BANGA AND OTHERS vs. DJANIE AND ANOTHER [1989]DLCA550

Date	1989-12-07
Suit No.
Citation No.	[1989]DLCA550

FRANCOIS J.S.C.

AMPIAH J.A

LAMPTEY J.A.

W. A. N. ADUMUA-BOSSMAN (WITH HIM N. A. O. AMEGATCHER) FOR THE APPELLANT.

ARTHUR (WITH HIM MILLS LAMPTEY) FOR THE RESPONDENTS.

[1989]DLCA550
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													<main id="main" class="content" style="min-height: 60rem" >BANGA AND OTHERS <o:p></o:p>vs. <o:p></o:p>DJANIE AND ANOTHER <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1989-90] 1 GLR 510<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:
7 DECEMBER
1989<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">

W. A. N. ADUMUA-BOSSMAN (WITH HIM N. A. O.
AMEGATCHER) FOR THE APPELLANT.<o:p></o:p>

ARTHUR (WITH HIM MILLS LAMPTEY) FOR THE
RESPONDENTS.<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>Sometime
in April 1969 Madam Emily Djanie (deceased), plaintiff, for herself and as a
member and head of the late Samuel Ivorie Djanie of Teshie sued Odai Banga the
first defendant and E. Akpo Mensah (deceased), the second defendant, jointly in
the High Court, Accra and claimed against them the following reliefs:<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 a tract of land described in a schedule to the writ of
summons; (b) an order for recovery of possession; and <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">(c)
damages for trespass.”<o:p></o:p><o:p>&nbsp;</o:p>A
statement of claim was in due course filed by the plaintiff. The defendants
caused appearance to be entered for them. The defendants filed a statement of
defence to the claim. On application by the plaintiff, one J. S. Laryea was
joined as co-defendant. He on being joined entered appearance and filed his
statement of defence. Pleadings closed and the case was heard on its merits.
The trial judge felt satisfied that the plaintiff had proved her case and
accordingly entered judgment for one Divine Djanie, the third plaintiff
witness, and one Evelyn Archer both of whom had been regularly substituted for
the plaintiff then deceased. It must be mentioned in passing that the second
defendant also died and was substituted for by one Seth Laryea. The defendants
were aggrieved by the judgment of the lower court and appealed to this court on
a number of grounds.<o:p></o:p>In the
light of the matters raised by counsel for the parties in arguing the appeal, I
wish to deal first with the issue whether or not there was a counterclaim by
the defendants before the trial court. It was contended by learned counsel for
the plaintiffs that the defendants had counterclaimed for a declaration of
title to the Agyirigano land as described in the plaintiff’s writ of summons.
He referred to the amended statement of defence and counterclaim filed by the
defendants on 25 June 1974. He submitted that the defendants assumed the burden
of proving their counterclaim strictly. Counsel argued that since the defendants
were not sued in a representative capacity it was not open to them to seek a
declaration of title to the land in dispute in favour of Odaiteitsewe. Indeed
he contended that Odaiteitsewe should have applied to the High Court for an
order to be joined as co-defendant to the action. He therefore submitted that
the relief sought by the defendants, namely a declaration of title to
Agyirigano land in favour of Odaiteitsewe was misconceived. This court should
dismiss it.<o:p></o:p><o:p>&nbsp;</o:p>Learned
counsel for the defendants did not address us on this issue. I would like to
consider whether or not the defendants counterclaimed for a declaration of
title to the Agyirigano land. By an amended statement of defence filed on 25
June 1974 the defendants at paragraph 21 deposed as follows:<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">“21. The
second defendant repeats paragraphs 1-20 of the statement of defence, and as
head of the family of Nii Arku of Odaiteitsewe, Teshie counterclaims against
the plaintiff for and on behalf of himself and the family for a declaration of
title to the whole land the subject matter of this suit described in the writ.”<o:p></o:p><o:p>&nbsp;</o:p>Some two
years later, on 30 April 1976, the third plaintiff witness, Divine Djanie,
swore to an affidavit in support of a motion for joinder of one Lt-Col. W. A.
Thompson as a party to the action before the court. At paragraph 3 of the said
affidavit, the third plaintiff witness deposed as follows:<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">“3. That
I have already given </main>