Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: SARKODEE-ADOO CJ, OLLENNU AND BLAY JJSC
JUDGMENT SARKODEE-ADOO CJ
The appellant, hereinafter called the plaintiff, sued the first respondent, hereinafter called the first defendant, in the High Court, Accra, and claimed declaration of title, recovery of possession, damages for trespass and perpetual injunction in respect of a piece of land situate at a place called Sabon Zongo, in Accra. In paragraph (1) of her statement of claim she described the land as “bounded on the North by Fati Yambon’s property, and on the South by Kalimatu Barko’s property, on the East by a proposed road, and on the West by Huseini’s property.”
In paragraphs (2) and (3) of her said statement of claim the plaintiff pleading her root of title and her possession of the land said:
“(2) The said piece or parcel of land forms part of a larger area known as the Sabon Zongo land and was granted by a customary grant to the plaintiff by Malam ldrisu Barko, the Serikin of Sabon Zongo, and successor of Malam Mohamed Barko (deceased) the original owner of the Sabon Zongo land.
(3) After the said grant the plaintiff went into possession of the land, erected a wooden building thereon and has since been in occupation thereof”.
And in paragraph (4) thereof she pleaded that the defendant had taken possession of and occupied the land, and fenced it in.
The second respondent, hereinafter called the second defendant, was joined during the course of the trial when it was disclosed in the evidence of the first witness for the plaintiff, brother of the plaintiff and the chief of Sabon Zongo, that the first defendant’s entry upon the land to erect the fence was as an agent of his son, the first defendant.
The first defendant filed a defence to the plaintiff’s claim, asserting ownership of the area fenced in, but did not counterclaim for declaration of title; that defence was relied upon by the second defendant when he was joined as a party to the suit. In that statement of defence, the defendants made a typographical mistake which appeared to be a serious error, and the plaintiff was quick to take advantage of it. Referring to a building his ancestor had on the land in dispute which building was destroyed by the earthquake of 1939, and in place of which the second defendant now has an unroofed building, the statement of defence gave the number of the said house as B414/2 instead of B411/2. The seriousness of the error lies in the fact that the number B414/2 is the number of a building undisputedly owned by the plaintiff and standing
on land adjoining the area in dispute between the parties. Upon discovery of the error, defence counsel applied for leave to amend; the application was however vehemently opposed by counsel for the plaintiff creating the impression that there was one and only one building on the land in dispute, that the said one only building is numbered 414/2, and was in the possession of the plaintiff. It appeared to the High Court at that stage that the parties were not ad idem as to the building; the court therefore stood the case down and went with the parties and counsel straight from court to the area and inspected the same. The result of the inspection is set out in a record made by the court when it resumed an hour later, and is summed up in the judgment of the High Court as follows:
“It was at the inspection that the position was clarified that opposing counsel did not refer to the one and the same house or premises, but rather to two distinct and separate houses, occupation and possession of which as well as the different sites on which each stood was not at all in dispute; and that the controversy was rather about a parcel or plot adjoining and/or contiguous to the different lands or sites on which the two different houses stood.”
Consequent upon the discovery made at the inspection as to the real subject-matter of the dispute between the parties, the High Court caused the respective claims of the parties to be surveyed and a plan made of the area showing the portion of the land in dispute; the plan so made was proved by the surveyor; it was admitted in evidence and marked exhibit Z; it shows the boundary line claimed by the plaintiff in red, that claimed by the defendants in green, and the area in dispute, the overlapping area between the claims of the parties, coloured blue. This therefore reduced the controversy to a straight forward boundary dispute between the parties. After careful and exhaustive examination and evaluation of the evidence, the learned judge of the High Court resolved the dispute in favour of the defendants, dismissed the plaintiff’s claim and entered judgment thereon for the defendants.
Against that judgment the plaintiff has appealed on five grounds. The first and the second grounds grouped together are: that the trial judge erred in holding upon the evidence that the plaintiff failed to discharge the onus upon her. In respect of this counsel submitted that the plaintiff’s allegation of a grant of the land was corroborated by her grantor, her brother the first witness for the plaintiff who is the headman of Sabon Zongo, and admittedly the person entitled to make grants of land in the area, and whose predecessor in title is relied upon by the defendants as their root of title. Again, in support of this ground, the court’s attention was drawn to the absence from the record of an order granting the application by the defendant to amend the defence by deleting the number B 414/2 and substituting the number B 411/2 for the same. It was submitted that the defence has never been amended, therefore the defendants are estopped by their pleadings from disputing that the building to which the land in dispute is attached is that numbered B414/2 the ownership of which they concede is vested in the plaintiff.
Now the plaintiff pleaded a gift of the land made to her by customary law five years before the dispute arose. To establish a gift by customary law, the plaintiff should prove, among other things: (i) the identity of the land satisfactorily, by giving the correct description thereof; (ii) that the gift was made in the presence of witnesses; and (iii) that owners of adjoining lands who were present at the inspection agreed on the boundaries demarcated or shown by the donor or grantor. We cite with approval the following statement of the law as to the essentials of a grant
of land by customary law as appears in the Land Court judgment in Asare v. Teing1 which is as follows: “The essentials of a valid gift made in accordance with customary law are: publicity, acceptance, and placing the donee in possession. The way to give publicity to a gift of land is to make the gift in the presence of witnesses, particularly members of the family of the donor who would succeed to the property upon the donor’s death intestate; and the acceptance must be evidenced by the presentation of ‘drink’ or some small amount of money to the donor, part of which is served to or shared among the witnesses to the transaction. Possession is given by taking the donee to the land, owners of the adjoining lands having been given previous information to stand on their boundaries and the donee is taken round the said boundaries.”
This applies also to other forms of alienation of land. In Ntrama v. Attia2 Coussey P., delivering the judgment of the West African Court of Appeal, in a case where a plaintiff who alleged he had purchased a piece of land relied solely upon a receipt given to him by his vendor to establish his right to recover possession from an alleged trespasser said:
“It is to be observed further that the tenor of the first defendant’s receipt does not evidence a completed sale of land. No description whatever of the property is given and there are no witnesses to evidence that the ceremonies denoting a sale and transfer of property by native custom had taken place.”
In this case all the evidence we have that a gift was made to the plaintiff of land which included the plot of land in dispute is the bare assertion made by the plaintiff and also by her first witness, her brother, that a gift was made; no evidence was led as to demarcation of the land in the presence of witnesses, and although it appears from the evidence of the plaintiff and her said first witness that the adjoining lands must have been in the occupation of some persons five years ago at the date when the gift was alleged to have been made, the evidence shows that no such boundary owner was called to be present at a demarcation or inspection of the land for the boundaries to be agreed upon. The more serious part of the plaintiff’s case is with respect to the line she claims as the northern boundary of her land. According to her statement of claim, the person with whom she formed that boundary is one Fati Yambon. She did not call that person to prove the said boundary with her. What is more the plaintiff and her grantor were obliged to admit that the person whose land forms boundary with the northern boundary of the land on which the house No. B414/2 claimed by the plaintiff stands, is the defendants’ ancestor; the plaintiff was unable to tell what that boundary is. In connection with the northern boundary the plaintiff was asked, “When the land was given to you did you put anything to mark the boundaries?” She replied, “No — I did not. I only asked the sergeant in occupation of my father’s house to keep an eye on it for me.” The plaintiff’s grantor, her first witness, in his evidence-in-chief deposed that the unroofed building north of the land in dispute towards the street was erected by one Awudu Makyeri, predecessor of the defendants, who died some thirty years ago; he said that that land was granted to the said Awudu Makyeri by his, the witness’s father, that he was present on the occasion when the grant was made, and that measurement of that land “from the south to the street is 100 feet.” This piece of evidence alone is enough to put the plaintiff out of court, for according to the plan exhibit Z, the measurement from the edge of the street to the green line, where the defendants’ old beacon pillar stands, the boundary claimed by the defendants is approximately 100 feet, i.e. 102 feet. From this evidence it logically follows that the defendants and their ancestors had been in possession for at least 25 years before the date of the plaintiff’s grant alleged to have been made five years ago. Therefore their boundary which was in existence then, must in law be the boundary between their land, and the land granted to the plaintiff. This well-established principle of our law is fully set out in the judgment of this court in Adam v. Van der Puije.3
On the submission that there being no order granting the amendment sought by the defendants as to the substitution of the number B411/2, for the number B414/2, the defendants are estopped by reason of their pleadings from denying that the house to which the land in dispute is attached is No. B414/2 and not No. B411/2. It should be pointed out, firstly, that from the trend of the judgment, the omission to record an order granting the amendment sought is a mere oversight, a technicality which does not go to the root, and that in any event the numbers of the buildings are absolutely irrelevant to the real controversy which the High Court was called upon to settle; the irrelevance, as earlier observed was made apparent by the inspection, and above all, by the plan exhibit Z. Had an amendment been necessary in this respect to enable the real controversy between the parties as disclosed upon the evidence to be settled, we would have had no hesitation, in the interest of justice, in granting the leave sought in this court by counsel for the defendants to amend as was done by the Court of Appeal in Nkyi XI v. Kumah.4 For circumstances in which an appeal court will allow amendment of writ or pleadings to enable it to determine the real issue in controversy, see England v. Palmer.5
The third ground on which the judgment of the High Court was attacked is that, “The learned judge was wrong in holding that because the house occupied by sergeant Musah on the land has been in existence for more than five years, it cannot be evidence of a grant made five years ago.” This attack on the judgment is really groundless. The plaintiff pleaded in paragraph (3) of her statement of claim that, “After the said grant the plaintiff went into possession of the land erected a wooden building thereon and has since been in occupation thereof.” This plea was put up to support an averment of grant of land, entry into possession and effective exercise of rights of ownership. These are the facts the plaintiff sought to prove. In her attempt to prove possession and exercise of acts of ownership she gave evidence that she had let her building on the land to one sergeant Musah Bazambari, father-in-law of one of her brothers; she admitted however that the said building was erected by her father, and was in existence before she was born; she then deposed that her brother, her first witness, who succeeded to their father gave the building to her about five years ago; that the said sergeant Musah Bazambari had been a tenant of the house for nine years. From those facts the learned judge came to the conclusion that the plaintiff could not have put up that building on the land five years ago, and that if she
collected rents from sergeant Musah Bazambari, the only reasonable explanation is that her brother who succeeded to their father must have made over the building to her, the plaintiff, to collect the rents for her use as her share of the inheritance from their father, and not as a grant of a defined piece or parcel of land. We are of opinion that the learned judge was right in holding that the evidence with respect to the building claimed by the plaintiff, failed to discharge the onus upon her to prove that the land was granted to her five years ago, and that she went into possession after the said grant and erected a wooden shed thereon.
In the fourth and fifth grounds counsel complained that the judgment is against the weight of evidence, and in particular that the finding of the learned judge that “the earth mound found on the land was the remains of the ruins of a house,” and that the judge was wrong in acting upon a statement made outside court. The arguments advanced in respect of these grounds relate to two incidents by which the plaintiff sought to prove exercise of acts of ownership to support her claim to occupation of the parcel of land in dispute.
For exercise of any acts of ownership to sustain occupation and possession of land, they must be shown to be open, effective, undisturbed, and unchallenged; a casual or solitary act is insufficient; and an act which met with resistance or opposition has no evidential value to sustain occupation.
One of the matters the plaintiff alleged to show use and occupation of the area in dispute was an attempt she made to allow her brother to construct a garage on the area, as preparatory to which her said brother drove his vehicle across the land. The evidence shows that the second defendant reacted very promptly to this solitary attempt by causing his father to construct the fence which was the cause of the plaintiff’s action. This isolated act of driving a vehicle over the land, which was immediately resisted and stopped, is not of the nature of user of land which in law may be regarded as evidence of possession and occupation of land as by an owner.
The next evidence the plaintiff tendered as exercise of acts of ownership and user of the land is the explanation she and her brother, who was her second witness, gave as to the cause of a small but conspicuous mound of earth existing on the northern end of the land just north of the blue coloured plot in dispute. According to the plaintiff and her said brother, second witness for the plaintiff, the said mound was caused by truck loads of earth placed on the land by her third witness one Sofo Mohama, son-in-law of either her first or second witness, who did so upon her permission previously obtained; and that in depositing the said earth, some of it accidentally went upon the adjoining land of the defendants. Unfortunately for them her said third witness, the said Sofo Mohama, flatly contradicted the evidence given by her and her second witness, and rather alleged that it was with the permission of the second defendant that he deposited the earth on the land. The court noted that when it made the surprise inspection of the land and noticed the mound, and questioned the parties about it, the plaintiff could not
explain how the mound came into existence but the defendant on the other hand explained that it was the remains of the swish building which was on the land originally, and which was destroyed in the Accra earthquake of 1939. Unfortunately when the court resumed after the inspection it did not call the parties into the witness-box to depose to the said facts for it to record them as part of the proceedings. The surveyor who surveyed the land also said in his evidence that the plaintiff could not explain the cause of the mound, but the defendants explained that it was caused by the destroyed building. Both the learned judge and the surveyor, from personal experience and observation, formed the impression that the
explanation which the defendants gave on the land was reasonable. When the second defendant gave evidence, he, rather stupidly, took advantage of the evidence given by Sofo Mohama, and said that the evidence given by Mohama that the mound was caused by truck loads of earth he placed on the land with the defendant’s permission is true.
In the course of his judgment the trial judge said that from all the evidence before him, he was “quite satisfied that the mound which I saw, was the site of the ruins of an old swish building.” It was argued for the plaintiff that this finding made by the court is wrong, because it is based, firstly upon a statement, not on oath, made to the court at the inspection of the land, and secondly, upon the judge’s own knowledge. There is some foundation for this criticism. In order for the court to use any information given to it at inspection of land, the court, upon resumption after the inspection should make notes of all the relevant matter that transpired at the inspection, and in particular should cause all persons who gave material and relevant information at the inspection to go into the witness-box to repeat on oath, the information they
gave at the inspection, and for them to be cross-examined by the opposing side.
Again a judge should not as a rule base his decision upon facts to his own knowledge and of which there is no evidence on the record, unless they are notorious facts of public interest of which judicial knowledge may be taken. In this case, however, it cannot be said that there is no
evidence from which the court could come to the conclusion it came to; for there is the evidence given by the surveyor which was not challenged as to what the defendants told him had caused the mound, and the plaintiff’s inability to offer any explanation as to how the mound came into being.
But in levelling these criticisms at the judgment with respect to the mound, counsel was running away from the real issue which his client the plaintiff undertook to establish: namely, that in exercise of her acts of ownership she had granted permission to Sofo Mohama to deposit truck loads of earth on the land. She failed miserably to prove that she had ever exercised such acts of ownership; for she was flatly contradicted by her own witness the said Sofo Mohama who said that it was rather with the permission of the second defendant that he deposited earth on the land and not with the permission of the plaintiff. For that reason also, the learned judge of the High Court was right in holding that the plaintiff failed to discharge the onus upon her. The appeal should, therefore, be dismissed.
JUDGMENT OF OLLENNU JSC
I agree.
JUDGMENT OF BLAY JSC
I have had the opportunity of perusing the judgment agreed upon by the Chief Justice and my brother Ollennu, and I would have readily accepted the conclusions arrived at by them but for the view I hold, of certain procedural irregularities apparent on the record of proceedings, which I consider to be in limine.
The appellant in this appeal claimed by her writ issued in the High Court, Accra, against the respondent (1) a declaration of title to all that piece or parcel of land with buildings thereon situate at Sabon Zongo, Accra, and bounded on the North by Fati Yambon’s property and measuring on that side 125 feet more or less, on the South by Kalimatu Barko’s property and measuring on that side 125 feet more or less, on the East by a proposed road and measuring on that side 70 feet more or less and on the West by Huseini’s property and measuring on that side 70 feet more or less; (2) recovery of possession; (3) £G100 damages for trespass; (4) perpetual injunction restraining the defendant, his agents, servants and or workmen from entering upon the land or in any way interfering with the plaintiff’s use and occupation of the said land.
By her statement of claim the appellant pleaded as follows:
“(1) Plaintiff is the owner in possession of all that piece or parcel of land situate at Sabon Zongo, Accra, and bounded on the north by Fati Yambon’s property and measuring on that side 125 ft. more or less, on the south by Kalimatu Barko’s property measuring 125 ft. more or less on the east by a proposed road measuring 70 ft. more or less and on the west by Huseini’s property measuring 70 ft. more or less.
(2) The said piece or parcel of land forms part of a larger area known as the Sabon Zongo land and was granted by a customary grant to the plaintiff by Malam ldrisu Barko, the Serikin of Sabon Zongo and successor of Malam Mohamed Barko (deceased) the original owner of the Sabon Zongo land.
(3) After the said grant the plaintiff went into possession of the land erected a wooden building thereon and has since been in occupation thereof.
(4) The defendant broke and entered the land and without leave or licence of the plaintiff wrongfully constructed a fence across the land thereby depriving plaintiff of her use and occupation of the land and the plaintiff has suffered damage.
Wherefor the plaintiff claims as in her writ of summons:
1. Declaration of her title to the said land.
2. Recovery of possession.
3. £G100 damages for trespass.
4. Perpetual injunction restraining the defendant, his agents and or workmen from entering upon the said land or in any way interfering with plaintiff’s use and occupation of the said land.”
The defendant now respondent herein entered appearance to plaintiff’s writ and in due course filed a statement of defence as follows:
“(1) Save as is herein below expressly admitted the defendant denies each and every allegation contained in the plaintiff’s statement of claim as if the same were set out in extenso and denied seriatim.
(2) Defendant denies that plaintiff was ever in possession of the land in dispute.
(3) Defendant says that the said land has been in the undisputed possession of his predecessors for over 45 years.
(4) The said land with building thereon known as No. B414/2 was originally owned by one Abudu Macheli who married plaintiff ‘s grandmother by name Salamatu Hausa.
(5) Upon the death of the said Abudu Macheli the said house went to his son Taheru.
(6) The said Taheru died about twelve years ago and his mother Salamatu Hausa plaintiff’s grandmother succeeded him.
(7) The said Salamatu Hausa died a year later and the property went to plaintiff’s mother Gadu
(8) Meanwhile the house, No. B414/2, was damaged by the earthquake in 1939.
(9) Plaintiff has rebuilt the said damaged house up to roof level and has delayed roofing only because of the demands of the municipal authority.
(10) Plaintiff says that the land has been cleared of weeds by his predecessors and himself during the whole period of 45 years in which they have been in possession thereof.
(11) Defendant will contend that plaintiff is estopped from making the claim herein because she stood by while defendant and his predecessors stayed on and developed the land for the past 45 years.
(12) Defendant says that the plaintiff is not entitled to any reliefs she claims.
To this statement of defence the plaintiff filed the following reply:
“(1) The plaintiff joins issue with the defendant upon his defence.
(2) In reply to paragraph (4) of the statement of defence, the plaintiff denies the allegation that the house No. B414/2, was originally owned by one Abudu Macheli, and says that the house No. B414/2, was built by plaintiff’s father, Malam Bako (deceased). After Malam Bako’s death, plaintiff’s eldest brother Malam Idrisu Bako succeeded to the property, until he gave it to plaintiff about five years ago. (3) The plaintiff herein is in occupation of the house No. B414/2, through her tenant sergeant Musa.
(4) There is no truth whatsoever in the averments that the defendant or any member of his family had ever been the owner of the house No. B414/2, nor that the defendant or his predecessors have ever weeded the said land. (5) In reply to paragraphs (8) and (9) of the statement of defence, the plaintiff says that the house No. B414/2, has not been damaged and has not been rebuilt to a roof level as alleged by the defendant. House No. B414/2, is in the occupation of plaintiff through her tenant sergeant Musa.”
The following issues for trial were subsequently agreed upon, namely: (a) whether house No. B414/2, Sabon Zongo, is in occupation of the plaintiff or not; (b) whether house No. B414/2 was built by plaintiff’s predecessor in title; (c) whether the defendant has trespassed; and (d) any other issues raised on the pleadings. The learned judge’s notes on hearing of the summons for directions read as follows, “Let issues be those as disclosed by the pleadings.”
After number of adjournments for hearing the case eventually came before Adumua-Bossman J., as he then was, on 20 September 1960, and the following notes appear on the record for that day:
“Claim in declaration and other reliefs.
Mr. Obetsebi Lamptey for plaintiff.
Mr. Acquaah for defendant—who applies to amend the statement of defence as per notice filed this morning.
Per Mr. Lamptey:
The amendment would alter the whole nature of the case⎯as the plaintiff says the house in respect of which
he is suing is No. B414/2.
Per Curiam:
It is hereby directed that the subject-matter of the action be inspected by the court⎯and the court is
accordingly temporarily adjourned for that purpose.
(Intd.) K. A. B.
Judge
Per Curiam:
The court resumes after about an hour’s adjournment during which the subject-matter of the action was inspected. It appears to be a plot situate and lying contiguous to houses admittedly belonging to the parties and situate north-east of land claimed by plaintiff but south of land claimed by defendant. It appears however to the court that for record purposes it would be more desirable to have a proper plan of the area in dispute and accordingly with the consent of the counsel for the parties it is hereby ordered that Messrs. Hansen and Partners be and are hereby appointed to visit the site and make any necessary survey and prepare a plan showing the plot in dispute in relation to the contiguous lands and houses claimed by the parties.
Each side is to deposit forthwith £G5 towards cost of such survey and preparation of plan.
Trial to continue next Thursday 29th instant.
(Sgd.) K. Adumua-Bossman
judge.”
The amendment sought by counsel for the defendant reads as follows:
“(a) For house No. B414/2, occurring in paragraphs (4) and (8) of the statement of defence, read B411/2.
(b) For ‘plaintiff’s’ occurring in paragraphs (4), (6) and (7) of the statement of defence, read ‘defendant’s’.
(c) For ‘plaintiff’ occurring in paragraphs (9) and (10) of the statement of defence read ‘defendant’.”
It appears that the plan ordered by the court was duly made by the surveyor appointed and filed; for the surveyor appeared in court on 18 October 1960, and gave evidence as to the making of the plan which was tendered in evidence as exhibit Z. The hearing of the case then continued until 24 October 1960 and the plaintiff closed her case on that day.
It appears that on the same day 24 October 1960, counsel for the defendant applied by motion supported by an affidavit asking for leave to join one Mustapha Barko as co-defendant in the suit. And on the following day 25 October 1960, the following notes appear on record:
“Mr. Obetsebi Lamptey for plaintiff.
Mr. Acquaah for defendant⎯Now moves (see motion paper filed this morning) for joinder of Mustapha Barko as co-defendant.
Per Curiam to Mr. Lamptey:
Have you anything to urge against the application?
Per Mr. Lamptey:
The application is belated and will embarrass the plaintiff who has closed her case. The person now sought to be joined has been in court and never gave proper instruction to counsel.
Per Curiam:
The conduct of Mr. Acquaah who now makes this belated application and excuses himself by saying he had all his instructions from the person now sought to be joined and thought he was the defendant all along until it was disclosed in the evidence of the plaintiff that he was not the Mustapha seen erecting the fence which gave rise to this action⎯is quite obviously negligent and reprehensible because he could quite easily have ascertained from him the circumstances under which the alleged trespass came to be committed and thereby find out that the commission of the trespass was actually by his father—not himself. Be that as it may the evidence so far appears to disclose a case of trespass by the father which is sought to be
justified under the authority of his son who now seeks to be joined—and I am satisfied the plaintiff’s case will in no way be prejudiced by the joinder. Indeed, it is to her advantage to have all parties claiming interest in the plot the subject-matter of the action to be joined, so that any judgment which she may recover might bind and be conclusive against all of them. For these reasons the joinder will be granted.”
Hearing continued on that day up to 27 October when the defence closed. The learned judge in a carefully considered judgment found for the defendant and co-defendant and dismissed the action of the plaintiff.
It is from this judgment that the plaintiff has appealed to this court on the following grounds:
“(1) There was evidence on record enough to establish the plaintiff’s title to the land, and the learned judge was wrong in holding that the plaintiff did not discharge the burden of proof which lay on her.
(2) The claim that the land was granted to the plaintiff by Malam Idrisu Barko was not disputed and the learned judge was wrong in requiring additional evidence to support or corroborate the evidence of the grantor himself that he granted the land.
(3) The learned judge was wrong in holding that because the house occupied by sergeant Musah on the land has been in existence for more than five years, it cannot be evidence of a grant made five years ago.
(4) There was no evidence on oath that the earth mound found on the land was the remains of the ruins of a house, and the learned judge was wrong in founding his judgment upon a statement made outside court, not on oath, and completely at variance to the sworn statement of the defendant, the plaintiff and the plaintiff’s witness Sofo Mohama.
(5) The judgment is against the weight of the evidence and manifestly wrong.”
Now whatever may be the merits or demerits of these grounds of appeal, I am of the view that the proceedings in the court below were very unsatisfactory in several respects. The plaintiff’s writ as well as the subsequent statement of claim filed on her behalf was clear and specific as regards the land she claimed. The defendant also by his statement of defence seemed in no doubt as to the identity of the land in dispute. She described it as the land on which house No. B414/2 was built. And the issues to be tried as appear on record were as quoted above. Yet later after the defendant had applied for leave to amend his statement of defence, an application which was opposed by counsel for the plaintiff, the court made the following notes, “It is hereby directed that the subject-matter of the action be inspected by the court⎯and the court is accordingly temporarily adjourned for that purpose.”
After the inspection the court made the notes already referred to above. It must be noted that counsel’s objection to the amendment sought by the defendant was that “the amendment would alter the whole of the case, as the plaintiff says the house in respect of which he is suing is No. B414/2.” It does not appear on record that the amendment sought by the defendant was formally granted by the court. The plan subsequently prepared by the surveyor and tendered in evidence as exhibit Z seems to bear out the observations of the learned trial judge and did not reflect what the parties were claiming as per the pleadings. It did not show either house No. B414/2 or No. B411/2 which the defendant sought to substitute by the intended amendment to his statement of defence. Neither did it bear out the boundaries of the land claimed by the plaintiff as per her writ and statement of claim. In my view the court, after inspecting the land or at least after the plan had been prepared, should have either nonsuited the plaintiff with liberty to bring fresh action or else should have ordered fresh pleadings to be filed so as to reflect and show clearly on the pleadings the subject-matter of contention between the parties. Not having done this, it was in my view incompetent for the court to adjudicate on a matter not brought before it by the parties: see Kwame v. Barnier6 In this case, as already pointed out, the court did not decide the issues joined on the pleadings and in particular said nothing about the ownership of house No. B414/2 or house No. B411/2 mentioned by the parties in their pleadings even assuming that the defendant’s application for leave to amend was granted by the court.
For these reasons alone I would allow the appeal and remit the case back to the court below for rehearing after the necessary pleadings have been filed defining clearly the land in dispute between the parties. I would also award the appellant costs in this court but the costs in the court below to abide by the results of the new trial.
There appears to have been another departure from procedure to which I would like to refer briefly. When at the close of the case for the plaintiff the co-defendant was joined as a party to the proceedings, it does not appear that rule 13 of Order 16 was considered and applied. The rule is mandatory and where it is thought unnecessary that service be effected as provided in the rule, a clear direction to that effect should be made by the court.
DECISION
Appeal dismissed.
N.A.Y.
