DASI AKAKPO & ANOR. vs. BEN JOHNSON & ANOR. [1999]DLCA6710

Date	1999-11-11
Suit No.	CIVIL APPEAL NO. 80/98
Citation No.	[1999]DLCA6710

BROBBEY J.A. (PRESIDING)

TWUMASI J.A.

ARYEETEY J.A.

[1999]DLCA6710
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													<main id="main" class="content" style="min-height: 60rem" >DASI AKAKPO &amp; ANOR.<o:p></o:p>vs.<o:p></o:p>BEN JOHNSON &amp; ANOR.<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

CIVIL APPEAL NO. 80/98&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 11TH NOVEMBER, 1999<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>BROBBEY, J.A. <o:p></o:p>At
the start of this litigation, there was only one plaintiff who shall be
referred to hereafter as the respondent or first respondent. She claimed in the
Circuit Court that she was a sitting tenant on a piece of land at Kantamanto in
Accra. She avered that the land was actually owned by the father of the 1st
appellant.&nbsp; It was he who allowed his
mother to live there.&nbsp; After several
years’ stay there, she learnt that the 1st appellant had leased the land to the
2nd appellant in 1989.&nbsp; According to her,
the second appellant demolished structures, she and her husband had erected on
the land as well as some of the wares they saw there.&nbsp; She therefore issued a writ claiming (a) a
declaration that the 1st appellant was wrong in ejecting him without a court
order.&nbsp; (b) a declaration that 1st
appellant could not by-pass him to lease the same plot given to them by his
father. <o:p></o:p>(c)&nbsp; Damages for unlawful ejectment. <o:p></o:p>(d)
¢2.5 Million damages for destruction of the respondents building. <o:p></o:p>(e)
General damages for loss of income. <o:p></o:p>(f)
Perpetual injunction to restrain respondents from demolishing her buildings. <o:p></o:p>After
the trial judgment was entered in favour of the plaintiff/respondent.&nbsp; The appellants then appealed to this court
against that judgment.&nbsp; Initially the
appellants filed one ground of appeal.&nbsp;
Later they filed eight additional grounds of appeal. The appeal was
allowed on 28/10/99. We now proceed to give our reasons of all the grounds of
appeal, the most fundamental ones, which undermined the judgment of the trial court,
were grounds four and five which read as follows:— <o:p></o:p>“(4) The learned judge erred in
determining the case under the Rent Act. and <o:p></o:p>(5) The trial judge erred in joining
the P.W.1 as a co-plaintiff” <o:p></o:p>The
trial judge proceeded with the entire case on basis that the statute applicable
was the Rent Act (Act.220). <o:p></o:p>This
is borne out by references in her judgment to the facts that the respondents
were statutory tenants, six months statutory notice required to be given under
Act. 220. to occupants of business premises, and section 17 (1) (h) of Act.
220. <o:p></o:p>Act.220,
S.1 (2) (b) states categorically that the Act does not apply to vacant
lands.&nbsp; It provides that: <o:p></o:p>“1(2) (b) This act shall not apply to
any lease of any premises where such lease, whether entered into or renewed
before, on or after the date of commencement of this act, was entered into or
renewed as a lease of land upon which there were no premises at the time of the
grant or renewal of the lease” <o:p></o:p>In
paragraph four of the statement of claim the respondents themselves averred
that: <o:p></o:p>“Some time ago the late Gilbert
Johnson, the father of the first dependant granted a piece of land to the
plaintiff at Kantamanto for the purpose of constructing on it a building for
her business.” <o:p></o:p>That
only bare land was granted was confirmed by the first respondent and the second
respondent or the PW1. Counsel for the respondent simply ignored this powerful
admission.&nbsp; He did not comment on it in
any way.&nbsp; Since Act.220 was inapplicable
to the instant case, the findings of the trial judge that six months notice
should have been given under Act. 220 and her further findings of the trial
judge that that the respondents were statutory tenants were legally
un-sustainable.&nbsp; Those findings were the
wrong bases on which to have entered judgment for the respondents. <o:p></o:p>Secondly,
the husband of the plaintiff/respondent who testified throughout the trial as
the PW1 was joined as co-plaintiff.&nbsp; The
order was made at the very end of the trial by the judge suo motu.&nbsp; She invited no arguments from the
parties.&nbsp; There is no doubt that the
trial judge had power to order amendments to be made or parties to be joined at
any stage of the trial until the judgment had been signed.&nbsp; Where however the parties are before the
court, and especially when counsel represents them, it is wrong exercise of
discretion to peremptorily make this order suo motu.&nbsp; The position of the PW1 is worse in the
instant case because when he testified he gave no indication that he wanted the
appellant to pay in any way for whatever they allegedly did to his properties
or the land. <o:p></o:p>The
arguments of counsel for the respondent in support of the joinder were that the
trial judge was right in joining the PW1 because she wanted to avoid the
multiplicity of suits. Even if that were the motive for the amendment, the way
in which the amendment was effected amounted to non-compliance with the terms
of L.I.1129, Order 15, r.5(3) which read <o:p></o:p>“No person shall be added as a
plaintiff without his consent signified in writing or in such other manner as
may be authorised.” <o:p></o:p>The
trial judge ordered the joinder without the PW1 or his solicitor signifying his
consent in writing. The trial judge found out that there was a contract in
existence betw</main>