NII OKWEI KINKA DOWUONA VI (PLAINTIFFS/APPELLANT) vs. THE TRUSTEES OF GHANA ASSOCIATION OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS (DEFENDANT/RESPONDENT) [2019]DLCA7794

NII OKWEI KINKA DOWUONA VI (PLAINTIFFS/APPELLANT) vs. THE TRUSTEES OF GHANA ASSO... [2019]DLCA7794

Date	2019-05-02
Suit No.	SUIT NO H1/259/2018
Citation No.	[2019]DLCA7794

ADJEI J.A.

SUURBAAREH J.A.

AGBEVOR J.A.

KWAME FOSU GYEABOUR ESQ. FOR THE PLAINTIFF/ APPELLANT

MS GOLDA DENYO ESQ. FOR THE DEFENDANT/ RESPONDENT

[2019]DLCA7794
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													<main id="main" class="content" style="min-height: 60rem" >NII OKWEI KINKA DOWUONA VI<o:p></o:p>(PLAINTIFFS/APPELLANT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0">vs.<o:p></o:p>THE TRUSTEES
OF GHANA ASSOCIATION OF THE CHURCH OF JESUS CHRIST OF LATTER DAY SAINTS<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</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;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO H1/259/2018&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; &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;DATE: 2ND MAY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KWAME
FOSU GYEABOUR ESQ.&nbsp; FOR THE PLAINTIFF/
APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MS
GOLDA DENYO ESQ. FOR THE DEFENDANT/ RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

ADJEI&nbsp; J.A., SUURBAAREH J.A., AGBEVOR J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>ADJEI, J.A.:<o:p></o:p>The
Plaintiff/ Appellant maintained an action against the Defendant/ Respondent at
the High Court, Accra to claim ownership over a parcel of land at Osu. After
the Defendant filed his defence which was replied to by the Plaintiff, the
Defendant brought an application under Order 33 rule 5 and the High Court’s
inherent jurisdiction to dismiss the suit. For the purposes of this appeal and
ease of convenience, the Plaintiff/Appellant will be referred to as the
Plaintiff and the Defendant/Respondent will be referred to as the Defendant,
that is, the parties shall maintain their respective designations at the court
below.<o:p></o:p>The
motion to dismiss the Plaintiff’s action was resisted by the Plaintiff. The
High Court heard both parties and on the 10th of November, 2017, granted the
Defendant’s application on the ground that the Plaintiff lacked capacity to
maintain an action over the disputed property. The Plaintiff, dissatisfied with
the ruling dismissing his action for want of capacity on 20th November, 2017,
filed an appeal against the said ruling.<o:p></o:p>The
brief facts of the case are that the Plaintiff, Osu Mantse (chief of Osu) on
behalf of himself and the Stool brought a suit against the Defendant; a
religious entity operating in Ghana, for a declaration of title to land at Osu
and a further declaration to the effect that the Defendant had no interest in
the land and was therefore entitled to damages. The Plaintiff’s position was
that the land, which was the subject matter of a deed of exchange, dated 2nd
June, 1930 and registered in the Deeds Registry as No. 540/1930 between the
colonial government and its stool, was owned by its stool. Thus, the subsequent
alienation of the land to the Defendant was made without capacity. The
Defendant, however, had a different opinion and averred that an indenture dated
2nd June, 1930 was made between the then Governor of the Gold Coast Colony and
the then Osu Mantse and Mankralo. It further averred that the Osu Mantse,
Mankralo and acting Klotey priest entered into an indenture with Union Trading
Company Limited which divested the Osu stool of its absolute interest, that is,
by creating a fee simple interest in the land to the benefit of Union Trading
Company Limited. The instrument evidencing that transaction was duly registered
at the Deeds Registry as No 78/1937 and therefore the Plaintiff stool has not
got any right to or interest in the land. Therefore, the crux of the
application before the trial High Court was whether or not the Plaintiff has a
right or interest in the land to clothe it with capacity to institute the
action which has culminated in this appeal.<o:p></o:p>The
Plaintiff, dissatisfied with the ruling of the High Court in which its action
was dismissed for lack of capacity, filed an appeal and lodged five grounds of
appeal:<o:p></o:p>“a.
The trial judge erred in holding that the plaintiff/respondent/appellant’s
stool has no interest and capacity to maintain the action despite more
particularly the provisions of the Deed of Exchange dated 2nd June 1930 and
registered in the Deeds Registry as No 540/1930 to the contrary.<o:p></o:p>b.
The trial judge erred in holding that the land in dispute is vested in the
President of the Republic of Ghana by virtue of the provisions of 1992
Constitution.<o:p></o:p>c.
The trial judge erred in law in failing to dismiss the defendant/applicant/respondent’s
defence of&nbsp;jus tertii&nbsp;raised in its defence.<o:p></o:p>d.
The trial judge erred in law and in fact in failing to grant
plaintiff/respondent/appellant’s reliefs.<o:p></o:p>