ATTA KWAKU AGYEI AND KWAME KONADU vs. ELDER YAW ASARE BEDIAKO AND 3 OTHERS [2017]DLCA4791

Date	2017-05-23
Suit No.	CIVIL APPEAL NO. H1/24/2016
Citation No.	[2017]DLCA4791

E. K. AYEBI (PRESIDING) JA

GERTRUDE TORKORNOO (MRS.) JA

ANGELINA M. DOMAKYAAREH (MRS.) JA

VALENTINE BOAMAH FOR PLAINTIFFS/APPELLANTS

WILLIAM MARK ADEOLWINE FOR DEFENDANTS/RESPONDENTS

[2017]DLCA4791
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													<main id="main" class="content" style="min-height: 60rem" >ATTA KWAKU AGYEI AND
KWAME KONADU<o:p></o:p>vs.<o:p></o:p>ELDER YAW ASARE BEDIAKO
AND 3 OTHERS<o:p></o:p>&nbsp;(DEFENDANTS/ RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, KUMASI]<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.&nbsp; H1/24/2016&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: TUESDAY, 23RD MAY 2017<o:p></o:p>

WILLIAM
MARK ADEOLWINE FOR DEFENDANTS/RESPONDENTS&nbsp;&nbsp;&nbsp;&nbsp; <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>AYEBI, JA<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This is an appeal against the judgment
of a Fast Track High Court, Sunyani, dated 7th day of July 2014 by the
plaintiffs.&nbsp; The sole ground of appeal is
that the judgment is against the weight of evidence.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Initially, the claim of the plaintiffs
was against the 1st defendant for:<o:p></o:p>(a)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that H/No. SNT 8, New
Town, Sunyani is a property commonly acquired by the late Opanin Kwasi Anomah
and Opanin Kofi Mensah and that same is part of their estate.<o:p></o:p>(b)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; A declaration that H/No. SNT 8, New Town,
Sunyani, by operation of PNDCL 111 devolves on the children and wives of Opanin
Kofi Mensah and Opanin Kwasi Anomah.<o:p></o:p>(c)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; An order of injunction restraining the
defendants, their agents, privies, etc. from dealing with the disputed house
and the vacant portion thereof.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The plaintiffs in their statement of
claim pleaded that they are children of the late Opanin Kwasi Anomah and Opanin
Kofi Mensah who were uterine brothers and who jointly acquired the subject
house through their joint enterprise.&nbsp;
The defendant (1st defendant) is the nephew of the deceased
brothers.&nbsp; It is their case that Kwasi
Anomah told them that when he and his brother die, they (their children) should
take the house as theirs.<o:p></o:p>4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In paragraph 18 of the accompanying
statement of claim, they alleged that, at the first anniversary celebration of
the death of Kwasi Anomah, the family claimed an interest in the property and
an agreement was reached to share the house and a vacant piece of land in front
of it between them.&nbsp; But while waiting
for the sharing to be done, they saw the vacant piece of land being
developed.&nbsp; From their averment, they
suspected the defendant (now 1st defendant) to be behind the development going
on.&nbsp; This is the basis of the claim
against him.<o:p></o:p>5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The defendant duly entered an
appearance and in his defence, he denied any claim or interest in the
property.&nbsp; He asserted that he was
wrongly sued because at the meeting plaintiffs referred to in paragraph 18, he
got to know that the property belongs to the family and the proper members to
answer the claim of the plaintiffs are the family head and the principal
members.&nbsp; He mentioned specifically the
2nd to 4th defendants/respondents as some of the principal members.<o:p></o:p>6.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; It would appear that the plaintiffs
were satisfied with the statement of defence that they had no cause of action
against the defendant.&nbsp; The plaintiffs
therefore applied to the court to join the 2nd to 4th defendants to the suit
because they are the proper persons to respond to their claim.&nbsp; The court granted the motion for joinder on
11th July 2011 and ordered the plaintiffs to amend writ and statement of claim
accordingly, and when served on the 2nd to 4th defendants, they should enter an
appearance.<o:p></o:p>7.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In compliance with that order, the
plaintiffs filed an amended writ of summons which added the names of Akua
Nsiah, Yaa Bommo and Afia Mmeraa as 2nd, 3rd and 4th defendants respectively to
the suit to answer the claim of the plaintiffs (see page 19 of the record of
appeal).&nbsp; Conspicuously absent from the record
of appeal however is any service of statement of claim either in its original
form as filed on 4th May 2011 or an amended form on the 2nd to 4th defendants.<o:p></o:p>8.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; According to Order 16 rule 8 of C.I.
47, the High Court (Civil Procedure) Rules, 2004, if a party fails to amend a
writ, pleading or other document within 14 days of the order or the period
stated in the order, the order shall cease to have effect without prejudice of
the power of the court to extend the period.&nbsp;
In this case, the plaintiffs have completely failed/neglected to comply
with the order of the court and conducted their case on the basis of the
statement of claim filed against the 1st defendant who was sued without cause
and should have been struck off as a party.<o:p></o:p>9.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; What is the effect of the failure of
the plaintiffs to serve any form of statement of claim on the 2nd to the 4th
defendants?&nbsp; In Hammond vrs Odoi
[1982/83] GLR 1215 at 1235, the function of pleading in a trial was profoundly
stated.&nbsp; It is stated that the trial
judge can only consider the evidence of the parties in the light of the
pleadings.&nbsp; This is because pleadings</main>