PAPA ATIVOR VS YEVU KUMEDZINA & ANOR (H1/08/22) [2024] GHACA 2 (22 February 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – GHANA AD - 2024 CORAM: ERIC KYEI BAFFOUR JA (PRESIDING) EMMANUEL ANKAMAH JA HAFISATA AMALEBOBA (MRS) JA CIVIL APPEAL NO: H1/08/22 22ND FEBRUARY 2024. PAPA ATIVOR - DEFENDANT/ APPELLANT/APPELLANT VRS YEVU KUMEDZINA - 1ST PLAINTIFF/RESPONDENT/RESPONDENT (suing as Head of Balaka Family of Lente – Wute) BEN AMEVOR - 2ND PLAINTIFF/RESPONDENT/RESPONDENT JUDGMENT 1 AMALEBOBA (MRS) J.A. INTRODUCTION This is an Appeal from the concurrent findings of two Court’s lower than this Court. The suit commenced in the District Court, Aflao in the Volta Region, where Judgment was entered for Plaintiffs against the Defendant. Being aggrieved by this decision of the District Court, the Defendant filed an appeal in the High Court, Denu in the Volta Region. The High Court, Denu per its Judgment dated 17th December 2020, affirmed the decision of the District Court, Aflao. The instant Appeal is from the decision of the High Court, Denu. In this Judgment, the parties will be known by their designations in the District Court. Therefore, the Appellant will be referred to as the Defendant and the 1st and 2nd Respondents referred to as 1st and 2nd Plaintiffs, respectively. BACKGROUND The Plaintiffs trace their root of title to the land in dispute, through their grandfather Doklui, who passed same on to his children, Amevor and Balaka. According to the Plaintiffs, the land devolved on them through their great grand ancestors, who founded the land over three (300) hundred years ago. The Plaintiffs averred that the land in dispute is situate at Lente – Wute – Aflao. The Plaintiffs asserted that Defendant is claiming ownership of a portion of the land given to Balaka. The Plaintiffs further averred that the Defendant has trespassed on to the land, cut down three (3) coconut trees 2 belonging to the Plaintiffs, hence the action against the Defendant. By their Writ of Summons filed on 5th January 2017, the Plaintiffs described their land as bounded on the North by the property of Amevor Korpedo, on the South by the Atikpa family land, on the West by the property of Miheso Azumah and on the East by Azaglo and Miheso family land. The Plaintiffs pray for a declaration of title to the said land, recovery of possession of the said land and damages for trespass. The Defendant on his part contended that the land in dispute is at Yame and not at Lente – Wute – Aflao, as asserted by the Plaintiffs. According to the Defendant, the land in dispute is Ativor family land which was discovered by his grandfather Torgbui Atikpa who gifted same to his son Torgbui Ativor. According to Defendant, the said Torgbui Ativor is his father, who passed on the land to his children. The Defendant alleged that the land has always been in the possession of the Ativor family, until the Plaintiffs only recently started to litigate with the Ativor family on same. Though Counsel for Defendant was granted leave on 18th July 2017 to amend the Defendant’s Statement of Defence to add a counterclaim, the record shows that the said amended Statement of Defence was never filed. The High Court Judge therefore rightly stated that no counterclaim was filed by the Defendant. At the close of the trial, the learned Magistrate having found the Plaintiffs to have established their claim, entered Judgment for the Plaintiffs. The Defendant having had his appeal dismissed by High Court; Denu is now before this Court. THIS APPEAL 3 By the Notice of Appeal filed by the Defendant on 20th October 2020, which is at pages 167 and 168 of the Record of Appeal (ROA), the Defendant prays this Court to set aside the Judgment of the High Court. GROUNDS OF APPEAL The grounds of Appeal contained in the Notice of Appeal are as follows: (I) That the Judgment is against the weight of evidence. (II) That the Plaintiffs did not have capacity to sue in respect of family land. (III) That further grounds of appeal maybe filed upon receipt of a certified full copy of the Judgment of the trial Court. No further grounds of appeal were however filed. SUBMISSIONS OF COUNSEL FOR DEFENDANT/APPELLANT On Ground (I) of the Appeal that the Judgment is against the weight of evidence, Counsel for the Defendant submitted that through evidence given by his witnesses, the Defendant has been able to demonstrate that his family have been in uninterrupted occupation of the disputed land for decades, without any claim of ownership by the Plaintiffs. According to Counsel for Defendant, Exhibit 7 series show evidence of alienation of the larger tract of land to other people who are still in uninterrupted occupation, without hindrance from any party. Counsel argued that these alienations are evidence of Defendant’s ownership and control of the property. Counsel for Defendant contended that the oral traditional evidence given by the parties show conflicting narrations. 4 Referring to the case of ADJEIBI KOJO V. BONSIE (1957) 3 WALR, 257 P.C, Counsel submitted that the traditional histories of the parties had to be tested in the light of more recent facts, to establish which of the two conflicting statements of tradition is more probably correct. Counsel for Defendant also referred to Section 48 of the Evidence Act 1975 (NRCD 323), contending that the import of the provision is to place emphasis on possession and ownership when considering traditional evidence regarding landed property. In support of this submission, Counsel also referred to Holding (1) in the case of HLODJIE V GEORGE (2005-2006) SCGLR 974. According to Counsel, the Defendant’s family have for several years planted palm trees on the land which was uprooted by the Plaintiffs when they trespassed on to the land as evidenced by Exhibit 8 series, a fact which according to Counsel was not disputed by the Plaintiffs. Counsel for Defendant contended that documents on record as per pages 105, 106, 107,108 &109 of the Record of Appeal (ROA) show clearly that the disputed land is located at Yame and not Lente - Wute – Aflao, as the trial Magistrate stated. According to Counsel, these documents are evidence of criminal proceedings commenced at the instance of the Defendant against the accused person who encroached on the disputed land. Counsel submitted that the Police investigations concluded that the said land is situate at Yame and not Lente -Wute - Aflao. Counsel for Defendant contended further, that the Plaintiffs were nowhere near the disputed land at the time of the criminal proceedings against the accused person therein, since the family of the Defendant has been in possession of the land for several centuries. Counsel for Defendant further submitted that the 2nd Plaintiff in his evidence in chief at page 7 of the ROA corroborated the fact that his grandmother Soyametor who happened 5 to be the wife of the Defendant’s grandfather Dzigba, farmed on the same portion of land which was granted to her husband Dzigba. That this portion of land forms part of the land in dispute in this suit. Counsel for Defendant further submitted that the trial Judge erred in relying on hearsay evidence, contrary to section 117 of the EVIDENCE ACT, 1975 (NRCD 323) when in his Judgment he stated that one Lawonyoh (deceased) who is the Defendant’s predecessor admitted that the disputed land belongs to Balaka. He said Lawonyoh who is deceased did not testify in the case and could not be cross - examined on it. Counsel contended that the law is now well-settled that evidence concerning a dead person should be evaluated so carefully, as not to prejudice the dead person who will not be available to controvert it. Counsel cited the cases of MOSES V ANANE [1989-90] 2 GLR 694 (C.A): MONDIAL VENEER (GH) LTD V AMUAH GYEBU XV (2011) SCGLR 466 AND FOSUA & ADU POKU V DUFIE (DECD)ADU POKU MENSAH (2009) SCGLR 310. According to Counsel, the trial judge failed to properly evaluate the evidence against the dead Lawonyoh. Counsel for Defendant contended that since the location of the land was in dispute, the trial Judge ought to have ordered a composite plan to determine the location of the land in dispute, as a locus visit undertaken by the trial Judge, was inadequate to determine the exact location of the land in dispute between the parties. On the 2nd ground of Appeal, Counsel for Defendant contended that the Plaintiffs did not have capacity to sue in respect of family land and that the High Court failed to consider the arguments and the law canvassed by the Defendant during the appeal before the Court. According to Counsel for Defendant, the appellate Judge only dwelt on the arguments made by the Plaintiffs herein and did not touch on the important issues raised about the Power of Attorney relied on by the Plaintiffs to institute the action. 6 Counsel for Defendant contended that it is only family heads who have the capacity to institute actions relating to family properties. He argued that in some instances, the law allows a member of the family to sue in cases where it becomes extremely important to sue to protect the family property, on the premise that the head of family has either compromised himself, or perhaps is not bothered about such properties. According to Counsel, though the 1st Plaintiff's capacity is endorsed on the Writ of summons as head of family, he failed woefully to prove that he is indeed head of his family and that neither the 1st nor the 2nd Plaintiff has the capacity to institute this action. Counsel contended that on the 13th of February 2017, after the 2nd Plaintiff had already given his evidence, the Magistrate admonished Plaintiffs to prove their capacity to sue for and on behalf of the family. That pursuant to the said admonition, the 2nd Plaintiff tendered in evidence the Power of Attorney dated the 14th day of February 2017, which does not show that the 1st Plaintiff is the family head as endorsed on the Writ of Summons (page 13 of the ROA). According to Counsel, the capacity of the said donors of the Power of Attorney were not stated, neither did it state that the 1st Plaintiff was head of family. Referring to the case of HUSEINI V MORU (2013-14) SCGLR @ 364, Counsel contended that the Supreme Court was emphatic that a Power of Attorney that does not conform to the law makes all proceedings emanating from it void. Counsel further submitted that in the instant case, the said Power of Attorney did not cloth the three individuals with any authority to appoint the Plaintiffs as representatives of the family, as there has to be a donor who gives the power to the donee. According to Counsel, as the said donors are neither family heads nor acting as such, they cannot cede their powers to the Plaintiffs, as they could not have given what they did not have. Counsel for Defendant contended that the Plaintiff’s failed to establish their case and same ought to be dismissed. 7 COUNSEL FOR PLAINTIFFS’/ RESPONDENT’S SUBMISSIONS Counsel for Plaintiffs opted to address the second ground of appeal first. Counsel for Plaintiffs submitted that it is indeed the position of the law that a person who sues in a representative capacity ought to ensure that he in indeed vested with that capacity, and a Defendant may challenge the said capacity. Counsel for Plaintiffs acknowledged the position of the law that a party who has an iron cast case would not be heard on the merits of his case where he is unable to satisfy the Court that he has capacity to maintain the action. Counsel referred to the cases of GRIFFITH SOWAH OSEKERE & REGSMA V. ABDUL LATIF KARROUM & ERIC OSE KWAKU (2020) UNREPORTED C.A. CIVIL APPEAL NO. H1/65/2015, C.J. HOENYENUGA JA (as he then was) and REPUBLIC V. HIGH COURT, ACCRA, EX-PARTE ARYEETEY (ANKRAH, INTERESTED PARTY) (2003-2004) SCGLR 398 and many others. Counsel for Plaintiffs further argued that it is also the law as has been held in plethora of judicial authorities that an appellate court has the right to amend the capacity of the Plaintiffs to do substantial justice, avoid mere and fanciful technicalities and bring out the real issues in controversy for resolution, provided the capacity existed before the issuance of the Writ. Counsel cited the cases of HANNAH ASSI (NO.2) VRS GIHOC REFRIGERATION AND HOUSEHOLD PRODUCTS (NO.2) (2007-2008)1SCGLR NO PER PROF. OCRAN JSC AT PAGE 34. GHANA PORTS & HARBORS AUTHORITY V. ISSOUFOU (1993-94) 1GLR 24 AND OBENG V. ASSEMBLIES OF GOD CHURCH, GHANA (2010) SCGLR 300, in support of this position of the law. Counsel for Plaintiffs further recounted the testimony of the Plaintiffs on the genealogy of their family and contended that the 1st Plaintiff who descended from Balaka has written 8 against his name in bracket "Head of the family” on the Writ of Summons filed on 5th January 2017, (page 1 of the ROA) as follows. 1. YEVU KUMEDZINA (Head of the family) 2. BEN AMEVOR According to Counsel for the Plaintiffs, this is sufficient indication that the 1" Plaintiff is the Head of the family on whose behalf he and the 2nd Plaintiff had initiated this action for the reliefs endorsed therein. Counsel stated that the record shows that, the subject matter of the Plaintiffs' claim is a portion of Balaka’s land. He contended that as can be seen from the description of the boundaries of the disputed land, it shares boundary with that of his brother Amevor Doklui on one side and Amevor was undoubtedly the younger brother of Balaka. Counsel further argued that the Plaintiffs' inadvertent omission to write against the name of the 1st Plaintiff that he is the “Head of Balaka family" is not fatal as to deny the Plaintiffs the requisite capacities in which they have sued. Counsel also contended that the Plaintiffs took this action to protect the family property of their ancestor Doklui, the said land having devolved on the 1st Plaintiff as the customary successor of his father Kumedzina who was the great grandson of Balaka. Counsel argued that the Plaintiffs have sued the Defendant to recover a portion of the land belonging to Balaka, which upon which the Defendant unlawfully trespassed and the appellate High Court Judge acted in accordance with law when upon the evidence before the Court and having considered relevant case law, amended the title of the 1st Plaintiff at page 161 of the ROA to read: “Yevu Kumedzina, Head of Balaka family of Lente-Wute & Anor Vrs Papa Ativor of Agbogbome- Aflao”, to do substantial justice. On Ground (I) of Appeal that the Judgment is against the weight of evidence, Counsel for the Plaintiffs submitted that it is a settled principle of law that the Appellant who 9 contends that the Judgment is against the weight of evidence must point to the weaknesses in the Judgment appealed against, by demonstrating that certain pieces of evidence have been wrongly applied against him, which if applied correctly would merit a decision in his favour. That it is then that the appellate Court such as this Honourable Court may interfere with the finding of facts of a trial Court which failed to properly evaluate the evidence or make the proper use of the opportunities of seeing and hearing the witnesses at the trial. Counsel referred to the cases of ABBEY & ORS V. ANTWI V (2010) SCGLR 17; TUAKWA V. BOSOM (2001-2002) SCGLR 61; DJIN V. MUSAH BEDIAKO (2007-08) SCGLR 686 and many others. Counsel also argued that in the instant Appeal the Appellant failed woefully to point out the weakness in the Judgment of the High Court, Denu and only reproduced his submissions made before the said intermediate appellate High Court and that being so, Plaintiffs are also compelled to rely entirely on their submissions in response thereto at pages 148 to 151 of the ROA. According to Counsel for Plaintiffs, Counsel for Defendant submitted that the learned High Court Judge did not consider Exhibit 7 series tendered by the Defendant, to prove that his family has been in uninterrupted occupation of the disputed land for decades without any claim of ownership by the Plaintiffs. Counsel for Plaintiff contended that the said Exhibits are receipts issued in 2013 and 2014 which show the unlawful acts of trespass by the Defendant when he sought to alienate a portion of the Plaintiffs’ family land. When the Plaintiffs noticed these unlawful acts of trespass on the disputed land, the Defendant was summoned before Torgbui Tsana II’s Arbitration Court in 2016 which the Defendant refused to attend. Counsel further submitted that the reliance by both the District Court and High Court on the testimony by PW 3 that one Lawonyoh a predecessor of the Defendant had acknowledged that the land in dispute is the Plaintiffs’ family land, cannot be regarded 10 as inadmissible hearsay evidence, simply because the said Lawonyoh is now deceased. Counsel argued that by section 118 of the EVIDENCE ACT, 1975 (NRCD 323), the said evidence is admissible as being first - hand hearsay. Counsel for Plaintiffs submitted further, that contrary to Counsel for Defendant’s submissions, the trial Magistrate was right when he held that the relationship between the Plaintiffs’ predecessor and Dzigba (Defendant’s predecessor) was a gratuitous License which conferred no title on the said Dzigba. Counsel for Plaintiffs submitted that the trial Magistrate’s finding that the land is located at Lente and not at Yame was not in error, as the identity of the subject matter in dispute has never been in doubt. He contended that the land in dispute is the land over which the Plaintiffs had earlier summoned the Defendant before the Native Arbitration Court of Torgbui Tsana II and in which the Defendant refused to participate after making the first appearance. That it is the same land which Sofahu Dzreke of the Defendant's family unlawfully entered and surveyed, for which reason he was prosecuted at the Circuit Court, Aflao upon the complaint of the Defendant. Furthermore, that when the trial Magistrate visited the locus, he observed that the parties were in Court over one and the same land. Counsel for Plaintiffs argued that as the Defendant failed to show the material weaknesses in the Judgments of the two Courts, the appeal ought to be dismissed with punitive costs. DEETRMINATION OF THIS APPEAL The basis upon which this Court as a second appellate, will interfere with concurrent findings of the trial Court and the intermediate appellate Court is settled by a plethora of legal authorities. Both Counsel in their written submissions correctly stated the position 11 of the law. This Court will not interfere with the concurrent findings of the trial District Court and the High Court, unless it is clearly established upon this Appeal that the trial District Court and High Court made an error resulting in a miscarriage of justice, in the way the said Courts dealt with the facts. Such errors could be in the failure of the said Courts to properly evaluate the evidence, the wrong application of principles of evidence or erroneous proposition of law, such that if corrected will result in a finding in favour of the Appellant. This settled position of law was applied in the cases of AKUFFO-ADDO V. CATHELINE [1992] 1 GLR 377 ; ACHORO V. AKANFELA [1996-97] SCGLR 209; AWUKU SAO V. GHANA SUPPLY CO. LTD. [2009] SCGLR 710; OBENG V. ASSEMBLIES OF GOD CHURCH, GHANA [2010] SCGLR 300. Furthermore, there is a presumption that the Judgment of the Court below on the facts is correct. As such, where the Defendant who is the Appellant, contends that the Judgment of the Court below is wrong, he ought to displace the presumption in favour of its correctness. This principle was applied in the case of KISSIEDU V. DOMPREH [1937 WACA] 281@ 286. Since in this case, the Defendant as the Appellant, contends by ground (II) of his Appeal that the Judgment of the Court below is against the weight of evidence, the burden of proof is on him to establish same with reference to the evidence on record. The Court of Appeal per ESSIEM JA in AMPOMAH V. VOLTA RIVER AUTHORITY [1989-90] 2 GLR 28 at page 35 stated this principle as follows: “Whereas in this case, an Appellant charge, that the Judgment of the Court below is against the weight of the evidence, it must be remembered that there is a presumption that the Judgment of the Court below on the facts is correct. The Appellant in such a case assumes the burden of showing from the evidence on record that the Judgment is indeed against the 12 weight of the evidence. The Appeal on that ground must fail if that burden is not discharged…” The Supreme Court reiterated this position of the law in the case of DJIN V. MUSA BAAKO [2007 – 2008] SCGLR 686 (HOLDING 1). The onus is therefore on the Defendant, being the Appellant in this case, to demonstrate which pieces of evidence were wrongly applied against him and which pieces of evidence were not applied and if applied, will turn the decision of the Courts below in his favour. Though the burden of proof is on the Appellant in an Appeal to show that the Judgment is against the weight of evidence, this Court ought to look at the entire Record of Appeal, taking into account the testimonies and documentary evidence to satisfy itself that the conclusions of the trial District Court and the High Court are amply supported by the evidence on record. This was the position taken by the Supreme Court in the case of TUAKWA V. BOSOM [2001 – 2002] SCGLR 61@ 65 per Sophia Akuffo JSC. However, the determination on the findings of fact is not only limited to the facts on record, for where a decision on the facts requires a determination on what the law is on a point or issue, this Court needs to make a determination of both law and fact. This was the position taken in the case of OWUSU -DOMENA V. AMOAH [2015 – 2016] SCGLR 790 @ 799 per Benin JSC (as he then was) as follows: “……. Sometimes a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters”. SEE ALSO: In Re Okine (DECD) DODOO AND ANOR V. OKINE [2003 – 2004] SCGLR 582 S.C. 13 The Defendant’s 2nd ground of Appeal is on the lack of capacity of the Plaintiffs to commence a suit in respect of family land. It is settled Law, that capacity being a matter of law can be raised at any stage of the proceedings even on appeal. Capacity can also be raised suo motu by the Judge. In the case of FOSUA V. ADU POKU MENSAH [2009] SCGLR 310 @ 337, Ansah JSC stated as follows. “…….. When he considered whether or not the properties in dispute where for the family, the trial Judge should have gone forward to also consider, if they were family properties, whether or not the Plaintiffs were clothed with the requisite capacity to sue in respect thereof. That was irrespective of whether or not the parties had made that an issue for trial. Capacity to sue was a matter of law and could be raised at any stage of the proceedings even on appeal…. (My emphasis)”. See also the case of YORKWA V. DUAH [1992- 93] GBR 278. In the case of SARKODEE V. BOATENG [1982 – 83] GLR ,715, the Supreme Court held as follows (Holding 2). “It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. 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….” (My emphasis). The evidence adduced by both parties to establish their family’s ownership and possession of the land in dispute was largely traditional. The said traditional evidence was conflicting, as the parties gave rival accounts of how their predecessors came to own 14 the land in dispute. The Supreme Court has held that “the best way of evaluating traditional evidence is to test the rival stories of the parties, against the background of positive and recent events.” SEE: ACHORO & ANOR V. AKANFELA & ANOR. [1996- 97 SCGLR 209: ADJEI V. ACQUAH [1991] 1 GLR 13; ADJEIBI KOJO V. BONSIE [1957] 3 WALR 257. Guided by the foregoing, we will now proceed to determine this Appeal by way of a rehearing as provided for by RULE 8(1) OF THE COURT OF APPEAL RULES, 1997 (C.I 19) and other decided authorities. Since capacity is fundamental and goes to the root of every action, we deem it appropriate to first determine ground (II) of the Appeal which is that “the Plaintiffs did not have capacity to sue in respect of family land”. There is no indication from the pleadings and record of proceedings in the trial District Court that the capacity of the Plaintiffs to commence the action was challenged by the Defendant, at any point in the trial at the District Court. However, the learned Magistrate at page 12 of the ROA raised the issue of the capacity of the Plaintiffs in the following words: ” By Court: Case adjourned for PW1 to prepare to testify in this case. Adjourned to 23rd February 2017. Meanwhile the Plaintiff is admonished to ensure he proves his capacity to sue in respect of family property”. Though this order was made by the learned Magistrate, he did not in his Judgment make any determination on the capacity of the Plaintiffs. The issue of capacity having been so raised by the Defendant on appeal at the High Court and in this Court, we are bound to determine whether the findings of the High Court 15 (being the intermediate appellate Court) on the issue of capacity were correct. SEE: FOSUA V. ADU POKU MENSAH [2009] SCGLR 310 @ 337, supra. On the Writ of Summons issued by the Plaintiffs, at page 1 of the ROA, the 1st Plaintiff sued in a representative capacity as Head of Family. There is no controversy in this suit that the Plaintiffs’ claim is in respect of Balaka family land. It is for this reason that the 1st Plaintiff sued in representative capacity as Head of Family. Similarly, the Defendant sued in a representative capacity contending that the land is Ativor family land. It is a well settled principle of Customary Law that it is the Head of Family who has capacity to sue and be sued in matters concerning family property. To this principle of law, however, there are exceptions: SEE: KWAN v NYIENI [1959] GLR 67 @ 68; AMPONSAH v KWATIA [1976] 2 GLR 189; YORMENU v AWUTE [1987] 1 GLR 9; IN RE ASHALLEY B`OTWE LANDS; Other KOTEY & Others [2003-2004] 420 and IN RE NEEQUAYE (DECD); ADEE KOTEY v KOOTSO NEEQUAYE [2010] SCGLR 348. In the case of IN RE ASHALLEY BOTWE LANDS, (supra), the Supreme Court held as follows (Holding 1): “the general rule recognised in Kwan v. Nyieni, (supra) namely, that the head of family was the proper person to sue and be sued in respect of family property was not inflexible. There are situations or special circumstances or exceptions in which ordinary members of the family could in their own right sue to protect the family property, without having to prove that there was a head of family who was refusing to take action to preserve the family property. The special or exceptional circumstances include situations where: (a) a member of the family had been authorised by members of the family to sue; or (b) upon proof of necessity to sue.” 16 Counsel for Defendant contended that the learned High Court Judge did not consider his submissions on the issue of Plaintiffs’ lack of capacity and only considered the submissions of the Plaintiffs in his determination of same. The finding of the High Court Judge on the capacity of the Plaintiffs was based on the fact that ample evidence on the record established that the 1st Plaintiff was head of family with capacity to commence this action. The High Court Judge further stated that since both parties who sued in representative capacities were well aware that their contest was over claims to family lands, no miscarriage of justice will be occasioned by amending the title to indicate on the record that the 1st Plaintiff was the head of the Balaka Family of Lente – Wute (Aflao). The High Court relying on the cases of GHANA PORTS AND HARBOURS AUTHORITY V. ISSOFOU (1993 – 94] 1GLR, OBENG VS. AASSEMBLIES OF GOD CHURCH, GHANA [2010] SCGLR 300 and others granted the amendment to do substantial justice in this suit. The 2nd Plaintiff who is the nephew of 1st Plaintiff testified for both Plaintiffs. The Plaintiffs trace their ownership of the land in dispute from their grandfather Doklui who owned the land. The said Doklui had sons who were Balaka and Amevor to whom he shared his land which also passed on to their descendants. According to the Plaintiffs, the land the subject matter of the suit is a part of the land given to Balaka. The Plaintiffs had asserted that they were customary successors through their predecessor Balaka who inherited the said land through succession. (Page 45 of the ROA). These assertions were not challenged through cross- examination by the Defendant. We find that the genealogy of the Plaintiffs and their testimony as indicated by the Trial Judge, supports the finding that the 1st Plaintiff is the head of the Balaka family of Lente – Wuta – Aflao. There is in fact no contrary evidence on record that derogates from this finding. We will now consider the submission of Counsel for Defendant on the defectiveness of the Power of Attorney granted the Plaintiffs. After the trial Magistrate ordered that the 17 Plaintiffs prove their capacity to sue in respect of family property, the 2nd Plaintiff tendered in evidence a Power of Attorney dated 14th February 2017. By this Power of Attorney, three (3) persons, namely Dumega Agbodemegbe, Midawo Kadzi and Korku Haze appointed the Plaintiffs herein, as Attorneys to sue in respect of family land situate at Lente – Wute -Aflao. Counsel for Defendant relying in on the case of HUSSEINI V. MORU [2013 – 2014] SCGLR submitted that since the Power of Attorney was not in conformity with law, all proceedings emanating from same were void. The detailed submissions on Counsel for Defendant are adequately captured supra. In the case of HUSSEINI V. MORU (supra), the action was commenced upon the authority of a Power of Attorney which failed to meet the requirements of law, as same was not witnessed contrary to section 1(2) of the Power of Attorney Act ,1998 (Act 549). The Supreme Court held that the lack of signature of a witness rendered the action void for lack of capacity. The Supreme Court also proceeded to strike out the Defendant’s counterclaim, on the ground that since the Attorney had no capacity to institute the suit, he had no capacity to defend same. In this instant case, the suit was not commenced upon the authority of the Power of Attorney granted to the Plaintiffs. The capacity of the 1st Plaintiff as Head of Family was endorsed on the Writ of Summons of Summons from the very inception of the action. The suit was commenced on 5th January 2017 and the Power of Attorney granted on 14th February 2017. The Power of Attorney states that the Plaintiffs have been authorised to among others, to execute documents, sue and defend or pursue matters in Court in respect of adverse claims to the family lands situate at Lente – Wute – Aflao. The said Power of Attorney was executed after the suit was commenced by the Plaintiffs. In the circumstances, same cannot be said to be the authority upon which the Plaintiffs commenced the action. 18 A Power of Attorney cannot act retrospectively to clothe a person with a capacity or authority he did not have at the inception of the suit or an action. In the case of STANDARD BANK OFFSHORE TRUST COMPANY LTD VRS NATIONAL INVESTMENT BANK LTD AND OTHERS (J4 63 OF 2016) [2017] GHASC 26 (21 JUNE 2017) [2017] GHASC 26, BENIN JSC opined as follows: “Let us take another instance, where on appeal it comes to light that a person who sued as an attorney for the plaintiff did not in fact hold a power of attorney as at the date, he issued the writ. He secured the power of attorney in the course of the trial. The issue of the attorney’s capacity to sue could be raised on appeal and the writ will be declared a nullity because it is fundamental to the authority to sue and this clothes the plaintiff with capacity to mount the action and this must be present before the writ is issued”. The learned Judge further stated thus: A person’s capacity to sue, whether under a statute or rule of practice, must be found to be present and valid before the issuance of the writ of summons, else the writ will be declared a nullity. In the case of a company, it’s authority to bring a law suit is one of capacity and not standing. Capacity to sue is a very critical component of any civil litigation without which the plaintiff cannot maintain any claim. The learned Judge distinguished the case of OBENG ASSEMBLIES OF GOD CHURCH, GHANA, from the case of AKRONG and Another v. BULLEY (1965) GLR 469. He stated that in the former case, the Plaintiff which had capacity to commence the action, sued in its corporate name but erroneously added “Executive Presbytery “to same, and were rightly granted an amendment to delete the said words from the title of the suit. In the latter case, the Plaintiff having become the administrator of her deceased son’s estate after commencement of her suit, amended her Writ of Summons to prosecute the suit as 19 Administrator. The suit was declared a nullity as she was suing in a capacity she did not have at the inception of the action. SEE ALSO: BUCKNOR V. ESSIEN [ 1963] 1 GLR 426. Therefore, the Power of Attorney executed in favour of the Plaintiffs cannot clothe the Plaintiff’s with capacity to maintain the action, if they indeed were not clothed with such capacity at the inception of the suit. In the instant appeal, this Court has made a finding that the High Court Judge’s finding that the 1st Plaintiff was head of family was supported by the record. The 1st Plaintiff sued jointly with the 2nd Plaintiff, who is also customary successor upon whom the Balaka family land devolved. The Plaintiffs therefore had capacity at the inception of the suit. The said Power of Attorney in this case, can only be best described as an endorsement if at all, of the action taken by the Plaintiffs and does not clothe them with any authority in respect of the suit. A determination of whether the said Power of Attorney as executed, conforms in substance to the requirements of the law is therefore a moot issue and need not be interrogated any further by this Court. The case of HUSSEINI V. MORU, (supra) is therefore not applicable to the facts of this case. In OBENG & OTHERS V. ASSEMBLIES OF GOD, CHURCH, GHANA, the Supreme Court affirmed the decision of the Court of Appeal to suo motu amend the name of the Plaintiff on the Writ of Summons even on appeal. The Court opined that the Courts exist to do substantial justice to parties and to ensure that all real issues in controversy are determined, to bring finality upon the Judgment. Therefore, an amendment ought to be permitted where the same was necessary to meet the justice of the case. 20 The position of the Courts of this jurisdiction to permit amendments to ensure that the justice of the case was met, was earlier stated by the Supreme Court in GHANA PORTS AND HARBOURS AUTHORITY V ISSIFOU [ 1993 – 94] 1 GLR 24 S.C. Having arrived at the conclusion that the trial Judge’s decision on the capacity of the 1st Plaintiff as head of family to sue in respect of the land in dispute together with the 2nd Plaintiff was correct on the facts on record, we find that he acted in accordance with law when he amended the title of the suit to do justice in this case. We therefore find no reason to disturb this finding. In the circumstances, Ground (II) of the Appeal is dismissed. We will now proceed to determine Ground (I) of the Appeal, that the Judgment is against the weight of evidence. As already stated by this Court, this ground throws up the entire case for a rehearing. We will therefore consider the submissions of the parties and examine the record before us. Counsel for Defendant submitted that the controversy of the location of the land in dispute was wrongly determined by the trial Magistrate. Counsel argued that the Defendants have since time immemorial been in possession of the land in dispute situate at Yame, without any adverse claim from the Plaintiffs who are claiming family land at Lente – Wute. Counsel argued that the trial magistrate refused an application for a composite plan to be drawn up, which would have resolved the controversy, as the visit by the trial Magistrate was inadequate to establish the identity of the land in dispute. These assertions of Counsel for Defendant are not borne out by the Record. As rightly pointed out by the learned High Court Judge, though the Defendant filed an application for a composite plan to be drawn up, there is no record of same having been moved or refused. In his findings are at pages 92 and 93 of the record, the trial Magistrate noted that on his visit to the locus in quo for an inspection of the land in dispute, he found it to 21 be same. Both parties identified the same parcel of land which was bounded to the North by the property of Atikpa, to the South by the property of Miheso Azumah (PW2) to the North, with the West and East boundaries remaining same for both parties. The Defendant has not disputed the fact that both parties identified the same parcel of land on the ground as belonging to their respective families. Neither have the boundaries as observed by the trial Judge at the locus been challenged. At the trial Court, both parties tendered their respective site plans in evidence and adequately described the boundaries of their land. The trial Magistrate having visited the locus in quo and found the identity of the land to be same, we do not find that the absence of a composite plan in this case impeached the findings of the trial Magistrate on the identity of the land being same. Counsel for Defendant submitted that in assessing the traditional histories of the parties, it was the Defendant who had established acts of possession over the land in dispute. The Plaintiffs on the other hand contended that the Defendant’s predecessor Dzigba Ativor was granted a gratuitous license which did not crystallize into an interest in the land of the Plaintiffs. Counsel for Defendant referred to section 48 of the EVIDENCE ACT 1975 (NRCD 323) and HLODJIE V GEORGE (supra), contending that in view of the conflicting traditional histories given by the parties, the trial District Court and the High Court should have placed much emphasis on Defendant’s possession of the land and given Judgment in favour of the Defendant. Section 48 of NRCD 323 (supra) provides as follows: (1) The things which a person possesses are presumed to be owned by that person. (2) A person who exercises acts of ownership over property is presumed to be the owner of it.” 22 This presumption is a rebuttable one. In respect of possession of land, it has been held that a person in possession of land is presumed to be owner of the said land, unless another person can show better title. In HAYFRON V. AGYIR [1984 – 1986] 1 GLR 682 at 686, the Court of Appeal had this to say on the principle of possession in actions concerning land. “The appellant invites us to say that the judgment of the court below was wrong and prays that it be reversed. One thing is clear in this case, namely that the appellant was in long undisturbed possession of this land. In so far as any principle of law is relevant and should be borne in mind in the determination of this suit, it is that the person in possession is deemed to be the owner and her possession is good against the whole world except the true owner….” In the case of MRS. ELIZABETH OSEI vs. MADAM ALICE EFUA KORANG [2013] DLSC2707, the Supreme Court stated position of the law as follows: “…Now in law, possession is nine points of the law and a plaintiff in possession has a good title against the whole world except one with a better title. It is the law that possession is prima facie evidence of the right to possession and it being good against the whole world except the true owner, he cannot be ousted from it. See Summey v Yohuno [1962] 1 GLR 160, SC; Barko v Mustapha [1964] GLR SC 78”. The fact that Dzigba the Defendant’s predecessor was in possession of the land in dispute at a time Balaka the Plaintiffs’ predecessor had left same, was not in dispute. The 2nd Plaintiff, however, testified that Balaka left the community for fear of a beast which was killing persons in the community. That after Balaka had departed, his brother Amevor procured the services of a hunter to kill the said beast. That the hunter was granted a part of Balaka’s family land. That thereafter, Dzigba also sought and was granted a license to 23 farm on a portion of Balaka family land. PW 2 is the grandson of the hunter who killed the beast on Balaka family land and was granted a portion of Balaka’s land. He corroborated the story of the Plaintiffs that the land was given to Dzigba by the family members of Balaka as a license for farming purposes. As noted by the trial Magistrate, this very material piece of evidence was not challenged under cross- examination. The position of the law where evidence goes unchallenged by the opposing party is that same amounts to an admission. See MANTEY & ANOR V. BOTWE 1989 – 90 1GLR 479; IN RE; ASHALLEY BOTWE LANDS; AGBOSU V. KOTEY [2003 – 2004] SCGLR 420 per WOOD JSC. The Defendant therefore admitted the license granted Dzigba. A gratuitous license does not create a proprietary interest and can be revoked at any time, particularly in this case, where the Defendant being a descendant of Dzigba seeks to claim ownership of the land in respect of which the license was granted. SEE: DURO AND ANOTHER V. ANANE [ 1987- 88] 2 GLR 275. The trial Magistrate also noted in his Judgment at pages 92 and 93 of the R0A that upon his inspection of the locus in quo, save for one person on the land, to whom Sofahu Drezke the Defendant’s maternal uncle had granted land, the Defendant did not know the property owners on the land in dispute. The said landowners identified the Plaintiffs as their grantors. The Magistrate also noted that 2nd Plaintiff had a cassava farm on the Southwestern end of the land and that he observed that three coconut trees had been cut down, as testified to by the 2nd Plaintiff. According to the trial Magistrate, at the locus the Defendant admitted cutting down two of the trees but denied cutting down the third tree. This observation by the Magistrate has also not been challenged by the Defendant. 24 Furthermore, the possession of the Defendant and his predecessors in title was not undisturbed or uninterrupted as asserted by them. The evidence by both PW2 and PW3 that Lawonyoh, the predecessor of the Defendant acknowledged that the land in dispute did not belong to him and allowed 1st Plaintiff to build on same, was not challenged under cross- examination, thereby leading to an admission of same. Counsel for Defendant submitted that this piece of evidence was inadmissible same being hearsay evidence. Counsel for Defendant further argued that the said Lawonyoh was deceased and could not have cross- examined or defended himself, for which reason the Magistrate and High Court Judge should have subjected same to scrutiny which they failed to do. Counsel referred to the case of MONDIAL VENEER (GH) LTD V AMUAH GYEBU XV [2011] 1 SCGLR 466. Quite apart from the fact that the evidence on Lawonyoh was not challenged, same constitutes first – hand hearsay which is admissible within the intendment of Section 118 of NRCD 323, as PW3 was the mediator before whom both 1st Plaintiff and Lawonyoh appeared and before whom the latter made the said admission. Furthermore, there was no basis to the assertion that the evidence regarding Lawonyoh was not properly scrutinized by the trial Magistrate and the High Court Judge. Having considered the MONDIAL VENEER case and upon our own evaluation, we find the evidence regarding Lawonyoh to be admissible and credible. As rightly stated by the High Court Judge at page 165 and 166 of the ROA, the evidence on record establishes that at any time that the Plaintiffs’ family returned to the land in dispute, the Defendant’s family vacated the land and gave same up to them. Moreover, when the Defendant sought to claim the land, the Plaintiffs challenged him before the Native Arbitration Court of Torgbui Atsana II of Wute – Lente Viepe, Aflao. The 25 Defendant having attended one session, refused to participate in the proceedings. Judgment was entered for the Plaintiffs and an award made in their favour. The said Award has since not been challenged by the Defendant. Exhibit 7 series are receipts which the Defendant says regard lands alienated by his family. According to Counsel for Defendant, these receipts establish acts of possession over the land. The receipts issued as recently as 2013 and 2014, were challenged by the Plaintiffs at the Arbitration and in this Court by the Plaintiffs who allege trespass against the Defendant, in his alienation of the said lands. Therefore, these receipts do not establish long undisturbed possession by the Defendant and his family. The criminal action against Sofahu Dreke at the Circuit Court, Aflao though at the instance of the Defendant was against his maternal uncle and not a member of the Plaintiffs’ family. Therefore, the admission made by Sofahu Dreke that the land in dispute belongs to the Defendant’s family is not binding on the Plaintiffs and cannot be used as a bar to their claim. Furthermore, same being as recent as 2014, it does not establish long undisturbed possession. Counsel, for Defendant submitted that 2nd Plaintiff admitted at page 7 of the ROA that his grandmother Soyametor who happened to be the wife of the Defendant’s grandfather Dzigba, farmed on the same portion of land. This assertion is clearly not borne out by the record. Though the 2nd Plaintiff testified that his grandmother farmed on the land, he never admitted that she was married to Dzigba. In the case of HLODJIE V GEORGE (2005-2006) SCGLR 974 cited by Counsel for Defendant, Wood JSC (as she then was), stated at page 983 thus: “In assessing rival, traditional evidence, the court… must rather examine the events and acts within living memory, established by the evidence, paying particular attention to undisputed acts of ownership, and possession on record; and then see which version of the traditional evidence, 26 whether coherent or incoherent is rendered more probable by the established acts or events. The party whose traditional evidence such established act, or event supports or is more probable should succeed, unless there exists on the record of proceedings a very cogent reason to the contrary. And the title raised by acts of possession and ownership now appears in section 48 of the Evidence Decree 1975 NRCD 323. It follows from that provision that a party can succeed in his claim, even if his traditional evidence is rejected.” The Defendant in this case was unable to establish long and undisturbed possession of the land by his family. Moreover, being a gratuitous license granted to Dzigba who is Defendant’s predecessor, the Defendant cannot claim any proprietary interest in the said land. The only basis upon which the Defendant could have claimed an equitable title in the circumstances, was on grounds of adverse possession without challenge from the Plaintiffs who have established a better title. Upon the evidence on record, neither Section 48 of NRCD 323, nor the case of HLODJIE V GEORGE will aid the Defendant. The Defendant filed no counterclaim in this suit, as already stated. In this suit for declaration of title to land, the Plaintiffs who have a burden to prove the identity of the land in dispute, their root of title, establish their boundaries and acts of possession, have succeed in discharging the said burden, thereby establishing their case on the balance of probabilities. We are satisfied that the findings of the trial Magistrate and the High Court Judge are amply supported by evidence on the record and the law. We find that Ground (II) of the Appeal has no merit and dismiss same. Consequently, we affirm both decisions of the trial District Court and the High Court and dismiss the Appeal in its entirety. HAFISATA AMALEBOBA (MRS) JA. 27 (Justice of Appeal). I agree E. KYEI BAFFOUR JA. (Justice of Appeal). I also agree. EMMANUEL ANAKAMAH JA. (Justice of Appeal). COUNSEL: EBENEZER AHIATOR ESQ. FOR THE DEFENDANT/APPELLANT/APPELLANT. NELSON M. KPORHA ESQ. FOR THE PLAINTIFFS/RESPONDENT/RESPONDENT. 28