the rights of members of the Association, failed to endorse such capacity in their Writ and statement of claim. An objection was taken by the defendants to the plaintiffs action on among other grounds that as the 2nd plaintiffs had failed to endorse their representative capacity in their writ and statement of claim, the pleadings offended the provisions of the High Court (Civil Procedure) Rules 1954 (LN 140A) Order 3 rule 4. The objection was upheld by the trial High Court. On appeal, the Court of Appeal in allowing the appeal referred to the case of Dove vs. Wuta Ofei (1966) GLR at 317 SC and the English case of In Re: Tottenham; Tottenham vs. Tottenham (1896) 1 CH 628 and held as follows at page 259 of the Report:
“In a representative action, it is necessary, both in the Writ and in all subsequent pleadings to state clearly that the parties are suing, or are being sued in their representative capacity, on behalf of the members of a defined class: see Order 3 of LN 140 A of 1954. In this case, this has been done only in the statement of claim. The representative capacity should also be stated in the title of both the writ and the statement of claim, and not merely in the endorsement of the Writ or the body of the pleadings. This has not been done here”.
But importantly the Court continued as follows:
“Where it appears at the trial in a representative action that the plaintiff has failed to state the representative capacity of the parties, the court will give leave to amend either the Writ or subsequent pleadings by adding a statement that the plaintiff is suing on behalf of himself and all others of a defined class”
In the case of Dove vs. Wuta-Ofei (Supra) the plaintiff had by virtue of the provisions of the Land Development (Protection of Purchasers) Act, 1960, instituted proceedings against the defendant for recovery of the disputed land. The trial court held that the plaintiff erected the building on the disputed land in honest and reasonable belief of his title and gave judgment in his favour. The defendant appealed against the decision to the Supreme Court. At the hearing, Counsel for the defendant submitted, inter alia, that the trial judge erred when he held that the plaintiff erected the building in good faith. He submitted further that the plaintiff could not rely on the conveyance to his wife in seeking protection under the Act since there was no evidence that his wife had assigned her interest to him.
In dismissing the appeal, the Supreme Court held in holding 2 that:
“2) The Appeal Court had a right to amend the title of the suit to conform with the justice of the case with the avowed object of avoiding multiplicity of litigation. The objection of the appellant that the plaintiff could not rely on the conveyance to his wife in seeking protection under the Act could be met by amendment of the title of the suit by adding to the name of the plaintiff the words “for himself and on behalf of his wife Mrs. Ofei”
Also relevant is the case of Gbogbolulu vs. Hodo (1947) 7 WACA 164 at 165 where the West African Court of Appeal stated:
“it is the duty of Courts to aim at doing substantial justice between the parties, and not to let the aim be turned aside by technicalities. As soon as any question arose as to the capacities of the respective parties, it was in our view, the duty of the Court to make any formal amendment in the claim which would make clear the capacity in which the plaintiff sued and the defendant was sued and the real point of controversy between them, provided that could be done without any hardship to either party. This Court has full powers to take this course and since it appeared that no hardship would accrue to either party by the heading of the Suit being amended, even at this late stage, so as to make clear the representative capacities of the parties, we ordered in the course of the hearing of the appeal that the title of the suit be amended to read as now appears as the heading of this judgment”
In our view, given the fact that the indorsement on the Writ of Summons, the pleadings, the evidence and statement of case of the parties all show clearly that the plaintiff as chief of Saasabi sued the defendants for and on behalf of the Saasabi Stool, we are of the view that the trial court and or the Court of Appeal should have amended the Writ or subsequent pleadings to read as follows:
“Nii Ashitey Saasabi II
Chief of Saasabi suing for and
On behalf of the Saasabi Stool.”
This Court as the apex Court with a view to conform with the justice of the case and avoid multiplicity of suits so orders the amendment to be so effected to the plaintiffs name by the addition of the words “Chief of Saasabi suing for and on behalf of the Saasabi Stool”. Save for this amendment to the plaintiff’s name and title, ground (b) of the appeal fails.
Ground (a) The decision is against the weight of evidence
The appellant in this ground of appeal submitted that the appellants had been on the land since their grandfather purchased the said land in 1977 and took possession of same, by erecting boundary pillars, cattle rearing and food crop farming and also built temporary farm hut and thus the action mounted in 2018 was statute-barred and caught by the Statute of Limitation and the adverse possession of the appellants Counsel also submitted that the respondent and the Saasabi people or stool have no title to the land in dispute and it was wrong for the Court of Appeal to have affirmed the trial judge’s decision that the disputed land belonged to the Saasabi Stool.
Counsel for the appellants further referred to the appellants Exhibit 1 and submitted that the disputed land was located at Adenkesu. Indeed counsel submitted that the distinction between Saasabi and Adenkesu appears to have been made irrelevant by the testimonies of Nana Donkor Manianor II DW2 and Nana Semenshia Ohene Asah Krofa II (DW3) when they testified that Adenkesu is a stream and not a town
On the other hand Counsel for the respondent responding to the appellant’s arguments submitted that the appellants alleged adverse possession if at all a clandestine one was and that adverse possession must be open, visible and unchallenged so as to give notice to the legal owner that someone was asserting a claim adverse to his.
The omnibus ground of appeal invites this court to take another look at the facts on record to ascertain whether the conclusions arrived by the Court of Appeal are borne out or not; and to arrive at its own conclusion. In the case of Akuffo-Addo vs. Catheline (1992) 1 GLR 377, SC this Court observed that whenever an appeal is based on the omnibus ground that the judgment is against the weight of evidence, the appellate court has jurisdiction to examine the totality of the evidence before it and came to its own conclusion on the admitted and undisputed facts. Thus, when an appellant complains that the judgment is against the weight of evidence, he is implying that there are pieces of evidence on record which, if applied properly or correctly, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus in such an instance is on the appellants to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against: see also Djin vs. Musa Baako (2007-2008) 1SCGLR 686 at 687 (per holding 1)
What factual lapses, if any, emerge for redress from the judgment of the Court of Appeal? With respect to whether the disputed land falls within Saasabi Stool land or Adenkesu as contended by the respective parties, the Court of Appeal stated as follows:
“The composite plan in the instant appeal clearly shows that the land in issue, though the appellants allege is in Adenkesu, the composite plan says otherwise, that it falls within the Saasabi Stool lands. This piece of evidence was not controverted. The normal practice as we know is that when the court orders for the preparation of a composite plan, both parties lead survey teams to show their various boundaries on the land and submit their various site plans to aid the composition (sic). This was duly carried out and the final plan states the appellants land which they claim is at Adenkesu falls within the Saasabi lands. There is no better mode or method of indication of the identity of any land the subject matter of litigation between parties for a declaration of title to land than the composite plan drawn by qualified surveyors based on the survey instructions offered by the parties themselves. It is therefore an important exercise to be taken seriously by all parties to the suit for a declaration of title to land”
This finding by the Court of Appeal is clearly borne out by the evidence of the surveyor the CW1 who testified under cross-examination by both counsel for the appellants and counsel for the respondent that the disputed land falls within the Tema Boundary plan whilst Adenkesu falls outside the Tema Boundary plan.
With respect to the defendant’s claim of having been in adverse possession of the disputed land for more than 12 years in terms of Section 10(1) and (6) of the Limitation Act 1972 (NRCD 54) the Court of Appeal stated that the appellants could not lead any cogent evidence to establish that they were in physical possession and therefore in adverse possession of the land in issue from 1977 as alleged. The Court found that the respondents noticed the appellant’s trespass on their land in August 2018 and timeously instituted the action in September 2018.
This finding by the Court of Appeal is in our view borne out by the evidence on record. In the case of Adjetey Adjei & others vs. Nmai Boi & others (2013-2014) 2 SCGLR 1474 this Court speaking through Her Ladyship Sophia Adinyira JSC had this to say in explaining “adverse possession” she said:
“Adverse possession must be open, visible and unchallenged so that it gives notice to the legal/paper owner that someone was asserting a claim adverse to his. And section 10 of the Limitation Act 1972 (NRCD 54) has substantially reflected the English Statutes of Limitation and the Common Law. Under the present law, the person claiming to be in possession must show either (i) discontinuance by the paper owner followed by possession or (ii) dispossession or as it was sometimes called “ouster” of the paper owner if a squatter took possession of land belonging to another and remained in possession for twelve years to the exclusion of the owner, that would represent adverse possession and accordingly, at the end of twelve years, the title of the owner would be extinguished ……….”
In our view the appellants have not been able to demonstrate that the judgment of the Court of Appeal was against the weight of evidence. Accordingly ground (a) of the appeal also fails.
On the whole, having scrutinized and analysed the records of appeal and the respective statement of case of the parties and taking into consideration the testimonies and all the evidence adduced at the trial, we are of the view that save for the amendment to the plaintiff’s name and title, the appeal in this case has no merit and we accordingly dismiss same in its entirety.
The judgment of the Court of Appeal is hereby affirmed.
(SGD.) H. KWOFIE
(JUSTICE OF THE SUPREME COURT)
(SGD.) A. LOVELACE-JOHNSON (MS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) PROF. H.J.A.N. MENSA-BONSU (MRS.)
(JUSTICE OF THE SUPREME COURT)
(SGD.) E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
(SGD.) R. ADJEI-FRIMPONG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
PAUL U. DERY ESQ. FOR THE DEFENDANTS/APPELLANTS/ APPELLANTS.
FESTUS KWABENA ADAMS ESQ. FOR THE PLAINTIFF/RESPONDENT/
RESPONDENT WITH DANIEL AMARTEI ANIM-PREMPEH ESQ.
