HENRY DOE SAMLAFO (PLAINTIFF/APPELLANT) vs. GHANA REAL ESTATES DEVELOPERS ASSOCIATION (GREDA) (DEFENDANT/RESPONDENT) HARRIET OWUSUAA (APPLICANT/RESPONDENT) [2009]DLCA7776

HENRY DOE SAMLAFO (PLAINTIFF/APPELLANT) vs. GHANA REAL ESTATES DEVELOPERS ASSOC... [2009]DLCA7776

Date	2009-07-16
Suit No.	CIVIL APPEAL NO.: H1/198/08
Citation No.	[2009]DLCA7776

HENRIETTA ABBAN (MRS.) J.A. (PRESIDING)

F. G. KORBIEH J.A.

E. K. AYEBI J.A.

[2009]DLCA7776
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													<main id="main" class="content" style="min-height: 60rem" >HENRY DOE
SAMLAFO<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p><span lang="EN-GB" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0">vs.<o:p></o:p>GHANA REAL ESTATES DEVELOPERS ASSOCIATION (GREDA)<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>HARRIET OWUSUAA<o:p></o:p>(APPLICANT/RESPONDENT)<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:0cm 0cm 1.0pt 0cm">

CIVIL
APPEAL NO.:&nbsp; H1/198/08&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
16TH JULY, 2009<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:0cm 0cm 1.0pt 0cm">

HENRIETTA
ABBAN (MRS.) J.A. (PRESIDING), F. G. KORBIEH J.A., &nbsp;E. K. AYEBI J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

</div>AYEBI J.A.<o:p></o:p>In his statement of case, the plaintiff/appellant
was categorical that the thrust of his appeal is the procedure by which the
applicant/respondent as a stranger intervened in this matter and was allowed by
the court.&nbsp; The other concern articulated
as in the trial court is whether or not by the default judgment, the trial
court was functus officio.<o:p></o:p>The plaintiff/appellant admitted in his statement
of case that a stranger like the applicant/respondent can apply to set aside
the judgment but the procedure adopted by the applicant/respondent is wrong in
law.&nbsp; This argument is premised on the
two methods acknowledged by the courts in the case of Gbago vrs Owusu
[1972] 2 GLR 252.&nbsp; In that case the court
held that “it is established that there are only two methods whereby a stranger
to a judgment who is adversely or injuriously affected can set it aside.&nbsp; Firstly, he can obtain the defendant’s leave
to use the defendant’s name and then apply in the said name to have the
judgment set aside, or where he cannot use the name of the defendant, he can
take out summons in his own name to be served on the both the plaintiff and the
defendant asking to have the judgment set aside for him to intervene”.<o:p></o:p>In the instant case, the applicant/respondent did
neither.&nbsp; In 1992 when the writ was
issued the Rules of Court in use was the High Court (Civil Procedure) Rules,
1954 (LN140A) as variously amended.&nbsp; In
the particular case of “parties” it is the High Court (Civil Procedure)
(Amendment) (No.2) Rules, 1977 (L.I. 1129), Order 15.&nbsp; Specifically, provisions on non-joinder and
misjoinder are found in r.6 of that Order 15.<o:p></o:p>In r.6 (2) (b), the court on its own motion or an
application may order any person who ought to have been joined as a party or
whose presence before the court is necessary to be added as a party.&nbsp; Rule 6 (4) requires that an application to be
added as a party, except with the leave of the court, be supported by an
affidavit showing applicant’s interest in the matters in dispute in the
proceedings.<o:p></o:p><o:p>&nbsp;</o:p>However the mode of application allowed in r.6 (2)
is provided in r.6 (5) as follows:<o:p></o:p>“An application for an order under paragraph (2)
may be made to the court at any time before trial by motion of summons
or at the trial of the action in a summary manner”.<o:p></o:p>So this r.6 (5) of Order 15 is the basis of an
application made by a motion of summons by a stranger to join an action.&nbsp; Consequently, this is the foundation of the
alternative method to an application held in Gbago vrs Owusu
(supra) and confirmed on Lamptey vrs Hammond [1987/88] GLRD 33 as
well as others.<o:p></o:p>But then since the coming into force of the new High
Court (Civil Procedure) Rules, 2004 (C.I. 47), the old rules under L.N. 140A
with its amendment have been repealed.&nbsp;
The corresponding provision on non-joinder and misjoinder of parties is
found in Order 4 r.5.&nbsp; Generally, its
provisions are identical with r.6 of Order 15 of L.I. 1129.&nbsp; However r.6 (5) of that Order 15 has not been
retained anywhere in Order 4 r.5 of C.I. 47.&nbsp;
Rather it is provided in Order 19 r.1 of C.I. 47 that every application
in pending proceedings shall be made by motion.<o:p></o:p>It is clear on the evidence in this case that
defendant/respondent has double-crossed the applicant/respondent by reselling
her H/No.3 to the plaintiff/appellant.&nbsp;
Such a defendant cannot be reasonably expected to give permission for
his name to be used in the circumstances.&nbsp;
In the ruling of the trial judge, she observed that the two methods of
intervention by a stranger in a suit sanctioned by the courts is not
exhaustive.&nbsp; She therefore proposed a
simple application because time is of the essence to the applicant.&nbsp; I disagree.&nbsp;
The rules do not provide for three methods.<o:p></o:p>From the distinction I have drawn between the
provisions in the old and new rules, coming by way of an application or motion
by a stranger to intervene in a pending action cannot be a third method/approach.&nbsp; An application or motion </main>