DIVISION: IN THE SUPREME COURT
DATE: 10TH APRIL, 1963
BEFORE: OLLENNU, BLAY AND AKUFO-ADDO JJ.S.C.
CASE REFERRED TO
Muffat v. Kpeshi II (1952) 14 W.A.C.A. 44
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court, Ho, which upheld the claim of a plaintiff, who, after the issue of a writ of summons in the trial native court, had played no further part in the proceedings. The plaintiff’s
[p.360] of [1963] 1 GLR 359
claim had been dismissed by the trial court, and subsequent proceedings had been instituted by the
plaintiff’s representative in his personal capacity.
COUNSEL
Ofori-Atta for the appellant.
J. Arthur for the respondent.
JUDGMENT OF OLLENNU J.S.C.
Ollennu J.S.C. delivered the judgment of the court. This action started in the Akan Native Court “B”
Ahamansu in August 1954 where Nicholas Nyabi sued per V. K. Letsa and claimed against the defendant
a declaration of title, recovery of possession and damages for trespass to a piece of land situate at
Ahamansu-Titiaka. Together with his application for a writ of summons, the said Nicholas Nyabi filed a
motion for an interim injunction to restrain the defendants from dealing with the land during the pendency
of the suit. Although it is clear both on the writ of summons and the motion that there was only one
plaintiff namely Nicholas Nyabi, and that V. K. Letsa was to be only a representative of the plaintiff, the
first defendant Adjoa Medienhia, in an affidavit in opposition to the motion erroneously cited the title of
the suit describing V. K. Letsa as a second plaintiff whereas the said Letsa was not personally interested
in the subject-matter of the suit.
The title of the case from that time until now has appeared as above. No order was ever sought and none
was ever made joining V. K. Letsa as a second plaintiff to the suit. That V. K. Letsa was not a plaintiff in
the suit but only a representative of Nicholas Nyabi is clear from a letter dated the 7th February, 1955,
written by Nicholas Nyabi to the trial native court requesting them to allow the said Letsa to represent
him and prosecute the claim on his behalf in that court.
It is observed thereafter that the plaintiff Nicholas Nyabi took no further interest in the proceedings and so
also did the second defendant right up to this court. V. K. Letsa however assumed and played the role of a
plaintiff, and at the hearing gave evidence and cross-examined in the first person, as if it was the person
Nicholas Nyabi himself speaking. In such circumstances the evidence that Letsa gave as if he were the
person Nicholas Nyabi should be excluded from consideration in arriving at a decision. But he produced
some documentary evidence as to Nicholas Nyabi’s interest in the subject-matter of the suit. Both from
the documentary and oral evidence it is clear that V. K. Letsa himself has no personal interest in the suit.
The trial native court delivered judgment on the 23rd February, 1956, dismissing the plaintiff’s claim.
The only person aggrieved and entitled to appeal against that judgment was the plaintiff Nicholas Nyabi
and not V. K. Letsa. Nicholas Nyabi however did not file any notice of appeal within one month as laid
down by the Native Courts (Southern Togoland) Regulations, 1949, reg. 118 (1)1 which was applicable at
the time; he therefore lost his right of appeal and the judgment delivered by the native court against him
in the suit brought by him is still binding
[p.361] of [1963] 1 GLR 359
upon him: See Muffat v Kpeshi II.2 However V. K. Letsa, not purporting to do so on behalf of Nicholas
Nyabi, filed a notice of intention to appeal against the decision of the native court. The said notice reads:
“Take notice that I, being a party to the above cause which was decided by the Akan Native Court ‘B’
Ahamansu, on the 23rd day of February, 1956, and being aggrieved by the said decision do intend to appeal
to the Buem/Krachi Native Appeal Court, Jasikan.
Dated at Kadjebi, this 23rd day of February, 1956.
(Sgd.) V. K. Letsa
Appellant.”
Again it is observed that the said V. K. Letsa on his own behalf, and jointly with two sureties, signed a
bond for costs which might be awarded against him in the native appeal court should his said appeal fail.
The right to appeal from a decision of a trial native court constituted under the Native Courts (Southern
Section of Togoland) Ordinance3 now repealed, was by section 46 of the said Ordinance, vested in a
person who was a party to the suit in which the judgment he wished to appeal against was delivered. The
said V. K. Letsa as shown, was not a party to the suit tried by the native court; he had no right to appeal.
Therefore both the native appeal court and High Court were wrong in entertaining the appeal from him.
Consequently his purported appeal, and all the proceedings consequent thereupon, both in the native
appeal court, and in the High Court are null and void as being without jurisdiction. This appeal is brought
by the defendant Adjoa Medienhia from the judgment of the Land Court, Ho, upholding the plaintiff ‘s
claim against her.
But even if Letsa was a party to the suit, as second plaintiff, the evidence led on behalf of the plaintiff, at
its best, does not disclose any interest of any sort which the said Letsa has or could have in the land
subject-matter of the suit which he could litigate. Therefore he has no locus standi, and should have been
dismissed from the suit.
In a claim for declaration of title, or damages for trespass, the evidence led on behalf of the plaintiff must
be of a standard and quality giving sufficient particulars of the identity and extent of the area of the land
in respect of which the action is brought. The evidence of identity should be such that the defendant must
know exactly what land he is defending and the court must be certain of the exact area and extent of land
an order it makes might affect.
Now as regards the interest of the plaintiff Nicholas Nyabi in the subject-matter of the suit, the evidence
led in support is, at its very best, vague and inconclusive as to identity of the land in dispute. Therefore
even if Letsa had appealed in his proper capacity, that is, as attorney for the plaintiff Nyabi, his appeal
would fail in any event.
[p.362] of [1963] 1 GLR 359
For the reasons indicated we allow the appeal; the proceedings and judgments in the High Court and in
the Buem/Krachi Native Appeal Court are each declared null and void as being without jurisdiction. In
the result the only subsisting valid judgment is that of the trial native court dismissing the plaintiff’s
claim.
The appellant, Adjoa Medienhia, will have her costs against V. K. Letsa personally fixed at £76 3s. 8d.
and her costs in the High Court also against him personally to be taxed.
DECISION
Appeal allowed.
J. D.
