Okoh v Nyarko (BON/SYN/HC/E12/010/2025) [2025] GHAHC 202 (25 July 2025)

INTHESUPERIOR COURTOF JUDICATURE, HIGH COURT OF JUSTICESITTINGATSUNYANI ONTHURSDAY,THE25TH DAY OFJULY,2025BEFOREHIS LORDSHIP JUSTICENATHANP.YARNEYESQ. SUITNO: BON/SYN/HC/E12/010/2025 OKOHSAMUEL …. PLAINTIFF/APPELLANT VRS. AKOSUANYARKO …. DEFENDANT/RESPONDENT JUDGMENT: The Plaintiff/Appellant (hereafter the Appellant) who sued out of the Registry of the District Court, Kenyasi a claim over a property of 13 bedrooms situate at Odumasi- Kenyasi No. 1, failed to obtain judgment before that court. He is aggrieved with the judgment on H/W. Clement Kwasi Asomah and has appealed to this Court on the sole ground that the judgment of the District Court is against the weight of evidence. Before 1 the District Court, the Appellant claimed against the Defendant/Respondent (hereafter theRespondent) thefollowing reliefs: 1. Declaration of title and recovery of possession of all that 13-bedroom house No. KO25 at Odumasi-Kenyasi No. 1, which house Defendant is laying adverse claim to; 2. Anyotherordersas thecourt maydeem fit tomake. The Respondent counterclaimed against theAppellant, asking forthe following reliefs: 1. A declaration that all that thirteen (13) bed-room house with House No. K.O. 25 situate at Odumase-Kenyasi No. 1 is a sole property of the late Adwoa Yaawa’sfamily and for recovery ofpossession; 2. An inunction order to restrain the [Appellant] his agents or assigns from continuing making claim ofownership ofthe disputed house; 3. Costincluding legalcosts; and 2 4. Anyfurther order(s)or otherreliefs that the court maydeem fit to make. According to the Appellant, he is the head of the Oyoko family of Kenyasi No. 1. Through his lawful attorney, one Kwame Okoh Asamoah, he averred in a Statement of Claim dated 28th October, 2021 that he was also the customary successor to one late Opanin Kwabena Okoh. The Respondent, he claimed, was the daughter of a step- daughter to this deceased uncle of his. The late Opanin Kwabena Okoh had married the grandmother of the Respondent, one Adwoa Yaawa, and later married two additional women,being MadamAkosua Donkorand MadamAma Saabour. Opanin Kwabena Okoh is said by the Appellant to have acquired several properties in his lifetime, including that presently in dispute. However, before he married the Respondent’s grandmother, he lived in a property located at No. NT 16, Kenyasi No. 1 with some nephews and nieces. Opanin Kwabena Okoh is said to have been appointed the customary successor of one Osei Kwadwo. By the customary practice of that time, the widow of Osei Kwadwo was given in marriage to his customary successor, and by that, Adwoa Yaawa, that widow, then became the wife of Opanin Kwabena Okoh. At that time,Adwoa Yaawa had a child, oneAmaAgyeiwaa, mother of the Respondent. By 3 the resulting marriage of Adwoa Yaawa to Opanin Kwabena Okoh, Ama Agyeiwaa became his step-daughter. After that marriage he allegedly built the disputed property, according to theAppellant, and moved in withhis wifeAdwoa Yaawaand her daughter, AmaAgyeiwaa. According to the Appellant the two additional wives of Opanin Kwabena Okoh did not live in the disputed property. Adwoa Yaawa, however, predeceased Opanin Kwabena Okoh. He continued thereafter to live in the disputed property with some members of his extended family until his death. He had, however, in his lifetime chosen the Appellant and one Joseph Kwabena Okoh (now late) as his customary successors, and with his family honouring that wish, both were appointed as his customary successors. They proceeded to apply for and obtained Letters of Administration to his estate, per a grant by the High Court, Kumasi dated 16th November, 1983, after notices were posted onthe disputed property. According totheAppellant,AmaAgyeiwaa, the daughterofAdwoa Yaawa, neverlaid a claim of ownership to the disputed property in her lifetime. He contended that even if she was clothed with such ownership at all, same was caught with laches, acquiescence, and estoppel on the grounds of his family having been in effective occupation and possession of the disputed property ‘since time immemorial’, and same having managed same at least since 1983 when Letters of Administration were granted to the 4 Appellant and the now deceased Joseph Kwabena Okoh. Thus, upon all that, the Appellant contended that the disputed property could not have been gifted to the Respondent byanyone. The claims, allegations and averments by the Appellant in his claim were disputed by the Respondent.AStatement of Defence was delivered on her behalf on 26th November, 2021. She alleged that the land on which the disputed property was situate was acquired by her grandmother, Adwoa Yaawa, unilaterally, and the Appellant’s uncle, during his marriage to her grandmother, assisted her to build the disputed property on it. On completion Adwoa Yaawa moved to live in the disputed property with her husband, Opanin Okoh, as well as her children and grandchildren. Adwoa Yaawa is said, by the Respondent, to have agreed to the request of her husband to permit some members of his family to move into the disputed property with him since there had been some conflict over space among such in his property No. NT16. At that time, several ofAdwoa Yaawa’s children had left home to start their own lives. This disputed property, according to the Respondent, has been, and still is referred to in the neighbourhoodas ‘Maame Yaawa’s house.’ The Respondent went further,saying that, aside her mother,her grandmother had other children, being Maame Addisa, Kaliatu, Osei Kwadwo, Akosua Nyarko, Osei Yaw, and YaaAbrafi. These, havealldeceased, she said. She agreed that some membersofOpanin 5 Oko’s extended family came to live in the disputed property, but with the permission of her grandmother, and further agreed that the other wives of Opanin Okoh never lived in the disputed property. She acknowledged the fact on one Joseph Kwabena Okoh succeeding Opanin Okoh, but not the Appellant. She also contested the grant of letters of administration to the estate of Opanin Okoh to the extent of same including the disputed property in the inventory of the estate, if that had been the case, which fact, she contended wasfraudulent. The Respondent denied that the family of Opanin Okoh had been in control and management of the disputed property. She rather contended that her family had been in control of the disputed property, paying all assessed District Assembly rates. She also contended that her mother had dug a well at, and renovated the disputed property without any protest from the Appellant or his family. At a point in the past, the Respondent claimed that she found herself in a conflict with one Akosua Nyanta and her children, which caused her mother to declare in the presence of others, being Opanin Denteh and Opanin Darbo that the property belonged to her mother, and accordingly ordered the eviction of Akosua Nyanta and her children. They only continued staying in the property after pleas and promises from them to her mother to be ofgood behaviour. 6 According to the Respondent, she was summoned before the Queenmother of Kenyasi No. 1 upon a complaint by theAppellant and his family over the disputed property, but the Queenmother and her elders subsequently declared her and her family to be the owners of the disputed property. Beside that, she was summoned by the Appellant and his family to the Commission on Human Rights and Administrative Justice. Having done so, however, they failed to appear, but then rather commenced the action that led tothe judgmentinissue. She thus counterclaimed, asreferred toabove. It is the appellate jurisdiction of the High Court that has been invoked, requiring a rehearing ofthis case, by which it means that the aggrieved party seeks the reevaluation of the judgment to determine its soundness in law. To have that done, the Appellant filed a Notice ofAppeal on 2nd September, 2024 in which, practically, a single ground of appealwasstated, towit: The judgment of the District Court, Kenyase dated the 9th day ofAugust, 2024 is against theweight ofevidence adduced incourt This ground of appeal requires the court, as an appellate court, to conduct a re- examination ofthe entire record todetermine whether the decision of the trial court was arrived at out of a proper and sufficient evaluation and analysis of the evidence 7 adduced at trial by the parties in the case. In doing so, the appellate court should be able to reach one of two conclusions, that the trial judge sufficiently evaluated the evidence adduced at trial and correctly determined out of that exercise, that the party succeeding had made out a case and was therefore entitled to judgment (see: Ahiagbede and others vs. Amable [2013-2015] 1 GLR 243). The appellate court should however be mindful of the fact that before it can proceed to disturb the findings made by the trial judge, its analysis and evaluation of the evidence and record should reveal that no part of the evidence on record supported the findings made, or that the reasons for the conclusion reached by the lower court were perverse when considered along side the evidence adduced at trial. As posited by Pwamang JSC in the case of Adei and Adeivs. Robertson and Sempe Stool[2017-2018] 2SCGLR 447at 454: Where a trial court that heard the evidence has made findings based on the evidence and come to a conclusion in a case, an appellate court ought not to disturb those findings except where there is no evidence on record to support the findings or the reasons for the findings of a lower court where they are based on a wrong proposition of law or a rule of evidence or the findingsare inconsistent with documentary evidence inthe record. 8 Therefore, the current exercise on appeal conducted by this Court should reveal whether there is sufficient evidence on record to support a conclusion that on a balance of probabilities, the trial judge was right in rejecting the case of theAppellant for that of the Respondent. It must show that the party with the weightier evidence, so determined after a careful and sufficient evaluation, succeeded. If that is not the case, then can the Court, upon its evaluation of the evidence and entire record disturb the findings of the trialjudge(see: Ama Serwaa vs. Hashimu [2020-2022] 1GLR466). The District Magistrate, in his judgment set out 4 issues for determination. They were as follows: 1. Whether or not the house in dispute was the property of the late Op. Kwabena Okoandsame hasbecome afamily propertyuponhis demise; 2. Whetherornot the[Respondent] hascapacity to counterclaim; 3. Whetherornot the[Appellant] is entitled tohis claim; and 4. Whetherornot the[Respondent] is entitled toher counterclaim. On the first issue, the trial judge found that the Appellant had failed to discharge the burden of proof on him to lead sufficient evidence in support of that claim. The Appellant, aside his narrative, premised the claim of ownership of his family to the 9 property in issue upon Exhibits B and C. These, respectively, are the Application for Letters ofAdministration to the Estate of Opanin Kwabena Okoh, and the actual Letters ofAdministration issued out consequent upon the said application. In Exhibit B there is an inventory of the estate and the property in issue, and indeed Property No. KO25, Kenyasiis mentioned. The trial judge determined, however, that the Appellant failed to lead evidence to confirm that notices of the grant by the court had been posted on a deceased person’s last place of abode, being a usual condition for the grant of Letters of. The judge was of the viewthat this should havebeenprovenby theRegistrar oftheparticular court being called to testify. With that missing, the trial court found against the Appellant that the Respondent had due notice of the Application for Letters of Administration in which the disputed property had been mentioned as part of the inventory of the Estate of Opanin Kwabena Okoh. However, on this alone, it is the view of this Court that the Appellant could rely onthe benefit of the legal presumptionomnia praesumuntur rise esse acta, which is codified under S.37 of the Evidence Act, 1975, NRCD 323 (also see: Ghana Ports and Harbours Authority and another vs. Nova Complex Ltd [2007-2008] 2 SCGLR 806). This is because Exhibit B and C constitute the commencement and result of a process involving official function by a public officer or entity. The presumption operates in favour of such official function to have been regularly performed, leaving the rebuttal of the presumption to the one who questions the propriety of such official 10 function. Nevertheless, it still remains afact, that such mention ofthe disputed property, on its own, in Exhibit B without more, cannot be construed as conclusive evidence of ownership of that disputed property. On their own therefore, Exhibits B and C, within the context of this case, were not of any substantial probative value to the case of the Appellant. Tothat extent, this Courtis ofthe view thatthe trialjudge wasright. TheAppellant the called a witness who testified as PW1. In his testimony, he claimed to have assisted the deceased, Opanin Kwabena Okoh, transport some sawn boards from the bush to the then construction site of the property in issue, and those boards were used to roof it. Aside this, his evidence did not disclose the status of the deceased with respect to the those works allegedly done on the property, whether it was gratuitous or otherwise. Being seen superintending the construction of a property cannot equate to suchpersonowning the propertyunequivocally.PW1 thereforecould not speak directly in affirmation of ownership by the deceased of the property in issue. His evidence was accordinglyunreliable. Besides, the Appellant sought to rely on the payment of property rates on the property in issue by his family members as proof of their family’s ownership of the disputed property. This was also rejected by the trial judge, when he contrasted that assertion with the evidence of the Respondent that when YaaAhenkan, a relative of heAppellant 11 was found to be paying property rates on the disputed property, the mother of the Respondent went to the local authority to have her name substituted for that of Yaa Ahenkan from 2015 and that remained the case till the instant writ was sued out. When this reasoning is considered upon the guiding principle of law enunciated by Brobbey JSC in Tonado Enterprises vs. Chou Sen Lin [2007-2008] 1 SCGLR 135, the conclusion reached by the trial judge can be supported. That principle stated by Brobbey JSC at pageis asfollows: There is no doubt that on some occasions, payment of ground rent may be some evidence of ownership. It is however, not an invariable rule that any payment ofany ground rent should be construed as evidence ofownership. This is because in this country, caretakers and tenants can pay ground rents and when it happens, it will be wrong to interpret the payments as conclusive of ownership. The principle that can be laid down on such payments is that payment of ground rent may in some circumstances represent evidence of occupation, control (by caretakers) or in some cases evidence of ownership (where payment is by the landlord) but it cannot be taken that payment of any ground rent is conclusive evidence of ownership. Such payments merely raise a presumption of ownership which is rebuttable. 12 Property rates, like ground rents, are charged on buildings sited within a physical development planning scheme of a local authority. They do not even have the character of ground rents which are typically charged by a grantor of land as a covenant related to the grant. The local authority property rates are simply a revenue collection exercise. It has nothing to do with the ownership of the property, but charged only because the particular property is sited within the physical development planning scheme of the locality, and therefore is counted for the generation of revenue for the local authority. If the payment of ground rent is not conclusive evidence of ownership of property, the payment of property rates do not suggest actual ownership of the property over which it is assessed in the one who pays. That payment, on its own, cannot be proof of ownership of land. The evidence of the Respondent about her mother contesting such payments in the name of Yaa Ahenkan was sufficient rebuttal of any presumption createdinfavour oftheAppellant by such payment. The aggregate of these observations made by the trial judge, excepting that relating to the presumption of regularity of official actions, were correct, and his findings on the issue, therefore, was right. It is affirmed by this Court, therefore, that the Appellant failed toprovethat hislate uncle OpaninKwabena Okohowned the propertyin dispute. 13 The second issue concerned theAppellant’s contest of the capacity of the Respondent to maintain a counterclaim. It was an argument apparently predicated on the Appellant’s allegation that the respondent was not the head of her grandmother Adwoa Yaawa’s family. This was not pleaded, never raised for contest during the trial, but raised in the Appellant’s written address filed on his behalf by his lawyer. The trial judge, grounded on the fact that this issue was not raised in trial, concluded that it could not be raised in the written address.Additionally, to the extent that the Counterclaim of the Respondent did not relate to a claim of title in herself, but her late grandmother – and therefore her estate, her capacity was not an issue. Thus, the issue was resolved in favour of the Respondent. Again, the trial judge was right to have rejected this late attempt to contest the capacity of the Respondent. Admitted though it is that capacity can be raised at any stage in a case, it is still a triable issue which requires a conclusive resolution. Thus, it should be raised in such a situation that would allow the court to superintend a contest on it. That is the rationale behind those long line of authorities, such as Sarkodie I vs. Boateng II [1982-83] GLR715, Asante Appiah vs. Amponsah [2009] SCGLR715,and Sokpui II vs. Tay Agbozo III (1951) 13 WACA 241, that suggest that when capacity is raised, at best, it should be determined before the merits of the dispute are tried, and not for it to be argued that its resolution would be apparent during the trial process. Therefore, 14 practically, it should be raised at anytime before the trial concludes, except where it is based on facts so explicit and not admitting any need for contest. For emphasis, reference is made to the statement by Anin-Yeboah JSC (as he then was) in the case of Musah vs. Appiagyei; Civil Appeal No. J4/32/2017, Judgment dated 2nd May, 2018 whichgoesasfollows: We think the law is that, when a party lacks the capacity to prosecute an action the merits of the case should not be considered. However, the two lower courts, with due respect, proceeded at length to discuss all the issues raised as if the appellant’s case should be considered on the merits. If a suitor lacks capacity it should be construed that the proper parties are not before the court for their rights to be determined. A judgment, in law, seeks to establish the rights of parties and declaration of existing liabilities of parties. In the case of Akrong & ors. v Bulley [1965] GLR 469 the then Supreme Court after holding that the plaintiff lacked capacity to prosecute the action as an administrator of the deceased, did not proceed to discuss the merits. For proceeding to discuss the merits when the proper parties are not before the court is not permitted in law. In this appeal, regardless of the other issues raised, the High Court, and the Court of Appeal for that matter erred in determining the other issues raised. Even though the court 15 may resort to taking evidence on all the issues raised by the pleadings, the courtmust always consider the issue of capacity first. In the Akrongs’s case, supra, where lack of capacity was successfully raised on appeal before the Supreme Court, ApalooJSC(as he then was) said atpage 476thus: “But the question of capacity, like the plea of limitation is not concerned with the merits and as Lord Greene MR said in HILTON v SUTTON STEAM LAUNDRY, once the axe falls it falls, and a defendant who is fortunate enough to have acquired the benefit of the statute of limitations [and I would myself add, or unanswerable defence of what of capacity to sue] is entitled of course, to insist upon hisstrict right” It is the view of this Court that if this was a serious issue theAppellant required to have interrogated before the trial court, he should have sought to raise it before judgment was delivered, or sought to arrest same and have the issue tried and determined. Order 41 rule 2(2) of the High Court (Civil Procedure) Rules, 2004, C. I. 47 provides to the effect that a case is deemed closed and ready for judgment when the evidence ‘has been given to the Court, and the final speeches have been concluded.’ The final speeches have morphed into written addresses, obviously. This stage of a case, before it is closed, 16 could permit, in the right situations, the raising of a pertinent issue, the determination of which could significantly impact the claims or counterclaims made in it. Order 33 rule 3 of C. I. 47 of 2004 grants the Court a discretion to so order for such a question or issue tobe considered. It statesas follows: The Court may order any question or issue arising in any cause or matter whether of fact or law, or partly of fact and partly of law, and raised by the pleadings to be tried before, at or after the trial of the cause or matter and may give directions as to the manner in which the question or issue shall be stated. Instead of raising the issue of capacity in his written address, the lawyer for the Appellant should have sought the setting down of that issue for determination. The rejectionofthat issue by thetrial judge,wastherefore right, andsame is reaffirmed. The last two issues considered by the trial judge will be considered together, since both speak toward a common thing, being which party was entitled to their claims made. The trial judge had concluded that the Appellant failed to prove his case, but that the Respondent had proven her counterclaim. Between the entire cases put up by both parties, he preferred that put up by the Respondent to that put up by the Appellant. 17 Upon the analysis of his findings done and confirmed above, his conclusion cannot be disturbed by this Court. The trial judge had aduty, with this being a civil case, to arrive at a decision on a balance of probabilities. That duty is explained by Marful-Sau, JSC in thecase ofAhiagbede andothersvs. Amable (supra) atpage 248asfollows: Atthe end ofthe trial therefore the trial judge was to evaluate the evidence adduced and determine which of the parties had made out a case and thus entitled to the protection of the court by an award of judgment. This is a bounden duty or obligation that every trial judge is legally required to perform. In terms of the duty of an appellate court, as the present, in respect of an appeal of the judgment of a court of first instance, he said further at page 250 of the same case as follows: It is trite law that when an appeal is mounted on a ground that the judgment was against the weight of evidence adduced at trial the appellate court is to ascertain whether the trial court’s decision is supported by the evidence adduced at the trial or not. The appellate court is to ensure that the trial court arrived at its decision after a proper evaluation of the 18 evidence adduced by the parties before it at the trial. See Oppon Kofi v. Attibrukusu II [2011] 1SCGLR176. When the findings of the trial court are determined to be supportable by law, the appellate court cannot, and should not, disturb them. Not even the fact that the appellate court, if seised with the facts, could have reached a different determination, should permit it to disturb the findings of the trial court (see: In re Okine (dec) [2003- 2004] 1 SCGLR 582 at 607, er Kludze JSC). Despite the appeal being by way of a rehearing, it is without the advantage of the witnesses being in the sight ofthe appellate court as they testified. So much is gleaned from testimony by a trial court which an appellate court does not have the opportunity to witness. It is limited only to the written record. The demeanour, gestures, other physical and verbal expressions of the witnesses are not available. All these are considered by the trial judge in his or her assessment of the evidence adduced before the trial court. The appellate court only speaks to the record before it. It can only determine the rightness or wrongness of the judgment before it by determining whether the analysis leading to the judgment was in accordance withlaw; compliant with therulesofevidence and the rulesofprocedure. 19 Having conducted the required reevaluation of the entire record, on the basis of the sole ground of appeal laid, this Court is confident in its conclusion that the judgment of the trialcourt is sound in lawand is notopento disturbance. Before closing this judgment, there is the small matter of the lawyer for the Respondent filing a Notice of Withdrawal of Legal Representation; a mere notice filed on 6th May, 2025. This practice requires comment in providing clarity to those circumstances in whichlawyersmay properly withdrawtheir representation in cases beforethe courts. Under Order 75 of the High Court (Civil Procedure) Rules, 2004, C. I. 47 three situationsareprovided in which lawyer’srepresentation ofapartycould be terminated: a. Where the party elects to change the lawyer by appointing a new one, or elects to represent himself orherself in theaction; b. Where the lawyer deceases, becomes bankrupt or cannot be found, fails to take out a practicing licence, is struck off the Roll of Lawyers or is suspended from practicing, orforany otherreasonceases to practice law; or c. Wherethe lawyerelectstoceases to act foraparty. 20 A party may elect to change his or her lawyer in a case upon the filing of a ‘notice of change of lawyer’by a newly retained lawyer. By this, the court and all other parties are informed of the termination of the previous lawyer’s instructions and the assumption of responsibility by a new lawyer appointed. If the party elects to represent himself or herself, then the party is obliged under Rule 3 to file a notice of such change and serve allparties withsuch notice. The second situation is where, as a result of some interruption of the professional status of the lawyer, by loss of licence, bankruptcy etc., or death, the representation automaticallyceases. If, however, it is the lawyer who seeks to withdraw, then Rule 6 applies. The lawyer, in that situation, is under a duty to apply to the Court to make an order confirming his or her withdrawal of representation. Such an application will have to be supported by an affidavit stating the grounds uponwhich the applicationis made. The circumstances that permit the withdrawal by a lawyer of representation of a client are covered in Rule 85 of the Legal Profession (Professional Conduct and Etiquette) Rules, 2020 L. I. 2423. This Rule provides that except for good cause, a lawyer shall not 21 withdraw legal representation. The option to withdraw should therefore be in the situation where the client has lost confidence in the ability of the lawyer to represent his or her interests to the knowledge of the lawyer, or where, after reasonable notice, the client fails to provide funds on account of disbursements or fees (Rule 86).Additionally, Rule 87 provides circumstances where it becomes mandatory for a lawyer to withdraw representation, or it is untenable for the lawyer tocontinue to offer representation to the client. The fiduciary relationship and professional duty created by the contract for legal representation is one that results in significant obligations. In choosing to disengage therefore, care should be taken to ensure that such withdrawal does not compromise the client’s interest. Withdrawal of representation is an ethical issue. That is why it is required that the lawyer applies for an order to confirm the propriety of the intention behind thewithdrawalwhere it is the lawyerelecting toterminate services tothatclient. Where the lawyer and client relationship suffers strain, it is easy to result in a stressful and frustrating situation for a lawyer,and out of that, may choose simply to file a notice of withdrawal simpliciter and forget about that case. That, however, is not enough. Withdrawal of representation must therefore be accorded substantial caution, so as to avoid offending the professional and ethical rules. This Court therefore disregards the 22 notice filed by Roland Boadi-Gyan, Esq. on 6th May, 2025 since same was without leave ofthis Court. This entire appeal fails, and is accordingly dismissed, with costs in favour of the Respondent setat GH¢10,000.00. JUSTICENATHANP.YARNEY (JUSTICE OFTHE HIGHCOURT) SUNYANI- BONOREGION Lawyers: Felix Obiri Boahen, Esq. for theAppellant Roland BoadiGyanEsq., for theRespondent. 23