LYDIA AMEYO SEDDOR vs. NINA KALU EMOLE [2020]DLHC10430

Date	2020-02-03
Suit No.	SUIT NUMBER: LD/0995/2019
Citation No.	[2020]DLHC10430

HER LADYSHIP JUSTICE ELLEN VIVIAN AMOAH

[2020]DLHC10430
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													<main id="main" class="content" style="min-height: 60rem" >LYDIA AMEYO SEDDOR<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>NINA KALU EMOLE<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NUMBER:&nbsp; LD/0995/2019&nbsp; &nbsp; &nbsp; &nbsp; &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:
3rdFEBRUARY, 2020<o:p></o:p>

</div>CORAM:<o:p></o:p>HER LADYSHIP JUSTICE ELLEN VIVIAN AMOAH<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>&nbsp;Property
has always from time immemorial been the cause of rifts and acrimony in
families. In these times when what is at stake are a five bedroom house at&nbsp; West Adentan and a 14 bedroom house at Adenta
New site all bets are off. When a mother in law(Plaintiff) has to sue her
daughter in law(defendant) in respect of property the already frazzled
relationship between the two is ruptured.<o:p></o:p>The
allegation is that the Defendant married the Plaintiff’s son in December 2010.
At that time Defendant and the Plaintiffs son were renting a room in Tema.
Unfortunately the Plaintiff’s son was arrested for cyber crimes in Togo and his
assets duly seised.<o:p></o:p>Plaintiff
says that as her retirement plan she sent money to her son(now dead) to buy
land and&nbsp; supervise the construction of a
building in Accra. Money was sent to her now deceased son from 2011 to 2016 for
this purpose.<o:p></o:p>Plaintiff
had another son(her lawful attorney) who was also asked to buy land and
supervise construction of a house in Togo. The second son did as he was told.
He bought and registered the land in his mother’s name.<o:p></o:p>It
is the alleged conduct of her other son (who is now deceased)in taking a lease
of the land in his own name for 99 years from the head of the Kpen-We family of
La that is the cause of this suit in court. The 14 bedroom prime landed
property was built on it and this has allegedly given impetus to the Defendant (Plaintiff’s
daughter in law)to lay claim to the properties.<o:p></o:p>Plaintiff
says her son was unemployed and that she allowed him to live in part of the
property to save him from paying rent in Tema. Plaintiff says the money she
sent to her dead son was not for him to bolster his responsibilities as a
married man. It was to build the Accra house not to help him conduct his
financial responsibilities as a married man.<o:p></o:p>Meanwhile
Plaintiff reported to her other son(her Lawful Attorney) who after discussions
agreed for the dead brother to finish the building within 6 months based on
monies sent to him by their mother.<o:p></o:p>Three
months in: the Plaintiff’s son dies. The wife (The Defendant) now says her
husband built the two properties. This state of affairs &nbsp;&nbsp;has led
to the arrest of Defendant' brother in law(Plaintiff’s other son) and series of
vituperations.<o:p></o:p>Plaintiff
says Defendant should have known her husband is jobless and was only staying in
part of the 14 bedroom house as a favour of a mother to her jobless married
son.<o:p></o:p>In
this mix is the fact that Plaintiff’s late son rented rooms to tenants in the
14 bedroom house. Their tenancy has expired and they are still staying put.<o:p></o:p>&nbsp;Now the Defendant who has been sued for the
reliefs endorsed on the writ of summons has filed an application pursuant to Order 4 Rule 5(2) of CI 47 for Misjoinder.<o:p></o:p>In
summary the Defendant wants to be disjoined as she claims not to be the
property party to be sued that Plaintiff would be better off suing the estate
of her dead son. Defendant says it is improper to single out Defendant and sue
her. Defendant says the Plaintiff cannot hold the Defendant vicariously liable
for the acts of her dead son.<o:p></o:p>The
Plaintiff/Respondent&nbsp; also says that the
applicant for misjoinder had endorsed the motion with the words”Solicitor for
Plaintiff” in lieu of Solicitor for Defendant. Plaintiff respondent says this
is so fundamental as to go to the root of this matter viz a viz the court’s
jurisdiction. I respectfully disagree. <o:p></o:p>That error is, however, something which this court can
correct in the exercise of the powers conferred on the High court in Order 16 rule 7(1) as follows:<o:p></o:p>“For
the purpose of determining the real question in controversy between the parties
or correcting any defect or error in the proceedings, the Court may, at any
stage of the proceedings either of its own motion or on the application of any
party, order any document in the proceedings to be amended on such terms as to
costs or otherwise as may be just and in such manner as it may direct”<o:p></o:p>The authority conferred on the court under this rule
should be read conjunctively with that provided in Order 81 rule 2 following non-compliance with the rules to set
aside wholly or in part proceedings or allowing such amendments&nbsp; to be made as it considers&nbsp; just. Both rules are remedial in nature and
seek to preserve rather than destroy that which is capable of being cured.
After all the court’s duty is to do justice and not necessarily engage in
nit-picking to the detriment of justice.&nbsp;&nbsp; <o:p></o:p>In Republic v High Court, Koforidua; Ex parte
Ansah-Otu &amp; Another (Koans Building Solutions Ltd – Interested Party)
[2009] SCGLR 141&nbsp; the Supreme court
stated that&nbsp; under Order 81, r 2 (1) and
(2) of CI 47, a party affected by the non-compliance of the rules of court
might apply to the trial court to set aside the proceedings for irregularity,
provided an application was made timeously and without taking any fresh step </main>