NII OKWEI KINKA DOWUONA IV vs. UTC ESTATES GHANA LTD & ORS

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: BAFFOE-BONNIE CJ (PRESIDING)

PWAMANG JSC

GAEWU JSC

SUURBAAREH JSC

AMALEBOBA JSC

CIVIL APPEAL

NO. J4/10/2026

21ST OCTOBER, 2026

NII OKWEI KINKA DOWUONA VI ……… PLAINTIFF/RESPONDENT/         

OSU MANTSE                                                     APPELLANT/APPELLANT

(SUING FOR AND ON BEHALF OF

THE OSU STOOL OSU MANTSE PALACE, OSU

SUBST BY NUMO NOI OSIKAN III

(OSU KLOTTEY WULOMO)

VRS

UTC ESTATES GHANA LTD DEFENDANTS.

PHC ESTATES LTD

HODA PROPERTIES LTD ………. 3RD DEFENDANT/APPLICANT/

RESPONDENT/RESPONDENT.

JUDGMENT

SUURBAAREH JSC:

This is an appeal from the judgment of the Court of Appeal, which on 26th November 2020, dismissed an appeal by the Plaintiff/respondent/appellant/appellant, against the judgment of the trial High court, which upheld the application of the 3rd Defendant/applicant/respondent/respondent, brought under Order 11 r 18 (1) (b) and (d) of the High Court (Civil Procedure) Rules 2004, C.I. 47, by striking out the plaintiff/ respondent/appellant/appellant’s pleadings and dismissing his action as unmeritorious.

The parties in this appeal will be referred to simply as appellant and respondent. The appellant, per its amended writ filed on 9th May 2017, had sought the following reliefs:

A declaration that the 20 years and 5 months lease dated 28th April 1999 between the 1st and 2nd defendant is null and void and of no effect.

An order setting aside the said lease between the 1st and 2nd defendants, and the cancellation of the land certificate No: GA 27910 Vol. 10 Folio 567 dated 28th November, 2008 in respect of same.

An order setting aside the lease dated 19th July 2013, between the Lands Commission and the 2nd defendant, and the assignment dated 9th October 2014, and the Land Title Certificate No: GA 46755 Vol 10 Folio 657 dated 20th March, 2015, based on same as being fraudulent and void ab initio.

Recovery of possession, general damages, perpetual injunction to restrain the defendants and their agents from entering, developing or interfering with the land, and cost.

The amended writ was filed after the respondent was joined to the suit on 5th May 2017. The appellant, who pleaded facts in support of his claim, averred amongst others that his predecessor in title had granted the land in dispute to Delbanco & Company Ltd of London on 27th January, 1919 and upon which it constructed some buildings thereon. The appellant then averred that in 2016, it realized that these buildings had been demolished, and new buildings being put up on the land. According to the appellant, this prompted him to conduct searches at the Lands Commission which revealed that a lease of the land has been given by the 1st defendant to the 2nd defendant and upon which a Land Certificate, No: GA 27910, was procured. The appellant’s account also shows that the 2nd defendant surrendered it interest in the land to the Republic and obtained a fifty year lease on 19th July 2013 from the Lands Commission, and which it in turn assigned to the respondent, who was granted another title certificate by the Lands Commission. In conclusion, the appellant alleged fraud against the Lands Commission but never sought to join it as a defendant in the action.

The respondent, in its defence, insisted that its title was validly obtained and went on to give its root of title through the 1st and 2nd defendants, who had been assigned the land by Premier Portfolio on 9th October, 2014, and which it had earlier acquired from Imperial Homes Ltd, which received its grant from the 2nd defendant. The respondent then challenged the appellant’s capacity to institute the action, contending that by granting a free-hold interest in the land to Delbanco Ltd in 1919, appellant’s interest in the land was completely and irrevocably extinguished.

According to the respondent, as Delbanco Ltd conveyed its interest in the land to the 1st defendant in 1925, which interest, upon the coming into force of the 1969 Constitution became automatically converted into a fifty year lease, with a reversionary interest thereafter to the President in trust for the people of Ghana, the Lands Commission, the body vested with the management of public lands on behalf of the President, could not be said to have acted fraudulently when it accepted the surrender of the lease from the 2nd defendant, and extended same for fifty years.

The respondent thereafter filed a motion under Order 11 rule 18 (1) (b) and (c) of the High Court (Civil Procedure) Rules, 2004 I.C. 47, to have the appellant’s pleadings struck out and the action dismissed for being scandalous, frivolous or vexations, as well as an abuse of court process. In support of its application, the respondent contended that by conveying a freehold interest to Delbanco Ltd, a foreigner, which interest became converted into a fifty year lease by virtue of article 163 (8) of the 1969 Constitution, with the reversionary interest going to the President, the appellant’s title which had been extinguished by the freehold grant in 1919, and therefore had no title in the land upon which it could bring an action.

The appellant, on its part contended that it had interest and title to the disputed land on the basis of a Deed of Exchange dated 2nd June 1930, between the Colonial Government and Osu Stool, since the land in dispute was part of the lands listed therein.

Following a grant of the respondent’s application by the trial court as unmeritorious and underserving of the court’s attention, and the confirmation of that ruling by the lower court, the appellant, undaunted, has mounted the instant appeal, on the following grounds of appeal:

“a. The Court of Appeal erred in law and in fact in affirming the judgment of the trial court dismissing plaintiff/respondent/appellant/appellant’s case prematurely for want of capacity.

b. The Court of Appeal erred in law in affirming the judgment of the plaintiff/respondent/appellant/appellant’s case under Order 11 Rule 18 of C.I. 47 when there were factual and legal issues to be determined in the case but were not determined.

The Court of Appeal erred in law in affirming the judgment of the trial court dismissing the suit under Order 11 Rule 18 of C.I. 47 when fraud had been raised by the plaintiff/respondent/appellant/appellant in his pleadings but had not been determined.

The judgment is against the weight of the evidence.

……………………………………………………………..”

Although the grounds of appeal, as set out above, are challenging the judgment of the Court of Appeal, in arguing grounds (a) (b) and (c) of the grounds of appeal, the appellant appear to be challenging the judgment of the trial court. This is clear from page 6, paragraph 16, and page 13, paragraph 34 of his statement of case wherein the grounds of appeal are stated to errors on the part of the trial judge.

In arguing ground (a), under the heading, “Propriety of the Respondent’s Application at the Trial Court”, the appellant, after reference to the processes filed in the action, raised the issue about the application being filed to strike out pleadings and to dismiss the suit under Order 11 r 18(1) (b) and (d) of C.I. 47 after the respondent had filed a defence, and argued that as issues had been joined, it was too late to bring an application under Order 11 r 18 of C.I. 47. The appellant, who made reference to the cases of Dankwa & Ors v. Anglogold [2019-2020] 1 SCLRD 641 at 645, and Adam v. Nuamah [2017-2020] 1SCGLR 36 at 42-43, from which cases he quoted expensively, submitted that both decisions, being decisions of the Supreme Court, were binding on the High Court and Court of Appeal, and ought to have been followed by the two lower courts. According to the appellant, but for the fact that the trial was summarily truncated the action, he would have led evidence, based on the averments in its reply, especially paragraphs 6 and 7, to show that as Delbanco Ltd got liquidated in 1927 and ceased, to exist, the land in disputed reverted to the Osu Stool and could not have, in 1969, turned into a fifty lease, with the reversion in the President, since no conveyance would have then existed in anybody’s name to be converted into a fifty year lease. He further argued that due to the extinction of Delbanco Ltd’s interest in 1927, the land became part of Osu Stool land by the 1930 Deed of Exchange. The appellant relied on the case of Saaka v. Dahali [1984-86] 2 GLR 774 at 780 on the principle that a grant of land to a native would revert to the stool/skin, upon failure of succession.

In arguing grounds (b) and (c) together, which as indicated, are also complaints against the trial judge, about the propriety of granting an application to dismiss a suit under Order 11 r 18 of C.I. 47 in the face of unresolved factual and legal issues, and also in the face of an allegation of fraud where the particulars of fraud clearly stated, the appellant referred to a number of cases, including Appiah II v. Boakye [1993-94] 1 GLR 417 at 424-425 and Gbenartey & Glie v. Netas Properties and Investment Ltd [2015-2016] SCGLR 605 and submitted that although Order 11 r 18 rules can be invoked to strike out pleadings and to dismiss an action, this should be invoked sparingly and only in circumstances where the action is clearly unsustainable, plain and obvious.

Referring further to decided cases, including Okofoh Estates Ltd v. Modern Signs Ltd [1996-1997] SCGLR 224, he submitted that since fraud is an intrinsic collateral act which vitiates all judicial acts, exclesiastical and temporal, fraud when properly raised with particulars, should be investigated and not suppressed by recourse to the summary procedure.

The respondent, by way of introduction to its Statement of Case, narrated how the respondent, upon been joined to the suit, upon entry of appearance, raised in its defence the locus standi of the appellant in instituting the action and seeking the reliefs sought in its amended writ. According to the respondent, his defence was followed immediately by the application under Order 11 r 18 of the High Court (Civil Procedure) Rules, 2004 of C.I. 47, to strike out the appellant’s pleadings and to dismiss the suit in its entirely, and which the trial court, based on the processes filed and arguments by parties, granted for the reason that the appellant did not possess the requisite locus standi, and which decision the lower court affirmed.

Counsel next referred to the grounds of appeal contained in the appellant’s statement of case, which all alleged error of law and facts against the trial court for dismissing its case prematurely under Order 11 r18 of C.I. 47 in the face of factual and legal issues crying for determination, and much more so when issues of fraud had been raised warranting investigations. According to counsel for the respondents, as the alleged errors of law and facts were not particularized, the grounds of appeal should be struck out for failing to comply with Rule 6 (2)(f) of the Supreme Court Rules 1996, C.I. 16.

Counsel for the respondent next argued that in addition to the breach of the procedure rule, the grounds of appeal as stated and argued by the appellant, are attacking the ruling of the trial court, and not the judgment of the lower court, which is on appeal, as a fundamental error and called for the grounds of appeal to be jettisoned, relying on the case of Anang Sowah v. Adam’s [2009] SCGLR 111 at 116, wherein Atuguba JSC emphasized that an appeal to this Court is an appeal from the immediate lower court and directed at the matters that arose in that court. Counsel concluded that from the grounds of appeal as set out and argued, the appellant has not alleged any error of law or fact against the lower court, whose judgment is on appeal, and called on the court to strike out the grounds of appeal, since no structure could be mounted on such a faulty substructure.

Counsel for the respondent, despite his call to dismiss the grounds of appeal for the reason stated in the immediately preceding paragraphs, went on to respond to the arguments of the appellant. In response to the reference made by the appellant to the case of Adam v. Nuamah (supra) about the propriety of bringing an application to strike out pleadings for non-disclosure of a reasonable cause of action, after traversing all material pleadings in a defence, Counsel went on to distinguish the instant case from Adam v. Nuamah (supra) by submitting that unlike in that case where the application was to strike out the pleadings for non-disclosure of a reasonable cause of action, in the case under review, the application is grounded on either frivolity, vexatiousness, abuse of the court process and being scandalous.

Counsel for the respondent then went on to refer to the judgment of the lower court, and quoted extensively portions in paragraphs 22 and 23 of its Statement of case, and submitted that the lower court considered all the facts and circumstances of the case in coming to its conclusion on whether the appellant could indeed claim any interest in the subject matter in dispute. Counsel also argued that despite the appellant’s claim of ownership, it deliberately failed in its amended Statement of Claim, to disclose the nature of the grant and year of grant to Delbanco, when the uncontested facts show that the stool had on 29th January 1919, granted a freehold interest to Delbanco Ltd “absolutely and forever”, and the Deed of Exchange was executed in 1930, as observed by the lower court, at page 41 of volume 2 of the record of appeal, and quoted at paragraph 27 of the respondent’s statement of case.

Counsel for the respondent also referred to the findings made by the lower court that there was nothing on record to contradict the fact that following the conveyance in 1919 to Delbanco, the land went into the possession of Union Trading Company of Basel, later known as Union Trading Company of Ghana, and then UTC Ghana before the 1969 Constitution came into force, whereby the grant became a 50 year lease by constitutional provisions that converted all interest held by foreigners to 50 years leases.

Counsel for the respondent further argued that despite the appellant’s allegation of fraud against the Lands Commission, who granted the disputed land to the predecessors of the respondent, it failed to have the Lands Commission joined in the matter, and further that the appellants pleaded for the 1st time in his reply, the Deed of Exchange of 1930 in response to the respondent’s defence, where he asserted that the land was not public land vested in the President of Ghana.

On the appellant’s reliance on the Deed of Exchange for his claim to the subject matter, Counsel for the respondent again quoted from the judgment of the lower court, to the effect that apart from leveraging its claim on the Deed of Exchange, the appellant could not show any right of ownership to the subject matter between the 1930 Deed of Exchange and 2016, when it allegedly noticed the acts of trespass on the property. Counsel again argued that the fact that Delbanco became liquidated in 1927 did not mean that the land reverted to the Osu Stool since the grant was to Delbanco and its “successors and assigns.” Based on these findings by the lower court, Counsel for the responded concluded that the two lower courts correctly found that the appellant had no locus standi, and rightly dismissed the suit.

In response to the contention by the appellant that in view of the plea of fraud in its amended statement of claim the two lower courts ought to have refused the application, counsel for the respondent, who disagreed with the appellant, went on to pose the question as to the person against whom the alleged fraud was perpetuated, since the Osu Stool failed to plead any material facts about ever regaining its interest in the subject matter land since its execution of the freehold grant to Delbanco Ltd in 1919.

Counsel also argued that despite the allegation by the appellant that the Lands Commission colluded with the defendants and the Respondent in committing the alleged fraud, the appellant never found it necessary to join the Lands Commission in the suit.

Counsel for the respondent, then submitted that the appellant’s own affidavit in opposition to the application contained the seeds for the destruction of his case, and referred particularly to the depositions about what Delbanco did on the land following the 1919 grant; its subsequent abandonment and reversion to Osu Stool, and the appellants reliance on the Deed of Exchange 1930 in his reply as the basis of its claim; and concluded that they are contradictory in terms.

Addressing specifically the allegation of fraud raised by the appellants, counsel for the respondent again submitted that apart from the fact that an allegation of fraud will not automatically preclude a court from entertaining any application to strike out pleadings and to dismiss a suit, that the lower court gave due consideration to the matter, and again quoted extensively from the judgment of the lower court at paragraph 55 of his statement of case, and contended that the conclusion by the lower court that the allegation of fraud alone could not save the appellant’s case was on point, since from the nature of the action, the suit was one bound to fail.

Civil appeals to this Court are governed by Rule 6 of the Supreme Court rules, 1996, C.I. 16, subrule (2) of which provides that the notice of appeal shall set out the grounds of appeal, and shall amongst others state whether the whole or part of the decision of the court below is complained of and in the latter case the part complained of; the nature of relief sought; and, the particulars of any misdirection or error of law, if so alleged.

An appeal is a creature of statute and a party desirous of exercising his right of appeal must be guided by the appropriate or relevant rules, be they substantive or procedural and courts have a duty to insist that these rules are obeyed otherwise judges will be failing in their duty to uphold the law which they undertook by their judicial oaths to do. See F.K.A. Company Ltd & Another v. Ayikai Akrama II [2016] 1010 GMJ 186 at 212, SC. An appellant who therefore alleges as a ground of appeal an error of law or misdirection against the lower court, is expected to give the particulars in accordance with Rule 6(2)(f) of the Supreme Court Rules, 1996 (C.I. 16). This court in Dahabieh v. S.A. Turqui Bro [2001-2002] SCGLR 498 at page 504 in headnote (1) stated thus:

“1. The intention behind Rule 6 of the Supreme Court Rules, 1996 (CI 16) is to narrow down 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 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, 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 might prepare their case and marshal their authorities; whilst an indication that the point of law was or was not raised, in the court below may help the court resolve the issue faster. In the instant case, ground (1) of the grounds of appeal alleging that the judgment is wrong in law is in effect saying that there is an error of law in the judgment. If so then rule 6(2) requires the appellant to specify in the grounds of appeal the particular complaint amounting to an error of law. Having failed to do so ground (1) of the grounds of appeal is inadmissible”

From the provisions of Rule 6(2)(b) of the Supreme Court Rules 1996, (CI 16), an appeal to this court is an appeal against the whole or part of the decision of the lower court. Although the appellant’s Notice of Appeal at pages 48-50 of volume 2 of the record of appeal shows that the grounds of appeal are in respect of the judgment of the Court of Appeal, and were also stated to be so at pages 5 and 6 of the Statement of Case, in arguing the grounds of appeal, he stated and argued the grounds of appeal about alleged errors of law and fact committed by the trial court. See page 6, paragraph 14, and page 13 paragraph 34 of his Statement of Case. That apart, the appellant did not also indicate the particulars of error of law or misdirection committed by any of the lower courts. The grounds of appeal as stated and argued, cannot be in respect of the judgment of the lower court, since no complaint whatsoever has been made against the finding of the lower court or its application of the law.

Assuming with admitting that reference to the trial court in the statement of case was a drafting error, it was still necessary for the appellant to demonstrate how the lower court, from which the appeal emanates, erred in its findings and conclusions. As the Court of Appeal, or immediate lower court gave elaborate reasons for affirming the decision of the trial court, issues before this court should be whether or not the conclusions of the Court of Appeal or the immediate lower court were wrong. From the appellant’s statement of case, since the grounds of appeal argued were on alleged errors committed by the trial court, rather than the Court of Appeal for affirming the trial court’s dismissal of the action, there is therefore no appeal property so called before this Court in respect of the judgment of the lower court for any determination to be made by this court. For these reason alone we will dismiss the appeal.

We shall however, out of abundance of caution, proceed to consider the appeal on the merit assuming without admitting that reference to the trial court was a typographical error, and also for the reason that an appeal is by way of rehearing and the need to have matters heard and determined on the merits devoid of technicalities. From our consideration of the record of appeal, particularly the arguments of the respondent, the lower court adequately considered the issues raised against the decision of the trial court before affirming the decision of the trial court. Counsel for the respondent made copious reference to the reasoning of the lower court on the appellant’s locus standi to institute the action; whether an application can be brought to dismiss a suit under Order 11 r 18 of the High Court (Civil Procedure) Rules, 2004 (CI 47) after filing of a defence; as well as whether an allegation of fraud, without more, is enough to preclude a court from dismissing a suit under Order 11 r 18 of C.I. 47.

Apart from the fact that the lower court’s decision was a well-reasoned one, and supported with cases, as pointed out by counsel for the respondent, the appellant, who made the allegation of fraud against the Lands Commission, never sought to have it joined in the action. The appellant therefore, in our considered opinion therefore failed to demonstrate the lapses made either by the trial court or lower court.

This court, upon an evaluation of the evidence on record, cannot also find any errors in the conclusions of the lower court. We therefore find no merit in the appeal and same is accordingly dismissed. The judgment of the lower court dated 26th November 2020, which affirmed the judgment of the trial court, dated 18th April 2018, is hereby affirmed.

(SGD.) G. S. SUURBAAREH

(JUSTICE OF THE SUPREME COURT)

(SGD.) P. BAFFOE-BONNIE

(CHIEF JUSTICE)

(SGD.) G. PWAMANG

(JUSTICE OF THE SUPREME COURT)

(SGD.) E. Y. GAEWU

(JUSTICE OF THE SUPREME COURT)

(SGD.) H. AMALEBOBA

(JUSTICE OF THE SUPREME COURT)

COUNSEL

KWAME FOSU-GYEABUOR ESQ. FOR THE PLAINTIFF/RESPONDENT/

APPELLANT/APPELLANT.

O. K. OSAFO BUABENG ESQ. WITH HIM AGYENIM AGYEI BOATENG ESQ FOR THE 3RD DEFENDANT/APPLICANT/RESPONDENT/RESPONDENT.