DIVISION: IN THE SUPREME COURT
DATE: 7TH MARCH, 1963
BEFORE: SARKODEE-ADOO, CRABBE AND BLAY JJ.S.C

NATURE OF PROCEEDINGS
APPEAL from a judgment of Acolatse J. delivered in the High Court, Accra, on the 30th June, 1961.
This action began in the Akwamu Native Court when Nana Kofi Budu II claimed inter alia declaration of
title to certain land. The case was transferred to the High Court, Accra, on the 20th May, 1957, and on the
26th November, 1959, Ollennu J. (as he then was) dismissed the plaintiff’s claim (see [1959] G.L.R. 410).
On the 17th March, 1961, the Supreme Court, without entering into the merits, allowed the plaintiff’s
appeal on the ground that it was not possible to say there had been a fair trial because of an embarrassing
situation which had developed between the trial judge and the plaintiff’s counsel, Dr. de Graft Johnson.
The Supreme Court ordered a re-trial. (See [1961] G.L.R. 176.)
The plaintiff’s original statement of claim, served on the 4th September, 1957, contained only seven
paragraphs. On the 9th May, 1961, the plaintiff applied for leave to amend his statement of claim by
substituting one consisting of twelve paragraphs. Paragraphs one to five and eleven to twelve of the
amended statement of claim corresponded closely with the original but paragraphs six to ten made the
following new averments:
“6. The plaintiff admits that as a result of a certain arbitration held at Akwamu in the year 1947 or
thereabouts to which the predecessor of first and second defendants herein one G. T. Caesar and the
plaintiff were parties, a portion of plaintiff’s stool land awarded to the said G. T. Caesar, the other two
portions claimed by G. T. Caesar (deceased) were awarded to the plaintiff. The portion of land
awarded to the predecessor of the first and second defendants is all that piece or parcel of land situate
lying and being at Atimpoku and bounded on the east by the River Volta, on the west by
Tettehngwa’s land on the south by Kuwornuh’s and other streams on the north by plaintiff ‘s stool
land.

[p.242] of [1963] 1 GLR 241
7. The plaintiff will contend that in view of the said arbitration award the first and second defendants are

estopped from laying claim to any other portion or portions of plaintiff’s stool land except the portion
awarded them by the arbitrators. The plaintiff further states that the portion awarded to the said G. T.
Caesar or a substantial part thereof has been sold to one E. B. Otinkorang by the Caesar family.
8. While the plaintiff denies the title to the first and second defendants to other portions of his stool
lands apart from the parcel of land described in paragraph 6 above, the plaintiff further maintains that
he and his predecessors have been exercising acts of ownership over the rest of the land for a period
of more than 50 years and that even if other portions of the land belong to the first and second
defendants, which the plaintiff denies, the conduct of the said defendants and their predecessors
constitute an act of abandonment and they are therefore debarred by customary law of Akwamu from
asserting any claim to any other portion of the said land.

9. The plaintiff also states that in a suit entitled Nana Kofi Budu II, Plaintiff v. 1. Francis Nartey Caesar,
Defendant, 3. Beatrice Abena Nyako, and 4. Daniel William Ocansey, which was tried at the
Akwamu Native Court B on the 10th November, 1956, judgment was given in respect of the same
parcel of land for the plaintiff against all the defendants. The third defendant did not appeal from the
said decision of the Akwamu Local Court “B” the plaintiff will therefore contend that the third
defendant is estopped from denying the plaintiff’s title as she failed to appeal from the said judgment.
10. The plaintiff states that apart from the portions of land admitted by him in paragraphs 2 and 6 as
belonging to one Ofori Tawiah, R. M. Asare, Kofi Agyakwa, Kofi Safro and E. B. Otinkwarang, the
defendants have no right to lay claim to and go on the land, described in paragraph 2 above.”
E. N. P. Sowah for the defendants opposed the amendment. He drew the court’s attention to the facts that
the case had been going on for nearly six years and that Dr. de Graft Johnson had appeared for the
plaintiff both in the original trial and at the appeal but he had not then seen fit to make any amendment.
He further submitted that, “The effect of this amendment is to delay trial as we shall have to reply to this
new amendment…. It is an attempt to cover up the defects of the plaintiff’s case which they presented
before in the original trial … the re-trial should proceed on the issues as they stood before Ollennu J.”
[p.243] of [1963] 1 GLR 241
Acolatse J. granted leave for the amendment, ruling that it did not materially affect the original issues.
Judgment was eventually given again dismissing the plaintiff’s claim, and upholding the defendants’
counterclaims. The plaintiff appealed.
COUNSEL
Dr. de Graft Johnson (with him Ofori-Atta) for the appellant.
Ohene-Ampofo for the first, second and third respondents, and for the co-defendant-respondent.
JUDGMENT OF COURT
Ruling: After discussions with, and upon hearing, learned counsel for the parties, we are of the opinion
that the record of appeal shows such gross irregularities as to warrant a re-hearing. Inter alia, no statement
of defence was delivered by or on behalf of the first, second and third defendants and the co-defendant in
answer to the amended statement of claim filed by leave of the court under Order 28, r. 6 of the Supreme
[High] Court (Civil Procedure Rules), 1954, whereby the original statement of claim was wholly
abandoned and the amended statement of claim substituted therefor; the fourth defendant on the other
hand was not served and in consequence no statement of defence was delivered by him or on his behalf.
Notwithstanding these gross irregularities in limine, the trial proceeded upon the ruling of the learned trial
judge who held, inter alia,
“I have gone through the amendment sought, paragraph by paragraph, with counsel in the case and reached

the conclusion that the amendment does not materially affect the original issues. In my view it is more or less
an attempt by counsel to clarify and elaborate his contention in the case. There will be no injustice done in
granting leave to counsel to amend his statement of claim.”
The application was granted in terms of the notice of amendment filed to which counsel for the first,
second and third defendants and the co-defendant had earlier objected vehemently on the ground that it
raises new issues from the original trial.
The trial being unsatisfactory as already indicated the judgment cannot stand. The appeal is accordingly
allowed. The judgment together with the order as to costs is set aside; the case is remitted to the court
below for re-hearing before another judge. The costs of the abortive trial to be borne by the parties. Any
costs paid by the appellant pursuant to the order as to costs must be refunded to him. The appellant is
awarded his costs in this court fixed at £G131 17s. 0d.
Court below to carry out.
DECISION
Order accordingly.
J. D.

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