O’SVAN BOYE LIMITED VRS ANAGBO (J4/24/2024) [2024] GHASC 33 (24 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D. 2024 CORAM: OWUSU (MS.) JSC (PRESIDING) LOVELACE-JOHNSON (MS.) JSC PROF. MENSA-BONSU (MRS.) JSC GAEWU JSC KWOFIE JSC CIVIL APPEAL NO. J4/24/2024 24TH JULY, 2024 O’SVAN BOYE LIMITED ....... PLAINTIFF/APPELLANT/RESPONDENT VRS 1. DAVID KOJO ANAGBO ......... 1ST DEFENDANT/RESPONDENT/APPELLANT 2. LANDS COMMISSION ......... 2ND DEFENDANT J U D G M E N T MAJORITY OPINION KWOFIE JSC: My Lords, this appeal raises the issue of what is the effect of pleadings of parties filed in the case and to what extent should the parties be allowed or permitted to change their case as set out in their pleadings in the course of the trial. Page 1 of 31 This is an appeal against the judgment of the Court of Appeal, Accra delivered on 28th April, 2022 by which the Court set aside the judgment of the High Court, Accra delivered on 14th March 2018. Dissatisfied with the decision of the Court of Appeal, the defendant/appellant (hereinafter referred to as the defendant) filed a Notice of Appeal to this apex Court dated 12th May 2022. Pursuant to leave granted by this honourable court on 17th January 2024, the defendant filed an amended notice of appeal on 26th January 2024 on the following grounds: i) The Court of Appeal erred when it failed to hold that the High Court was entitled to address the issue of capacity in so far as it emerged from the evidence and that the issue of capacity need not have emerged only from the pleadings before the High Court could address it. ii) The Court of Appeal erred when it failed to hold that the issue of the plaintiff/appellant/respondent’s capacity had become an issue falling for determination as a result of the evidence led at the trial. iii) The Court of Appeal erred when it failed to hold that the plaintiff/appellant/respondent failed to discharge the burden on it when its capacity to institute the action was challenged by the 1st defendant/respondent/appellant iv) The Court of Appeal erred when it failed to hold that the High Court was wrong in rejecting as inadmissible the search report from the Registrar General’s Department tendered in evidence by the defendant/respondent/appellant as proof of the plaintiff/appellant/respondent’s capacity. v) The Court of Appeal erred when it ignored the evidence on record showing that the plaintiff/appellant/respondent’s failure to lead credible evidence as to the plaintiff’s capacity when it was challenged by the 1st defendant’s counsel under cross-examination vi) That the judgment of the Court of Appeal is against the weight of evidence. Page 2 of 31 Before proceedings further, we deem it necessary to set out the background to this case. By a Writ of Summons filed at the High Court, Land Division, Accra on the 26th November 2016, the plaintiff company O’Svan Boye Limited claimed against the defendants therein amongst other reliefs: a) A declaration of title to all that piece of land situate, being and lying at Nungua New Town also known as New Batsonaa also known as Cambodia near Accra in the Greater Accra Region of Republic of Ghana and containing an approximate area of 8.466 hectares or 20.919 Acres on Survey Plan Number Z5695 and covered by Land Certificate No. TD 0082 Volume 019 Folio 49 dated 9/9/1995. b) Recovery of possession of the portions of the said piece or parcel of land situate, being and lying at Nungua New Town also known as New Batsonaa also known as Cambodia near Accra in the Greater Accra Region of Republic of Ghana and containing an approximate area of 8.466 Hectors or 20.919 Acres on Survey Plan Number Z5695 and covered by Land Certificate No. TD 0082 volume 019 Folio 49 dated 9/9/1995 from the 1st Defendant or anyone found in possession or occupation thereof and aggravated damages for trespass. c) Perpetual Injunction restraining the Defendants either by themselves, their agents, workmen, assigns and whomsoever from entering unto , working on, developing carrying on constructional works thereon, dealing with, processing any document relating thereto and in whatever manner interfering with Plaintiff’s possession, occupation and quite enjoyment of the said piece or parcel of land. Upon being served with the writ of Summons and Statement of claim the 1st defendant David Kojo Anagbo entered appearance and filed a statement of defence and counterclaimed against the plaintiff as follows: 1) The sum of GH¢32,000.00 being the cost of rebuilding the fence wall pulled down twice on the instructions of Maria O’Sullivan Page 3 of 31 2) As a result of the matter set out above, the 1st defendant had suffered stress and inconvenience 3) Further, the 1st defendant claims cost of legal fees of GH¢20,000 but for Maria O’Sullivan’s conduct, he would not have instructed solicitors in the matter 4) Plaintiff claims damages. It is worth noting that the 2nd defendant, Lands Commission did not file a statement of defence and did not contest the case. The issue was therefore a straight forward contest between the plaintiff Company O’Svan Boye Limited and the 1st defendant David Kojo Anagbo. At the close of pleadings, the issue set down for determination in the application for directions were: a) Whether or not plaintiff is the lawful 99 years leasehold interest owner of the parcel of land b) Whether or not 1st defendant obtained 2 deeds of assignment both dated 1/9/2014 by fraud c) Whether or not plaintiff has the capacity to institute the instant action d) Whether or not 1st defendant is relying on 2 fraudulent deeds of assignment to register the disputed piece or parcel of land in his name e) Whether or not 1st defendant paid any money by way of compensation to plaintiff f) Whether or not plaintiff is entitled to its claim g) Whether or not 1st defendant is entitled to his counterclaim. Facts of the case It was the case of the plaintiff that it is a limited liability company duly incorporated under the laws of Ghana and acquired a 99-year leasehold interest in a parcel of land covering an approximate area of 20.919 acres 8.466 hectares situate at Nungua New Town also known as New Batsonaa or Cambodia. According to the plaintiff, it acquired it from the Sese Borteye family of Amanfa, Nungua acting through its lawful head, Nii Borteye Sese in a transaction dated 05/09/1993. Having obtained a lease to that effect, it subsequently Page 4 of 31 successfully went ahead to acquire a Land Title Certificate No. TD 0822 dated 09/09/1995 in respect of same. The plaintiff contended that it went into immediate occupation/possession and remained in possession until it had notice that the defendant had trespassed unto portions of the land, the subject matter of this suit. In the result the plaintiff confronted the defendant to halt all his activities on the land. The plaintiff’s investigations revealed that the defendant was in the process of applying for a Land Title Certificate based on a deed of assignment that it contended was a forgery. It lodged a complaint with the Lands Commission whilst the defendant also lodged a complaint to the police against the managing director of the plaintiff for unlawful damage to his property. In his statement of defence the 1st defendant admitted unequivocally that the plaintiff was a limited liability company duly incorporated under the laws of Ghana. It also admitted that the plaintiff acquired a 99 year leasehold of the land in dispute and also admitted that the plaintiff acquired a Land Title Certificate No. TD 0822 dated 09/09/1995 in respect of the land. He contended however that he has been in possession of the land, the subject matter for 17 years before the institution of the suit. He averred further that after acquiring the land, he built a fence wall around it and constructed a 2 bedroom house thereon. However, a director of plaintiff company by name Maria O’Sullivan caused damage to it, which matter was reported to the police. It was the case of the defendant further that the plaintiff company has 2 directors, John Boye Botchway and Maria O’sullivan who was the Managing Director but that there had been a bitter hostile relationship between the directors and thus there was a complete deadlock in management of the company for over 10 years. He therefore claimed that the Managing Director, Maria O’Sullivan authorizing the institution of the suit had no authority of the plaintiff company to do so. Judgment of the High Court After a full trial, the High Court dismissed the plaintiff’s claim on ground of want of or lack of capacity. In her judgment, the learned High Court judge held as follows: Page 5 of 31 “A plaintiff faced with a challenge to his capacity must be able to adduce sufficient evidence to establish his capacity. Unfortunately, this was not done in the instant suit. The plaintiff company bore the burden of proof, to establish that it does exist as a legal person but this it failed to do. Not a single document of incorporation or registration or any other documentary evidence for that matter, to prove that O’Svan Boye Limited exists and is dully registered as a limited liability company under the Companies Act 1963, Act 176 was produced” Dissatisfied with the judgment of the High Court, the plaintiff appealed against the decision to the Court of Appeal. Judgment of the Court of Appeal The learned Justices of the Court of Appeal reversed the decision of the High Court and took the view that the pleadings of the parties were so clear that the issue of capacity did not arise. The learned justices, after referring to the pleadings of the parties stated as follows: “Indeed given the respondents own admission stated supra, it is worth reiterating that it was pointless for the appellant to have raised the issue of capacity of the appellant in his application for directions and for the learned trial judge to have run with it. Once the respondent admitted the status of the appellant as a limited liability company as an existing company for the matter, no issue was joined. For, the settled position of the law is that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish the fact than by relying on such admission, which is an example of estoppel by conduct. It is a rule whereby a party is precluded from denying the existence of some state of facts which he had formally asserted. That type of Page 6 of 31 proof is a salutary rule of evidence based on common sense and expediency. See In re: Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) vs. Akotia Oworsika III (substituted by Laryea Ayiku III) [2005-2006] SCGLR 673 at 651 per Seth Twum JSC. Guided by the principle state supra, we have no doubt in our minds whatsoever that no issue of capacity emerged from the pleadings. Therefore, the learned trial judge clearly erred when she dismissed the appellant’s case for want of capacity, thereby occasioning a grave miscarriage of justice to the appellant.” Appeal to the Supreme Court Dissatisfied with the judgment of the Court of Appeal, the defendant has also appealed to this apex Court by a Notice of Appeal filed on 12th May, 2022. By an amended Notice of Appeal filed on 26/01/2024 pursuant to leave granted by this Court on 17th January 2024, the defendant has filed the following grounds of appeal: i) The Court of Appeal erred when it failed to hold that the High Court was entitled to address the issue of capacity in so far as it emerged from the evidence and that the issue of capacity need not have emerged from the pleadings before the High Court could address it. ii) The Court of Appeal erred when it failed to hold that the plaintiff/appellant/respondent failed to discharge the burden on it when it’s capacity to institute the action was challenged by the 1st defendant/respondent/appellant. iii) The Court of Appeal erred when it failed to hold that the plaintiff/appellant/respondent failed to discharge the burden on it when it’s capacity to institute the action was challenged by the 1st defendant/respondent/appellant. iv) The Court of Appeal erred when it failed to hold that the High Court was wrong in rejecting as inadmissible, the search report from the Page 7 of 31 Registrar General’s Department, tendered in evidence by the defendant/respondent/appellant as proof of the non-existence of the plaintiff/appellant/respondent. v) The Court of Appeal erred when it ignored the evidence on record showing the plaintiff/appellant/respondent’s failure to lead any credible evidence as to the plaintiff/appellant/respondent’s capacity when it was challenged by the 1st defendant/respondent/appellant’s counsel under cross-examination. vi) That the judgment of the Court of Appeal is against the weight of the evidence. As can be seen from the defendant’s grounds of appeal, the issue that is at the core of the defendants appeal is the issue of the plaintiff’s capacity to institute the action. On this point, the two lower courts disagree with each other. Whereas the High Court took the view that the plaintiff did not have the capacity to mount this action, the Court of appeal thought otherwise. Submissions of the defendant/appellant In this Court, counsel for the defendant has basically emphasized the arguments made at the Court of Appeal that the plaintiff company had no capacity to mount the instant action and referred us to a plethora of cases on capacity. Counsel submitted that the issue of the plaintiff’s capacity having arisen from the evidence at the trial, that issue had to be determined and could not be glossed over by the court. He also submitted that even in the 1st defendant’s pleadings, he had raised the issue of the plaintiff’s capacity by alleging that the plaintiff was a shell company which had suspended its operations for several years and was no longer functioning. Indeed he submitted in his statement of case as follows: “While it is correct to say that from the record of appeal the capacity as specifically relating to the existence or otherwise of the respondent did not arise from the pleadings, it is incorrect to say that Page 8 of 31 the broader issue of capacity of the respondent to sue did not arise at all from the pleadings” He further contended that the specific issue of the plaintiff’s existence or otherwise is a variant of the respondent’s general capacity to sue and the general issue having been set down, the appellant was entitled to cross-examine the respondent on the specific issue of its existence. Counsel referred us to a plethora of cases dealing with capacity including Sarkodie I vs. BoatengII (1982-83) GLR 715 at 724, Tamakloe and Partners Unlimited vs. Gihoc Distillers Co. Ltd. (2019) GHASC 35, Fatal vs. Wolley (2013-2014) 2 SCGLR 1070 and others Naos Holdings Inc. vs. Ghana Commercial Bank (2005-2006) SCGLR 407. Submission of Counsel for the plaintiff Counsel for the plaintiff submitted that all the grounds of appeal filed by the defendant revolves around the issue of lack or want of capacity by the plaintiff to commence the action. He referred to the pleadings of the parties and stated that after perusing the whole record of appeal, the Court of Appeal found correctly and concluded that in view of the clear and unambiguous admissions made by the defendant in its pleadings about the status of the plaintiff’s company, there was no issue joined between the parties herein on the capacity of the respondent. He added that not only did the defendant admit the status of the plaintiff company as a duly incorporated limited liability company but also went on to unequivocally admit that the plaintiff was the owner of the land in dispute by virtue of a 99 years leasehold interest which had been duly registered at the Lands Commission ie. the Land Title Registry. Counsel further asserted that the defendant further averred to material facts in support of his admission by stating that the plaintiff company had two directors and that Maria O’Sullivan was the Managing Director; that the two directors were in a deadlock and the company had suspended its operations and finally had stated that one of the plaintiff’s directors John Botchway executed a dead of assignment in his capacity as a director for and on behalf of the plaintiff, in his (defendant’s) favour. He argued that having made these unequivocal admissions in his Page 9 of 31 pleadings, no issue can be joined and no evidence need be led at the trial and referred to the case of Kusi & Kusi vs. Bonsu & Bonsu (2010) SCGLR 60 holding 3. The pleadings in this case Having regard to the issue in contention in this case ie whether or not the plaintiff had capacity to issue this action was at the core of the case, it is important that we set out the pleadings filed by the parties and on which pleadings the parties fought this litigation. Plaintiff’s Statement of claim In paragraphs 1, 2, 3, 4, 5, 6 and 7 of its statement of claim, the plaintiff pleaded as follows: 1) Plaintiff is a limited liability company incorporated under the laws of the Republic of Ghana with its registered office situate at East Airport, Accra and whose line of business include acquisition of tracts or parcels of land for construction of residential premises for sale and management, acquisition of lands for resale and developing tracts of lands into service plots for sale to prospective buyers. 2) 1st defendant whose station in life is unknown to the plaintiff claims to be a Ghanaian businessman who is ordinarily resident at East Legon, Accra. 3) Plaintiff says the 2nd defendant is a statutory institution or body established under the laws of the Republic of Ghana and mandated with the administration and management of parcel of lands acquired by the state for and on behalf of the people of the Republic of Ghana and with the further mandate to register and manage issues relating to or affecting registration of documents and interest affecting lands throughout the Republic of Ghana 4) Plaintiff says further that it is the lawful owner of a 99 year leasehold interest and in possession of piece or parcel of land to the extent or covering an approximate area of 8.44 Hectares or 20.919 Acres situate, lying or being at an area known officially as Nungua New Town also known as New Page 10 of 31 Batsonaa also known Cambodia near Accra in the Greater Accra Region of the Republic of Ghana. 5) Plaintiff says it acquired from Nii Bortey Sese and Sese Borteye family of Amanfa, Nungua, the said 99 year leasehold interest in the said piece of parcel of land covering the said approximate area of 8.466 Hectares or 20.919 Acres and has become the lawful owner of the said 99 year leasehold interest and in possession of the said residential piece or parcel of land situate, lying and being at Nungua New Town also known as New Batsonaa also known as Cambodia near Accra in the Greater Accra Region of the Republic of Ghana since 5/12/1993 6) Plaintiff says further that it became the said lawful owner of the said 99 year leasehold interest in the said piece or parcel of land situate, lying and being at Nungua New Town also known as New Batsonaa also known as Cambodia near Accra in the Greater Accra Region of Republic of Ghana by virtue of having been granted the said 99 year leasehold interest in the said land by the said Nii Bortey Sese and Sese Borteye Family of Amonfa Nungua acting per its lawful Heads and Representatives in the persons of Nii Boye Sese and Sese Borteye which lease is documented per Deed of Lease dated 5/12/1993. 7) Plaintiff avers further that it subsequently had its said 99 year leasehold interest in the said piece or parcel of land registered at the Land Title Registry of the Republic of Ghana and had been issued with Land Certificate No. TD 0082 volume 019 Folio 49 dated 9/9/1995 after the said acquisition and intention of registration of the said interest was published in the National Weekly and no one raised any objection to the said intention to register the said interest. Defendant’s Statement of Defence In paragraph 1, 2, 3, 4, 11, 12, 14, 17, 22, 23, 37, 38, 39 and 40 of the statement of defence, the 1st defendant pleaded as follows: Page 11 of 31 1) The 1st defendant admits that the plaintiff is a limited liability company as stated in paragraph 1 2) Paragraphs 2, 3, 4, 5 and 6 of the statement of claim are admitted (emphasis mine) 3) In further answer to the said averments, the 1st defendant says that by a deed of assignment, dated 14th of July, 1995 between Nii Afotey Odai IV, Dsasetse and acting Nungua Mantse of Accra assigned to the 1st defendant “all the piece or parcel of Land situate lying and being at Batsonaa-Accra and contained on approximate area of 0.55 Acre or 0.223 Hector more or less and bounded on the North- East by the Assignor’s Land measuring 202.5 feet more or less on the South-west by a Proposed Road measuring 136.5 feet more or less which piece of land is more particularly delineated on the plan attached thereto and hereon shown edged pink” 4) Paragraph 7 of the statement of claim is admitted to the extent that the plaintiff has 99 years leasehold interest in the parcel of land with Land Certificate No. TD 0082 volume 019 Folio 49 (emphasis mine) 11) Meanwhile, the grantor and his family members made several demands for money towards the rezoning by the Tema Municipal Assembly to which the 1st Defendant paid accordingly 12) It is the 1st defendant’s case that when the rezoning was eventually completed; he was informed by the grantors that he may now register his title and it was when he initiated the registration process and conducted a search that he noticed the same was in the name of O’Svan Boye Ltd. 14) The 1st defendant further avers that, upon approaching the company, John Botchway (the Director) explained to the 1st Page 12 of 31 defendant that, in the nature of Accra land, sometimes ownership of particular areas overlap. 17) The 1st defendant paid GH¢10,000.00 to the plaintiff company by way of compensation, which was received by John Botchway on behalf of the plaintiff company and a receipt was issued. 22) The managing Director, Maria O’Sullivan authorizing for this suit to be commenced has no authority of the plaintiff company. In effect, the company has suspended its business for several years and there can be no truth in the affidavit sworn by her in this matter. 23) In effect, what is happening is that one director, Maria O’Sullivan, purporting by irregularities to acquire complete control of the company and to exclude the other director, John Botchway from management, in other words, Maria O’Sullivan is treating the company as her own property. 37) There is a complete deadlock in management for over 10 years 38) The 1st defendant states that the director authorizing for this suit to be commenced has no authority of the plaintiff company as the company shall not be deemed to have consented unless, after full disclosure of all material facts, including the nature and extent of any interests of the directors, this litigation shall have been authorised by a resolution by the board. No such resolution is available. 39) In effect what is happening is one director (Maria O’Sullivan) purported by irregularities, to acquire complete control of the company and to exclude the other director (John Botchway) from Management. The director alleging to act on behalf of plaintiff company has no such authority. 40) That, the 1st defendant says in the circumstances, it has been prejudicially affected by the complete deadlock in management and the Court should order for the company to be wound-up Page 13 of 31 What is striking about the defendant’s statement of defence is that he unequivocally admits the status of the plaintiff company as a duly incorporated Limited Liability Company. He also admits unequivocally that the plaintiff company is the owner of the land in dispute by virtue of a 99 year leasehold interest which had been duly registered at the Lands Commission and possesses a Land Title Certificate. He also asserts that Maria O’Sullivan was the Managing Director of the plaintiff company and the other director was one John Botchway and that John Botchway took ten thousand Ghana Cedis (GH¢10,000) from him and executed a deed of assignment in his capacity as a director of the plaintiff Company in his (defendant’s) favour. This was the defendant’s pleadings on which he fought this case. The question that begs for an answer is: having expressly and unequivocally admitted the plaintiff company’s status as a limited liability Company with 2 directors Maria O’Sullivan and John Botchway and having also expressly admitted that the plaintiff is the owner of the disputed land and possesses a Land Title Certificate in respect of the land, what issue arises as to the existence or non- existence of the plaintiff company to enable that issue to be raised at the trial? It is trite law that parties are bound by their pleadings. Pleadings as setting out the parameters and boundaries of litigation is a very hallowed principle of law and in our view the starting point for a determination of the issue of the capacity of the plaintiff is to look at the pleadings as filed and set out. The function of pleadings as indicating the role of the court was described by Master I. H. Jacob in his article “The Present Importance of Pleadings” in Current Legal Page 14 of 31 Problems (1960) pages 171 to 174 thus: “As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings ....... For the sake of certainty and finality, each party is bound by his own pleadings and cannot be allowed to raise a different or fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realms of speculation ........ Moreover, in such event, the parties themselves, or at any rate one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised, by or against a party is equivalent to not hearing him at all and may thus be a denial of justice. The court does not provide its own terms of reference or conduct its own enquiry into the merits of the case but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called. ‘Any other Business’ in the sense that points other than those specified may be raised without notice. Page 15 of 31 Pleadings do not only define the issues between the parties for the final decision of the court at the trial; they manifest and exert their importance throughout the whole process of the litigation. They contain the particulars of the allegations of which further and better particulars may be requested or ordered, which help still further to narrow the issues or reveal more clearly what case each party is making. They limit the ambit and range of the discovery of documents and the interrogatories that may be ordered. They show on their face whether a reasonable cause of action or defence is disclosed. In the case of Hammond vs. Odoi (1982-83) 2 GLR 1215 at 1235 the Supreme Court stated per Crabbe JSC thus: “Pleadings are the nucleus around which the case-the whole case- revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case.” Also in the case of Kusi & Kusi vs. Bonsu (2010) SCGLR 60 S.C. it was held in holding 3 thereof as follows: “where no issue was joined as between parties on a specific question, issue or fact, no duty was cast on the party asserting proof of that issue or fact” Particularly at page 78 of the Report Wood C.J. stated thus: Page 16 of 31 “it is an elementary principle of law that in civil litigation, where no issue was joined as between parties on specific question, issue or fact, no duty was cast on the party asserting it to lead evidence in proof of fact or issue. Indeed, most of the delays associated with civil trials would be avoided, if this simple elementary evidentiary rule were strictly adhered to. On the basis of this time honoured principle, the appellants ie. the defendants were not even under any obligation to have tendered all of those documents complained of, documents which bore evidence of registration ex facie .............” Also in the case of Fori vs. Ayerebi 1966 GLR 627 S.C a very helpful authority on the point about undenied averment, the Supreme Court stated in holding 6 that: “when a party had made an averment and that averment was not denied, no issue was joined and no evidence be led on that averment ..........” The defendant ie the appellant in his statement of case has submitted that even though no issue was joined between the parties on the capacity of the plaintiff/respondent, nevertheless the issue of capacity of the plaintiff came up at the trial and it was incumbent on the plaintiff to lead evidence in proof of its capacity, that it was a limited liability company duly incorporated under the laws of Ghana. It is difficult to appreciate the basis for this contention of the defendant in the face of his express and unequivocal admission that the plaintiff is a limited liability company incorporated under the laws of Ghana. Indeed, he further averred that the plaintiff had 2 directors, Maria O’sullivan and John Botchway. Again, the defendant further asserted that there was disagreement between the 2 directors and that disagreement and deadlock had led to the suspension of the operations of the plaintiff as a company. He further averred expressly that the plaintiff is the owner of the disputed land and is in possession of a land title certificate in respect of the land. Page 17 of 31 Finally, the defendant asserts in paragraph 40 of its statement of defence that in view of the deadlock in the management of the company, the court should order for the company to be wound up. Indeed, having regard to the pleadings of the parties and the unequivocal admissions made by the defendant as to the status of the plaintiff company as incorporated under the Laws of Ghana and the further admission that the plaintiff company is the lawful owner of the disputed land by virtue of a 99 year leasehold interest and holds a Land Title Certificate, no issues ought to have been joined in respect of those matters. We are of the view that issue (a) whether or not plaintiff is the Lawful 99 years leasehold interest owner in the parcel of land and (c) that is whether or not the plaintiff has capacity to institute the instant action were unnecessary and ought to have been struck out as they did not arise from the pleadings. As counsel for the plaintiff rightly submits in his statement of case, the defendant at the trial then sought to present a case contrary to his own pleadings by turning around to challenge the existence of the plaintiff company. The defendant’s challenge to the existence of the plaintiff company in the light of his unequivocal admission in his pleadings, amounted to the defendant setting up a case contrary to his pleadings. There is a long line of authorities to the effect that a party who sets up a case contrary to his pleadings is not entitled to any favours from the court. In the case of Appiah vs Takyi (1982-83) 1 GLR 1 at 7, Mensah Boison JA delivered himself thus: “Here, the learned trial judge should have placed reliance on the salutary rule of practice that where there is a departure from pleadings at trial by one party, whereas the other’s evidence accords with his pleadings, the latter’s is as a rule, preferable.” Page 18 of 31 In the recent unreported case of Adwoa Bokor vs. Agbo Oddoye (substituted by Philip Odoi) Civil Appeal No. J4/38/2021 dated 8th December 2021, this court speaking through Torkonoo JSC (as she then was) delivered itself as follows: “The principle must be noted that where the party’s evidence is inconsistent with his pleadings, the opponent’s case must be found preferable to the one who departs from his pleadings” It should also be noted that the pleadings as set out by the defendant were never amended under the rules of Court, but rather the defendant inspite of the express and unequivocal admission in his pleadings, sought to set up a case clearly inconsistent with his pleadings. In the face of his admission of the plaintiff’s status in his pleadings and also his admission that indeed the plaintiff was the owner of the disputed land, and that one of the directors John Botchway had given him a deed of Assignment in respect of the land, the defendant’s attempt to divert attention from his pleadings by challenging the plaintiff’s existence should under no circumstance be countenanced by this Apex Court. My Lords, this was not a case involving shareholders of a company fighting over the shares and control of the affairs of the company. This was a land litigation in which the defendant had expressly admitted that the plaintiff company was lawfully incorporated under the laws of Ghana and also expressly admitted that the plaintiff owned the disputed land. After making this voluntary admission, the defendant then turns around and says that because of the deadlock in the management of the company, the court should order the winding up of the said company. In respect of the affairs of the Company, the defendant was clearly a busy body and one may ask, if the plaintiff company did not exist, how could the defendant ask for it to be wound up? This apex court of the land should in our view not permit the defendant to approbate and reprobate by literally giving out something with the right hand and then turning around to take it back with the left hand. This court should hold the defendant to his pleadings and not allow him to hoodwink the court with the inconsistent case he has presented. In Page 19 of 31 our view the judgment of the first appellate court was unassailable and is clearly borne out of the pleadings and evidence on record. Conclusion In conclusion we find that the Court of Appeal was right in overturning the judgment of the High Court and we hereby affirm the Court of Appeal’s decision dated 28th April, 2022. (SGD) H. KWOFIE (JUSTICE OF THE SUPREME COURT) (SGD) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD) E . Y. GAEWU (JUSTICE OF THE SUPREME COURT) Page 20 of 31 DISSENTING OPINION LOVELACE-JOHNSON JSC: The designation of the parties at the high court will be maintained in this appeal. I have read the majority decision of my respected brethren and I am respectfully unable to agree with them. Contrary to the position of the majority, it is my considered opinion that the bone of contention in this matter is whether the issue of capacity was properly raised and considered by the trial court even though no issue was joined on it by the parties in their pleadings. My respected brother, of the majority has set out in detail, the facts of the case, the claim and counterclaim of the parties, their pleadings, the issues set down for determination and the grounds of appeal in the court of appeal and in this court so there is no need to do same. I will refer to these processes as and when I find necessary in considering this core issue. The court of appeal upheld the appeal against the judgment of the high court which had found that the plaintiff had been unable to prove its capacity and had consequently struck out the writ as being a nullity. The court of appeal stated in part at pages 54 of volume 3 of the record of appeal (ROA) as follows “Once the respondent admitted the status of the appellant as a limited liability company as an existing company for that matter, no issue was joined. For, the settled position of the law is that where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish the fact than by relying on such admission…………We have no doubt in our minds whatsoever that no issue of capacity emerged from the pleadings. Therefore, the learned trial judge clearly erred when she dismissed the appellant’s case for want of capacity, thereby occasioning a grave miscarriage of justice to the appellant" Page 21 of 31 The court of appeal was satisfied that while the 1st defendant had been unable to prove his counterclaim, the plaintiff had made a good case on the balance of probabilities and gave it judgment in terms of the reliefs sought. Apart from the omnibus ground of appeal, all the other five grounds of appeal filed by the 1st defendant, in sum, allege errors relating to how the court of appeal dealt with the issue of the capacity of the plaintiff. The grounds of appeal have been reproduced and the arguments of both counsel have been ably summarized in the judgment of my brethren in the majority so I adopt these and proceed with my analysis. In paragraph one of their statement of claim, the plaintiff described itself as follows Plaintiff is a limited liability company incorporated under the laws of the Republic of Ghana with its registered office situate at East Airport…… The 1st defendant’s response to this pleading was as follows 1. The 1st defendant admits that the plaintiff is a limited liability company as stated in paragraph 1. Notwithstanding this admission, issue (d) of the issues set down for trial at the application for directions stage was as follows Whether or not Plaintiff has the capacity to institute the instant action. The undisputed position then is that the 1st defendant admitted the plaintiff’s description of itself as a limited liability and yet plaintiff itself set down for determination its capacity to bring the present action. It appears to me that the court of appeal took a rather narrow and simplistic view of the of the concept of capacity when it took the position that merely because the 1st defendant admitted the first paragraph of the plaintiffs statement of claim that it was a limited liability company, he was estopped from questioning the latter’s capacity to bring the present action. Page 22 of 31 Capacity has been defined in part as “the power to create or enter into a legal relationship…” See Black’s Law Dictionary. Ninth edition, authored by Brian A. Garner. It is fundamental and thus goes to the very foundation of a suit. That being so a court before whom it is raised is required to determine that issue as a preliminary point. In the case of a juristic entity, its existence in accordance with law has to be proved. The issue of plaintiff’s capacity was raised in evidence as soon as the hearing proper begun. The first five questions asked by counsel for the 1st defendant on 10th 0ctober 2017 @ page 169 of the ROA, when cross examining the plaintiff’s representative, without any objection from counsel for the plaintiff raised the issue of the capacity of the plaintiff to bring the present action. The questions were as follows: Q. Can you please show or demonstrate to this court your capacity to institute this action. A. I registered a company O’Svan Boye at the Registrar General and paid for 21 acres of land in 1993 and because I paid for it I am the owner. I am the Managing Director of the Company. Q. Do you have documentary evidence of this registration? A. I had it in my office at East Airport, Mariville Homes on the Teshie Link road off Spintex road but there was a disaster of rain and most of my documents were affected. So I have asked the Registrar General to get me copies. So I am waiting. Q. Would it be correct to say there is no documentary evidence show that you are the 100% shareholder of this company? A. I formed the company and used my name to register the company because I paid for the land. Q. Can you please show the court evidence of your authority from the company in the form of a board resolution committing the company to institute litigation against the 1st defendant? Page 23 of 31 A. My lord, I don’t have any resolution from anybody because I paid solely for the land. Q. I put it to you that you do not have any authority from the company to institute this particular litigation against the 1st defendant. A. My lord I have the authority to fight for or to come to court and retrieve what belongs to the company. All of the further and final cross examination of the plaintiff’s representative on 12th October 2017 related to the plaintiff’s capacity to bring this action. During cross examination of the 1st defendant, the following question was put to him. Q. I put it to you finally that contrary to your assertion before this court, the plaintiff company has been in full operation with the Managing Director and has been protecting its land against persons like you who would want to use any means to claim an interest in its land. The 1st defendant answered thus “Further search conducted through the Registrar Generals department confirmed that there is no trace of details of the plaintiff company nor any tax filings done.” It is clear then that the plaintiff was put on notice about 1st defendant’s contention that the former did not have the capacity to bring this action. The plaintiff cannot claim any surprise of the case of the 1st defendant merely because its paragraph one was admitted by the 1st defendant in its statement of defence and shut its eyes to all the evidence by which the 1st defendant questioned its capacity. The issue of capacity so goes to the root of an action that it cannot be perfunctorily brushed aside on the ground that no issue was joined on it merely because of some admission, when evidence on record shows that not only was it a crucial issue between the parties, it was set down as an issue for trial. This position is strengthened by the fact that even a court, including an appellate court, can suo motu, raise the issue, if it is satisfied that it is an issue which will resolve the case, so long as there is sufficient evidence on record to resolve it that is there is no need to call further evidence on it at that stage of the proceedings. Page 24 of 31 The case of Fatal v Wolley [203-2014] 2 SCGLR referred to by the court of appeal when read wholly supports the position that more than a failure to join issues is needed to brush off the issue of capacity in certain circumstances. It is appropriate to reproduce a portion of what this court per Georgina Wood CJ said on the issue from page 1076 of the law report. “As rightly found by the Court of Appeal, the defendant did not in his pleadings challenge the capacity in which the plaintiff instituted the action; nor the capacity in which he, the defendant was sued. This accounts for the reason why these two critical issues were never included in the agreed issues set down for resolution. Admittedly, it is, indeed, sound basic learning that courts are not tied down to only the issues identified and agreed upon by the parties at pre-trial. Thus, if in the course of the hearing, an agreed issue is clearly found to be irrelevant, moot, or even not germane to the action under trial, there no duty cast on the court to receive evidence and adjudicate on it. The converse is equally true. If a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issues. However, on the facts, the argument that the court had a duty to determine the issue of capacity is without merit. The issues was not raised when the plaintiff, the initiator of the action, was cross-examined. Indeed, the invoices and payments receipts bearing the Koala Shopping Centre logos, which counsel relies on to buttress the argument in relation to capacity, were introduced at a rather late stage of proceedings- during the defendant’s testimony. They were never introduced during the cross- examination of the plaintiff, which would then have enabled the plaintiff to respond appropriately to the challenge and offer explanations, if any, as to why the receipts bore those logos.” In this case, the issue of capacity was raised in cross examination, thus giving the plaintiff opportunity to respond I am of the considered opinion that the issue of capacity need not arise from the pleadings in order for the court before whom it is raised to determine it although it usually does arise therefrom. It must certainly arise from the evidence Page 25 of 31 before the court. In such circumstances, even if it has NOT been set down as an issue for trial (and in the present case it was indeed set down as such), a court cannot refuse to address it. As stated earlier, a court can suo motu raise it even on appeal if it can be resolved on the evidence on record without the need to call further such. The inclination of the courts to make possible the raising of the issue of capacity, as seen from the authorities, is not surprising because as stated earlier, it goes to the root of a matter and must be resolved. The absence of capacity to sue renders the merits of a case irrelevant. Not even an iron cast case can make up for a lack of capacity. See the case of Sarkodie I v Boateng II [1982-83] GLR 715 where this court stated as follows “And it was no answer for a party whose capacity to initiate proceedings had been challenged by his adversary to plead that he should be given a hearing on the merits because he had a cast-iron case against his opponent” Surely then as much as possible a court should try to determine it. Apart from the contention of counsel for the plaintiff that once issue was not joined on the issue of capacity, it was wrong on the part of the high court to have set it down and determined it, he further takes the position that raising the question of capacity amounted to putting forth a case contrary to that set forth in the defendant’s pleadings since he had admitted plaintiff’s paragraph one, among others, of its statement of claim. It is a fact that the issue was set down. It is a fact that evidence on capacity was led without objection from the plaintiff. In such circumstances can the plaintiff claim that the defendant had put forth a contrary case? Certainly not, when the issue is one of capacity of a party which can have the effect of making a writ and all proceedings flowing therefrom, a nullity. As stated in Fatal v Wolley supra “….if a crucial issue is left out, but emanates at trial from either the pleadings or the evidence, the court cannot refuse to address it on the grounds that it is not included in the agreed issues” Page 26 of 31 What is needed is sufficient evidence on record to enable the raising and determination of this most crucial issue without which the whole case collapses. See also the cases of Akosua Dufie and Anor v Amma Fosua and the China Shandon International Ltd vs Mrs Vivian Acheampong cited by counsel for the 1st defendant. It is my considered opinion that by limiting itself only to the pleadings and not taking account of evidence led relating to the issue of capacity, such as in cross examination of both parties, the court of appeal disabled itself from dealing with this very fundamental issue. I uphold grounds i and ii of the grounds of appeal. It is trite that when a party’s capacity is challenged, he carries the burden of proving the said capacity. By grounds (iii) and (v), the defendant contends that the defendant failed to discharge this burden and the court of appeal fell into error in not holding so. Of course, having made a finding that “no issue of capacity emerged from the pleadings”, it is not surprising that the court of appeal failed to consider whether or not the plaintiff even had a burden under law to discharge and if it had, whether the said burden was indeed discharged. Exercising this court’s power of rehearing when considering an appeal, I proceed to examine the record to see if the plaintiff was successful in proving its capacity to bring the present action. The trial high court took the position that it did not. As evident from the excerpts of cross examination earlier referred to in this judgment, the 1st defendant questioned the plaintiff’s capacity. Did the answers in cross examination and any other evidence proffered by the plaintiff’s representative prove the plaintiff’s existence? An example of the kind of evidence sufficient to prove a company’s existence was given as a certificate of incorporation. See Naos Holdings Inc v Ghana Commercial Bank [2005-2006] SCGLR 406. Page 27 of 31 I bear in mind that a certificate of incorporation, while the best, is not the only piece of evidence which can be used to establish the existence, and thus the capacity of the plaintiff company. However, I have gone through the record and, and like the trial court, I have found no such document or evidence of similar import led or provided by the plaintiff of its existence. Statements by the Plaintiff’s representative that she registered the company or an explanation that “there was a disaster of rain and most of my documents were affected. So I have asked the Registrar to get me copies so I am waiting” do not suffice. What stopped her from presenting evidence of this alleged request by tendering a letter from the Registrar Generals office for the court’s consideration? At the tail end of the cross examination of the 1st defendant, he stated that his search showed that there were no tax returns filed by the plaintiff. Evidence of such would have helped establish the plaintiff’s existence. It was not sufficient for the plaintiff to merely mount the witness box and say that the plaintiff existed when documentary evidence, even in the form of a letter from the Registrar General is what would have satisfied the test of admissible and credible evidence on this crucial issue which would have tilted the balance of probabilities in plaintiff’s favour. The high court judge was correct in her finding that no documentary evidence was provided to prove the existence of the plaintiff. That being so, the allegations of error made against the court of appeal in this regard on grounds (iii) and (v) are upheld. The high court rejected a search report from the Registrar General’s department which the 1st defendant sought to tender on the ground that the entity that conducted the search was not known to the court and was not a party to the suit. On this report, the learned high court judge delivered herself, in part, as follows “….deemed inadmissible by this court on the basis that the alleged search conducted at the Registrar General was by an entity not known to the court and not a party to this suit” Page 28 of 31 The 1st defendant’s ground (iv) faults the court of appeal for not finding that the high court was wrong in rejecting that report as inadmissible. The Evidence Act clearly makes relevancy the basis of admissibility. Section 51 (1) states as follows “ All relevant evidence is admissible except as otherwise provided by any enactment” The exhibit is question is a letter to an entity called Billy Consult and Trading from the Registrar Generals Department which stated that their records ‘ did not show any trace’ of the plaintiff company. In the light of the issue of capacity of plaintiff raised, the exhibit was relevant for its resolution. By virtue of sect 52 of the Act, a court has power to exclude relevant evidence if its probative value is substantially outweighed by (a) considerations of undue delay, waste of time, or needless presentation of cumulative evidence; or (b) the risk that admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues; or (c) the risk, in a civil action, where a stay is not possible or appropriate, that admission of the evidence will unfairly surprise a party who has not had reasonable ground to anticipate that such evidence would be offered The reasons given by the trial court for rejecting this exhibit do not fall into any of the above listed. It is my considered opinion that the exhibit in question was wrongly rejected. This leads to a finding that there is merit in the ground (iv) of appeal. It is upheld. Having found that the plaintiff failed to prove its capacity upon same being challenged by the first defendant, there is no need to consider ground (vi) of appeal which is that the judgment is against the weight of evidence. This is because a consideration of the said ground calls for the evaluation of the case on its merits, a futile exercise since the plaintiff Page 29 of 31 did not prove its capacity to bring the action. This failure on the part of the plaintiff nullifies the entire consideration of the case on its merits by the court of appeal. This court in the case of Kasseke Akoto Dugbatey Sappor& 2 ors etc vrs Very Rev Solomon Sappor etc civil appeal No J4/46/2020 delivered on 13th January 2021 put it thus “once a party does not meet the threshold requirement of capacity, there is no need to go beyond that point to deal with substantive issues” “It therefore follows that a challenge to capacity puts the validity of a writ in issue so when the challenge is not displaced, the writ becomes a nullity together with the proceedings and the judgment founded on it.” Per Marfu-Sau JSC (as he then was) in Nii Kpobi Tettey Tsuru III & 2 Ors vs Agric Cattle & 4 Ors [2020] DLSC 8742 @7 The learned trial court concluded in its judgment that, the plaintiff having failed to establish its capacity, it had no option but to strike out the writ. This conclusion is in line with the authorities one of which has been quoted above. I therefore find the court of appeal was wrong when it found that the trial court erred when it dismissed the appellant’s case for want of capacity. In conclusion, having found that there is merit in all the grounds of appeal, the appeal succeeds. The judgment of the court of appeal is set aside and that of the high court dated 14th March 2018 is hereby affirmed. In his statement of case counsel for the 1st defendant asks that this court makes consequential orders directed at the 2nd defendant to cancel the Land Title certificate registered in the name of the plaintiff as a result of mistake and misrepresentation. Apart from entering appearance, the 2nd defendant did not file any pleadings and no claim was made against it in the plaintiff’s counterclaim. A finding that the plaintiff failed to prove his capacity to bring this action without more is not sufficient to make orders directed at the 2nd defendant to cancel the land title certificate in question. The capacity of the plaintiff at the time the said certificate was issued has not been determined in this matter. Page 30 of 31 Justice demands that someone other than the 1st defendant bears the costs of this action. The plaintiff, having failed to prove its capacity to bring this action, I order that the costs in this matter be borne personally by Maria O’Sullivan who held herself out as the Managing Director and representative of the plaintiff. (SGD) A . LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) (SGD) PROF. H.J.A.N. MENSA-BONSU (MRS.) (JUSTICE OF THE SUPREME COURT) COUNSEL JAINIE AGOVI JAINIE ESQ. FOR THE 1ST DEFENDANT/ RESPONDENT/ APPELLANT WITH HIM, NII LANTEI BLANKSON-MILLS, THOMPSON ADJIABER & RAYMOND BIDEMA. O. K. OSAFO-BUABENG ESQ. FOR THE PLAINTIFF/APPELLANT/RESPONDENT WITH HIM, AGYENIM AGYEI-BOATENG & SEDWIN BROCKERS. Page 31 of 31