WELBECK VRS ACHEAMPONG (J4/71/2023) [2024] GHASC 35 (10 July 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D. 2024 CORAM: LOVELACE-JOHNSON (MS.) JSC (PRESIDING) AMADU JSC KULENDI JSC ACKAH-YENSU (MS.) JSC ADJEI-FRIMPONG JSC CIVIL APPEAL NO. J4/71/2023 10TH JULY, 2024 SETH WELBECK ……….. PLAINTIFF/RESPONDENT/ APPELLANT VRS 1. KWABENA ACHEAMPONG DEFENDANTS/APPELLANTS/ 2. DIANA NYARKO RESPONDENTS 3. VICTORIA MENSAH JUDGMENT AMADU JSC: BACKGROUND (1) This appeal is from the judgment of the Court of Appeal dated 10th December 2021, wherein the Plaintiff/ Respondent/Appellant (hereinafter referred to as “the Plaintiff”) has assailed the judgment of the Court of Appeal which not only reversed the judgment of the Trial High Court, Land Division Accra dated 14th February 2020 in favour of the Defendants/Appellants/ Respondents (hereinafter referred to as the Defendants). The Court of Appeal then proceeded to grant relief to the Page 1 of 46 Defendants by way of counterclaim in the following words; “The judgment of the Lower Court is hereby set aside and judgment entered in favour of the Appellants on the 3rd Appellant’s counterclaim”. (2) From the issues provoked by the grounds of appeal formulated and set out in the notice of appeal, and for a better appreciation of the propriety or otherwise of the final orders of the Court of Appeal it is necessary to recount in detail the factual background and procedural history giving rise to this appeal. (3) On 20th February 2017, the Plaintiff issued out of the Registry of the High Court, Land Division, Accra a writ of summons initially against the 1st and 2nd Defendants. By an order of the trial court dated 31st May 2017, the 3rd Defendant was joined to the suit. Consequently, on 13th June 2017, the Plaintiff filed an amended writ of summons and a statement of claim praying for the following reliefs: (a) “A declaration that, the land described in the schedule hereunder forms part of the estate of Adolphus Welbeck Abdulai of which the Plaintiff is its lawful Administrator. (b) A declaration of title in favour of the Plaintiff by virtue of the execution of the Deed of Vesting Assent dated the 27th of September, 2016. (c) An order for recovery of possession of the disputed Property from the Defendants. (d) Damages for trespass. (e) Mesne profit of GH2,000 against the Defendants per shop per month from the date of this Writ of Summons to the date Page 2 of 46 of final vacation of the disputed Property from the Defendants. (f) An Order of Perpetual Injunction restraining the Defendants whether by himself, his servants, agents or otherwise howsoever from further trespassing upon the disputed property. (g) Costs. (h) Any further other order(s) that this Honourable Court may deem fit.” (4) In the amended statement of claim, the Plaintiff averred that, he is a beneficiary as well as an administrator of the estate of the late Adolphus Welbeck Abdulai (deceased) who died intestate on 14th July 2016. Plaintiff also averred that, the said Adolphus Welbeck Abdulai was his late father. According to the Plaintiff, the Defendants were illegally occupying his deceased father’s land and property to his disadvantage and same is adverse to his interest. (5) The Plaintiff described the property as all that piece or parcel of land situate in Accra Central covering an approximate area of 0.15 acre and more particularly described in a plan attached to the Deed of Indenture dated 18/02/1992. (6) The Plaintiff averred further that, on 18th February 1992, one Foo Chang Soo granted the property to his deceased grandmother, the late Rachel Afriyie (aka Afriyie) Welbeck for the unexpired period of the head lease by the execution of a Deed of Indenture in favour of the said Rachel Afriyie Welbeck. That, upon the death of Rachel Page 3 of 46 Afriyie Welbeck, the High Court Accra, on the 19th of February 1994, granted Letters of Administration to Messrs Seth Okai Welbeck, Ebenezer Ayikai Welbeck, Daniel Okoe Welbeck and Adolphus Welbeck @Abdulai (Plaintiff’s father) to administer the estate of Rachel Afriyie Welbeck. (7) The Plaintiff pleaded further that, upon the death of all other administrators, his father became the sole surviving administrator of the said estate. According to the Plaintiff, his father administered the estate and vested the property in himself by virtue of a Deed of Vesting Assent dated the 12th day of January 2013. The Plaintiff asserted further that, upon the death of his father, on 14th July 2016, he applied for and was granted Letters of Administration on the 7th of September 2016 by the High Court Accra, to administer the estate of his late father Adolphus Welbeck Abdulai. (8) Furthermore, the Plaintiff averred that, he vested the disputed property in himself by the execution of a Deed of Vesting Assent dated the 27th of September 2016. Plaintiff contended that, the Defendants had trespassed unto the property and that, all efforts to get Defendants vacate the property had not been successful. THE DEFENDANTS’ CASE (9) Before the 3rd Defendant was joined to the suit, the 1st and 2nd Defendants had filed a joint statement of defence on 16th March 2017. Subsequent to the joinder of the 3rd Defendant, she initially filed a statement of defence on 24th July 2017. In that defence, the 3rd Defendant counterclaimed against the Plaintiff as follows: Page 4 of 46 i. A declaration of title to all that piece and parcel of land with building thereon particularly described in the Schedule hereto; ii. An order of perpetual injunction restraining the Plaintiff whether by himself, his servants, agents or otherwise howsoever from interfering with 3rd Defendant’s peaceful enjoyment of the property, the subject matter of the suit. iii. Costs including lawyer’s fees. iv. Any other order (s) that his honourable court deems fit. (10) The land claimed by the 3rd Defendant was described in the schedule to her defence as: “All that piece or parcel of land with building thereon and known as House No. D959/3 situate lying and being at Knutsford Avenue Accra aforesaid and bounded on the North by Knutsford Avenue, Accra aforesaid measuring forty eight feet six inches (48’-6’’) more or less on the South by Malam Osuman’s property measuring fifty feet (50’) more or less on the East by Salaga’s property measuring eighty four feet six inches (84’-6’’) more or less and on the West by Jemima Nassu’s land measuring Eighty Six feet six inches (86’-‘’) more or less and containing an area of four thousand three hundred and fifty (4,350) square feet or thereabouts”. (11) On 1st March 2018, all three Defendants applied to amend their respective pleadings in order to file a joint State of Defence to the Plaintiff’s action. Paragraph 7 of the affidavit in support of the application is instructive: “7. That upon the appointment of our new Counsel and his advice, we wish to amend our separate statements of defence aforesaid as follows; Page 5 of 46 a. By filing a joint and composite/one statement of defence for all 3 of us; b. By amending and/or providing the correct residential addresses of all of us contrary to what the Plaintiff did; c. By adding to the 3rd Defendant’s name (Victoria Abena Apomasu). d. By withdrawing 3rd Defendant’s counterclaim. e. By pleading and giving the particulars of the defences of fraud and statute of limitation”. (Emphasis Added). (12) The application to amend therefore was granted by the trial court per the order dated 16th March 2018. The Defendants thereupon contested the action on the basis of their joint amended statement of defence with the effect that the 3rd Defendant was seemed to have abandoned her separate statement of defence and counterclaim while in the joint amended statement of defence no counterclaim had been set up by the Defendants at all. (13) In the said amended statement of defence filed on the 21st March 2018, the Defendants denied the material averments contained in the Plaintiff’s statement of claim in respect of the subject matter of the dispute. It was contended on behalf of the 3rd Defendant that, she is a bona fide and beneficial owner of the subject matter and had been in undisturbed possession by herself and through her lawful occupants, tenants and caretakers such as the 1st and 2nd Defendants. The Defendants further attacked the Plaintiff’s root of title as pleaded in the amended statement of claim as being Page 6 of 46 a “gigantic fraud and falsehood”. Defendants particularised their allegation of fraud as follows: (a) “That the entirety of the Plaintiff’s root of title as averred is fictitious and at best forgeries. (b) That the 3rd Defendant did not know nor did she have any transactions with Rachel Afriyie (a.k.a Afriyie a.k.a. Afriyie) Welbeck, Plaintiff’s purported predecessor in title. (c) That the subject property is a building comprising shops at all material times. (d) That the 3rd Defendant purchased the said property from Bhojson & Co. Ltd. on 27th December 1973. (e) That the said property has never been sold, abandoned, vacated or surrendered to anyone by the 3rd Defendant, as it has been occupied and used by her lessees, tenants and caretakers. (f) That the purported deed of sale dated 10th March, 1976 between 3rd Defendant and Racheal Afriyie Welbeck and the purported Deed of Assignment dated 7th January 1991 between the 3rd Defendant and Foo Chang Soo are forgeries. (g) That the purported transfer of the subject property on 18th February, 1992 by Foo Chang Soo to Rachel Afriyie Welbeck are all fraudulent and an act of forgery. (h) That the said Foo Chang Soo was 3rd Defendant’s lesee/tenant who occupied one (1) shop by a lease dated 7th Page 7 of 46 January 1992 for fifteen (15) years certain commencing 10th January 1991 which has since 2006 ended/expired. (i) That any documents and transactions being relied on by the Plaintiff are entirely products of forgery and dishonesty. (j) That the said Foo Chang Soo had even abandoned or vacated the premises long before the end of his tenancy.” (14) We are mindful that, the rules of pleadings, as per Order 11 Rule 12 of the High Court Civil Procedure Rules, 2004 (C.I.47) requires that where allegations of fraud are made, the particulars of same must be set out. This rule is grounded in the accepted jurisprudence that, fraud is an allegation which must be proved by a higher statutory standard beyond reasonable doubt. (15) Therefore, a general claim or assertion of forgery or fraud is therefore insufficient. There ought to be an isolation in the pleadings of the specific situations or events which make up the fraud alleged. This is the particularization that must accompany a plea of fraud. In order to discharge this burden of a plea of fraud, the party alleging is not to reiterate the expressions fraud or forgery without more. (16) In the recent majority decision of this court in the case of EDEM AFFRAM AND NANA NIMAKO VS. BERNARD YAW OWUSU- TWUMASI & ORS. CIVIL APPEAL NO.J4/47/2021 DATED 15TH FEBRUARY 2023, (unreported) I stated in my concurring opinion of the majority decision as follows:- Because “fraud” is a serious offence, which requires a higher standard of proof, the law demands, that a general plea that Page 8 of 46 one has been fraudulent is insufficient. The law mandates pleadings of fraud to set out the necessary particulars of the allegation of fraud. Thus, Order 11 Rule 12 of the High Court Civil Procedure Rules, 2004 (C.I. 47) headed particulars of pleading enacts that: “(1) Subject to subrule (2), every pleading shall contain particulars of any claim, defence or other matter pleaded including, but without prejudice to the generality of the foregoing words: (a) particulars of any misrepresentation, fraud, breach of trust, willful default or undue influence on which the party pleading relies;… (b) …” Therefore, setting out the particulars of an item of pleading is not to use the same item in description. Fraud simply amounts to dishonesty. In giving particulars of fraud it will be redundant and circular to still use the word “fraud” or “fraudulent” without pointing out what constitutes the said “Fraud” or “fraudulent” else, the supposed particulars of pleading will require further particularization. In their paragraph 13 of the amended statement of claim, the Plaintiffs’ particulars of fraud were settled as follows:- “a. That unknown to Plaintiff, 1st Defendant without following due process fraudulently removed Plaintiff as director of 2nd Defendant company. b. 1st Defendant has fraudulently altered the shareholding structure of the company to remove Plaintiff as shareholder without due process. c. That according to the new shareholding Page 9 of 46 structure, Plaintiff is mysteriously no longer a director or shareholder of 2nd Defendant Company. d. That 1st Defendant fraudulently transferred Plaintiff’s shares to 1st Defendant wit out his consent and or due process”. The above, with much deference falls short of what passes as particulars of fraud. As observed by Gbadegbe JSC in the case of NANA ASUMADU II (DECEASED) Substituted By: NANA DARKU AMPEM AND ANOR. VS. AGYA AMEYAW [2019-2020] 1 SCGLR 681, at pages 698-699 cited by Counsel for Defendants… Without going into what constitutes a good plea of fraud at law, I say without any hesitation that a party who pleads fraud as the foundation of his case cannot be permitted to aver in his pleading for that purpose the very technical term which he is required to particularise…the Plaintiff was required to provide the following particulars of the fraud that was alleged against the Defendant: (i) that the Defendant on a date in the course of testifying the action made a false statement (representation) of a material fact in the action; (ii) that the Defendant in making the statement knew that it was false( iii) that the Defendant intended to induce the court to act upon the false statement; and (iv) that the court in its judgment acted upon the said false statement resulting in judgment being tendered against the Plaintiff to his detriment or prejudice…It is important that the particulars show with specificity that in making the false statement to the court, the defendant intend to deceive the court-the element of dishonesty”. (17) We have isolated this issue of fraud in order to draw home the defect in the Defendants’ particularization of their allegation of fraud against the Plaintiff. The said particulars fall short of the Page 10 of 46 standard required of the plea. It is hoped that, practitioners will pay attention to this area of pleading. Be that as it may, as this court has previously held, in appropriate circumstances even where there is no pleading on fraud, but same is apparent for a finding to be made from the evidence adduced at the trial, the court is not restrained from making such a finding. See the cases of AMUZU VS. OKLIKAH [1988-199] SCGLR 141; JOANA NYARKO VS. MAXWELL TETTEH IN CIVIL APPEAL NO.J4/27/2019 DATED 11TH DECEMBER 2019 (Unreported). (18) Having so observed, in the Defendants’ amended statement of defence, they unequivocally denied knowing the Plaintiff. The Defendants also contended that the Plaintiff’s action apart from being tainted with fraud is statute barred within the provisions of the Limitation Act 1972 (NRCD 54) the action not having been commenced since 1976 nor 1992, and 1994 when the purported right over the subject matter accrued, as the Plaintiff had by these dates become aware of their adversarial interest to the subject matter. (19) In the reply to the amended statement of defence, the Plaintiff pleaded that his grandmother’s grantor, incidentally the 3rd Defendant herein one Mrs. Victoria Mensah alias Miss Victoria Abena Apomasu acquired the disputed land from Bhojsons & Company (Ghana) Limited. The Plaintiff asserted that, subsequent to the said acquisition of the disputed land in the said 1973, the said Victoria Mensah on the 10th day of March 1976 sold the same to the Plaintiff’s grandmother, Rachel Afriyie (aka Afriyie) Welbeck. Page 11 of 46 (20) The Plaintiff further pleaded that, for whatever reason, he could not fathom how Victoria Mensah again on the 7th of January 1991, purportedly sold the disputed property to one Foo Chang Soo. That, when it came to the notice of the Plaintiff’s said grandmother that her said grantor had resold the disputed property to the said Foo Chang Soo, she vehemently protested to her grantor and upon negotiations between the parties, it was agreed that the said Foo Chang Soo should re-assign the disputed property to the Plaintiff’s said grandmother. According to the Plaintiff, Foo Chang Soo did re- assign the disputed property back to Plaintiff’s grandmother by executing a Deed of Assignment dated 18th February, 1992. (21) The Plaintiff thus contended that, on the 7th January 1991, the property was no longer available to the said Mrs. Victoria Mensah to have properly and lawfully transferred any interest in same to the said Foo Chang Soo as claimed by the Defendants. ISSUES FOR DETERMINATION AT THE TRIAL COURT: (22) In the judgment of the trial court, the Learned Trial Judge set down the underlisted issues for determination: 1. “Whether or not the Plaintiff’s grandmother Rachel Afriyie (aka Afriyie) Welbeck was the legal owner of the disputed land. 2. Whether or not the Plaintiff’s claim/action is statute-barred in terms of the Limitation Act, 1972 (NRCD 54). 3. Whether or not the Plaintiff’s claim/action is founded on and vitiated by fraud and /or forgery. 4. Whether the Plaintiff is entitled to his claim.” Page 12 of 46 JUDGEMENT OF THE HIGH COURT (23) On 14th February 2024, the trial court delivered judgment in favour of the Plaintiff and awarded costs of Gh¢40,000.00 against the Defendants. The trial court made an emphatic finding that, the evidence on record shows that, the Defendants had been possessed of the disputed property for a long time. The court was however of the view, relying on the case of OSEI (Substituted By:) GILARD VS. KORANG [2013-2014] 1 SCGLR 221 the long possession could not oust the interest of the true owner. In it’s judgment, the trial court relied on Exhibit “E” as a basis of the conveyance back to the Plaintiff’s grandmother on 10th March 1976 as well as Exhibit “G” which was a conveyance back to the Plaintiff’s grandmother from Foo Chang Soo. For the trial court, the Defendants did little to challenge these pieces of documentary evidence and therefore, same had settled the issue of legal ownership of the property in the Plaintiff’s grandmother. (24) On the issue of limitation, the trial court was of the view that, the Defendants failed to lead any evidence to prove same and had appeared to have abandoned it. With respect to the issue of fraud, the Trial Judge found as insufficient the particulars of fraud set out by the Defendants. The trial court further found that, the Defendants carried the burden to prove the fraud alleged but had failed to prove same in accordance with the requisite statutory standard. (25) On the issue of the Plaintiff’s capacity, which was first raised in the final address of counsel for the Defendants, the trial court ignored it on the basis that, same was not raised timeously to have enabled all the parties to appropriately address same. Based on these Page 13 of 46 findings the trial court delivered itself and made its final orders as follows: “[T]he Plaintiff having led sufficient evidence in support of his grandmother and father’s prior ownership of the disputed property is entitled to reliefs (a), (b), (c) and (f) of his claim. Relief (e) which is a claim for mesne profit is refused since he did not lead sufficient evidence to prove same. Damages for trespass against the Defendants is also refused since it only now that it has been established that their occupation of the disputed property is unlawful after the legal owner has now been established.” APPEAL TO THE COURT OF APPEAL (26) Dissatisfied with the judgment of the trial court, the Defendants appealed against same to the Court of Appeal per notice filed on 26th February 2020. In the judgment of the Court of Appeal, the Learned Justices of the Court set aside the judgment of the trial court and entered judgment in favour of the Defendants “on the 3rd Appellant’s “counterclaim” (Emphasis mine). (27) In it’s judgment, the Court of Appeal confined itself to the issues of capacity and limitation. The Court of Appeal reasoned that, the Plaintiff was bereft of capacity to have litigated in respect of the subject of the dispute. Further, on limitation, the Court of Appeal found that, the Defendants had been in adverse possession of the subject matter for a long time as against the Plaintiff and thus, the Plaintiff was estopped from seeking to litigate the ownership of the disputed property. (28) In determining the issue of capacity the Court of Appeal expressed itself in extenso as follows: Page 14 of 46 “We have critically evaluated the evidence led on record in the instant appeal. Now, in the light of the available evidence stated supra, it cannot be put to any serious doubt that there were pieces of evidence led on record that touched on, and concerned the respondent’s capacity to mount the suit although admittedly, the Appellants never so distinctly pleaded it in their statement of defence. In the circumstances, we roundly uphold the submissions of learned Counsel for the Appellant that the judge fell into error when he held that because the Respondent’s capacity was not raised as an issue for trial, the lower court could not pronounce on it. … Needless to emphasize, we have carefully examined and evaluated the evidence led in this case and we think that on the evidence and on the law, the Respondent lacked the capacity to mount the action principally for two (2) reasons. First, the Respondent was unable to lead any cogent evidence to show clearly that the subject matter of this suit formed part of either his father’s estate or the grandmother’s estate. The Respondent could only succeed if he led sufficient and cogent evidence to show that the subject matter formed part of his deceased father’s estate or that his father became the sole beneficial owner of the disputed property on the demise of Respondent’s grandmother. … The second equally important reason we proffer for holding that the Respondent lacked legal capacity is that by operation of law, the respondent did not come into the category of persons who reserved the legal capacity to deal with the disputed property. In answer to a question under cross- examination the Respondent admitted unequivocally that of all Page 15 of 46 the four (4) persons who took Letters of Administration de bonis non, one of them i.e. Daniel Oko Welbeck is still alive. As stated elsewhere in this judgment, Exhibit H did not have any probative value for the determination of the case. Nevertheless, if we were to hold otherwise that it was relevant, we do maintain that insofar as Daniel Oko Welbeck, the sole surviving Co-administrator is still alive and there is no evidence on record to show that he has renounced the L/A, or that he gave the Respondent a power of attorney to act for him, the respondent cannot legitimately administer the disputed property. As a child, by operation of law, he has that legal capacity to apply for and obtain L/A to administer the estate of his deceased father, Rudolph Welbeck @ Abdulai only in respect of the movable and immovable properties his later father acquired in his lifetime. He cannot administer any other property whose administration is vested in a Co-administrator.” (29) With respect to the issue of limitation/adverse possession, the Court of Appeal delivered itself as follows: “As a matter of fact, per the claims endorsed on the writ of summons, the Respondent was claiming for, inter alia, damages for trespass and an order for recovery of possession of the disputed property as well as mesne profit. These claims imply that the Appellants were in adverse possession. The overwhelming evidence as the lower court found is that the Appellants have been in occupation and possession for a long time, long before the Respondent issued the writ of summons. Ironically, the Respondent in reaction to a question under cross-examination stated that his late father was aware that Foo Chang Soo was in occupation of the disputed property. Page 16 of 46 Whereas the 3rd Appellant tendered in evidence Exhibit “1” to show that she acquired the disputed property from Bhojson & Co. Ltd, and Exhibit “2” to show that she leased the said property to the said Foo Chang Soo, the Respondent on the other hand, claimed that his father told him that Foo Chang Soo left the place and a cousin of his father went and occupied it. However, the Respondent did not tell the lower court who that cousin was, neither did he invite that party to give evidence to corroborate him. We do, therefore, agree with and uphold the arguments of Learned Counsel for the appellants that the evidence rather showed that the appellants have been in occupation of the disputed property for a long time. Once the Respondent and his predecessor-in-title [his father] were aware that the Appellants were in occupation adverse to their interest but did nothing to dislodge them, the action of the Respondent was caught by statute of limitation as provided for under Section 10(1) of (NRCD 54).” APPEAL TO THE SUPREME COURT (30) Dissatisfied with the judgment of the Court of Appeal, the Plaintiff launched the instant appeal per notice of appeal filed on the 15th February 2022 where the following grounds of appeal were formulated and set out. (a) “That the judgment is against the weight of evidence on record. (b) Their Lordships erred by holding that, the Plaintiff did not have capacity to institute his action. Page 17 of 46 (c) Their Lordships erred by holding that the Plaintiff’s action was statute barred. (d) Their Lordships erred by setting aside the judgment of the High Court and entering judgment in favour of the 3rd Appellant on her counter-claim when indeed and in fact the 3rd Defendant had no such counter-claim. (e) Additional grounds of appeal will be filed upon receipt of a copy of the record of appeal.” (31) It must be pointed out that, though the Plaintiff expressed in the notice of appeal the intention to file additional grounds of appeal, no additional ground was filed. This point is crucial to a determination of the issues raised in the appeal because contrary to the ground rules of this court, the Plaintiff sought to argue an extraneous ground unfounded in the notice of appeal. We shall revisit this approach by the Plaintiff’s counsel in due course. In this appeal before us, the Plaintiff prays this court for an order to set aside the judgment of the Court of Appeal and in it’s stead, judgment be entered in his favour. APPEAL TO THE SUPREME COURT (32) It is settled law that, an appeal to this court is by way of rehearing. The rules of court, and consensus of judicial authority enjoins this court to engage in a review of the entire record of appeal, from the trial court, through the Court of Appeal, as well as the respective statements of case filed by the parties in this court. In discharging it’s duty, this court is enjoined to correct any error which characterised either judgments of the two lower courts in order to arrive at it’s own decision in the matter. Page 18 of 46 (33) At the end of it’s evaluation of the entire record, this court will either affirm the decision of any of the lower courts or substitute any finding it finds erroneous with the appropriate finding. In order to determine the appeal, the Plaintiff, who has appealed against the judgment of the Court of Appeal carries the burden of pointing out from the record the aspects of the judgment he contends to have been in error. This duty is specially compelling, having among other grounds, urged the omnibus ground on this court. See the cases of OPPONG VS. ANARFI [2011] 1 SCGLR 556; DJIN VS. MUSAH BAAKO [2007-2008] SCGLR 686; TUAKWA VS. BOSOM [2001-202] SCGLR 61 etc. (34) The 1992 Constitution empowers this court, with all the powers vested in the trial and first appellate court to reverse any erroneous finding; correct a misapplication of the law to the facts and evidence before the court while ensuring that, no miscarriage of justice is occasioned. Article 129(4) of the 1992 Constitution sets out the powers of this court as follows: “For the purposes of hearing and determining a matter within its jurisdiction and the amendment, execution or the enforcement of a judgment or order made on any matter, and for the purposes of any other authority, expressly or by necessary implication given to the Supreme Court by this Constitution or any other law, the Supreme Court shall have all the powers, authority and Jurisdiction vested in any court established by this Constitution or any other law.” (35) It has been settled by a plethora of decisions of this court that, an appellate court ought to be slow in disturbing findings of facts made by a trial court. This is because it is the court of first instance Page 19 of 46 that has had the benefit of seeing, observing and assessing the credibility of the witnesses at the trial. However, this position is not without exceptions. For, it is equally well settled that, where the circumstances so warrant albeit exceptionally, an appellate court or this second appellate court can reverse findings of facts made by a trial court or the first appellate court which are not supported by the evidence on record; or that same were arrived at, based on some erroneous misapplication of the law. This court is also vested with power to set aside such findings which in it’s view will occasion a miscarriage of justice. See the case of EFFISAH VS. ANSAH [2005-2006] SCGLR 742 where this court articulated on the principle in the following words: “. . .the well settled rule governing the circumstances under which an Appellate court may interfere with the findings of a trial tribunal, has been examined times without number by this court in a number of cases as for example, FOFIE VS. ZANYO [1992]2 GLR 475 AND BARCLAYS BANK GHANA LTD. VS. SAKARI [1995-97] SCGLR 639. The dictum of Acquah JSC (as he then was) in the Sakari (as he then was) in the Sakari case is for our purpose highly relevant. His Lordship observed (at page 650 of the Report) as follows: “………….where the findings are based on undisputed facts and documents………….the appellate court is in decidedly the same position as the lower court and can examine facts and materials to see whether the lower courts’ findings are justified in terms of the relevant legal decisions and principles”. ANALYSIS OF GROUNDS OF APPEAL (36) A crucial threshold issue arising from this appeal is the determination of the issue of capacity of the Plaintiff which the Court of Appeal determined against the Plaintiff. Since a challenge to capacity, even in a second appeal goes to the jurisdiction of the court, it is important that, same be determined first as a Page 20 of 46 foundation or gate way issue. Therefore, we shall commence the examination of the grounds with an analysis of the second ground of appeal which is formulated as follows: “THEIR LORDSHIPS ERRED BY HOLDING THAT THE PLAINTIFF DID NOT HAVE CAPACITY TO INSTITUTE HIS ACTION”. It is trite law that, there is a radical distinction between the capacity of a party in an action and the merits of the action. Therefore, a party bereft of capacity, is, in the eyes of the law, non- juristic and cannot be vested with a cause of action to prosecute nor defend same as the case may be. The position of the law is that, the person whose capacity is challenged has the onus of proving that he has the requisite capacity to pursue or defend a claim. (37) It is also settled that, the issue of capacity can be raised at anytime even in a second appeal. However, it is preferrable that, issues of capacity, particularly those shrouded in seemingly conflicting factual circumstances such as in the instant case, be timeously raised to enable the party against whom it is raised to properly respond to same. This will also assist the court, to arrive at an informed and just decision. The practice where such factual issues on capacity which ought to be conveniently settled as part of a party’s pleading are raised belatedly at a trial as the Defendants did, even though conceivable, ought not to be encouraged. (38) In the instant case, the issue of capacity was never raised in the Defendants’ pleadings at the trial court but was for the first time raised in the written submission of counsel for Defendants at the trial court. In that submission, it was submitted on behalf of the Defendants as follows: “The foundation of Plaintiff’s claim is defective since neither his father nor his brothers were granted Letters of Administration Page 21 of 46 in respect of the disputed property. Plaintiff’s vesting assent which supposedly vests the disputed property in him is defective. In sum, the Plaintiff not an administrator and/or beneficiary of Abdulai Aldophus Welbeck in respect of the disputed property and does not have the legal capacity to institute this action.” (39) In concluding the address, counsel for the Defendants reiterated the submission thus: “The Plaintiff lacks capacity to institute this action hence his action should be dismissed with punitive cost awarded against him in favour of the Defendant.” (40) In determining the issue of the Plaintiff’s capacity, the Court of Appeal expressed itself as follows: Needless to emphasize, we have carefully examined and evaluated the evidence led in this case and we think that on the evidence and on the law, the respondent lacked the capacity to mount the action principally for two (2) reasons. First, the Respondent was unable to lead any cogent evidence to show clearly that the subject matter of this suit formed part of either his father’s estate or the grandmother’s estate. The Respondent could only succeed if he led sufficient and cogent evidence to show that the subject matter formed part of his deceased father’s estate or that his father became the sole beneficial owner of the disputed property on the demise of Respondent’s grandmother. In discharging that burden to preventing a ruling against him in terms of Sections 11 and 12 of the Evidence Act, 1975 (NRCD 323) the Respondent ought to have tendered in evidence, an Page 22 of 46 inventory exhibiting the precise properties of the late Rachel Afriyie Welbeck [aka Afriyie Welbeck] as well as his father’s. Additionally, he should have led evidence to prove that Rudolph Welbeck Abdulai took over in administering the property and or inherited it from his sister and has come to him Respondent] through succession. (41) With all due respect to the Learned Justices of the Court of Appeal, while we agree with their exposition of the law on capacity, their application of the law on the issue is clearly misconceived as they fell in grievous error in their apprehension of the issue. The Court of Appeal as could be discerned from it’s reasoning, decided the issue of capacity on the merits of the claim put forth by the Plaintiff. Is the Court of Appeal to be understood as holding that, the Plaintiff is not the Administrator of the estate of his father? Certainly that cannot be borne by the evidence on record. And if the Plaintiff lacks capacity as argued by the Defendants’ counsel can a counterclaim be granted against a party who “lacks capacity to institute action” and thus not juristic? (42) Juridically speaking therefore, there is no basis to support the finding that the Plaintiff is bereft of capacity only because the subject matter (property) does not form part of the estate of the Plaintiff’s father. In our view, it is one thing to, on the basis of a particular capacity grounded in statute or facts to litigate in respect of a property over which the person so litigating is not known to law. It is a different matter and legal incident where a person who is known to law or whose position is grounded on statute, proceeds to litigate in respect of a subject matter but fails on the evidence before the court to prove his claim. Page 23 of 46 (43) Whereas the first situation is jurisdictional, in the second situation, it is the court which finds that, the property actually did not belong to the estate over which the Claimant is a trustee. The second situation, advances an analysis on the merits of a suit and a determination made on the evidence and the applicable law while the first situation, is a challenge on the right to be heard at all. Therefore, the mere fact that a party litigates in respect of a property which the court finds in it’s judgment that, the party has no interest or locus in same will not necessarily deprive the person of the capacity to mount the action. With all due deference to the Learned Justices of the Court of Appeal, they were in error when they misapprehended the distinction between want of capacity and merit of a claim. (44) On the pleadings before the court, particularly that of the Plaintiff, the most important interrogatory would have been, whether, as alleged by the Plaintiff, he is an administrator and beneficiary of his father’s estate? The issue should not have been whether, the alleged estate belongs to his father to clothe the Plaintiff with juristic capacity. If the latter were the proper position, then, it would have been needless to interrogate any issue of capacity issue. This is because, if the position of the Court of Appeal were accurate, once a party loses a claim in an action in respect of an estate, that party would be said to have been bereft of capacity to sue. Such a situation is legally untenable. That is why the preferred procedural approach in adjudication is for a court to resolve any issue capacity issue first, being a threshold or foundation issue. And where an issue of want of capacity is upheld, a determination on the merits is unnecessary. Page 24 of 46 (45) In the amended statement of claim filed on the 13th June 2017, the capacity of the Plaintiff was evident from the following pleaded paragraphs. 1. “The Plaintiff is a Beneficiary as well as an Administrator of the estate of the late Adolphus Welbeck Abdulai (the “Deceased”); who died intestate on the 14th of July, 2016. 2. The Plaintiff says that on the 18th day of February, 1992, Foo Chang Soo granted the property described in the schedule below to the Plaintiff’s Deceased grandmother, the late Rachel Afriyie (aka Afrieyie) Welbeck for the unexpired period of the head lease by the execution of a Deed of Indenture dated the said 18th day of February, 1992 in favour of the said Rachel Afriyie (aka Afriyie) Welbeck. 3. The Plaintiff further says that upon the death of the said Rachel Afriyie Welbeck, the High Court, Accra , on the 10th of February, 1994, granted Letters of Administration Messrs (sic) to Seth Okai Welbeck, Ebenezer Yikai Welbeck, Daniel Okoe Welbeck and Adolphus Welbeck @ Abdulai; the Plaintiff’s father, to administer the estate of the said late Rachel Afriyie Welbeck. 4. The Plaintiff avers that all the other Administrators died leaving only the Plaintiff’s father, the said Adolphus Welbeck @ Abdulai, who accordingly became the sole Administrator of the said estate. 5. The Plaintiff further avers that the said Adolphus Welbeck @ Abdulai administered the said estate whereof he vested same in himself by virtue of a Deed of Vesting Assent dated the 12th day of January 2013. Page 25 of 46 6. The Plaintiff says that the said Adolphus Welbeck Abdulai subsequently died intestate on the 14th of July, 2016 whereof the Plaintiff herein applied for and was granted Letters of Administration on the 7th day of September, 2016 by the High Court Accra to administer the estate of the said Adolphus Welbeck Abdulai. 7. The Plaintiff further says that on the basis of the said Letters of Administration granted him on the said 7th September, 2016, he vested the disputed property in himself by the execution of a Deed of Vesting Assent dated the 27th of September, 2016. (46) It is therefore clear from the Plaintiff’s pleading that, the capacity in which he mounted the action at the trial court was poignantly pleaded, right from the first paragraph of the amended statement of claim just as in the original statement of claim filed. Thus, the Plaintiff commenced the action in his capacity as an Administrator of the Estate of his deceased father (Adolphus Welbeck Abdulai) as well as a beneficiary of the said estate. Based on such pleading, the relevant issues that arise for determination assuming Plaintiff’s capacity was put in issue would have been: whether the Plaintiff is the Administrator of the estate of his deceased father? and whether the Plaintiff is a beneficiary of the said father’s estate? (47) The evidence on record dispels any doubt regarding a positive finding on the above two posited interrogatories. With respect to the Plaintiff’s being an administrator of the father’s estate, Exhibit “B”, the Letters of Administration dated 7th September 2016 in respect of the estate of Plaintiff’s father affirms that, same was granted to Plaintiff to administer his father’s estate. Again, Plaintiff’s father having died intestate, the Plaintiff’s interest in the Page 26 of 46 father’s estate is actually statutorily saved by the Intestate Succession Act, 1985 (PNDCL 111) as a beneficiary. (48) Therefore, the issue of what assets constitute the estate property does not arise at all in the determination of the Plaintiff’s capacity to mount an action in respect of the estate. The Court of Appeal was unfortunately swayed by such reasoning and thus beclouded the rather simple resolution of the merits of the Plaintiff’s claim with the issue whether Plaintiff had capacity to mount the action as was urged on them by the Defendants. (49) In our resolution of capacity issue, we are in agreement with learned counsel for Plaintiff when he submits thus: “My Lords, with the greatest of respect to their Lordships in the lower court, it was wrong to tie capacity of the appellant to the merits of the case. Capacity is fundamental and does not concern the merits of the case. Thus, when the issue of a plaintiff’s capacity is raised, it is not concerned with the merits of the matter. That issue when raised, should be decided devoid of delving into the merits of the matter”. (50) Consequently, we find that, the Court below erred in its finding that, the Plaintiff was bereft of capacity to mount the action. There is no doubt in our view that, the Plaintiff demonstrated enough standing to have sustained the action at the trial court. It is not novel that the concept of capacity and locus standing is shrouded in agreed import. They however, vary in legal meaning and incidents. Whereas, as rightly observed by the Court of Appeal, capacity resonates the legal personality of a person to pursue an action, locus standing asserts a sufficient legal interest in the res litiga enabling a person to pursue an action. Page 27 of 46 (51) This court has developed the jurisprudence in drawing the distinction between these two concepts in a few cases where the issue arose for determination. In FLIORINI LUCA & ANOR. VS. MR. SAMIR & 2 ORS. CIVIL APPEAL NO. J4/49/2020 DATED 21ST APRIL, 2021 (Unreported) this Court per Pwamang JSC unanimously explained the distinction by holding as follows: “It is pertinent to recognize that though capacity and locus standi are closely related and in many instances arise together in cases in court they are separate legal concepts. Capacity properly so called relates to the juristic person and competence to sue in a court of law and it becomes an issue where an individual sues not in her own personal right but states a certain capacity on account of which she is proceeding in court. But locus standing relates to the legal interest that a party claims in the subject matter of a suit in court. This may be dependent on the provisions of the statute that confers the right to sue, such as the Fatal Accidents Acts in AKRONG VS. BULLEY. Otherwise, generally locus standing depends on whether the party has a legal or equitable right that she seeks to enforce or protect by suing in court. In AKRONG VS. BULLEY the statute conferred locus standing on only executors, administrators and Dependents but the Plaintiff stated that she was suing as “successor and next-of kin” so the court held that she had no locus standing as she did not take letters of administration before commencing the action which would have clothed her with capacity as an administrator.” (52) In his further articulation of the concepts in the case of BOARD OF GOVERNORS, ACHIMOTA SCHOOL VS. NII AKO NORTEY II [2020] GHASC 20, his Lordship echoed his thoughts on the issue as follows: Page 28 of 46 “At times locus standing is confused with capacity but they are of different juridical backgrounds though the underlying policy reasons are the same. Capacity relates to the legal personality of a party to proceedings and becomes an issue where a party is proceeding not for her personal benefit but under a stated legal or representative capacity”. (53) Furthermore, in the recent decision of this court in the case of ANDREWS NARH BI & 3 ORS. VS. ASAFOATSE KWETEY AKORSORKU III CIVIL APPEAL NO.J4/28/2022 DATED 27TH JULY 2023 (unreported) where I had the privilege of delivering the unanimous decision of the court, I said inter alia as follows: “In the instant case therefore, what was lost on both counsel in the instant appeal, as well as the learned justices of the two lower courts is that, both the original Plaintiff as well as his substitute had sufficient standing to mount or sustain the action before the trial court. That is, the two lower courts, with respect confused the issue of capacity with the concept of locus standi, thereby completely ignoring an evaluation of the latter. If the trial court had adverted its mind to the standing of the Plaintiff, it would have not dismissed the action for want of capacity as the Plaintiff or his substitute per their pleadings had demonstrated sufficient vested interested in the subject matter of the suit. While appreciating the conceptual similarity between the issue of capacity and locus standi, or standing, the two are of different legal effect and import. Capacity references the legal persona of a person to litigate in terms of whether the party is juristic or not. That is, what a person alleges he is, which is recognized by the law to cloth him with an adjudicating right. Thus, in the case of ADISA BOYA VS. ZAINABU NASKE this court speaking through Gbadegbe JSC held on this issue as follows: “[W]e are of the view that by virtue of the rules on Page 29 of 46 intestacy contained in Section 4(1) (a) of the Intestate Succession Law, PNDC Law 111, following the death of the father of the defendants and their mother-the original 1st Defendant, the property devolved upon the children and as such they had an immediate legal interest in the property that they are competent to defend and/or sue in respect of and in any such case either of the children acting together or any of them acting on behalf of the others may seek and or have an order of declaration of title made in their favour. The above statements should however, not be taken ordinarily to imply access to the courts by complete strangers in so far as they can demonstrate per their pleadings sufficient interest in the subject matter. The policy exception is that, where the law recognises only a person with a special status, with the capacity to litigate in respect of a subject status, with the foreclosing of the standing of others, those others, cannot proceed under the sufficient interest umbrella to force a hearing before the court.” (54) It is thus clear that, a beneficiary of an estate of an intestate is not foreclosed from commencing an action to protect the said estate. It bears emphasis that, whether or an asset forms part of that estate is another matter which should go to the merits of the claim but not to be construed as the sole determinant of whether a party is clothed with capacity to sue in respect of the estate. (55) This issue of determination of capacity to sue also arose in the case of BANDOH VS. APPEAGYEI-GYAMFI & ANOR. CIVIL APPEAL NO. J4/16/2016 DATED 6TH JUNE 2019 where this Court dismissed an objection raised against the Appellant for want of capacity. The Respondent had argued that, the Appellant failed to disclose the capacity in which she sued in the writ of summons and since she was only a beneficiary, she could have only mounted the action if Page 30 of 46 she had letters of administration or probate and same indorsed on the writ. This court speaking through Marful-Sau JSC (of blessed memory) dismissed the objection as being far-fetched. The learned justice held as follows: “I have examined Appellant’s writ of summons and statement of claim and I hold the view that the issue raised on appellant’s capacity is far-fetched and an afterthought. It is clear that no such endorsement as to capacity appears on the writ of summons. However, at paragraph 1 of the statement of claim, Appellant pleaded as follows:- “1. Plaintiff is the personal representative of Dr. Evelyn Vanderpuye (deceased), beneficiary owner of the land the subject matter of the suit and brings this action on her own behalf and on behalf of the children of the said Dr. Evelyn Vanderpuye”. From the above pleading, Appellant made it clear that she was bringing the action in her capacity as the personal representative of the deceased mother and also on her own behalf and that of the children of the deceased mother. The capacity of the Appellant was thus clear from the statement of claim but not on the writ of summons. Having furnished the requisite capacity in the statement of claim, the defect on the writ of summons is thus cursed. Counsel for the Respondents in his statement of case cited the case of ADISA BOYA VS. ZENABU MOHAMMED (Substituted By: ADAMA MOHAMMED) & MUJEEB, UNREPORTED JUDGMENT OF THIS COURT IN CIVIL APPEAL NO. J4/44/2017 OF 31ST JANUARY 2018, and described the judgment as “a radical proposition of alternative perspectives to some established relevant principles of law.” In that case this court speaking Page 31 of 46 through Gbadegbe, JSC, held that the defendants who were the children of the estate had immediate interest in the property and for that reason, they were competent to defend or even sue for declaration of title, notwithstanding the fact that they had not obtained any letters of administration. I wish to add that the above position of law is only fair and equitable in view of the interest created in estate for beneficiary children, under the Intestate Succession Act, PNDC Law 111. I therefore, entirely agree with the legal position enunciated by Gbadegbe JSC, and hold that even in this appeal the appellant, being a beneficiary child, was a competent party, notwithstanding the fact that she had no letters of Administration.” (56) In view of the aforementioned authorities which clearly vindicate Plaintiff’s vested capacity to sue, we have no hesitation in holding that, not only was the Plaintiff’s capacity well set out, and authorized by the pleadings, the Plaintiff also demonstrated enough standing to sustain the action. The Plaintiff had asserted per his pleadings that he has a beneficial interest in the disputed property, same, having devolved unto him following his father’s demise who was also a beneficiary following the demise of Plaintiff’s grandmother. In the premises we will allow this ground of appeal having found that, the Court of Appeal erred in holding that, the Plaintiff did not have capacity to institute the action. (57) We shall now proceed to evaluate the remaining grounds together. They are as follows:  THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE ON RECORD  THEIR LORDSHIPS ERRED BY HOLDING THAT THE PLAINTIFF’S ACTION WAS STATUTE BARRED. Page 32 of 46  THEIR LORDSHIPS ERRED BY SETTING ASIDE THE JDUGMETN OF THE HIGH COURT AND ENTERING JUDGMETN IN FAVOUR OF THE 3RD APPELLANT ON HER COUNTER- CLAIM WHEN INDEED AND IDN FACT THE 3RD DEFENDANT HAD NO SUCH COUNTER-CLAIM (58) By anchoring the appeal on the omnibus ground of appeal, the Plaintiff places himself under an obligation to demonstrate from the record of appeal how the judgment of the Court of Appeal is against the weight of evidence on record. To discharge this burden, the Plaintiff must demonstrate that, the Learned Justices misapplied the law to the evidence on record; or failed to take account some crucial piece of evidence in its evaluation of the entire evidence on record; or that they took into account certain extraneous matters which ought not to have been taken into account all of which will have the cumulative effect of a reversal of the judgment in his favour. Further that, these errors of the alleged improper evaluation of the evidence and/or the law to the evidence has occasioned the Plaintiff a grave miscarriage of justice. (59) It is not any trivial or inconsequential error which does not go to the root of the action and which does not substantially injure the Plaintiff. It is only such error which erodes the profoundness of the judgment and which will have a substantial impact to result in a reversal of the judgment in favour of the Plaintiff. (60) In OPPONG VS. ANARFI [2011] 1 SCGLR 556 this court stated the position of the law as follows: “There is a wealth of authorities on the burden allocated to an Appellant who alleges in his notice of appeal that the decision is against the weight of evidence led…it is incumbent upon an Page 33 of 46 appellate court in such a case, to analyse the entire record, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on the preponderance of probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence.” (61) Much earlier in time, in DJIN VS. MUSAH BAAKO Aninakwa JSC pronounced at page 691 of the report as follows: “It has been held in several decided cases that where an appellant complains that judgment is against the weight of evidence he is implying that there were certain pieces of evidence on the record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.” (62) On the grounds under consideration, counsel for the Plaintiff has argued forcefully on matters which can be summarized as follows: i. Firstly, following the filing of the joint amended statement of defence, the 3rd Defendant’s counterclaim originally contained in his statement of defence filed on the 24th of July 2017 stood extinguished. Therefore, the court of appeal could not have entered judgment on the very same counterclaim which was not in existence. ii. Secondly, their lordships at the Court of Appeal got it wrong in their application of the law on limitation to the evidence on record. And that, the Plaintiff’s action was not caught by the Limitations Act, 1972 (NRCD 54). Here, counsel emphasised, that the mere fact that Defendants were in possession of the disputed property did not imply they were in adverse Page 34 of 46 possession. Counsel referred to the cross-examination at the trial court and submitted that, there were evidence that, the Plaintiff’s father had taken steps to evict certain persons from the property and following therefrom, other persons (principally family members) have actually occupied the property at their instance. iii. Additionally, Plaintiff’s counsel submitted, that the Defendants failed to discharge the burden on them to prove their allegations of fraud. Counsel further took issue with some of the documentary evidence tendered in evidence albeit without objection, that same were legally inadmissible per se for not being stamped, specifically Exhibits 2, 3a and 33b. Moreover counsel argued that, Exhibits 6A-C relied on by the Defendants also dealt with a different property at Number D899/3 which is distinct from the disputed property at Number D959/3. iv. Further, Plaintiff’s Counsel submitted that, for the first time, Counsel for the Defendant brought up the issue of the 3rd Defendant being vested with a freehold interest in the property the subject of the suit. The basis of the contention was that, being allegedly a non-citizen, same could not be vested in him. (63) Against these submissions, counsel for the Defendants actually concedes on the point that, the Court of Appeal committed an error by entering the judgment in terms of the 3rd Defendant’s counterclaim which was no longer in existence. The Defendants’ Counsel however, submitted that, based on cases such as HANNA ASSI (NO.2) VS. GIHOC REFRIGERATION AND HOUSEHOLD PRODUCTS LTD. (NO.2) [2007-2008] 1 SCGLR 16; MULLER VS. HOME FINANCE CO. LTD. [2012] 2 SCGLR 1234 and, having regard to the evidence on record, this court can still declare the 3rd Defendant owner of the disputed property. It needs to be placed on record that, Counsel for Plaintiff urged the court to depart from the application of these cases to the peculiar facts of the instant appeal. Page 35 of 46 (64) Further, Counsel for Defendants maintained that, the finding of adverse possession against the Plaintiff by the Court of Appeal was flawless and the evidence on record so heavy in favour of the Defendants that, the Plaintiff could not rebut same. Finally, the Defendants contend that, the Plaintiff failed to discharge the onus on him to accurately prove his interest in the property. Plaintiff’s documentary evidence was rather in support of another person, who was neither the grandmother of the Plaintiff nor the Plaintiff’s father. (65) On the issue of vesting a freehold in the 3rd Defendant a non- citizen, Plaintiff’s Counsel argued that, the 3rd Defendant is actually a dual -citizen, and that makes her interest sacrosanct under the constitution. 3RD DEFENDANT’S NON-EXISTING COUNTERCLAIM (66) In their final orders, the Court of Appeal pronounced as follows: “Overall, the appeal succeeds and it is hereby allowed. The judgment of the lower court is hereby set aside and judgment entered in favour of the appellants on the 3rd Appellant’s counterclaim.” [Emphasis added]. It is not disputed that, upon being joined to the suit, the 3rd Defendant filed a statement of defence which had a counterclaim. Further, it is also not disputed that, subsequent therefrom, the Defendants filed a joint amended statement of defence which contained no counterclaim with the effect that, the 3rd Defendant had abandoned her counter claim. Therefore, the part of the judgment of the Court of Appeal which granted relief in favour of the Defendants on the purported counterclaim of the 3rd Defendant was clearly in error. Having so found, that award is hereby set aside. Page 36 of 46 DETERMINATION OF OWNERSHIP OF THE DISPUTED PROPERTY (67) When the Plaintiff’s pleadings are carefully scrutinised, his case is founded on these crucial averments in his pleadings: a. That the disputed property was acquired by the Plaintiff’s late grandmother by name Rachel Afriyie (aka Afriyie) Welbeck. b. That the grandmother originally acquired the property from one Victoria Mensah on the 10th day of March 1976; the said Victoria Mensah having earlier purchased same in 1973 from Bhojsons & Company (Ghana) Limited. c. That interestingly, the self-same Victoria Mensah on the 7th of January 1991 sold the property to one Foo Chang Soo when she had earlier transferred same to Plaintiff’s grandmother. d. When the anomaly of transfer to Foo Chang Soo was detected, Foo Chang Soo re-assigned the property to Plaintiff’s grandmother per a deed of assignment dated 18th February 1992. e. That following the demise of the Plaintiff’s grandmother, Letters of Administration was granted by the High Court, Accra to Seth Okai Welbeck, Ebenzer Ayikai Welbeck, Daniel Okoe Welbeck and Adolphus Welbeck @ Abdulai (Plaintiff’s father) to administer the grandmother’s estate of which the property forms part. f. All the administrators died leaving only Plaintiff’s father. g. Plaintiff’s deceased father then vested the property in himself per a vesting assent dated 12th of January, 2013. Page 37 of 46 h. Following the demise of the Plaintiff’s father, Plaintiff was appointed as an administrator of the father’s estate and he in turn also vested the property in himself per a vesting assent dated 27th September 2016. (68) These are the hard facts. Did the Plaintiff lead sufficient, admissible, credible and convincing evidence to substantiate same? In land disputes a person seeking a declaration of title carries the burden to produce sufficient and credible evidence to prove his mode of acquisition, identity of the land, acts depicting ownership such as acts of possession whether actual or constructive any interest known to law and ownership. In the case of MONDIAL VENEER (GH) LTD. VS. AMUAH GYEBU XV (2011) SCGLR 466 Wood C.J articulated on these ingredients of title, interest or ownership of property as follows: In land litigation… the law requires the person asserting title and on whom the burden of persuasion falls…to prove the root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only when the party has succeeded in establishing these facts on a balance of probabilities that the party would be entitled to the claim. (69) In proceeding further, we have cautioned ourselves that, the principal persons through whom the Plaintiff asserts his interest in the land through are all deceased. As such, this court must be very slow in overly relying on any evidence that seeks to damnify the credibility of these deceased persons as they are not alive to contest any assertion against them. In the MONDIAL VENEER case (supra), this Court observed as follows: “We have firmly established the principle that real danger lies in accepting without questioning or close scrutiny, Page 38 of 46 claims against a dead person. The caution that such claims must be weighed carefully is based on plain good sense and has consistently been applied in a number of cases…” (70) This immediate apprehension is lessened, having regard to the fact that, most of the evidence relied on by both parties are documentary. In such situation, in deciding on the weight and probative of evidence of other side, the court ought to be more favoured towards evaluating such available documentary evidence as against conflicting oral evidence, except in demonstrably exceptional and special situations warranting any such deviation. As sustained by Pwamang JSC in the case of ABOAGYE VS. ASIAM CIVIL APEAL NO. J4/10/2016 DATED 24TH OCTOBER 2018: “The settled principle of the law of evidence is that where oral evidence conflicts with documentary evidence which is authentic, then the documentary evidence ought to be preferred over and above the oral evidence . . .” On the same principle, see also the cases of FOSUA & ADU POKU VS. DUFIE (DECEASED) & ADU-POKU MENSAH [2009] SCGLR 310; AGYEI OSAE VS. ADJEIFIO [2007-2008] SCGLR 499; DUAH VS. YORKWA [1993-94] 1 GLR 217; REPUBLIC VS. NANA AKUAMOAH BOATENG II [1982-83] 2 GLR 913, SC. (71) From the Plaintiff’s pleadings, it would have been expected that, the various vesting assents beginning with that of the Plaintiff’s father would have related directly to the disputed land such that, it can logically be inferred that, the property is on the preponderance of the evidence, the subject evidence, matter of devolution to the Plaintiff as he had asserted in his pleadings and at the trial. Page 39 of 46 (72) Intriguingly however, although the Plaintiff tendered evidence of the Letters of Administration de bonis non in respect his grandmother’s estate Exhibit “H”, same did little to resolve the question of his grandmother’s ownership of the property. As a matter of fact, Exhibit “H” is not about the grandmother’s estate but rather of one Robert Ayer Ayerson. A further examination of the Exhibit “H” reveals that, the said Robert Ayer Ayerson was a brother to the Plaintiff’s grandmother. Per Exhibit “H”, the Plaintiff’s grandmother could not wound up the estate of the brother and it was as a result of this, that Letters of Administration de bonis non was granted to Seth Okai Welbeck, Ebenezer Ayikai Welbeck, Daniel Okoe Welbeck and Adolphus Welbeck @ Abdulai (Plaintiff’s father). Clearly, the documentary evidence the Plaintiff put before the court does not support his claim that Exhibit “H” was in respect of the estate of the late grandmother. It follows therefore, that Exhibit “K”, the vesting assent is, as rightly found by the Court of Appeal also of less probative value. (73) The record reveals that, nowhere in the Plaintiff’s pleadings, or evidence adduced at the trial did the Plaintiff show that, the disputed property rather belonged to Robert Aryeh and not his grandmother. In fact while under cross-examination, this is what transpired between Counsel for the Defendants and Plaintiff: Q: Did you know anything with respect to the properties owned by Mr. Robert Ayer Ayerson? A: Yes, my Lord. Q: If you look at exhibit J paragraph 1 (Counsel reads out). Did you ever get to know any of his properties? A: Yes, my Lord, may father also showed me Page 40 of 46 where some of those properties could be found. Q: And you agree with me that this Robert Ayer Ayrerson’s properties which your father showed you did not include the property which is the subject matter of this suit A: No my Lord. (74) From the evidence on record, we deduce that on the Plaintiff’s own assertion in his pleadings, the 3rd Defendant did execute Exhibit “E” on 10th March 1976 transferring the land to Plaintiff’s grandmother. However this was vehemently denied by the Defendants. Having denied this assertion the Plaintiff assumed the onus of leading further, evidence to prove that, indeed the 3rd Defendant actually sold the property to the Plaintiff’s grandmother. In this crucial respect, the Plaintiff failed to discharge the statutory burden. At the trial court, the Plaintiff failed to call the attestation witness to Exhibit “E”, in the person of one Daniel Oko Welbeck. The evidence on record reveals that the Plaintiff admitted under cross examination that, he is related to this Daniel Oko Welbeck and that he is alive. (75) Furthermore, a comparison of Exhibits “F” and “G” did not assist the claim of the Plaintiff. It is the case of the Plaintiff that, the 3rd Defendant transferred the same land to Foo Chang Soo per Exhibit “F”. Yet, the recitals in the Plaintiff’s own Exhibit “G” is to the effect that, Foo Chang Soo’s lease was actually for Ninety-Nine (99) years and not the freehold interest as referenced in Exhibit “F”. (76) In contradicting the testimony of the Plaintiff, the Defendants, particularly the 3rd Defendant was able to put forward a case of Page 41 of 46 consistent acquisition and long possession in respect of the disputed property. In her testimony, the 3rd Defendant testified of an acquisition of the disputed property in 1973, that is over forty (40) years ago. Counsel for the Plaintiff has objected to the reliance on the Defendants’ title documents (Exhibits 2, 3a and 3b) on grounds that, same have not been duly stamped. In reacting to this objection, the Plaintiff referred to the decision of this court in NII AFLAH II VS. BENJAMIN K. BOATENG (Unreported, Civil Appeal No. J4/80/2022, Dated on 22ND March 2023) where this court per Kulendi JSC stated that: “Unless it relates to nullity, it is also trite that objection must be raised timeously and a litigant who neglects, fails and/or refuses to raise an objection within a reasonable time, having regard to all the circumstances at hand, risks being held to have been indolent and therefore forfeited the opportunity or the right to maintain such an objection.” (77) In our view, Counsel for Defendants missed the import of the objection on admissibility with respect to documents which are legally inadmissible per se, the correct position of law is that, with or without objection the trial court or any appellate court is mandated to exclude such evidence. These include unstamped documents which ought to have been stamped in compliance with Section 32 of the Stamps Duty Act, 2005 (Act 689). See LIZORI LTD. VS. BOYE & SCHOOL OF DOMESTIC SCIENCE AND CATERING [2013-2014] 2 SCGLR 889. The Court of Appeal had stated the correct position of the law in AMOAH VS. ARTHUR [1987-88] 2 GLR 87 thus: “it was the duty of the Trial Judge to reject inadmissible evidence which had been received, with or without objection, during the trial when he came to consider his judgment; and if he failed to do so, that evidence would be rejected on appeal, because Page 42 of 46 it was the duty of the courts to arrive at decisions based on legal evidence only.” (78) This situation should be distinguished from instances where inadmissible evidence is being proffered but a party fails to object timeously as required under Section 6(1) of the Evidence Act 1975 (NRCD 323). In such situation, the court would be entitled to consider the said piece of evidence in its evaluation. As was held in ARYEH & KAKPO AYAA IDDRISU [2010] SCGLR 891, “If a party looked on and allowed the inadmissible evidence to pass without objecting, it would form part of the court record and the trial judge would be entitled to consider it in evaluating the evidence on record for what it is worth.” See also EDWARD NASSER & CO. LTD. VS. McVROOM & ANOTHER [1996-97] SCGLR 468. Based on the above authorities, we uphold the submission of counsel for Plaintiff and as a matter of judicial duty, we accordingly exclude Exhibits 2, 3a and 3b as erroneously admitted. They are hereby rejected. (79) This exclusion notwithstanding, there is sufficient documentary evidence and of continuous possession and control of the disputed property for over three decades by the 3rd Defendant to the knowledge of Plaintiff without any objection. This raises a strong case of adverse possession against the Plaintiff. On this issue, we endorse fully the analysis and conclusion reached by the Court of Appeal (already referred to) that, the Plaintiff is estopped per Section 10 of the Limitations Act, 1954 (NRCD 323) from his claim of interest in the subject matter. (80) Further, although we are of the view that, the Defendants failed to prove the allegations of fraud, against the Plaintiff as we found the Page 43 of 46 particulars of fraud insufficient, we find that as against the Plaintiff, the 3rd Defendant must be presumed as the owner of the disputed land. We are fortified by Section 48 of the Evidence Act 1975 (NRCD 323) which enacts as follows: (1) The things which a person possesses are presumed to be owned by him. (2) A person who exercises acts of ownership over property is presumed to be the owner of it. (81) There is in our view, sufficient evidence that, the 3rd Defendant rented out the property to 1st and 2nd Defendants as well as Foo Chang Soo. Further, the 3rd Defendant has controlled the property since it’s acquisition in 1973. That presumption created under Section 48 of the Evidence Act, albeit rebuttable, which the Plaintiff has not been able to rebut, must inure to the benefit of the 3rd Defendant. The 3rd Defendant is therefore entitled to be declared owner of the disputed property and we hereby so do. THE ISSUE OF 3RD DEFENDANT’S CITIZENSHIP (82) From the record before us, we find that, this issue of citizenship is not arising from not a ground formulated in the notice of appeal. The Plaintiff is estopped from addressing same in the statement of case filed. As already observed, although the Plaintiff indicated he will file additional grounds of appeal upon receipt of the record of appeal, the Plaintiff filed none. Rule 6(6) of the Supreme Court Rules, 1996, (C.I.16) enacts as follows: “The Appellant shall not without the leave of the Court, argue or be heard in support of any ground of appeal that is not mentioned in the notice of appeal.” Page 44 of 46 (83) Even on the merits, a response to the allegation it has been contended by the Defendant that, the 3rd Defendant is a dual citizen. This assertion makes the issue a factual one which warrants a careful introspection. To the extent that same was never raised, in the two lower courts, and despite indicating that, the Plaintiff is estopped from addressing urging same on us. In any event, granted, for purposes of argument that, the 3rd Defendant was not a citizen of Ghana, at all, that fact will not automatically render her interest in the property void. See MARTIN J. VERDOSE VS. PATRICIA ABENA VERDOSE-KURANCHIE CIIVL APPEAL NO. J4/45/2016 DATED 25TH JANUARY, 2017. CONCLUSION (84) As already exhaustively dealt with, it is clear that the finding by the Court of Appeal that, the Plaintiff lacked capacity to mount the suit was erroneous. Further, by entering judgment in terms of a non-existing counterclaim, the Court of Appeal was clearly in error. These errors notwithstanding, upon a further consideration of the entire evidence on record we cannot but arrive at the conclusion that, the Plaintiff failed to prove his claim that, the disputed property formed part of the estate of his late father. Accordingly, based on the evidence before us, and the applicable law we find and hold that, the 3rd Defendant is the true and lawful owner of the disputed property and is entitled to a declaration to that effect which we hereby so order. (85) For all the reasons hereinbefore set out, this appeal fails and we accordingly dismiss same. Page 45 of 46 (SGD) I.O. TANKO AMADU (JUSTICE OF THE SUPREME COURT) (SGD) A. LOVELACE-JOHNSON (MS.) (JUSTICE OF THE SUPREME COURT) (SGD) E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) (SGD) B. F. ACKAH-YENSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD) R. ADJEI-FRIMPONG (JUSTICE OF THE SUPREME COURT) COUNSEL O. K. OSAFO-BUABENG ESQ. FOR THE PLAINTIFF/RESPONDENT /APPELLANT. DOMINIC BRENYA-OTCHERE ESQ. FOR THE DEFENDANTS/ APPELLANTS /RESPONDENTS. Page 46 of 46