ISLAMIC MISSION vs. GHANA MUSLIM MISSION [1997-1998] 2 GLR 953

CASES REFERRED TO

(1) Hayfron v Egyir [1984-86] 1 GLR 682, CA.

(2) Amoakoh v Hansen [1987-88] 2 GLR 26, CA.

(3) Quaye v Mariamu [1961] GLR 93, SC.

(4) Danso v Addai [1959] GLR 376, CA.

(5) Omane v Poku [1973] 2 GLR 66, CA.

(6) Young v Bristol Aeroplane Co Ltd [1944] 1 KB 718, [1944] 2 All ER 293; 113 LJKB 513; 171 LT 113; 60 TLR 536 affirmed [1946] AC 163; [1946] 1 All ER 98;, 115 LJKB 63; 62 TLR 99, HL. (7) Tanor v Dapomah [1960] GLR 241.

(8) Reindorf and Ankrah v Amadu, Braimah and Nikoi 0O’lai [1962] 1 GLR 508, SC. (9) Duke v Henshaw (1940) 6 WACA 200.

(10) Interim Executive Council v Interim Executive Committee of the Apostolic Divine Church of Ghana [1984-86] 1 GLR 529, CA.

(11) Addai v Omoru, Court of Appeal, 14 April 1969, unreported; digested sub nom Omoru v Addai (1969) CC 64.

(12) Robertson v Reindorif [1971] 2 GLR 289, CA.

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

(14) Abowaba v Adeshina (1946) 12 WACA 18.

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

[p.958] of [1997-1998] 2 GLR 953 APPEAL by the plaintiff-appellant from the judgment of the High Court, Accra in favour of the defendant-respondent in an action for, inter alia, declaration of title to land. The facts are sufficiently set out in the judgment of Brobbey JA.

Philip Addison for the appellant.

Kwaku Gyan for the respondent.

Brobbey JA. Judgment was given in this case on 12 February 1998. Reasons were reserved. We now proceed to give the reasons.

This case was commenced in the district court. It was later transferred to the circuit court. Finally, it ended up in the High Court Kumasi against whose decision this appeal emanates. The genesis of the plaintiffs’ case was that: There was an Akan Muslim group in Ashanti and Brong Ahafo Regions in the 1960s. They called themselves the Korye Kuo. That Korye Kuo later merged with the Ghana Muslim Mission. The merger took place in 1963. Sometime in 1986, a dispute arose within the Ghana Muslim Mission. That dispute resulted in the members of the Korye Kuo within the Ghana Muslim Mission breaking away from the mission. Those broke away members describe themselves as the Islamic Mission.

They shall hereinafter be referred to as the plaintiff mission. The Ghana Muslim Mission will hereinafter be referred to as the defendant mission.

This appeal concerns the ownership of landed properties with buildings thereon situated on plot No 17 and plot No 29, Block 2, Ampabame, Kumasi. They will hereinafter be referred to as the disputed properties.

The case of the plaintiff mission in respect of the disputed properties was that the plots in question were originally bought by the first plaintif witness, Sheikh Apeadu, from the Ntotoyehene. The first plaintiff witness then gifted them to the Korye Kuo which started developing them. When the Korye Kuo later merged with the defendant mission, the properties went to the defendanti mission. After the eruption of the dispute and the eventual formation of the plaintiff mission, the latter argued that they were entitled to take the disputed properties because to them, the plaintiff mission had replaced the Korye Kuo. The defendanit mission also claimed ownership of the disputed properties and asked officials of the plaintiff mission who were occupying the

[p.959] of [1997-1998] 2 GLR 953 house to vacate it. The plaintiff mission consequently issued a writ of summons claiming a declaration of title to the disputed properties, damages for trespass and perpetual injunction against the defendant mission.

The case of the defendant mission was that there was never such an association, society or union which bore the name Korye Kuo. They also denied that the disputed properties were acquired by the first plaintiff witness. They averred that some members of the defendant mission obtained a large tract of land from the Ntotoyehene. Eleven members of the mission paid for the land. Two plots of the land were specifically allocated to the defendant mission. The plots were later developed by their members for the purpose of constructing thereon a regional mission house and in fact they completed the construction of the first floor of that house. They maintained that notwithstanding the formation of the plaintiff mission the disputed properties belonged to them.

The basic issue for determination at the trial court was which of the two litigating parties owned plot No 17 and plot No 29 and the house built thereon. The trial court gave judgment for the defend- ant mission. The plaintiff mission then appealed to this court, initially on the omnibus ground that the judgment was against the weight of evidence adduced. Four more additional grounds were later filed.

One of the issues which arose for determination at the trial court was the nexus between the Korye Kuo and the plaintiff mission. The findings of the trial judge were that there was no legal nexus between the Korye Kuo and the plaintiff mission. The plaintiff mission’s reaction to that finding was in ground (3) of the additional grounds. That ground read as follows:

“The trial judge fell into grave error in holding that there was no legal nexus between the Korye Kuo and the plaintiff appellant which error has occasioned the plaintiff-appellant a substa ntial miscarriage of justice.”

In arguing this ground, counsel for the plaintiff mission referred to the pleadings, exhibit B, the evidence of the plaintiff’s attorney, the evidence of first plaintiff witness and that of the second plaintiff witness. He then contended that in the light of those facts and pieces of evidence, the trial judge’s finding that there was no legal nexus between the Korye Kuo and the plaintiff mission was erroneous.

[p.960] of [1997-1998] 2 GLR 953

What exactly was the evidence of the three referred to? The plaintiff’s attorney stated that “in 1962 some Akan Muslims in the Ashanti and Brong-Ahafo Regions came together and formed an association called Korye Kuo.” He added that “I have been a member of the Korye Kuo since its formation in 1962.” Before then he had stated that “eventually the two groups (i.e. the Korye Kuo and the Ghana Muslim Mission) came together and adopted the name of Ghana Muslim Mission.” He gave the year they came together as 1963. He then concluded that: “Those (disputed) properties belong to the Islamic Mission because they were the properties of Korye Kuo before the merger between them and the Ghana Muslim Mission.”

The evidence of the first plaintiff and second plaintiff witnesses were more or less to the same effect, save that the two said they were founding members of the Korye Kuo. In effect the evidence of these three covered the period between 1962 and up to 1963. There was no evidence as to who were the members of the Korye Kuo or what it did or what happened to it before 1962 and after the merger in 1963. After 1963 the next time anyone mentioned the Korye Kuo was in 1986 and in exhibit B. The evidence in exhibit B was in no different position from that of those three witnesses and the averments in the pleadings because that too covered the events of 1962 and 1963. It does not help in the determination of what actually took place before 1962 or after 1963.

The most essential point is that granting that the plaintiff ‘’s attorney, the first plaintiff witness and second plaintiff witness were members of the Korye Kuo and granting that the disputed properties belonged to that association, that association did not authorise or mandate the plaintiffs to sue on its behalf. The plaintiff mission did not aver that it sued on behalf of the Korye Kuo. Therefore the fact that the plaintiff mission traced its root of title in the disputed properties to the Korye Kuo fatally undermined its claim to the disputed properties.

Counsel for the plaintiff mission argued that members of the Korye Kuo were the game as those who formed the plaintiff mission. With respect, that was not borne out by the evidence. For that submission to be valid, the members of the two unions or at least their executive officers should have been disclosed. Unless the members of the Korye Kuo were known as a matter of fact, it could not be said that the same members had formed the plaintiff

[p.961] of [1997-1998] 2 GLR 953 mission, or that part of the membership or the Korye Kuo remained behind in the defendant mission or that part had left the Korye Kuo, plaintiff mission and the defendant mission and formed an entirely new fourth body. After 1963 all members of the Korye Kuo became members of the defendant mission. No evidence was led to show that between 1963 and 1986 any member of the defendant mission said he was at the same time a member of the Korye Kuo. Therefore no continuity of member ship could be assumed in favour of any member.

The onus of proving who were the members of the Korye Kuo on the one hand, and who were the members of the defendant mission on the other hand, was squarely placed on the plaintiff mission and its witnesses. This is the law on allocation of the burden of persuasion as stated in the Evidence Decree, 1975 (NRCD 323), s 14 which provides that:

“14 Except as otherwise provided by law, and unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.”

The plaintiff mission based its case on the numbers of the members in the two missions and so it had to prove those members. But it woefully failed to prove them. The fact that the first and second plaintiff witnesses said the members in the former Korye Kuo were the same as those who left the defendant mission did not amount to sufficient proof, especially when the defendant contended that the Korye Kuo never at any time or place existed before 1986.

The second point on this issue is the fallacy or logicality as to how ownership of the property passed from the Korye Kuo to the plaintiff mission. The position of the plaintiff mission is that the dispute properties were owned by the Korye Kuo when the merger took place in 1963, and since the members of the Korye Kuo joined the defendant mission, when they broke away they were entitled to be given the properties of the Korye Kuo. In fact, the first time ever that any claim was made on behalf of the Korye Kuo to the disputed properties was in 1986 when the three and their followers decided to break away from the defendant mission. This is quite apparent in exhibit B. Before then, there was no reference anywhere and at any time to any Korye Kuo or its properties. I have already stated that the pleadings are in the same

[p.962] of [1997-1998] 2 GLR 953 position as exhibit B because they too were prepared in 1989 after the dispute had been sent to court. The reference to Alihaji Gausu is no answer to this point because Alihaji Gausu was not the same as the Korye Kuo.

If the Korye Kuo ever existed, it ceased to exist, by the evidence of those three, in 1963 when it merged with the defend ant mission. The pertinent question to be asked is this: How can a non-existent association own property? The answer to this quest ion underscored the fallacy of the claim based on the Korye Kuo’s ownership. The issue about the merger will be developed in greater details below in this judgement.

Even if the Korye Kuo owned the disputed properties, no evidence was led to show why the plaintiff mission should succeed to those properties. There was no evidence that when the merger ‘took place in 1963, the members of the Korye Kuo declared that they owned any property which they took to the defendant mission and on what terms they took their properties there.

During the period of the merger from 1963 to 1986 no one behaved in such a way as to lead anyone to believe that the Korye Kuo owned properties which had been leased, loaned, hired or temporarily sent to the Ghana Muslim Mission, which were to be recovered later or which were to revert to the original owners at some future date. No one could therefore just get up and assert that properties attached to or used by the defendant mission for good 23 years (1963 to 1986) had reverted to the Korye Kuo because a group decided to leave the Ghana Muslim Mission.

Counsel for the plaintiff mission contended that the plaintiff mission’s claim was not one of succession. If the plaintiff mission did not succeed to the properties of the Korye Kuo, then there was no basis for the plaintiff mission claiming the properties of the Korye Kuo when there was no convincing evidence that the same members formed the Korye Kuo and the plaintiff mission. The analogy of plaintiff’s counsel with married couples and ownership of jointly acquired properties at the time of divorce was untenable because, in the instant case, unlike married couples, the identity of the members of the Korye Kuo and the members who joined the plaintiff mission was not established.

On the basis of the foregoing analysis, the trial judge was certainly right in his finding that there was no legal nexus between [p.963] of [1997-1998] 2 GLR 953 the Korye Kuo and the plaintiff mission on the grounds of which the plaintiff could claim ownership of the disputed properties.

In arguing the original ground of appeal, counsel for the plaintiff mission touched on a number of points all of which concerned the basic issues to ownership of the disputed properties. The reply of counsel for the defendant mission also covered the same basic issue of ownership of the disputed properties. Counsel for the plaintiff mission commenced his arguments on the issue by referring to the fact that the trial judge seemed to have relied on the registration of the defendant’s documents without considering conflicts in the evidence of the defence.

The trial judge relied on documentary evidence cannot be seriously faulted. The well-established rule is that where two parties make oral conflicting assertions on an issue and one assertion is corroborated by documentary evidence, the courtl should rely on the latter assertion unless there is evidence which renders that documentary evidence suspicious, false or inherently unacceptable. The authority for this proposition will be found in Hayfron v Egyir [1984-86] 1 GLR 682 where a trial judge’s preference for oral traditional evidence to a written record was held to be contrary to the policy of the enacted law in the Conveyancing Decree, 1973 (NRCD 175).

Before the dispute arose, in the middle of the 1980’s, the only evidence on the plaintiff’s ownership of the disputed lands were the words of the plaintiff’s attorney, the first plaintiff witness and second plaintiff witness. No document whatsoever was tendered in proof of that assertion. I have already stated that the reference toc Alhaji Gausu did not alter this position because Alhaji Gausu was not synonymous with the Korye Kuo. Both the plaintiff mission and the defendant mission claimed that they acquired the two plots from the same Ntotoye Stool represented by the Ntotoyehene. As counsel for the respondent rightly put it, if anyone had to call the Ntotoyehene as a witness, it was the plaintiff mission because al though they orally attributed their allocation of the plot to thati chief, that allocation was controverted by the allocation papers and the endorsement tendered by the defendant. The failure of the plaintiff mission to call the chief or his representative to testify fori it left a gaping chasm in the credibility of the oral evidence adduced on behalf of the plaintiff mission.

On the other hand, the defendant mission produced allocation papers from the Ntotoyehene to the effect that the disputed plots

[p.964] of [1997-1998] 2 GLR 953 had been acquired by the defendant mission. The Ntotoyehene is the caretaker of the lands on behalf of the Asantehene. That allocation was confirmed by the Asantehene. In addition to that, documents from the Lands Department and the Department of Town and Country Planning showed that written records on the plots and the building before the dispute arose were all in the name of the defendant mission. No explanation was given as to why nothing belonging or attached to the Korye Kuo was documented. The argument of counsel for the appellants that all transactions by the Korye Kuo and defendant were made orally was defeatist because, as will be seen shortly below, transactions on Kumasi lands are required to be in writing; see Kumasi Lands Ordinance, Cap 145 (1951 Rev). Indeed, the witnesses for the plaintiff mission admitted that the documents were put in the name of the defendant mission because at that time all the parties belonged to the defendant mission. Further, there was no evidence which impugned the genuineness or admissibility of the docu mentary evidence. In those circumstances, and on the authorities cited, the only logical conclusion was for the trial judge to have relied on the oral assertions which were corroborated by other documentary evidence. There was therefore no substance in the attack on his reliance on documentary evidence.

Counsel for the plaintiff mission also referred to conflicts in the evidence led on behalf of the defendant mission which the trial judge failed to consider before relying on the documentary evidence. Specifically, counsel referred to conflicts in the evidence on how the land was acquired— – whether by drinks or by cash contributions, the number of people who acquired it —whether eleven or thirteen and whether it was eleven or thirteen plots which were initially acquired. To counter that submission, counsel for the defendant mission also referred to conflicts in the evidence led on behalf of the plaintiff mission. He too referred to the facts that those who testified on behalf of the plaintiff missiorn could not be consistent as to whether the Korye Kuo was founded in 1962 or 1963. I consider the submissions of both counsel on thec issue of conflicts to be of no moment because what they both referred to as conflicts were inconsistencies which did notl materially affect the essence of the respective cases made or behalf of the plaintiff and the defendant. As was rightly pointed out in Clocuh v Odametey [1989-90] 1 GLR 14, ScC, it has become common poractice in our courts for counsel to refer to

[p.965] of [1997-1998] 2 GLR 953 variations, slips or inconsistencies in the evidence and to submit that they render the parties affected unrirealiable. That should not be the right manner to evaluate the evidence. The slip, variations or inconsistency should materially affect the evidence led in such a way or to make a significant difference to the resolution of the issue at stake; viva voce evidence comprises mental recollection of events mainly past events. Since every single mind differs from one another, there are bound to be differences on how each mind presents facts especially when the presentation of the facts are made after reasonable effluxion of time. In such cases the differences or variations in what is narrated as evidence is a natural phenomenon. It may only be considered adversely if it materially affects the resolution of the issues at stake. In the instant case, the conflicts referred to in the submissions of both counsel are not of much substance and were rightly ignored by the trial judge.

When one considers the evidence critically, it would appear that there are some elements of illegality in the case made on behalf of the plaintiff mission. Mr Addison cannot be blamed or faulted for these illegalities as they were already on the record at the time he took over the case.

The first point on this illegality relates to the application of the provisions of the Conveyancing Decree, 1975 (NRCD 175) and the fact that the plaintiff mission relied on oral evidence to prove its title. The evidence adduced on behalf of the plaintiff mission was that the two plots were acquired by the Korye Kuo through the instrumentality of Sheikh Adam Mohammed Appeadu.

The disputed lands are situated within the Kumasi City Council. The general law is that transactions concerning landed property should be evidenced by writing. This is covered by section 2 of NRCD 175 which provides:

“2. No contract for the transfer of an interest in land should be enforceable unless — (a) it is evidenced in a writing signed by the person against who the contract is to be proved or by a person who was authorised to sign on behalf of such person; or

(b) it is relieved against the need for such a writing by the provisions of section 3.

[p.966] of [1997-1998] 2 GLR 953 3. (1) Sections 1 and 2 shall not apply to any transfer or contract for the transfer of an interest in land which takes effect —

(a) by operation of law;

(b) by operation of the rules of equity relating to the creation or operation of resulting, implied or constructive trusts;

(c) by order of the court;

(d) by will or upon intestacy;

(e) by prescription;

(f) by a lease taking effect in possession for a term not excluding three years, whether or not the lessee is given power to extend the term;

(g) by licence or profit other than a concession … (h) by oral grant under customary law.”

Nowhere in the pleadings or in the evidence adduced on behalf of the plaintiff mission was it proved that to establish its title to the two plots the plaintiff mission relied on operation of law, a equity, court order, will, intestacy, prescription, the rules of an oral grant under customary law or any of the exceptions in section (3).

Indeed, the evidence on record does not show that the two plots are situated in a village or in the bush where an oral grant under customary law could be presumed or relied upon. Rather, the evidence indicated that the two plots are part of Kumasi lands as shown by the building permit granted to develop them. The two plots would not therefore be the subject of oral grants at customary law.

Additionally, it is provided in the Kumasi Lands Ordinance, Cap 145 (1951 Rev) as follows:

“23 (1) No lease, transfer, devolution, mortgage whether legal or equitable, assignment, under lease or surrender of land vested in the Asantehene under the provisions of this Ordinance, shall be of effect until the same is registered by the Commissioner of Lands, and the fees payable in respect of any such registration shall be the fees set forth in the Eight Schedule.”

This provision too imposes upon anyone claiming ownership of lands sited in Kumasi the duty to establish that the transaction was evidenced in writing because without the documentary evidence

[p.967] of [1997-1998] 2 GLR 953 there could be no registration. In so far as the claim of plaintiff mission was based on oral transactions on lands situated in Kumasi, that claim was legally unsustainable as it sinned against NRCD 175 and Cap 145.

It may be argued that the plaintiff mission relied on written a allocation from the Ntotoye stool made in 1977. That cannot advance the plaintiff’s case because, as stated already, the allocation in 1977 was to Alhaji Gausu and not the Korye Kuo. The Alhaji did not state that he represented the Korye Kuo when he had the written allocation made to him in 1977.

None of the parties disputed that the two plots are situated on Ntotoye Stool land and therefore it was Ntotoyehene who had authority to lease it on behalf of the stool. The evidence on record is that the two plots were first allocated to the Ghana Muslim Mission or the defendant mission on 26 August 1972. The allocation was reduced into writing in 1973. The same two plots were allocated in 1977 by a new Ntotoyehene who was later enstooled. These facts are uncontroverted and will be found covered in several letters from the Lands Registry dated 6 November 1985, 25 June 1987, 24 November 1993 and 11 January 1994, which were tendered in evidence at the trial court.

What are deducible from these undisputed facts are that by 1977 when the new Ntotoyehene purported to allocate plot No 17 and plot No 29 to Alhaji Gausu, the same properties had already been allocated by his predecessor to the defendant mission. The previous allocation was made on behalf of the stool. That means that the stool had divested itself of its interests in the plots in 1972 and 1973 to the defendant mission. The same stool could not re- allocate the same two plots to Alhaji Gausu. After 1973, the two plots were no longer available to be allocated. It was a clear case of nemo dat quod non habet. To the extent that the plaintiff mission relied on a grant by the subsequent Ntotoyehene to itself, onto Alihaji Gausu or any of their members after 1973, it failed to establish any valid title to the two plots.

Another point which questioned the legal basis of the claim made on behalf of the plaintiff mission was the fact that those who testified for the plaintiff mission maintained that the caretaker chief who gave them the land advised them to build on it before their documents would be processed. The witnesses further averred that they started to develop the land before they could apply for a building permit. Putting up a house in a city like

[p.968] of [1997-1998] 2 GLR 953

Kumasi without an approved permit was contrary to the law. The plaintiff mission could not seriously hope that a court of law and equity would accept that it proceeded by breaking the law and then expect that court to give it judgement on the basis of this illegality or infraction of the law. When that evidence was contrasted with that of the defendant mission which proved to the satisfaction of the trial court that it built on the land in accordance with approved building plans, the trial judge could not be faulted for deciding in favour of the defendant mission on this issue.

A serious point on the legality of the claim made on behalf of the plaintiff mission related to the construction of the building on the disputed plot. The three who testified on the plaintiff’s behalf were unanimous that when the merger took place, all that the Korye Kuo had done was to put sand, stone and blocks on the land in readiness to start construction of a mission house. In some places, they said they had dug a foundation. There is cogent evidence on the record which shows that the construction was actually financed by contributions from moslems who were members of the defendant mission, not the plaintiff mission. The second plaintiff witness himself prepared accounts evidencing the contributions and those accounts were tendered as exhibits 1 and 2.

The plaintiff ‘’s witnesses conceded further that by 1986 when the dispute arose, the house was completed up to the first floor and had been occupied by officials of the defendant mission. It follows that between 1963 and 1986 when the Korye Kuo had ceased to exist, it could not have constructed the house. By the plaintiff’s own argument therefore, they could not conceivably lay claim to the house constructed by someone else.

It is even more difficult to understand the attitude of the plaintiff and the three who testified on its behalf when one considers their own admission that after the completion of the house the only people who occupied it were officials of the defendant mission. It means that members of the plaintiff mission who presently live there are in occupation as ex-officio members of the defendant mission. If they themselves have ceased to be officers of the defendant mission, do they have any business continuing in occupation of the house? The answer is obviously in the negative.

Yet another point which undermined the legality of the plaintiff’s claim to the disputed properties related to how the Korye Kuo and

[p.969] of [1997-1998] 2 GLR 953 the defendant mission became one society and their subsequent separation. The plaintiff mission described what transpired in various languages. According to the pleadings, the Korye Kuo “affiliated” with the defendant mission and later “disaffiliated.” In his evidence-in-chief, the first plaintiff witness said: “Eventually the two groups came together and adopted the name of Ghana Muslim Mission.” In exhibit B, the plaintiff mission said the Korye Kuo “joined” the defendant mission. The second plaintiff witness however described the union of the Korye Kuo and defendant mission as a “merger.” In his written address at the trial court, counsel for the plaintiff mission also described the union as a “merger.” If the Korye Kuo merged with the Ghana Muslim Mission, then a new body was formed. All known definitions of the word “merger” connote that after a merger, existing rights are extinguished or annihilated by reason of their coincidence with another or greater right in one body: see definitions in Osborne ‘’Ss Concise Law Dictionary, (8th ed) at pp 216-217, Stroud ‘’s Judicial Dictionary (4ed) at pages 1663-1664 and Jowitt Law Dictionary at page 1165. That the Korye Kuo joined or merged with the defendant mission and they formed one body was further confirmed in a constitution dated June 1971 which bound all the members. According to the plaintiff’s witnesses, the members of the Ghana Muslim Mission operated as one body, worshipped as one body and were subject to and regulated by one constitution between 1963 and 1986.

In 1986 when the dispute arose and some members decided to break away from the Ghana Muslim Mission, that break away group could not describe themselves as Korye Kuo. Not surprin singly, they formed an entirely new body which they named Islamic Mission because they knew that the Korye Kuo, if it ever existed, had ceased to exist after 1963. It is significant to observe that no reason was given for not going back to use the name of Korye Kuo which might have made their stories a little more credible.

The defendant mission flatly denied that any society, association or organisation ever existed which bore the name of Korye Kuo. Their denial is confirmed by the fact that before 1986 there is not a single document on the record which bore the name “Korye Kuo.” The total want of reference in any document made the existence of the Korye Kuo, to say the least, suspicious. Even when the plaintiff mission claimed to have acquired title to the

[p.970] of [1997-1998] 2 GLR 953 disputed properties in 1977, the new allocation by the new Ntotoyehene bore the name of Alihaji Gausu. In 1977, no property was acquired in the name of the Korye Kuo because the Korye Kuo did not exist before 1986. To the extent that the plaintiff mission relied on the non-existent Korye Kuo to prove their root of title in the disputed properties, their claim could not be sustained.

In the first additional ground of appeal, counsel argued that the tnrial judge himself pointed out that there was a serious omission by his failure to take summons for directions. He submitted that the failure to take summons for directions should render the entire trial null and void on the authority of Amoakoh v Hansen [1987-88] 2 GLR 26, CA. Counsel further relied on Quaye v Mariamu [1961] GLR 93 and Danso v Addai [1959] GLR 376, CA to buttress his submissions.

The case of Danso v Addai (supra) is not relevant to the issue whether or not failure to take summons for directions should vitiate the trial. That was a case which had been adjourned for summons for directions to be taken and not for hearing. On the day fixed for taking the summons for directions, neither counsel for plaintiff nor counsel for the defendant was present in court. The trial judge nevertheless ordered the plaintiff into the box to testify which he did, rather reluctantly. After his testimony, but before he could call his witnesses, the trial judge dismissed his case. On appeal, the judgement of the trial court was set aside for the reason that at the stage when the plaintiff was called upon to testify, the case was not ripe for hearing. It is apparent from the report that the caseó was not ripe for hearing because it had not been fixed for hearing. In other words, the trial judge had committed the court, himself, the parties and their lawyers to taking the summons for direction only. He had no right to have proceeded to trial as he did without notifying them that he would try the case. There is no sentence or passage in the report to the effect that the case was not ripe for hearing because summons for direction had not been taken. That case is therefore no authority for the proposition that failure to take summons for directions should vitiate the trial.

Quaye v Mariamu (supra) directly held that failure to take summons for directions as required by Order 30, r 2 (1) of the High Court (Civil Procedure) Rules, 1954 (LN 140A) vitiates the trial because the rule is couched in mandatory terms by the use of the

[p.971] of [1997-1998] 2 GLR 953 word “shall.” Against that case may be cited Omane v Poku [1973] 2 GLR 66, CA which decided in holding (1) that:

“(1) where, as in this case, the issues were clear on the pleadings and in evidence, the failure to set them out in a summons for directions in accordance with Order 30, rrff1 and 2 of LN 140A was not a fundamental defect but a mere irregularity which could be cured by Order 70, r1i of LN 140A …”

The Amoakoh case (supra) and the Omane case (supra) are both Court of Appeal decisions. The well-established legal position is this: where there are two conflicting legal authorities on the issue and both authorities emanate from courts with co-ordinate juris diction, the subsequent court faced with the two decisions must decide on the one it will follow or take an entirely different course but with reason. The authority often quoted for this proposition is the judgment of Lord Greene MR in Young v Bristol AeroplanEe Co Ltd [1944] 1 KB 718 at 729-30 in which he stated that:

“(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow . . . (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.”

These principles were applied in Tanor v Dapomah [1959] GLR 241 at 245 and Reindorf v Amadu [1962] 1 GLR 508 at 520, SC.

On the basis of these authorities this panel is entitled to decide which of the two conflicting Court of Appeal decisions it will follow. We are of the considered view that Omane v Poku (supra) should be followed for a number of reasons. In the first place Amoakoh v Hansen (supra) was decided per incuriam in so far that it failed to consider Omane v Poku (supra) which was in existence and applicable at the time the Amoakoh case (supra) was decided. The authority of the Amoakoh case (supra) therefore waned by the fact that the decision was given per incuriam. The second reason why Amoakoh v Hansen (supra) should not be followed is this. The decision was based on Order 30, r 2 (1) of LN 140A which reads as follows:

“2. (1) Upon the hearing of the summons or at any later time before judgment, the Court or Judge shall have power to give any such directions as to the proceedings to be taken in

[p.972] of [1997-1998] 2 GLR 953 the action and as to the costs thereof as the Court or Judge thinks proper.”

The correct interpretation to be put on this rule is that it confers on the court or the judge the power to give directions as to the proceedings to be taken in the action. If the court were to give directions and anyone were to question the authority, jurisdiction or power to give those directions, this rule will be the answer to that question. The use of the word “shall” merely emphasized the power given to the court and nothing more.

The rule is the statutory authority for the existence or establishment of the power. It may properly be described as a rule establishing or creating an enabling power. When such power has been created or established it may or may not be exercised. Whether or not it should be exercised will depend on the circumstances of the case. In other words, after the power has been created, its exercise becomes a matter of discretion.

What is being clarified here is the distinction between the power to perform an act and the actual performance of the act. Having the power to give directions does not mean or is not the same as giving the directions. The two are clearly and definitely distin guishable.

The point being made here can be illustrated by references to two statutes. Firstly, in LN 140A will be found Order 11, r 9 (3) which states that: “Service of a process of citation shall be effected by a bailiff.” Also to be found there is Order 12, r 8 which states that: “Upon receipt of the memorandum of appearance, the officer shall forthwith enter appearance in the Cause Book.” These are rules which undoubtedly create statutory duties which must be performed. .

The recently promulgated Court of Appeal Rules, 1997 (CI 19) clarify the position even further. Rule 32 (1) of CI 19 provided that:

“(1) The court shall have power to give any judgement and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs.”

This is the rule which creates the power or authority for the court. It may be contrasted with rule 3 3 (1) of CI 19 which states that:

[p.973] of [1997-1998] 2 GLR 953

“(1) At the close of a case before it the Court shall fix a date, which shall not be later than eight weeks after the close of the case, for delivery of judgement.”

Quite obviously, this is a rule which imposes a statutory duty on the court to be performed. It enjoins the court to perform the functions named therein, like the statutory duties to be performed in LN 140A, Order 11, r 9 and Order 12, r 8 referred to above. On a plain reading of Order 30, r 2 (1) of LN 140A the power is created which the court may invoke to give directions as to the proceedings to be taken in the action. The rule does not go on to state that the court is bound to exercise the power. Thus the conclusion that it creates a statutory power is not the same as the rule that creates a statutory duty.

The interpretation which Amoako v Hansen (supra) put on Order 30, r 2 (1) of LN 140A will be found immediately after the rule had been quoted at 36 of the report where the court said:

“It seems to me that the language of this sub-rule within the context of LN 140A, quite independent of the duties or views of the parties in the suit, clearly casts a statutory duty on the court to consider all matters raised on the summons and the stages at which the said matters are to be dealt with.”

If this passage means that the court has a statutory duty to take summons for directions at all times, then this is where this panel parts company with the panel in Amoakoh v Hansen. (supra). Our view is that this sub-rule 2 creates the power which would have enabled the court to consider the issues in the summons for directions if they had been raised or to give directions on the proceedings in the action pending before it.

Those directions include summons for directions, interroga tories, discoveries, inspection of documents etc, as will be found in the other sub-rules of Order 30 of LN 140A and which have been neatly summarised in Civil Procedure by E D Kom (1sSt ed) at p 65. If the summons for directions, interrogatories, discoveries, etc. had been filed or raised, the court would have considered them under that sub-rule. If none was filed or raised, there was nothing for the court to have considered, unless the court suo motu raised issues and gave directions on them. The wording of Order 30, r 2 (1) of LN 1 40A can be interpreted further to mean that the court itself may raise issues and give directions on them because the

[p.974] of [1997-1998] 2 GLR 953 sub-rule states that “. . . the court shall have power to give any such directions . . .” Order 30, r 2 (1) of LN 140A does not place any statutory duty on the court or judge to raise the summons for directions.

To the extent that Amoakoh v Hansen (supra) interpreted Order 30, r 2 (1) of LN 140A to mean that it imposes a statutory duty on the judges, that decision, with respect, cannot be correct. It ratheir created the statutory power. That is yet another reason why it should not be followed. Since there is no mandatory duty on the court, the failure of the trial judge in the instant case to raise summons for direction provides no ground for vitiating the trial or the judgement.

There is no rule in Order 30 of LN 140A which places any obligation to take out summons for directions on the defendant, qua defendant mission, as a defendant to the plaintiff’s claims. The failure to take out summons for directions cannot therefore be fatal to the defence which the defendant mission put up against those claims.

Since the defendant who raises a counterclaim is in the same position as the plaintiff, it .is arguable that the defendant mission should have raised the summons for directions, just as a plaintiff would have done. The defendant mission raised no summons or directions. The points made below in this judgement on the consequences of the plaintiff’s failure to raise summons for directions are equally applicable to the determination of the question whether or not the failure of the defendant mission to raise summons for direction on its counterclaim should vitiate the counter – claim or the decision on it.

The duty to take summons for direction is squarely placed on the plaintiff by Order 30, r 1 of LN 1 40A which states that:

“1. (a) Within seven days from the time when the pleadings shall be deemed to be closed, the plaintiff shall take out summons for directions returnable in not less than seven days.”

In the instant case, the plaintiff failed to comply with Order 30, r 1 of LN 140A in that it did not take the summons for directions and the defendant too took no summons for direction. The question which arises for consideration is whether the trial and judgernment should be vitiated merely because the summons for directions were not taken by the plaintiff or the defendant.

[p.975] of [1997-1998] 2 GLR 953 The trial and the judgement will be vitiated if the failure to take the summons for directions were fundamental to the trial and the eventual judgement. The test is whether or not by that failure the trial judge failed to raise an issue vital to the correct determination of the case, or whether or not by that failure the trial judge was misled into raising an issue which led to the wrong determination of the case. None of these situations was occasioned by the failure of the plaintiff or the defendant to raise summons for directions in the instant case.

In this case, there is no doubt that all the parties, their witnesses as well as the trial judge were fully aware that there was only one issue to be resolved and the issue was this: who owned plot No 17 and plot No 29 and the building thereon. That was the sole reasonr why the plaintiff mission filed the writ. The case was prosecuted and defended on the basis of that question. The trial judge clearly articulated the issue and definitively decided it in favour of the defendant mission. Therefore, even if the plaintiff did not comply with Order 30, r 1I of LN 140A, that non-compliance has not essentially affected the process of the trial or the judgement. Thec non-compliance can at best be described as mere irregularity. Iti was not fundamental to the correct determination of the issues before the court. The irregularity can therefore be cured b)y invoking the provisions of Order 70, r of LN 140A 1, just as it was done in Omane v Poklcu (supra). The issues being clear in thec instant case, the point raised by the failure to take summons fori directions should be considered by applying Omane v Poku.

On this basis, the facts of this appeal are materially differenit and distinguishable from Duke v Henshaw (1940) 6 WACA 200C and Amrnoakoh v Hansen (supra). This was because those two cases were decided on the basis that the trial judge failed to ascertairn and decided the issues in controversy while in the instant case, thec trial judge undoubtedly ascertained and decided the issues inr controversy between parties. It was for the foregoing reasons thati the first additional ground of appeal failed and was dismissed.

Ground (2) of the additional grounds of appeal were that the trial judge erred in law in admitting exhibit 10, which error occasioned the appellant a substantial miscarriage of justice. Exhibit 10 itself came about this way. While the fourth defendant witness was under cross-exarnmination, counsel for the plaintiff mission asked him some questions concerning a letter that was written about certain finances of a Muslim school at Mim in the

[p.976] of [1997-1998] 2 GLR 953

Brong Ahafo Region. After it had been tendered, counsel for the defendant mission sought to counter the effects of that letter by tendering exhibit 10 during re-examination. Counsel for the plaintiff mission objected to it. The objections were overruled and the exhibit was tendered as exhibit 10.

Counsel for the plaintiff mission could have appealed against the order averring the objection. He did not. He could have asked for leave to adduce any fresh evidence which he felt could have been led as the reaction of the plaintiff mission to exhibit 10. He did not. Instead, he opted to take issue with exhibit 10 as a ground of appeal. The admissibility of the exhibit itself is unquestionable because it arose during re-examination of matters brought up in cross-examination. Secondly, and most importantly, the appellant has not been able to demonstrate to what extent the tendering of that exhibit had caused injustice to it. Therefore, even if it was tendered belatedly, the mere tendering of the exhibits should not have provided a cause for raising it as a ground of appeal. What devastatingly undenrnmined the complaint of the appellant in respect of exhibit 10 is that the trial judge did not refer to it at all in his judgement. It could therefore not be said to have influenced him in deciding the case.

The entire objection to exhibit 10 and ground (2) of the additional grounds is nothing but a storm in a tea cup. This view is endorsed by counsel for the plaintiff mission himself and counsel for the defendant mission. Both of them submitted that exhibit 10 was irrelevant to the issues at stake. Their view that it was irrelevant was sufficient vindication of the trial judge’s refusal ori failure to refer to it in his judgement. The ground too failed and was rightly dismissed.

At the end of the trial, the trial judge examined the evidence adduced on behalf of the parties. In particular he accepted the fact that the Korye Kuo could not have owned the disputed properties and that even if it did, its properties could not have been passed on to the plaintiff mission which was an entirely different body following the merger in 1963. He also accepted the fact that all documentary evidence on the disputed properties were in the name of the defendant mission and finally that it was members of the defendant mission whose financial contributions founded the construction of the house on the disputed plots. He therefore concluded that the two plots and the house belonged to the

[p.977] of [1997-1998] 2 GLR 953 defendant mission. He proceeded to give judgment for it on the basis of its counterclaim.

That conclusion was attacked by the plaintiff mission in ground (4) of the additional grounds of appeal. That ground was that the “trial judge erred in law in upholding the reliefs sought by the defendant respondent as the defendant-respondent did not have the legal capacity to put forward these claims, which error of law has occasioned for the plaintiff-appellant, a substantial miscarriage of justice.” Simply stated, the capacity referred to was that the defendant mission had a constitution which bound its members. It was tendered as exhibit 7A. Article 33 (4) of that constitution expressly stated that the power to sue or to be sued in respect of matters concerning the defendant mission was vested in the trustees; Adam S K Boafo in whose name the defendant was sued was not a member of the trustees. Therefore the defendant was not properly represented in the case. If it was not properly represented in the case, then no order, could be made to be enforced by the defendant. That argument was very ably presented by Mr Addison on behalf of the plaintiff mission and initially it sounded insurmountable. Counsel for the plaintiff mission relied especially on the Trustees (Incorporation) Act, 1962 (Act 106) and the Interim Executive Council v Interim Executive Committee of the Apostolic Divine Church of Ghana [1984-86] 1GLR 529, CA.

Counsel for the defendant mission conceded that since there was a registered constitution, which vested the power to sue or be sued on trustees, the defendant should have been sued in the name of the trustees. He however, invited the court to exercise it’s discretion to amend the title of the case by substituting the expression: “Per its trustees” for the expression, “Per Adam S K Boafo.”

That this court has power to amend the pleadings or title of case has never been in doubt: see for instance Addai v Omoru, Court of Appeal, 4 April i1 969, unreported digested sub nom Omoru v Addai in (1969) CC 164. The circumstances under which such amendment may be allowed or refused have well been articulated in a number of decided cases. Such an amendment may be refused where it will result in fresh issues being raised, as it was held in Robertson v Reindorf [1971] 2 GLR 289, CA.

Where the title of a cases is in issue, the courts have often not hesitated to allow amendments for sound policy reasons. Thus, in Dove v Wuta- Ofei [1966] GLR 299, the Supreme Court held, as

[p.978] of [1997-1998] 2 GLR 953 stated in the headnote, that: “(2) The appeal court had the 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 . . .”

In that case, objection was raised that the plaintiff could not rely on a conveyance to his wife in seeking protection under the Land Development (Protection of Purchasers) Act, 1960 (Act 2), since there was no evidence that his wife had assigned her interest to him. The point was raised and argued after the trial had long been concluded and judgement given by the trial judge. An amendment to the title was allowed by adding to the name of the plaintiff “on behalf of his wife.” The principle underlying the amendment was the avoidance of multiplicity of litigation.

In the instant case no trustee testified. But Alhaji Musah Kofi Nuamah testified on behalf of the defendant mission as the fourth defendant witness. He was secretary of the defendant mission from 1962 up to the date he testified in 1995. With more than thirty years’ involvement in the activities of the defendant mis sion, he surely was in as good a position to testify on the affairs of the defendant mission as perhaps any of the trustees. No objection was raised to his testimony. In addition, officials from the Lands Department and the Town and Country Planning Department testified on matters to their knowledge and competence.

If a party to a case is under no obligation to testify and there is evidence on the record concerning the party’s case, the, court is bound to consider it in adjudicating on the dispute, particularly where no objection was raised to his testimony during the trial: See Abowaba v Adeshina (1946) 12 WA CA 18 at 20. In view of the fact that there is evidence on record on behalf of the defendant, this court was bound to take it into account in evaluating the entire evidence in the case. The fact that none of the trustees testified on behalf of the defendants was therefore not fatal to the case of the defence of the defendant or the case made on its behalf concerning its counterclaim. A similar issue arose in Nyamekye v Ansah [1989-90] 2 GLR 152 CA. In that case, the question was whether judgement had properly been given against a party merely because he failed to testify. It was held that he could rely on the evidence of the other party in the case who testified and that in giving judgement the court was bound to consider the evidence which favoured him.

A significant point on this issue is the fact that it was the pnlaintiff who issued the writ and wronglyv stated the one to be sued

[p.979] of [1997-1998] 2 GLR 953 as appearing on its own writ. The plaintiff cannot now turn round to argue what it should be allowed to take advantage of its error or mistake by contending that the trial should be nullified because it put the wrong party down as the defendant.

On the facts of the instant case, it is almost imperative that the amendment should be made to avoid multiplicity of suits and to do substantial justice to the parties. This case started in the district court, and has travelled through the circuit court, the High Court and now is in the Court of Appeal. It does no sound right to order the parties to go back to re-start the litigation merely because one party was not correctly named in tho heading of the suit. It sounds more wrong when one considers the fact that the re-trial is being ordered at the insistence of the party who actually brought about the error by writing the wrong name in the writ it filed.

In any case, which of the parties did not know that the controversy is in actual fact between the Islam is Mission and the Ghana Muslim Mission? All the witnesses are fully aware of that fact and the case was presented and was tried on that basis. If nothing at all, substantial justice would be done to the parties by amending the title as suggested here. Let the expression “per the trustees” be substituted for “per Adam S K Boafo.”

Once the title has been amended, the evidence led on behalf of the defendant mission by the first, second, third and fourth defen dant witnesses as well as the relevant exhibits will go to support the conclusion of the trial judge that plot No 17 and 29 plot No together with the building thereon belong to the defendant mission.

These were the reasons why the appeal was found to be unmeri torious and was dismissed in its entirety on 12 December 1998.

Forster JA. I agree.

Gbadegbe J. I also agree.

Appeal dismissed.

SA