ABBEYMAN FAMILY STOOL vs. NII ODARTEY III, NII OKAI QUAYE DJANOR (DECEASED), YAYA ADDY AND NII ABETIA II [2012]DLHC7065

ABBEYMAN FAMILY STOOL vs. NII ODARTEY III, NII OKAI QUAYE DJANOR (DECEASED), YAY... [2012]DLHC7065

Date	2012-04-16
Suit No.	SUIT NO. L 101/2001
Citation No.	[2012]DLHC7065

HIS LORDSHIP JUSTICE PETER DEI OFEI

[2012]DLHC7065
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													<main id="main" class="content" style="min-height: 60rem" >ABBEYMAN
FAMILY STOOL<o:p></o:p>vs.<o:p></o:p>NII ODARTEY III, NII OKAI QUAYE DJANOR (DECEASED), YAYA ADDY AND
NII ABETIA II<span lang="EN-GB" style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"><o:p></o:p>(APPLICANTS)<o:p></o:p>[HIGH COURT,
ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">SUIT
NO. L 101/2001 &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: 16TH APRIL, 2012<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;
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HIS LORDSHIP JUSTICE PETER DEI OFEI<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;
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</div>On
the 29th of July 2011, this Honourable Court differently constituted dismissed
the application by Nii Abetia II, chief of Asofa to join the above suit as a
Defendant. It is against this Ruling that the Applicant has submitted this
instant application for a review of the said Ruling of this Court dated the
29th of July 2011. <o:p></o:p>Earlier
on 24th day of January 2011, the same applicant Nii Abetia II, Asofa Mantse had
applied for and had been substituted as the 2nd Defendant in place of Nii Okai
Quaye Djanor, (deceased) who was the original 2nd Defendant in the suit. <o:p></o:p>The
back ground history to this will make the issues raised by this instant
application more appreciable. <o:p></o:p>On
the 29th of July 2011 this Court in its Ruling on the Applicant's application
for Joinder gave a brief account of the history of this case and dismissed the
application on three grounds. <o:p></o:p>First
that on 30th July 2001, final Judgment was entered in favour of the Plaintiffs
against the 2nd Defendant after the Plaintiff had adduced evidence in proof of
his title earlier on 26th July 2001. Then two years after Judgment was entered
for the Plaintiffs against the 2nd Defendant, the latter died without reacting
to the Judgment in any way by way of an appeal or an attempt to set the
Judgment aside. <o:p></o:p>In
the said Ruling of 29th July 2011, the Court held as follows:
"Consequently Judgment was entered for Plaintiff and on 26th July 2001
Plaintiff gave evidence to prove his title and on 30th July 2001 final Judgment
was given for Plaintiff. In all these Processes 2nd Defendant was given notice
but he failed to participate. The Judgment of 30th July 2001 is a final
Judgment regularly obtained after trial. It is not an interlocutory Judgment.
This Judgment was entered for Plaintiff 2 (Two) clear years before the death of
the 2nd Defendant. It is my view therefore that between 2nd Defendant and
Plaintiff there is no surviving cause of action. The applicant therefore be
substituted when there is no cause of action between the parties." (Emphasis
mine). <o:p></o:p>That
was the first ground upon which the Court dismissed the Applicant's application
for Joinder. <o:p></o:p>The
second ground of the Court's Ruling of 25th July 2011 is that the property in
dispute is a family property and that the 2nd Defendant having held himself out
to the whole world as the Head or Lawful representative of the Nii Abetia
Family of Asofan without any challenge at the time to his status, Plaintiff was
entitled to sue him in respect of the family property. <o:p></o:p>The
third ground which the Court relied upon to dismiss the applicant's application
for Joinder was that if the Applicant knew that the 2nd Defendant was not the
proper person to be served, what prevented him from filing the necessary
process to have the entire suit set aside. The Honourable Judge then held in
the Ruling and I quote, <o:p></o:p>"I agree with Counsel for the
Plaintiff that the Judgment of 30th July 2001 operates as estoppels against the
applicant in terms of S 26 of the Evidence Act 1975 (NRCD 323)..." <o:p></o:p>What
then is this instant application about? To use the words in the motion paper
itself. <o:p></o:p>"PLEASE TAKE NOTICE that Counsel
for the Applicant/ Applicant herein will move this Honourable Court for a
Review of its Ruling given in this Court on the 9th of July 2011" <o:p></o:p>In
effect, the applicant is praying the Court to review its Ruling of 29th July
2011 dismissing the application for Joinder on the above stated reasons. <o:p></o:p>By
Order 42 rule 1 of C.I. 47. <o:p></o:p>"1(1)
a person who is aggrieved <o:p></o:p>(a)
by a Judgment or order from which an appeal is al</main>