OFORI vs. APPIAH AND OTHERS [1988]DLSC793

Date	1988-07-15
Suit No.
Citation No.	[1988]DLSC793

FRANCOIS J.S.C

AMPIAH JA

LAMPTEY J.A

AMPOFO FOR THE APPELLANT.

OPPONG FOR THE RESPONDENTS

[1988]DLSC793
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													<main id="main" class="content" style="min-height: 60rem" >OFORI <o:p></o:p>vs. <o:p></o:p>APPIAH AND OTHERS <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 583<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
15 JULY 1988<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">

AMPOFO 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">

FRANCOIS J.S.C. AMPIAH AND LAMPTEY JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF LAMPTEY J.A.<o:p></o:p>Lamptey
J.A. read the first judgment at the invitation of Francois J.S.C. Amos Kwaku
Ofori (hereinafter called the plaintiff) took out a writ of summons against the
three defendants, Nana Kwaku Appiah, Mimhene and two other (hereinafter
respectively referred to as the first, second and third defendants). He claimed
against them:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“A
declaration of title to land; recovery of possession of fallow land situate at
a place called Kwada-Boa on Ayomso stool land bounded by properties of Brenya,
a forest, Mr. Kusi, Brekua Mansa as well as damages for trespass and an order
for perpetual injunction.”<o:p></o:p><o:p>&nbsp;</o:p>The trial
before the District Court, Grade I, Goaso terminated in favour of the
plaintiff. Aggrieved by that decision the defendants appealed against the
judgment to the High Court, Sunyani. The High Court, Sunyani, reversed the
decision of the District Court, Grade I, Goase and entered judgment for the
defendants against the plaintiff. As was to be expected the plaintiff felt
aggrieved by the judgment of the High Court, Sunyani and appealed to this
court.<o:p></o:p><o:p>&nbsp;</o:p>One
ground of appeal filed by the plaintiff was that the learned judge of the High
Court, Sunyani was wrong in law in entering judgment for the third defendant
since he was not and had never been a party to the action. He contended that
the third defendant was never formally and regularly joined as a party to the
action before the trial District Court, Grade I, Goaso. He submitted it was
wrong in law for the trial court to have treated him as a party. Counsel for
the defendants did not address us on this ground of appeal.<o:p></o:p><o:p>&nbsp;</o:p>In the
District Court, Grade I, Goaso the plaintiff had originally sued the first and
the second defendants by his writ of summons filed on 31 July 1978. Then on 14
August 1978 the plaintiff filed in the same registry what he described as an
“application for amendment of title.” The application filed by the plaintiff
was intended to make the third defendant a party to the action. There is no
note on the record of the trial court to show that the application was taken by
it. On 16 September 1978 the plaintiff filed a motion on notice “praying for an
order of interim injunction.” On the motion paper the plaintiff included the
name of Opanin Kofi Kusi as the third defendant. In his affidavit to support
that motion paper the plaintiff named Opanin Kofi Kusi as the third defendant.
The application sought an order “to restrain the defendants jointly and
severally.” Again on 17 October 1978 the court notes of the trial court showed
“that parties were present.” During the actual hearing of the case on the
merits the third defendant was present and took part throughout the proceedings
without objection from the plaintiff. The third defendant gave evidence on his
own behalf and was cross-examined by the plaintiff. In my view, the plaintiff
joined the third defendant and intended the third defendant to defend the
action. The plaintiff cannot complain that the third defendant was not a party
properly so-called before the trial court. I find this ground of appeal has no
merit.<o:p></o:p><o:p>&nbsp;</o:p>Another
criticism made by counsel for the appellant was that the High Court was wrong
in entering judgment for the first and the second defendants. Counsel for the
plaintiff argued that these two defendants had not exercised their respective
rights of appeal against the judgment of the trial district court. He contended
that they each did not appeal to the High Court because the notice of appeal
was not signed by each of them as was required by law. He pointed out that it
was the third defendant who exercised his right of appeal. He therefore
submitted that the learned High Court judge erred in law when he treated the
first and the second defendants as appellants before him and entered judgment
for each of them against the plaintiff. Learned counsel for the respondents did
not advert to this ground of appeal in his reply. I now deal with the criticism
of the judgment made by counsel for the appellant.<o:p></o:p>