ALICE POKU vs. SELINA OSEI NYARKO [2016]DLCA4528

Date	2016-06-16
Suit No.	CIVIL APPEAL NO. H1/102/2016
Citation No.	[2016]DLCA4528

V.D. OFOE J.A. (PRESIDING)

F.G. KORBIEH J.A.

H.A. KWOFIE J.A.

MRS. JACINTA GAYLE FOR THE DEFENDANT/APPELLANT

A. G. BOADU FOR THE PLAINTIFF/RESPONDENT

[2016]DLCA4528
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													<main id="main" class="content" style="min-height: 60rem" >ALICE POKU<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>SELINA OSEI NYARKO<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. H1/102/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATED: 16TH JUNE, 2016<o:p></o:p>

A.
G. BOADU FOR THE PLAINTIFF/RESPONDENT<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>F.G. KORBIEH, J.A.<o:p></o:p>The
case (or better still, the cases) leading to this appeal have a very chequered
history. I will however be very brief in tracing this history. In 1990, one
Nana Appiawiah sued the defendant/appellant herein in the circuit court for a
declaration of title to a piece or parcel of land lying, situate and being at
“MILE 7 off Nsawam Rd., Accra measuring 167 ft. on the North-East by Lessor’s
land measuring 100 ft. more or less on the North-West by the Lessor’s land
measuring 100 ft. more or less and containing an approximate area of 0.36 acre
more or less.” The defendant/appellant not only defended the action, she
mounted a counter claim for a declaration of title to virtually the same land.
Whilst the Nana Appiawiah’s claim was dismissed, the defendant/appellant’s
counterclaim was granted and she was declared owner of the land. Thereafter it
came to the notice of the defendant/appellant that Nana Appiawiah had obtained
a land certificate on that very parcel of land. She therefore sued Nana
Appiawiah in the High Court for a declaration of title to the land again, for
possession and for the land certificate to be cancelled or revoked. The Land
Title Registrar was therefore joined to the suit. The defendant/appellant got
judgment and was granted all the reliefs she sought. Upon being granted a writ
of possession, she entered the house erected on a portion of the land in
dispute and proceeded to demolish it. The plaintiff/respondent herein, who
claims to be the wife of Nana Appiawiah, issued a writ in the court below
asking for three reliefs: (1) a declaration that the land on which house no.
ANT/AB 75 Achimota, Accra is built is not part of the land affected by the High
Court judgment in the case of Alice Poku v. Nana Appiawiah &amp; Another; (2)
perpetual injunction restraining the defendant, her agents, servants, and
assigns from interfering with house no. ANT/AB 75 Achimota, Accra; (3) damages
for trespass. The writ was accompanied by a statement of claim(subsequently
amended)&nbsp; in which the
plaintiff/respondent herein described the land of the defendant/appellant as
being surrounded on three sides by her vendor’s property and on the fourth side
by a road. She however described herself as the wife of Nana Appiawiah
(mentioned supra) and claimed that ANT/AB 75 Achimota, Accra, which was built
on adjoining land and which “measures 30 feet by 30 feet”, was built by her and
her husband, the aforementioned Nana Appiawiah. The defence of the
defendant/appellant was basically that the High Court in Suit No. FAL. 92/12
had ordered that she should recover the land that she had sued for (which the
plaintiff had so ably described in her writ of summons).<o:p></o:p>At
the close of pleadings and after directions for trial had been taken the
defendant/ appellant (hereinafter referred to only as the appellant) applied to
have the plaintiff/respondent’s amended writ of summons and amended statement
of claim struck out on the basis, among many others, that the respondent had no
capacity to bring the action in court. She added that in addition the respondent
was estopped by the doctrine of res judicatam in rem as the judgment taken
against Nana Appiawiah in the case of Alice Poku v. Nana Appiawiah in Suit No.
FAL: 92/2012 was binding not only on her but against the whole world. In her
affidavit in opposition, the respondent merely repeated her assertion that the
house that had been demolished was built by her and her husband and was on
adjoining property. She added that as joint-owner of the demolished house she
had the capacity to bring the action.<o:p></o:p>In
his ruling, the trial judge correctly stated that when the capacity of a party
is raised, it must be resolved before the merits of the case are gone into; and
that when the challenge succeeds, the case fails outright. He however added,
rather ominously, that raising the issue of capacity of the plaintiff did not
include raising a false alarm. He then proceeded to say that going by the
surveyor’s plan there was controversy as to the ownership of the land in
dispute and so there was the need to go into the merits of the case, hence the
case should proceed to trial. It is this ruling that the appellant has appealed
against. She has listed three grounds of appeal which are:<o:p></o:p><o:p>&nbsp;</o:p>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The judgment/ruling is against the
weight of the evidence.<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial court failed to
exercise its discretion judiciously when it ruled that: “Raising an issue to
the capacity of the plaintiff does not include a false alarm to capacity of the
plaintiff…The case will proceed to hearing on the merits.”<o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial court erred in law in
failing to find that the plaintiff/respondent bore the burden of proving her
capacity to bring the current action when the issue of capacity was raised by
the defendant/appellant as a preliminary legal issue before considering the merits
of the case.<o:p></o:p>PARTICULARS OF ERRORS OF LAW<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The learned trial court misdirected
itself in law in respect of the findings in Sarkodee I v. Boateng II [1982-83]
GLR </main>