Nkuah Vrs Konadu and Another (J4/9/2008) [2009] GHACA 1 (11 February 2009);











NO. J4/9/2008

11TH  FEBRUARY, 2009


MADAM AFUA NKUAH                       …                          APPELLANT





TONY AGYEMANG BOATENG            …                          RESPONDENTS







This is an appeal against the judgment of the Court of Appeal dated the 13/03/2006.  The Court of Appeal allowed an appeal against the judgment of the High Court, Kumasi which was delivered on 15/07/2002.  The Plaintiff/Respondent/Appellant who for the sake of brevity shall be referred to as the Appellant herein on 25/10/1996 issued a writ of summons against the Defendant/Appellant/Respondent (who shall be referred to in this judgment as the Respondent).  The action was for a declaration to the effect that a single room in a house at old Amakom known as H/№ Plot 2 Block XIII, Old Amakom is neither the property of the Respondent nor any member of her family.  The appellant also sought as ancillary reliefs, ejectment and recovery of possession and injunction.

The case for the appellant was that one Kwabena Bio was the original owner of H/№ Plot 2 Block XIII, Old Amakom, in Kumasi and in 1954 he assigned his interest in the house to one Yaw Mensah a grand uncle of the Appellant.  At the time of the assignment, one Madam Tiwaa who was the sister of the alleged assignor was occupying two rooms being chamber and hall in the first floor of the house.  The said Madam Tiwaa was the mother of the Respondent.  Due to the fact that Kwabena Bio had assigned his interest in the house, her sister Madam Tiwaa had to vacate the house.  The assignee on humanitarian grounds offered Madam Tiwaa one room on condition that she could live in the room in only her lifetime.  Madam Tiwaa accepted the proposal and lived in one room with her daughter, the respondent herein, till she died in 1995.  It was soon after the death of Madam Tiwaa that the appellant demanded rent from the respondent if she wanted to continue to live in the room.  The respondent disputed the appellant’s title which led to the action at the High court, Kumasi.

The respondent traversed most of the allegations of facts upon which the appellant’s claim was based. She pleaded that Kwabena Bio put up the house but received a loan from one Yaw Mensah the predecessor-in-title of the appellant and used the house as security which made the transaction a pledge.  According to her, it was as a result of the inability of the family of Kwabena Bio to pay off the debt to redeem the pledge whereby Yaw Mensah agreed with her family to exact rents from the house and pay off the debt.  Respondent stated categorically that her mother on her own volition moved from the hall and chamber to occupy a single room in the house which is the subject matter of this action.  In effect it was her case that kwabena Bio owned the house and that Yaw Mensah was a mere pledgee who never owned the house.

On the 17/6/1998, one Tony Agyemang -Boateng who claimed to be the head of family of the respondent applied to join the suit as co-defendant.  His application was granted.  In his statement of defence filed pursuant to the joinder, he virtually repeated the allegations of facts pleaded in the statement of defence of the defendant.  He, however, lodged a counterclaim and put the capacity of the appellant in issue.  He denied stoutly any assignment executed by his relative Kwabena Bio and pleaded fraud to deny the assignment any effect in law.

The learned trial judge was called upon to resolve several issues which emerged from the pleadings.  He found as a fact that the property, that is, H/№ Plot 2 Block XIII Old Amakom was indeed put up by Kwabena Bio.  He, however, found in favour of the appellant herein that Kwabena Bio in his lifetime assigned his interest in the house to Yaw Mensah.  As a trial judge, he proceeded to evaluate the evidence of the respondents touching on the allegations of fraud.  According to the learned trial judge, the Deed of Assignment which was tendered as Exhibit ‘B’ did not suffer from any fraud.  It was therefore concluded by the judge that Exhibit ‘B’ upon examination assigned all the interest of Kwabena Bio effectively to Yaw Mensah.

Several exhibits in the form of rent cards and statutory demand notices for payment of property rates were admitted in evidence and they bore the name of Yaw Mensah as the owner of the house in which the single room, the subject matter of this appeal is part of.  Based on the evidence the learned trial judge entered judgment for the appellant to recover the single room in the house and further granted all the reliefs sought on the writ of summons and dismissed the counterclaim.

The respondents being dissatisfied with the judgment of the High Court lodged an appeal to the Court of Appeal.  On the 13/03/2006 the Court of Appeal, in an unanimous decision, reversed the judgment not on the merits but on the issue of lack of capacity.  As the Court of Appeal held that the appellant had no capacity to bring the action, it did not deem it proper to go into the other issues or grounds of appeal.  The Court of Appeal based its decision on the case of CONNEY V BENTUM WILLIAMS [1984-86] GLR 310 CA and held that as the appellant was deriving her title from an estate in which she was a beneficiary she required a vesting assent to enable her to initiate legal proceedings involving the estate’s property.

The appellant has lodged this appeal to this court obviously seeking the reversal of the judgment of the Court of Appeal on several grounds apparent in the notice of appeal.

The judgment of the court of Appeal has been seriously attacked under ground (a) of the grounds of appeal which stated as follows:

The Court of Appeal erred in holding:



  1. that the plaintiff did not have the requisite capacity to sue at the court below in view of the fact that the court did not have any factual evidence to support its holding, particularly as the issue of capacity raised at the court below and the Court of Appeal related to the plaintiff’s lack of vesting assent and not as to her lack of capacity as the head of family.

In civil actions, usually commenced by writ of summons, if a party to the suit initiated an action in a representative capacity, such capacity ought to be fully endorsed on the writ and appear in subsequent processes filed.  The action which has culminated in this appeal was commenced on 25/10/96 when the High Court Civil Procedure Rules LN 140 A of 1954 was in force.  Order 3 Rule 4 of the operative rule states as follows:

4. If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, the endorsement shall show in the manner appearing by such of the forms in appendix A, part II, as shall be applicable to the case or by any other statement to the like effect in which capacity the plaintiff or defendant sues or is sued” 


In this appeal before us it is obvious from the proceedings, specifically the writ of summons that the appellant as plaintiff did not sue in any representative capacity whatsoever.  Her case was simple. Both in her evidence and statement of claim it was her case that the house formed part of the estate of one Yaw Mensah, and that after his death one Kwame Adum Atta obtained letters of administration and administered the estate.  It was her case that as Yaw Mensah had another landed property as H/№ KO77 his estate was distributed and H/№ Plot 2 Block XIII Old Amakom of which the room in dispute form a part was given to her by the family.

 She was obviously not suing as the head of her family.  Both the pleadings and the evidence did not disclose so.  It was therefore not proper for the defendant and co-defendant to plead that she had not capacity to institute the suit.  In my respectful view, the learned judges of the Court of Appeal did not consider the procedural requirement of suing in a representative capacity as laid down in the applicable rules of court as it then stood at the time the writ was issued.  Order 3 Rule  4 of LN 140 A of 1954 has been subsequently repeated in Order 2 Rule 4 of the new High Court (Civil Procedure) Rules, 2004 CI 47 and nothing turns on the difference.  In my opinion the Court of Appeal erred in raising the issue of capacity against the appellant in the manner it did.

Another error which touches on the issue of capacity was the application of the ratio decidendi in the case of CONNEY V BENTUM WILLIAMS [1984-86] 2 GLR 301 CA which states inter alia, that lack of vesting assent and registration of same does not vest legal title in a beneficiary under a will by virtue of Land Registry Act 1962 (ACT122).

In as much as I do not doubt the correctness of the decision in the Conney’s case, it is clear that this case is easily distinguishable from the Conney’s case.  In the Conney’s case, the testator had died on 30/04/1976, at a time when both the Administration of Estates Act 1961 (Act 63) and the Land Registry Act 1962 (ACT 122) were in full force and effect.  In this case before us, Yaw Mensah, on the evidence, died in 1957 and Letters of Administration was obtained in 1957 by one Adum Attah. It is therefore erroneous for learned counsel for the respondent to invoke Act 63 and Act 122 which were both wholly inapplicable given the circumstances of the case.  As the evidence was not clear from the record when the property was given to the appellant, it was with due respect equally wrong for the Court of Appeal to raise this point against the appellant and based its judgment on it by applying the Conney’s case to deny the appellant her capacity  to sue.


Apart from the erroneous application of both statutes which influenced the Conney’s case, the appellant in this case had sued for only one room in the house which had been gifted to her.  The title of the whole house was not put in issue in her claim in anyway.  The respondents rather counterclaimed for the house on the simple grounds that the house was pledged by Kwabena Bio to Yaw Mensah and sought declaration of title and the usual ancillary reliefs or recovery of possession, injunction and accounts.

In my respectful opinion, there was therefore no basis to deny the appellant her right to sue to recover only the one room which was the subject or her claim.  I am of the view that the appeal ought to be allowed and the judgment of the High Court granting the reliefs endorsed on the writ to the plaintiff restored.


                                                                                                                            ANIN YEBOAH



I agree


                                                                                                G. T. WOOD (MRS)



I agree


                                                                                                     S. A. BROBBEY



I agree





I agree


                                  P. BAFFOE-BONNIE