PIUS vs. MENSAH AND ANOTHER [1965]DLHC1846

Date	1965-04-09
Suit No.
Citation No.	[1965]DLHC1846

SOWAH J.

E. D. KOM FOR THE APPELLANT.

F. T. C. AMORIN FOR THE RESPONDENTS.

[1965]DLHC1846
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													<main id="main" class="content" style="min-height: 60rem" >PIUS<o:p></o:p>&nbsp;vs. <o:p></o:p>MENSAH AND ANOTHER <o:p></o:p>[HIGH COURT, HO]<o:p></o:p>[1965] GLR 242<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
9 APRIL 1965.<o:p></o:p>

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

E. D. KOM FOR THE APPELLANT.<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:0in 0in 0in 0in">

SOWAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH J.<o:p></o:p>In this
appeal, counsel for the appellant has raised a number of technical points, the
most important of which is that the joinder of the co-defendant is wrong in
law. It appears from the record that the application for joinder in the action
was made in the name of Nana Kwabena Kpantey Basahia VI, Nifahene of Nkonya
State, but the person who made the application was one Jonathan Yaw Tadebi,
acting stool father of Nkonya Ntumda and it was he who swore to the affidavit
for joinder.<o:p></o:p><o:p>&nbsp;</o:p>When Nana
Kwabena Kpantey Basahia VI was joined, he did not appear himself to give
evidence and evidence on his behalf was given by the same Jonathan Yaw Tadebi.
There is therefore no means of knowing whether in fact he had any authority
from the said Nana Basahia to make the necessary application or even to give
evidence on his behalf. When a party is interested in an action he must at
least take the initial step of having himself properly joined in the action; in
other words he should make the application himself unless there are compelling
reasons why he himself could not do so and the person applying to be joined can
show that he has the proper authority such as for example the production of a
properly executed power of attorney authorising him so to act. The person whose
name has been used may not know that a case is being conducted on his behalf
and may quite properly plead at a future date that he was not aware that his
name was being used. Consequently he could not be bound by the decision in such
a matter. I consider the joinder of Nana Basahia VI was wrongful; in any case
there was no application by Nana Basahia VI to be so joined. In the
circumstance I would strike out Nana Basahia’s name from the record. It is
relevant to note that when the said Jonathan Yaw Tadebi died some one was
substituted for him as if Tadebi was a party to the action.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
has however argued that if his submission is correct then the whole of the
proceedings is irregular and the irregularity vitiated the trial. I am unable
to agree to this submission. It appears to me that there is sufficient evidence
on record to support the finding in favour of the defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff came to court to prove that he was entitled to a pot of palm wine on
each occasion that the defendant tapped palm wine from his farm. Though the
local magistrate endeavoured to the best of his ability to explain to the
appellant that the issue involved was one of ownership of land, the appellant
resolutely refused to be drawn into conducting his case on the basis of
ownership of land. As a result the evidence led by him was most unsatisfactory.
The defendant gave evidence that he did not obtain his land from the
plaintiff’s family and further for the number of years that he has been on the
land he paid tribute to the chief of Ntumda because he had always understood
the land to be stool property. He called some of the tenants or occupiers of
the Nyantor land who supported his evidence as to the entity to which tributes
were paid. It seems obvious to me that the only way the plaintiff could succeed
in this action was by proving that the land involved was his family property or
that his family were the grantors of the land to the defendant who in such
circumstance could not be heard to challenge their title.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff, as the magistrate quite rightly observed, failed to discharge the
onus and he was therefore right in dismissing his claim.<o:p></o:p>The local
magistrate purported to award damages against the plaintiff for what he termed
the inconvenience caused to the defendant. There is no basis in law for such an
award. If the magistrate considers the action frivolous and vexatious he can
penalise the guilty party by the award of substantial costs and not damages.
The appeal will therefore also succeed in this respect.<o:p></o:p><o:p>&nbsp;</o:p>