ANKRAH vs. ANKRAH AND OTHERS [1995]DLCA5204

Date	1995-11-02
Suit No.	[1994 - 95] 2 G B R 8015 – 823 C A
Citation No.	[1995]DLCA5204

LAMPTEY JA

FORSTER JA

BENIN JA

ADU MANTEY FOR THE APPELLANTS.

JOE REINDORF FOR THE RESPONDENTS.

[1995]DLCA5204
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													<main id="main" class="content" style="min-height: 60rem" >ANKRAH<o:p></o:p>vs.<o:p></o:p>ANKRAH AND OTHERS<o:p></o:p>[COURT
OF APPEAL]<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">

[1994 - 95] 2 G B R 8015 – 823 C
A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 2 NOVEMBER 1995<o:p></o:p>

JOE
REINDORF 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 1.0pt 0in">

LAMPTEY
JA, FORSTER JA, BENIN JA<o:p></o:p>

</div>LAMPTEY JA. <o:p></o:p>The
plaintiff, Joseph Adjabeng Ankrah also known as Nii Ayi Ankrah I in his
capacity as the head of the Ankrah family of Accra took action in the High
Court, Accra against Jacob Nii Ankrah and three others and sought three reliefs
against them jointly and severally. For purposes of this appeal the third
relief is relevant and is reproduced as follows:<o:p></o:p>&nbsp;“a declaration that the defendants who are
disgruntled members of the family cannot elect another head of family when the
plaintiff the head of family is not removed.”<o:p></o:p>It
will be seen from the statement of claim filed with the writ of summons that
the defendants openly threatened to remove and replace the plaintiff as the
head of the Ankrah family. In paragraph 5 of the statement of claim appears the
following averment:<o:p></o:p>“5.
In Suit No CA 72/78 entitled:<o:p></o:p>State&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Applicant<o:p></o:p>v<o:p></o:p>Chief Lands Officer &amp; 3
others&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Claimants.<o:p></o:p>Some
members of the Ankrah family tried to challenge the position of plaintiff as
head of family but lost the action.”<o:p></o:p>In
a statement of defence filed on behalf of the defendant in the instant action
they pleaded that the plaintiff had been duly and regularly removed from his
position as head of the Ankrah family. It must be pointed out that before the
plaintiff could file his reply to the statement of defence one Nii Ankrah of
Bubuashie applied to be joined as co-defendant in the action. In an affidavit
in support of his application, he averred in paragraphs 5 and 8 as follows:<o:p></o:p>“5 That it is an undisputed fact that
the plaintiff who hitherto was the occupant of the Mantse Ankrah family stool
was customarily removed as head of the family on or about May 1988 by the
elders of the family who by custom and tradition are the proper persons to
remove him.<o:p></o:p>8 The action of the plaintiff is an
encroachment on my traditional office and a usurpation of my authority as head
of family.”<o:p></o:p>The
court heard the application for joinder and dismissed it. The applicant was
aggrieved by the ruling dismissing his application. He appealed to this court.<o:p></o:p>The
first ground of appeal argued by counsel for the appellant was that the trial
judge misdirected herself on the law regarding joinder. He submitted that on
the evidence before the court the applicant had satisfied the court that he was
the duly elected head of the Ankrah family. He argued that since the plaintiff
had described himself as the incumbent head of family, a position which he did
not hold, he, the applicant must be joined to contest only that issue because,
according to him, a decision on that issue would affect the status and standing
of the applicant one way or another.<o:p></o:p>He
contended that since the applicant became aware of the instant litigation in
which the issue of the headship of the Ankrah family had been raised he was a
proper person to be joined in the action. Counsel for the defendants referred
to Order 15 r 6(2) and submitted that the application for joinder was
misconceived. He contended that the defendants in their defence disputed the
claim by the plaintiff that he was the incumbent head of family. He argued that
the joinder of the applicant as co-defendant would not assist the court to
determine whether the plaintiff was the head of family. He drew the attention
of the court to suit No 2259/89 now pending before the High Court, Accra in
which the headship of the Ankrah family had been set down as an issue for
determination.<o:p></o:p>In
dismissing the application for joinder moved by the applicant the trial judge
had among other reasons expressed herself as follows:<o:p></o:p>“One of the issues the parties set
down for trial is this: At the date of the action was it plaintiff or the 3rd
defendant who is the head of the Mantse Ankrah family?”<o:p></o:p>The
above statement was reproduced from paragraph 4 of the statement of defence in
suit No 2259/89 and annexed to the affidavit in opposition to the application
for joinder. The position before the lower court was that the 3rd defendant in
the instant suit had in suit No 2259/89 claimed that he is the incumbent head
of family. The applicant in the same suit also claimed he is the incumbent head
of the same family.<o:p></o:p>It
is plain and clear that applicant cannot be joined as co-defendant to enable
him raise the same issue and seek the same relief and remedy as he had done as
the 3rd defendant in suit No 2259</main>