THEODORE T. DUGBARTEY ETC & ANOR vs. RICHARD FLISOWSKI & 2 ORS. [2002]DLCA6635

Date	2002-10-14
Suit No.	CA/NO. 41/2001
Citation No.	[2002]DLCA6635

WOOD JA (PRESIDING)

ARYEETEY JA.

AMONOO-MONNEY JA

[2002]DLCA6635
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													<main id="main" class="content" style="min-height: 60rem" >THEODORE T.
DUGBARTEY ETC &amp; ANOR<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>RICHARD
FLISOWSKI &amp; 2 ORS.<o:p></o:p>(DEFENDANTS)<o:p></o:p><o:p>&nbsp;</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;
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41/2001&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
14TH
OCTOBER 2002<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
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ARYEETEY JA., AMONOO-MONNEY JA<o:p></o:p>

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</div>WOOD
(MRS.), J.A: <o:p></o:p>The
plaintiff respondent sued two persons, the 1st and 2nd Defendants/Appellant
for: <o:p></o:p>(a)
A declaration of title to a 20.6 acre land at Okwenya <o:p></o:p>(b)
general damages for trespass and <o:p></o:p>(c)
perpetual injunction restraining them from any further tresspassory acts. <o:p></o:p>The
facts upon which he based his claim are quite simple. He alleged that as far in
as 1962, he acquired the subject matter by purchase from the Narh Mati family,
and followed it with a formal registration of the title deed in 1990. He
claimed that he had remained in effective possession by constructing a swish
building on the land, to house his caretaker who had carried out farming
activities on the land. <o:p></o:p>He
had however been compelled to institute the action in protection of his rights
as a result of the various acts of trespasses committed by the two defendants.
However, he totally abandoned the action against the 1st defendant, ex-husband
of the 2nd defendant/appellant, and who had left the jurisdiction and is now
resident in his home country, Poland. <o:p></o:p>Initially,
aside from denying all the material facts upon which the claim was founded, 2nd
defendant appellant additionally, counterclaimed for similar reliefs. However
on 16.12.98, she withdrew the counterclaim and contented herself with merely
disputing the 1st respondent’s title. Her version is that she was in occupation
of the land as such lawful owner, who had acquired title by purchase from the
lawful owners, the Atta Ablah family as far back as 1979 and has thereafter
exercised various acts of undisturbed ownership over it, including the
construction of the dwelling house she occupies. <o:p></o:p>On
13.12.95, the Court granted an order for joinder as co-defendant to one Tetteh
Quarshie, head of the 2nd defendant/appellants grantor family. A similar
application for joinder as co-plaintiff brought by Samuel Degbor who described
himself as head of the Degbor family also met with success. Both claimed that
they were the lawful grantors of the parties they sought to join. It does
appear that the orders were granted principally to enable them litigate over a
much larger land, of which the disputed property forms only a small portion. At
least, this was the clear stated position of the co-plaintiff respondent in his
affidavit accompanying the motion for joinder and also when he moved it.
Moreover, the court made no express or even implied order that he was to be
limited to prosecuting the original claim, with its limited subject matter.
Indeed, such an order would have been plainly incongruous as both grantors, on
their own showing, have completely divested themselves of the disputed property
and consequently, that none of them have shown either a cause of action or
liability as the case may be, as concerns that disputed property. <o:p></o:p>I
believe the same argument goes for the co-defendant respondent, although it
would appear from a strict reading of the paragraph 7 of his accompanying
affidavit that he was limiting himself to the actual subject matter. However,
when the affidavit is read as a whole, and that should be the proper approach,
the clear understanding is that he was desirous of defending the family’s large
tract of land at Okwenya. Obviously, given their stated positions, the court
could not have allowed co-plaintiff to join the action to protect his family’s
vast interest, and yet deny the co-defendant a similar right and limit him to
defending only the right of the person he sought to join. <o:p></o:p>Before
I proceed to determine the substantive points raised in this appeal, I would
like to address a number of procedural matters. One of them is of minor
importance, the others are substantial and grave. <o:p></o:p>The
comparatively minor procedural issue is this. It seems to me that the High
Court (Civil Procedure) (Amendment) No. 2 Rules 1977, LI 1129, does not admit
the use of the expression “co-plaintiff” or 'co-defendant’. The correct
nomendature for added parties in my view, is “plaintiff(s)” or “defendant(s)”
as the case may be. I believe what would distinguish such new parties from
existing ones would be the numerical prefix. <o:p></o:p>