			

CORAM: ATUGUBA, 1S.0 (PRESIDING) )!	I	DATE-BAH, J.S.C.
ANSAH, J.S.C. ADINYIRA, J.S.C.
-	OWUSU, J.S.C.
 
Nil PAUL AYITEY TETTEH
Substituted for by ARTHUR HAMMOND TETTEH QUARCOO, suing for himself and as Head of Onamrokor Adain Family of Accra
VRS
1.	B.A. QUARCOO (DECEASED) H/NO. 24 Okaitei-Nettey Street Korle Workon, Accra
2.	]AFRO MENSAH LARKAI H/NO. 23 Domiabra Street, Kotobabi, Accra
IN COT!SOUDATION WITH
1.	B.A. QUARCOO
HMO. 24 Okaitei-Nettey Street Korle Workon, Accra
2.	JAFRO 11ENSAH LARKAI
H/NO. 23 Domiabra Street,
Katobabi, Accra
Suing for on behalf of the
Onamrokor Adain Family of Accra
VRS
1. ARTHUR HAMMOND TETIEH QLJARCOO
 
'RVICE OF GHANA JUDICIAL SERVICE OF GHANA JUDICIAL SERVICE OF GHAI
 
near Roxy Cinema, Accra.
Practice and Procedure— Suing in different capacities — Person suing in more than one capacity — Death of person— Survival of cause of action— Consolidation of suits — Only proper where cause of action in both suits survives — Effect of dismissal of one of the suits.
Application for substitution of deceased — Failure to move motion for substitution — Case proceeded as if substitution done — Effect
Judgment —Wrong reasons in support — Effect on validity of judgment
JUDGMENT
ATUGUBA J.S.C.:- 
In this consolidated suit the plaintiff in the first suit no. F2453/2002 sued as per the indorsement on the writ "for HIMSELF AND AS THE HEAD OF ONAMROKO ADAM FAMILY HOUSE NO.146 AVENOR - ACCRA
V.
1.	B.A. QUARCOO 11/N0.24 OKATEI-NETTEY STREET, KORLE WORKO-ACCRA
2.	JAFRO LARKAI
11/N0.23 DOMIABRA STREET KOTOBABI -ACCRA"
Claiming
a.	Declaration that the Plaintiff has been Head of Family of Onamrokor Adain family since 1994 and has remained same to date.
b.	Perpetual injunction against the Defendants, from upholding themselves as Head and Assistant Head of the Onamrokor - Adain family.
c.	Declaration that by the Court of Appeal's judgment of 16/12/80 the Defendant is estopped from ever contesting the Headship of the family of Onamrokor -
d.	General damages for personal injury done to the Plaintiff as a result of the activities of the Defendants in relation to the Headship of the family since the beginning of this year i.e. 2002.
e.	Publication by the Defendants in all newspapers in country and sending of circulars to all the relevant official and customary authorities denying their earlier publications and withdrawing same
f.	Costs."
rs
 
suing for and on behalf of the Onamrokor - Aclain Family of Accra as plaintiffs versus (1) ARTHUR HAMMOND TETTEH QUARCOO and (2) JUSTICE AYAA CUD]OE as defendants" claiming
1. An Injunction to restrain the defendants by themselves, their servants, assigns
or	agents, or otherwise howsoever, from installing a chief at Dome and burying Paul Ay/tey Tetteh (Deceased) at the cemetery reserved for the substantive head of the Onamroko Ada/n family of Accra
2.	Costs
3.	Any other reliefs that this Honourable Court may deem fit
Dated this 13th day of January 2005, at Okona Chambers, Accra."(e.$)
The Grounds Of Appeal
This appeal emanates from the 2 d plaintiff/appellant/appellant in the second of the said two consolidated suits, the 1St plaintiff having died. His grounds of appeal are as follows:
(i) Having held that the action which was instituted by Paul Ayitey Tetteh was a personal one which did not survive his death, the Court of Appeal erred in not holding further that B.A. Quarcoo and Jafro Mensah Larkai thereby became free to manage and control affairs of the family in the respective capacities they had been appointed to in the family on account of which Paul Ayitey Tetteh took action against them.
(ii) Since the defendants in that second suit do not occupy any traditional positions within the Onamrokor Aclain Family it was wrong for the Court of Appeal to hold that Paul Ayitey Tetteh could be buried by them as head of that family against objection by the family led by B.A. Quarcoo and Jafro Mensah Larkai.
 
3
 

 
(iii)	Having held that the consolidation of the two suits for trial was wrong
and the High Court also had no jurisdiction to entertain the claim against
Justice Ayaa Cudjoe which was a cause or matter affecting Chieftancy could not and had not been substituted for Paul Ayitey Tetteh in the first suit as Plaintiff, the Court of Appeal erred in not nullifying the entire trial and directing a retrial of the second suit as far as it related only to the right of the defendants to conduct the burial of Paul Ayitey Tetteh as a departed head of family.
(iv)	The Court of appeal erred in directing the Onamrokor Adain Family to
get united and bury Paul Ayitey Tetteh as its head of family when Paul Ayitey Tetteh was unable to establish that he was still head of family when he died and the two defendants in the second suit did not have the locus standi to prove that he was head of family when he died."
The first ground of appeal, subject to what herein later will be said of the first leg thereof, is quite puzzling. If the Court of Appeal was right in holding that the first action moritur cum persona then there was nothing in respect of which the court could adjudicate and declare rights of any sort. If it survived then they could only succeed per allegata et pro bata.
As to the second ground of appeal it is based on unpleaded and unsubstantiated grounds. It is purely speculative since there is no issue or evidence in the case touching and concerning whether "the defendants in that second suit do not occupy any traditional positions within the Onamrokor Adain Family" or whether the occupancy of any and if so of what, traditional positions, is prerequisite of those who will effect the burial of the late Paul Ayitey Tetteh. In any case the Court of Appeal did not say that the burial of the said deceased should be effected by the defendants.
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The Actio Personalis Rule
And now to the third ground of appeal, which is the headquarters of the appeal. The first leg of the first ground of appeal though infelicitously formulated, taken together with this ground of appeal, is that the consolidation in the circumstances of the case vitiated the whole trial and since the first suit is non est either because it did not survive the death of Ayitey Tetteh or because there was no subsequent substitution the only surviving suit is the second suit, BFA 31/2005 which ought to be remitted to the trial court for trial de novo.
It is however clear from the record of proceedings that the plaintiff in the said first suit sued in a representative capacity on behalf of himself and the Onamrokor Adam Family, as head thereof. It is clear from reliefs (b) (c) and (e) indorsed on his said writ supra, that they are for the benefit of the said family. So also are most of the averments in the plaintiff's statement of claim. Some of them are as follows:
"5.	The Plaintiff says that he has since 1994 exercised all the rights and obligations both customary and Official attached to the said status from 1994 and is still exercising same and some of the rights and obligations are representing the family in their many cases in court especially over the Dome land the property of the family and signing all documents alienating the family's properties with concurrence of the principal members of the family and the Secretary of the Council and performing the customary duty of distributing part of the family's money to the 6 houses for the annual Homowo Festival.
X	x	x
9. However as per the Court of Appeal judgment given on 16/12/80 in the case of: B.A. QUARCOO VRS MANYE 0-ADORKOR ALLOTEY & 5 OTHERS the l Plaintiff herein was adjudged to have been properly destooled as
 
5
 
a joint Head of Onamrokor - Adain family for "Mismanagement of family Property, failure to account for family monies collected by him, unauthorized sales of family lands, refusal to Co-operate with family Council and lack of respect and consideration of the other joint head, Manye Adokor Allotey as well as the elders of the family constituting the family Council."
x	x	x
12.	The Plaintiff says that the 15t Defendant is by the said judgment estopped to put himself forward as a head of the Onamrokor-Adain family even if he were to be a true member of the family.
13.	The Plaintiff therefore says that it is very contemptuous on the part of the Defendants herein and all their collaborators to have made various publications in the newspapers and in the form of circulars to both Official and Customary institutions in the country announcing the 1st Defendant as having been appointed the Head of Onamrokor-Adain family with the 2 nd Defendant as his deputy as from 12/4/2002 in the face of the judgment and without the knowledge of the members of the present council of the family headed by the Plaintiff.
x	x	x
15.	The Plaintiff says that the 2"d Defendant who is a true son of the Onamrokor-Adain family and is grown enough to have been well seized with the facts here presented has teemed up with the 1st Defendant because he knows that the 1st Defendant is over 90 years in age and therefore he can use him to alienate the lands of the family and misappropriate the proceeds.
16.	This assessment of the 2nd Defendant is born out by the fact that it is he who has put up a sign board directing people who want part of the family's land to his house.
 
me
 
17. The Plaintiff again says that he is convinced in his such assessment of the 2 Ild Defendant by the directions as per a drawing he has obtained a copy of, sent to the Land Registry and Lands Commission directing interested land acquisitioners to his house.
X	x	x
21. The Plaintiff says that he sees the actions of the Defendants as a calculated plan to bring confusion in the family by influencing the ignorant young and older members of the family to be seem to be supporting them with promises of financial gain from the monies but Plaintiff says that a number of those collaborators of the Defendants claimed to have elected them to the positions they now claim to hold are not true members of Onamrokor-Adain family."
This suit was supported by the evidence of witnesses from the family. It is trite law that a person can sue in several capacities, see Akrong v. Bulley (1965) GLR 496 S.C. Assuming therefore that the personal part of the suit did not survive Paul Ayitey Tetteh's death that of the family marched on. Though the family sues per its head or other proper person it is legally distinct from such a person as an individual and does not die (unless by supernatural causation) with such an individual. There is close legal analogy between the head of a family and the occupant of a stool. Hence in Attah v. Aidoo(1968)LR 362 at 365 Archer J (as he then was) said:
"Mr. Gordon R. Woodman, in an exhaustive article on 'Developments in pledges of land in Ghanaian customary law" in [1967 J.A.L. 8 at pp. 9-10 states:
"There is no direct authority on the consents necessary for a valid pledge of an interest held by the customary-law corporate persons the stool and the family."
 
7
 
See also Mensah v. Lartey(1963)2 GLR 92 S.C.
It is however true that this court has held in In re Kwao (Decd; Nartey v. Armah (1989 - 90) 2 GLR 532 S.C. as stated in the headnote as follows:
"The plaintiff in a protracted James Town Chieftaincy dispute, sued at the Ga Traditional council for a declaration as to the status of the defendant, N/i Kwao II, the incumbent occupant of the James Town stool. The dispute eventually came on appeal before the judicial committee of the National House of Chiefs (NHC) which held, inter alia, that N/i Adja Kwao II was not a member of the two partrllineal ruling houses of James Town and therefore his purported enstoolment as the chief of James Town was null and void and not in accordance with custom; in effect he was not a royal of the stool. Nii Adja Kwao II therefore applied to the NHC for leave to appeal to the Supreme Court against that decision but the application was refused on August 1985 for having been brought out of time, ie not within the stipulated fourteen days' deadline. N/i Adja Kwao therefore filed a motion in the Supreme Court for spec/al leave to appeal following the refusal of the NHC to grant leave but he died before the hearing of the application which was thus struck out. Consequently, in the instant proceedings, the applicant, claiming as the head of family of the deceased defendant, filed a motion in the Supreme Court for an order of substitution for the deceased.
Held, dismissing the application (Adade and Wuaku JJSC dissenting): the plaintiff (who had sued the defendant as a person unlawfully claiming as the chief of James Town) had to lead evidence to show that the defendant, N/i Adja Kwao, was not descended lineally from any member, male or female, of either of the two patrilineal ruling houses of James Town or was descended from a female member only, that if he descended from a male member he had not been properly nominated, elected and enstooled as a chief; that if he had been properly nominated, elected and enstooled as a chief, he had been
8
 
destooled in 1971; and if he had not been destooled, that he ought to be destooled. An action of that nature was not a representative one to be kept alive after the death of the person whose status was being challenged. At best the interest of the applicant in the suit was sentimental only. The real test was whether the app//cant had any personal interest in the outcome of the appeal. If he had not, he ought not to be allowed to intermeddle with it. R v Rowe [1955] 1 QB 573, CCA applied; Hodgson v Lakeman [1943] 1 KB 15 doubted."(e.$)
It must be said with the greatest respect, that the reasoning of Adade J.S.C. (dissenting) at 541-545 that the common law principle, actio persona/is moritur cum persona did not apply to the case in view of some of the plaintiff's averments to the effect that the defendant was not a member of any of the royal families of the James Town Stool, is preferable. In any event both the majority and the minority therein agree as to the test for the survival of a cause of action, namely that ' The real test was whether the applicant has any personal interest in the outcome" of the case or if it can be shown that "somebody would be affected by the judgment of the court."
Applying those principles to the facts of this case as earlier set out supra, it cannot be said that the first of the consolidated suits in this case mortur cum persona of Nil Paul Ayitey Tetteh.
It must however be emphasized in this case that not only were there several averments touching and concerning the family of which Nii Paul Ayitey Tetteh was head but that that family was a direct party to the action. That being so the effect of the death of NO Paul Ayitey Tetteh is analogous to the effect of the death of a stool occupant on a suit to which the stool is a party. That legal position has been stated in Ababio v. Tutu (1962)1 GLR 489 S.C. as per headnote (2) as follows:

 
"In this appeal from a judgment of the High Court, Kumasi, disallowing the plaintiff-appellant's claim for damages for trespass to land, it was argued that, (1) the judge had erred in giving judgment for the defendant as there was no defendant before the court. Counsel for the plaintiff-appellant relied on the following extract from the record of proceedings:
"On Wednesday, 11 January, 1961, before Apaloo, J.
Part-Head—Resumed from 1-11-60 p. 99.
Amoaten for plaintiff.
Lutterodt for defendant.
L utterodt - I understand Chief of Assachere has abdicated and no one occupying stool. I ask for short adjournment to mate a substitution.
Amoaten: - I must point out this case started long ago. It is most unfortunate. I am for plaintiff and suggest some witnesses be taken.
Court. - This writ was issued since 1937 and has had a most unfortunate career. It was part-heard from 1-11-60 and fixed for two days. I am not prepared to give opportunity for the hearing of this suit to be prolonged further, especially in view of the fact that if I accede to this application now, this suit may not be heard this year. The application for adjournment is refused and I rule that hearing should proceed."
X	x Held:
X	X	x
(2)	a stool is a corporation sole and whenever a stool comes to be properly and legally before the court, should the stool occupant thereafter cease to hold office, he, the stool occupant ceases to be before the court, but not the legal entity which is the stool. Dicta of Deane, C .J. in (1930) I W.A.C.A. 80 at p. 83 cited; Quarm v Yankah II
(3)	since Order 16, rule 36, provides in certain eventualities for the trial of an act/on to proceed in the absence of the defendant, it is the responsibility of
10
 
the elders of the stool to take steps to appoint another representative and -	get h/rn substituted for the representative who has ceased to be before the court;
(4) the plaintiff-appellant was perfectly entitled to insist on the case proceeding, but having exercised his undoubted right of prosecuting his claim in the absence of the defendant, he cannot now complain that there was an abdication and no substitution and for this reason ask that the proceedings be declared null and void. Nana Gyarku III v. Joseph Brew, Privy Council, November 20, 1956, unreported and St. Victor v. Devereux (1845) 14 L.J. Ch. 224 at p. 246 applied;"(e.$)
The case of Re: Gomoa Ajumako Paramount Stool (no.2); APPLICATION FOR SUBSTITUTION, ACQUAH APPLICANT;KWA NANA v. APAA (2000) SCGLR394 Stands on its own facts.
That being so the consolidation of the two suits in this case was validly done even though at that time Nii Paul Ayitey Tetteh was dead.
But if even the family itself were not a direct party to the suit since as aforesaid there were several averments in the suit touching and concerning the interests of the family an application for substitution after Nii Paul Ayitey Tetteh's death to protect the family interests as was in fact done in this case was proper.
The Validity of Substitution
It is true that the formal motion for the substitution was never moved or granted. Nonetheless it is very clear from the record of appeal that the suit was tried throughout as a consolidated suit with Nii Paul Ayitey Tetteh as substituted by Arthur Hammond Tetteh Quarcoo, without objection. Indeed the Plaintiffs in the second suit, BFA 31/2005 averred in paragraphs 2 to 4 of their statement of claim as follows:
"2. The Plaintiffs were elected by the heads of the six (6) houses constituting the
11
 
—	Onamroko Aclain Family of Accra on 25th March 2002 by a majority of five
-	(5) to one (1), according to customary law and usage.
3.	The Caretaker of the Onamrokor Adain Family properly prior to 25111 March, 2002, Paul Ayittey Tetteh, filed a suit challenging the election of the Plaintiffs, which suit - Suit No. F2453/2002 - is pending at an Accra High Court.
4.	The said Paul Ayittey Tetteh has since died and has been substituted by the jst defendant herein in the said suit." (e. s)
In those circumstances the said substitution ought to be deemed as having been effected, unhampered by any formalistic procedural ceremonies under the Rules of Court, otherwise the Rules will become masters rather than servants. Thus in Re Stone and Saville's Contract (1963) I AlTER 353 C.A at 357-358 Upjohn 'Li. said of an issue that was fought out between the parties although it was not raised in the summons, as follows: "It seems to me that, on the facts of this case, the summons, as treated as amended (because that is really what happened), is perfectly proper to raise the issue" .(e.$) Again in Obeng v. Boateng (1966) GLR 689 at 696 Amissah J.A.(siWng as a High Court Judge), said:
"I have noticed that the second defendants filed a statement of claim in the third party proceedings to which the third parties fl/ed a defence, although there is no record of their having entered an appearance to the third party notice.
x	x	x
Although the third parties did not formally enter an appearance, they have taken sufficient part in the application for directions to stop anyone from complaining about their failure technically to comply with the provision on entry of appearance: see Boyle v Sacker. "(e. s)
 
12
 
Effect of Wrong Reasons
From all the foregoing it is clear that the Court of Appeal erred in nullifying suit no. F.2453/02. Its confirmation of the trial judge's findings concerning the headship of the Onamrokor Adain Family is therefore sustainable.
A close study of the reasoning of the Court of Appeal reveals that it took the view that though (erroneously as hereinbefore demonstrated) suit no. F2453/02 was non existent and its consolidation with suit no. BFA 31/2005 was a nullity, yet the trial of the latter suit was not thereby vitiated.
After anxious reflection we think that this view is right. If suit no. F2453/02 did not exist that cannot mean therefore that suit no. BFA 31/2005 did not exist. If so the purported trial of the latter suit together with another suit which proves to be non existent cannot nullify the trial concerning the latter suit. After all the common thread in both suits was the headship of the Onamrokor Adain Family and evidence was commonly led as to that issue, there was therefore no question of severability. The parties led their evidence in dual capacities reflective of the two suits at the same time.
The element of nullity in proceedings is not always disastrous. In Addal v. The Republic (1973) I GLR 312 CA the trial judge took evidence of a witness when the jury was not yet empanelled and he directed the jury on that evidence as well. It was held that though the initial part of the trial was a nullity there was sufficient evidence aliunde to support the conviction.
Again in Obadzen II v. Onanka 11(1982-82) GLR 46 the Court of Appeal sustained the trial although the suit had been transferred to the High Court for trial by a magistrate contrary to the stipulated statutory procedure, holding that after all the High Court had concurrent jurisdiction over the case. In this new judicial era of substantial as opposed to technical justice we would go along with that approach.
 
13
 

 
In any event as we elaborately demonstrated earlier the reasoning of the Court of Appeal concerning the validity of the consolidation and existence of suit no. F2453/2002 is erroneous. That being so it means that the Court of Appeal arrived at the correct decision though for wrong reasons in the steps leading to the same. That cannot vitiate their judgment because it is settled law that an appellate court can affirm the decision of a lower court which is correct but is founded on wrong reasons. Thus in Abakah v. Ambradu (1963)1 G.L.R. 456 at 464 Mills-Odoi JSC delivering the judgment of the Supreme Court said:
"The judgment of the learned trial judge was based on wrong application of the law in Lartey v. Mensah (supra) which cannot be supported. But a Court of Appeal is entitled to uphold a judgment, if proper grounds exist on the record to justify the judgment, even though it cannot be supported for the reasons given by the court which gave it."
Likewise, in Seraphim v. Amua-Seky/ (1971) 2 GLR 132 at 134 Apaloo 3. A. bluntly said : ".... Indeed in this court, no judgment is upset on the ground that its ratio is erroneous if there is another sound basis on which it can be supported." See also Duah v Debra (1967) GLR 456 C.A, Benneh v. The Republic (1971) 2 GLR 354 C.A at 360 per Koi Larbi JSC, Appianing v. The Republic (1972)1 GLR 123 C.A and Mensah V. Ghana Football Association (1989-90)1 GLR I S.C. In the last mentioned case, at p.8 Amua-Sekyi JSC speaking for the majority said:
"...Even though we are unable to agree with the approach of the Court of Appeal to the matter, we think that its decision can be supported in that, in the circumstances of this case, it would be unjust to refuse a stay of execution."
All this is statutorily supported by the Rules of this Court, C.116, r.6(6)-(8) as follows:
"(6) The appellant shall not, without the leave of the Court, argue or be heard
in support of a ground of appeal that is not specified as a ground of appeal in
the notice of appeal.
(7) Despite subrules (1) to (6), the Court,
14
 

 
(a)	may grant an appellant leave to amend the ground of appeal on the terms specified by the Court; and
(b)	shall not, in deciding the appeal, confine itself to the grounds
set forth by the appellant nor shall the Court be precluded
from resting its decision on a ground not set forth by the
appellant
(8) Where the Court intends to rest a decision on a ground not set forth by the appellant in the notice of appeal, or on a matter not argued before it, the Court shall afford the parties reasonable opportunity to be heard on that ground or matter without re-opening the whole appeal."(es)
The last ground of appeal is clearly imaginary. The Court of Appeal made no such direction as is therein complained of and even if it did It was warranted by its concurrence on the issue of headship of the family, with the findings of the trial judge.
For all the foregoing reasons the appeal is dismissed.
W. A. ATUGUBA (JUSTICE OF THE SUPREME COURT)
DATE-BAH (DR) (JUSTICE OF THE SUPREME COURT)
1 ANSAH
(JUSTICE OF THE SUPREME COURT)
S. 0. A. ADINYIRA (MRS) (JUSTICE OF THE SUPREME COURT)
15
 
R. C. OWUSU (MS)
(JUSTICE OF THE SUPREME COURT)
COUNSEL
JAMES AHENKORAH FOR JAFRO MENSAH LARKAI, THE APPELLANT.
NATHANIEL MYERS FOR ARTHUR HAMMOND TETTEH QUARCOO AND FOR ONAMROKOR ADAIN FAMILY, THE 1ST RESPONDENT.
MRS. M. Y. ACHIAMPONG FOR JUSTICE AYAA CUDJOE, THE 2ND RESPONDENT.
f
'	Iifrai Ct
