Power to Alienate & Capacity to Litigate: When the Rule Swallowed the Exceptions

Introduction

The power to alienate and capacity to litigate are cornerstones of the law of Immovable Property and legal proceedings (Civil Procedure). The power to alienate literally enables a person or an entity to transfer or dispose of property, while capacity to litigate, on the other hand, determines who can sue and be sued in legal suits. Despite the fact that they seem to operate prominently under different branches of the law, the two concepts are long-time bedfellows, often banded together. To some judges,[1] they are inseparable. Capacity to litigate in respect of a property is contingent on the power of a person to alienate the property.[2]

‘The law is that the person who has the power to alienate is the proper person to sue and be sued in respect of the property …”, says the Court of Appeal in the case of Madam Yaa Saah v. Nana Gyakwaw and Others.[3]

Just as a Ghanaian musical artist[4] believes that everybody has his master, so every rule, they say, has its exceptions. It may seem that from the way the principle on the power to alienate property and the right to litigate is couched, there are no exceptions and that if there even were, they have now been ‘swallowed’ by the rule.

This article is intended to identify some exceptions to the principle, which the Court of Appeal seemed to have closed its eyes to, in the formulation of the rule. In all fairness to the Court, their Lordships[5]were only rehashing the customary law position, which they did with distinction, but it may seem that they were betrayed by the realities of the times. In truth, a lot has happened from the days of  Ollenu.

Beyond establishing the point that the power to alienate property and the right to litigate in court are not always intertwined, the writer will go at length, in like fashion, to sever the capacity to litigate – simplified as the right to sue and be sued – conjoined for several generations like Siamese twins; by demonstrating that it is not always the case that the person vested with capacity to sue can always be sued and vice versa.

1. Capacity to Defend an Action, without a Counterclaim

It is not the law that he who has the right to defend a suit can always mount a counterclaim. We are aware that until recently, beneficiaries of an estate needed to obtain letters of administration to be able to litigate over the property, as decided in Djin v. Musa-Baako[6]. Nonetheless, where a beneficiary was sued, but did not have letters of administration, the courts, in appropriate cases, allowed the person to defend the action, short of putting in a counterclaim.                                                             

In Paul Adomako & Anor. v. Mrs. Owusu-Asiedu,[7] the Court of Appeal per Adinyira JA (as she then was) held:

“A distinction has to be drawn between a situation in which a person is sued as in this case, and another situation where the person sues, i.e. takes the initiative. For it will be wrong, inequitable, unjust, and oppressive to sue a person (the Defendant in this case) and purport to stop or prevent her from defending the suit merely because she has not produced a vesting assent. If the Defendant had taken the initiative by suing or even counterclaiming, her capacity to do so could then be brought in issue”.[8]

 

2. A Beneficiary’s Power to Litigate, but Unable to Alienate the Estate Property

In the case of Boya v. Mohammed,[9] the Supreme Court conferred capacity on beneficiaries of an estate who have not obtained Letters of Administration or a vesting assent. It was thought that, by extension, the decision would embolden beneficiaries of an estate to be able to deal with the property and even have the power to alienate it prior to obtaining a vesting assent, but that was not to be.

The Supreme Court speaking through Asiedu JSC recently in the case of Wrangler Ghana Ltd. v. Spectrum Industries PVT Ltd & Lands Commission,[10] cautioned:

“The decision in Boya v. Mohammed … cannot be said to have laid down a general proposition to the effect that beneficiaries of estates can alienate the properties concerned before a vesting assent is executed in their favour. The argument by Counsel for the Appellant to the effect that ‘beneficiaries without a vesting assent should be able to alienate land without a vesting assent’ can therefore not be correct.”

Therefore, beneficiaries of an estate still need a vesting assent to be able to alienate the property. This means that, while the courts readily allow them to litigate over the deceased persons’ properties to save them from being lost; they hardly permit them to alienate the property without a vesting assent. In that respect, beneficiaries who may not have the power to alienate the property, may nonetheless, have the power to sue and be sued, contrary to the principle enunciated by Court of Appeal supra.

3. The Right of Family Members to Litigate, but Incapable of Alienating Family Property

It may also be observed that under customary law, it is the head of family who can alienate family property, but any member of the family is permitted by law under the exceptions in Kwan v. Nyieni,[11] to sue on behalf of the family. The customary capacity, extended to the members of the family who are not the head, to sue over the family property has received statutory blessings under Order 4 rule 9 of C.I. 47, where it has been reinvigorated to allow for members of the family not only to sue, but also to join the suit either as defendants or take over the suit from the head of family.

Order 4 rule 9 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) provides:

“(2) The head of family in accordance with customary law may sue and be sued on behalf of or as representing the family.

(3) If for any good reason the head of family is unable to act or if the head of family refuses or fails to take action to protect the interest of the family any member of the family may subject to this rule sue on behalf of the family …

(6) If the head of family is sued as representing the family but he or she is not properly protecting the interests of the family, any member of the family may apply to the Court to be joined as a defendant in addition to or in substitution for the said head.”

It could thus be distilled from both the customary law and statute that family members are bequeathed with capacity to litigate for the preservation of family property, especially if the property is in danger of being lost. It may however appear that a suit against a member of the family, other than the head of family, from the onset may be procedurally wrong.

From the way the provision is couched, the suit must first be brought against the head of family before the member can join. In other words, while the action can begin with a family member as the original plaintiff, it cannot have the member as the original defendant, unless he joins in the course of the proceedings.

It can firmly be asserted that, although family members are now bestowed with capacity to sue over family property, they lack the capacity to alienate same. Only the head of family can validly alienate family property, albeit with the consent and concurrence of the principal elders. Put differently, despite family members having the capacity to sue for the family; under customary law, an alienation of land by the family members without the head is completely void.[12]

4. The Right of a Person to Sue in Trespass, but Lacking the Power to Alienate the Property

The principle has also been propounded that the right of an action in trespass essentially lay in the person in actual possession, but not necessarily the landlord,[13] Such a person in possession may not have title to the land to be able to alienate it, but may have the capacity to sue in court.

5. Vendors’ Right to Litigate after Transferring His Interest in the Land

Under customary law, while a vendor who has divested his interest in land is prohibited from further alienating it,[14] he is a proper party to join the grantee in an action in court.[15] Therefore, it cannot be said that because he is not seized with capacity to alienate the land any longer, he lacks the capacity to join a suit as a plaintiff or defendant.

6. Executors’ Power to Deal with the Property, but Not Alienate it

For executors, the law permits them to deal with the properties of the estate prior to obtaining probate, but they cannot dispose of them.[16]

Section 61 (2) of the Administration of Estates Act, 1961 (Act 63) provides:

“Before probate, the executor may, for the benefit of the estate, perform the function which pertains to the office but is not entitled to make a disposition of the property.”

In Abrafi & Others v. Darko[17], the executors had sued without applying for probate. The Court of Appeal, relying on the provisions of section 61 (2) of Act 63 supra held thus:

“… the Plaintiff’s capacity to bring an action in the interest and for the benefit of the estate is not dependent on grant of probate.”

It can thus be deduced that while an executor is forbidden from alienating an estate, he is not disabled from suing in court in respect of the estate; thus, defying the principle enunciated by the Court of Appeal which vests the power to sue and be sued in the person who can alienate the property.

7. Licensee’s Right to Sue, but Unable to Alienate

A license does not vest title in the licensee and for that reason, it cannot dispose of the property; but in appropriate circumstances, the licensee may have the capacity to institute an action in court for an interim relief against the licensor as was decided in The Republic v. Bank of Ghana & 5 Others, Ex parte Benjamin Duffour,[18] where the Supreme Court through Baffoe-Bonnie JSC decided:

“A licence can be defined as a permission given by a person with an interest in land to another person to use the land or part of it which without such permission would have amounted to trespass. A licence does not pass an interest in land, nor does it transfer property in the land. It can be distinguished from easement, leases and tenancies which transfer proprietary rights…  An injunction may be obtained in cases of a licence coupled with an interest and a contractual licence.”

In the English case of The Manchester Ship Canal Company Ltd. v. Vauxhall Motors Ltd (formerly General Motors UK Ltd)[19], the UK Supreme Court held of the possibility of a licensee obtaining perpetual relief from forfeiture if he has possessory rights.

8. The Attorney-General’s Right to Defend, without the Power to Alienate

By the design of our laws, the Attorney-General is the one to be sued to contest the validity of land vested in the state, when in fact and in law, it is the Lands Commission that has the power to alienate same. The Supreme Court, per Appau JSC held in Nene Dokutso Tei Kwabla v. Lands Commission & Volta (Gh.) Investment Co. Ltd,[20] thus:

“If the central issue was in respect of the propriety of the 1968 Instrument as the Appellant is now contending, then the Attorney-General would have been the proper party to be sued for the determination of that issue but not the Lands Commission and the Respondent. This is so because the Lands Commission is a mere caretaker and manager of all public lands (including vested lands) for and on behalf of the State and must not be the one to contest the legality or propriety of the Instrument that acquired same. Article 88 (5) of the 1992 Constitution provides: “The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.”                                                        

9. Right of Citizens to Sue, but Not be Sued under Article 2 (1) of the Constitution

In the past, the Supreme Court demanded from persons who wanted to institute an action under article 2 (1) of the 1992 Constitution to establish their locus standi.[21] However, that law has since changed, paving way for a new regime where the only requirement to invoke the Apex Court’s jurisdiction under the constitutional provision is for the person to be a Ghanaian.

The Apex Court proudly recounted its strides in the case of Sam v. Attorney-General[22] thus:

“It is axiomatic that a citizen of Ghana needs no locus standi to defend the Constitution’ (The emphasis is mine). It follows that such dicta in some cases, such as Edusei v. The Attorney-General [1996-97] SCGLR 1and Bilson v. Attorney-General [1993-94] 1 GLR 104, SC, decided after the Constitution, 1992 came into force, cannot be relied upon for a contention that, at any rate, a citizen of Ghana needs no locus standi to defend the Constitution of Ghana through a court action. As the plaintiff in this action is a citizen of Ghana, that suffices to enable him bring the present action and I need not consider the question of locus standi in any wider dimensions. Once a citizen of Ghana, he, as stated in Kwakye v. Attorney General [1981] GLR 9 at 13, SC, ‘is entitled to invoke the jurisdiction of this court as soon as the act complained of was committed or even threatened”.[23]

This means that any citizen of Ghana is imbued with capacity to commence an action under Article 2 (1) of the 1992 Constitution. Conversely, no Ghanaian can be sued as a defendant or respondent in such suits. It is only the Attorney-General who can be made defendant or respondent in such a case. This is another example of a situation where the right to institute an action and the right to defend walk in opposite directions.

10. Capacity to Sue in Prerogative Suits, but No Right to Defend

The floodgate opened for citizens to mount an action under article 2 (1) of the Constitution seems to replay in actions for prerogative writs. The original position of the law was that an applicant who sought a prerogative order needed to establish his capacity. The Supreme Court held in the State v. Asantehene’s Divisional Court Bl, Ex parte Kusada[24] as follows-

“An applicant for an order of certiorari must be either a person aggrieved or a person who has a real or substantial interest in the proceedings sought to be quashed.  The appellant was not a party to the proceedings before the Asantehene’s Divisional Court BI.  He did not claim to have either a vested or reversionary interest in the property in question … neither had he shown any peculiar grievance of his own beyond some inconvenience suffered in common by the general public.”

The modern position on capacity to apply for a prerogative writ was espoused by Professor Wade in his book Administrative Law (3rd ed.) at p. 138 as follows:

“[These remedies] … are not restricted by the notion of locus standi.  Every citizen has a standing to invite the court to prevent some abuse of power, and in doing so he may claim to be regarded not as a meddlesome busybody but as public benefactor.”

This was applied by the English Court in R. v. Thames Magistrate Court; Ex parte Greenbaum[25] and the Courts in Ghana have comfortably embraced it.

In the case of Republic v. Korle Gornno District Magistrate, Ex parte Ampomah[26], the Court of Appeal made the point clearly on locus standi thus:

“The orders of certiorari and prohibition … were means of ensuring that the machinery of public administration worked properly, and that justice was done to individuals. And because these remedies had a special public aspect to them, an applicant for certiorari or prohibition did not have to show that some legal right of his was at stake. If the action concerned an excess of jurisdiction or abuse of power, for example, the court would quash it at the instance of a mere stranger … The remedies of certiorari and prohibition were therefore not restricted by the notion of locus standi, and every citizen had a standing to invite the court to prevent some abuse of power; and in so doing he might claim to be regarded not as a meddlesome busybody but a pubic benefactor.” (emphasis supplied).

It was therefore not surprising that in the case of Republic v. High Court (Human Rights Division), Ex Parte Naa Swayne (Amoabeng – Interested Party),[27] Anin Yeboah JSC (as he then was) after stating the traditional position in the State v. Asantehene’s Divisional Court B1 supra, affirmed that:

“The scope of the locus standi of an applicant has been extended by this court in the recent case of Republic v. High Court, Ho, Ex parte Bediako II and Anor. [2011] 2 SCGLR 705 …”

In the Republic v. High Court, Winneba, Ex Parte University Teachers Association Winneba Chapter, Kofi Kwayera & 2 Others – Interested Parties,[28] the Apex Court speaking through His Lordship Yaw Appau JSC delivered the decision of the Court thus:

“We shall first deal with the issues of standing and capacity of the applicant raised by the Interested Party. This court has held repeatedly that applications for prerogative writs have a special public aspect to them and are therefore not restricted by notions of locus standi, i.e., one does not need to show that some legal right of his is at stake. They may be granted to a total stranger …Our opinion is that since the issues in this application are in respect of the proper administration of justice in conformity with the rules of court, a stranger to the proceedings in the High Court and an unincorporated group of persons would have capacity to raise them since it is in the interest of the public that the machinery of the administration of justice works properly.”[29]

It is now settled law that the capacity to mount and maintain an action for a prerogative remedy has been softened. Needless to say, the relaxation of capacity in actions for prerogative reliefs certainly applies only to plaintiffs or applicants, with no corresponding effect on defendants or respondents.

Conclusion

It has been made evident in this paper that the principle laid down by the courts several centuries ago that the person with the power to alienate property has the right to sue and be sued has exceptions. It is a source of intriguing concern that the Court of Appeal in contemporary times restated the principle as representing the current position of the law, without allocating any room for the exceptions in its formulation. The enumeration of case law in this paper, especially in recent times, has demonstrably shown that the exceptions which were swallowed by the decision of the Court of Appeal in Saah v. Gyawkwaw supra are manifestly alive and have indeed been ‘vomited out’, like the Biblical Jonah. Therefore, applying the principle rigidly in the same manner done by the courts of old, without creating a space for the exceptions to the principle on the power to alienate and litigate in court would be palpably wrong, and the courts are admonished to be mindful of these nuances.

[1] Judges such as Ollenu J. (as he then was) in Kwakye v. Tuba [1961] 2 GLR 535; Anin J.A. (as he then was) in Atta v. Amissah [1970] C.C. 73 and Abban J.A. & Archer JSC (as they then were), (who both rose to the office of Chief Justice) in Andrew v. Hayford [1982-83] GLR 214..

[2] See cases such as Kwakye v. Tuba [1961] 2 GLR 535, Atta v. Amissah [1970] C.C. 73 & Andrew v. Hayford [1982-83] GLR 214.

[3] Suit No. H1/08/2012, dated 24^th January 2013, C.A. (Unreported), per Dennis Adjei J.A.

[4] Yaa Pono.

[5] Dennis Adjei, Marful-Sau & Ackah-Yensu J.J.A. (as they then were) in Saah v. Gyakwaw supra.

[6] In Djin v. Msa-Baako [2007-2008] SCGLR 686, the Supreme Court held at holding 2 of the headnotes that ‘the right to recover land of an intestate accrues from the date of letters of administration.” See also Rudolph Otoo v. Nora Otoo [2014] 70 GMJ 176 at p. 194.

[7] Civil App. No. CA/No. 98/2001, dated 5^th December 2002

[8] The decision of Boya v. Mohammed appears to make it possible for a beneficiary who has not obtained letters of administration to mount a counterclaim.

[9] [2017-2018] 1 SCGLR 997.

[10] Civil App. No. J4/87/2022, dated 29^th March 2023, S.C. (unreported).

[11] [1965] GLR 469.

[12] See Dotwaah & Anor. v. Afriyie [1965] GLR 257 at p. 268, SC & Togbe Lugu Awadali IV v. Gloryland Estate & Anor., Civil App. NO. j44/12/2023, dated 19^th July 2023, SC (unreported).

[13] See Sam v. Noah [1982-83] GLR 1122.

[14] See Sarkodie v. FKA Co. Ltd [2009] ACGLR 65; Dovie & Dovie v. Adabunu [2005-2006] SCGLR 905 & Benyak Co Ltd v. Paytell Ltd. & Ors. [2013-2014] 2 SCGLR 976 at p. 977.

[15] Agboada v. Kponor & Ors. [1961] GLR 670.

[16] See Abrafi & Ors. v. Darko [2015] 86 GMJ 143 at p. 146, C.A.; Catheline & Anor. v. Akuffo-Addo & Anor. [1984-86] 1 GLR 57, C.A.

[17] [2015] 86 GMJ 143 at p. 154.

[18] Civil App. No. J4/34/2018, dated 6^th June 2018, S.C. (unreported).

[19] [2019] UKSC 46.

[20] Civil App. No. J4/21/2016, S.C. (unreported).

[21] See Bilson v. Attorney-General [1993-94] 1 GLR 104 & Edusei v. Attorney-General [1996-97] SCGLR 1.

[22] [1999-2000] 2 GLR 336.

[23] See also Okudzeto Ablakwa & Dr. Edward Kofi Omane v. The Attorney-General & Hon. Jake Otanka Obetsebi Lamptey, Civil App. No. J1/04/2009, dated 22^nd May 2012, S.C. (unreported).

[24] [1963] 2 GLR 238 at p. 242. S.C.

[25] [1957] 55 L.G.R. 129, C.A., per Lord Parker.

[26] [1991] GLR 353, C.A.

[27] [2015-2016] 2 SCGLR 1130.

[28] Civil Motion No. J5/65/2017, dated 20^th December 2017, S.C. (unreported).

[29] See In Re Appenteng (Dec’d); Republic v. High Court, Accra, Ex parte Appenteng & Anor. [2005-2006] SCGLR 18, per Prof. Ocran JSC & Republic v. Korle Gonno Magistrate Court Grade 1, Ex parte Ampomah [1991] 1 G.L.R. 353 at p. 360, C.A.