CHEZ MARIE LOU RESTAURANT vs. EMMANUEL BOSSMAN & 4 ORS. [2012]DLCA6685

Date	2012-05-24
Suit No.	SUIT NO. H1/102/2012
Citation No.	[2012]DLCA6685

J. B. AKAMBA J. A [PRESIDING]

K. A. ACQUAYE J. A

A. M. DORDZIE (MRS) J.A

MR. CHARLES HABIAH FOR PLAINTIFF/APPELLANT

MR. JAMES AGALGA FOR DEFENDANTS/RESPONDENTS

[2012]DLCA6685
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													<main id="main" class="content" style="min-height: 60rem" >CHEZ MARIE LOU
RESTAURANT<o:p></o:p>vs.<o:p></o:p>EMMANUEL BOSSMAN &amp; 4
ORS.<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">

SUIT NO. H1/102/2012&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: 24TH MAY 2012<o:p></o:p>

MR.
JAMES AGALGA FOR DEFENDANTS/RESPONDENTS<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>J.
B. AKAMBA J. A [PRESIDING], K. A. ACQUAYE J. A, A. M. DORDZIE (MRS) J.A<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<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>ACQUAYE, JA <o:p></o:p>The
plaintiff/appellant issued a writ of summons accompanied by a statement of claim
against the first two defendants claiming an order for recovery of possession
of House No. F 871 Oxford Street, Osu, Accra, damages for trespass and
perpetual injunction.&nbsp; The
plaintiff/appellant averred that she took a lease of the said house for 10 years
in 1977 and subsequently extended the lease for five years and continued to be
tenant in possession.&nbsp; In their defence
the defendants stated that they took possession and started reconstruction of
the house at the instance of Guaranty Trust Bank who leased the house from the
true and legal owner and his trustees.&nbsp;
The plaintiff/appellant then applied and G. T. Bank was joined to the
suit as a third defendant.&nbsp; In her
statement of defence the third defendant stated that she took a lease of the
house from its owner Padriag Orji Edward Mard, a minor who acted by his next
friends and trustees Randi Safi and Mirwen Safi and that the true owner had a
land certificate No. GA 21127. Subsequently Randi Safi and Mirwen Safi also
applied for leave to defend the action on behalf of the minor and were joined
as 4th and 5th defendants after which they filed their statements of
defence.&nbsp; The plaintiff/appellant then
filed a reply to the 4th and 5th defendant’s statements of defence and
proceeded to file summons for directions. <o:p></o:p>After
the processes above recounted the plaintiff/appellant filed a motion on notice
seeking an order to strike out the defence of the 4th and 5th defendants.&nbsp; Counsel for the plaintiff/appellant argued
that under Order 5 rule 2(2) of C.I. 47 “Except where a friend or guardian ad
litem has been appointed by the court, the name of a person shall not be used,
and a person shall not be entitled to act in any cause or matter as next friend
or guardian of a person with disability unless the lawyer of the person with
disability has filed in the registry <o:p></o:p>(a)
a written consent of the person proposing to be next friend or guardian ad
litem to act in that capacity <o:p></o:p>and<o:p></o:p>(b)
a certificate made by the lawyer for the person with disability certifying that
the lawyer knows or believes the person to whom the certificate relates is a
person with disability and that the person named in the certificate as next
friend or guardian is a proper person to act as such and has no interest in the
cause or matter adverse to that of the person with disability”. <o:p></o:p>Counsel
submitted that on this basis the 4th and 5th defendants have not been properly
appointed as next friends by the infant, and that being a condition precedent
and not having been complied with, the statement of defence cannot be allowed
to remain and should be struck out under O11 rule 18 of C.I. 47. Counsel for
the plaintiff/appellant also argued that the 4th and 5th defendants contended
that the land certificate of the infant was numbered GA 21128 but the one
provided upon his enquiry was numbered GA 21127 thus creating a conflict.&nbsp; Counsel for the plaintiff/appellant lastly
argued that a minor is not permitted by law to obtain a certificate of title in
his own name and therefore he could only have obtained his certificate by
deception and fraud. <o:p></o:p>Counsel
for the 4th and 5th defendants resisted the application arguing that the
matters raised cannot be resolved without the taking of evidence.&nbsp; Counsel submitted that the
plaintiff/appellant having compromised the joinder by filing a reply to the
defence and summons for directions it is too late in the day to apply for the
4th and 5th defendants to be non-suited. <o:p></o:p>The
trial judge found that it is a condition precedent for a party to file the
consent and gave the 4th and 5th defendants 14 days to comply.&nbsp; He however held that the stage the suit had
reached required the taking of evidence and that the contradictions in the
number of the certificate could be cured by an amendment.&nbsp; He therefore dismissed the application.&nbsp; Dissatisfied with the ruling the
plaintiff/appellant filed this interlocutory appeal raising seven grounds of
appeal.&nbsp; Counsel for the
plaintiff/appellant first argued grounds (a), (b) and (c) together.&nbsp; It is instructive to state that the 4th and
5th defendants/ respondents did not file any answer to the appellant’s
statement of case so this appeal will be decided without the benefit of an
answer. <o:p></o:p>The
first three grounds argued by the plaintiff/appellant are: <o:p></o:p>a)
The decision of the learned High Court Judge is per incuriam and is not
supported by the pleadings. <o:p></o:p>b)
The learned High Court Judge erred in treating the joinder granted to the 4th
and 5th defendants as giving them capacity and locus standi in the case and as
an estoppel against the plaintiff from challenging the capacity or locus standi
of the 4th and 5th defendants. <o:p></o:p>c)
The learned High Court Judge, having found that compliance with Order 5 of C.
I. 47 was fundamental and a condition precedent to the 4th and 5th defendants
becoming next friend, and that the 4th and 5th defendants did not comply with
the requirements and therefore could not have the capacity to be next friends,
erred in not striking out their statement of defence and misdirected himself in
wrongfully arrogating jurisdiction to himself under which he purported to
confe</main>