DANKWA v. TWUM [1972] 1 GLR 36
HIGH COURT, CAPE COAST
Date: 20 OCTOBER 1971
BEFORE: BAIDOO J.
CASES REFERRED TO
(1) Wooton v. Joel (1920) 36 T.L.R. 193, C.A.
(2) Dix v. Great Western Railway Co. (1886) 55 L.J.Ch. 797; 54 L.T. 830; 34 W.R. 712.
(3) Performing Right Society Ltd. v. London Theatre of Varieties Ltd. [1924] A.C. 1; 93 L.J.K.B. 33;
130 L.T. 450; 40 T.L.R. 52, P.C.
(4) White v. London General Omnibus Co. [1914] W.N. 78; 58 S.J. 339.
(5) Emden v. Carte (1881) 17 Ch.D. 169; affirmed, (1881) 17 Ch.D. 768; (1881) 51 L.J.Ch. 41; 44
L.T. 636, C.A. (6) Tildesley v. Harper (1876) 3 Ch.D. 277; 2 Char. Cas. 263.
NATURE OF PROCEEDINGS
MOTION by the applicant applying to be substituted as plaintiff in an action involving his family land which had been instituted by the respondent, a queenmother. The facts are fully set out in the ruling.
COUNSEL
A. H. Sackeyfio for the defendant.
E. M Amponsah-Dadzie for the plaintiff.
Osei for the applicant.
JUDGMENT OF BAIDOO J.
In this motion the applicant, Yaw Dankwa, contends he has been appointed the head of family and so
must be substituted in place of the plaintiff Abina Twum as the action herein is in respect of their family land and the plaintiff who is an ordinary member of the family has been given no mandate to sue on behalf of the family. There are about five similar actions pending in this court and in each case a similar motion has been filed by Yaw Dankwa. One of these cases, as I understand, was agreed to be taken as a test case and the same is part-heard before Griffiths-Randolph J. now on transfer to Tamale.
It is evident from the affidavit filed by the plaintiff in that test case that she is strenuously resisting the attempt by Yaw Dankwa to get her struck off or displaced as plaintiff, since she maintains that Yaw Dankwa’s [p.38] of [1972] 1 GLR 36 alleged appointment as head of family was made without her knowledge and concurrence and is therefore void. The action herein was originally filed by the plaintiff as far back as 22 February 1968 in the Grade II District Court at Nyakrom but on an objection being raised by the defendant to the jurisdiction of the district court due to the value of the land in dispute the case was transferred for hearing in this court. It will be seen from the title of the suit that the plaintiff has adopted the title or appellation of obaahimaa (i.e. queenmother) and in paragraphs (1) and (2) of her statement of claim she has specifically pleaded as follows: “(1) The plaintiff was at the time this action was instituted the caretaker of the Agona stool (Adasemase section) of Agona Nyakrom. With the appointment of a substantive occupant of the said stool about two months ago, the plaintiff still remains the most senior female member and head of the said family.
The defendant is a native of Gomoa Obiri now resident at Agona Swedru. (2) The plaintiff ‘s family are the owners of the land in dispute described in the writ of summons, which forms part of their ancestral land known as `Sampraku’.”
In reply to the above averments, the defendant pleaded as follows:
“(1) The defendant cannot deny or admit paragraph (1) of the statement of claim, but admits that she is a native of Gomoa Obiri and resident at Agona Swedru. (2) In answer to paragraphs (2)-(7), the defendant confirms paragraph (8) of the statement of defence that
the land in dispute was purchased by her uncle from the ancestors of the plaintiff. ‘The sale
transaction is covered by a deed of conveyance duly executed.” The defendant therefore accepts the position that the plaintiff is litigating in respect of family land and she has cast the onus on the plaintiff to establish her capacity to sue.
By his motion and affidavit filed in this court on 7 May 1971, the applicant, Yaw Dankwa contends he
“was appointed and customarily declared head of the said family of the plaintiff in October 1970 by the entire family at a family meeting convened for that purpose, and that the plaintiff herein is not and has never been the head of the family.” He further contends that as the plaintiff is not competent to maintain the action on behalf of the family he, Yaw Dankwa, must be substituted in place of the plaintiff. A copy of this motion and affidavit was never served on the plaintiff who has therefore not filed any affidavit in reply. Only the defendant was served and she has never bothered to file any affidavit in opposition, obviously leaving it to the plaintiff to put her house in order. In the circumstances of this case to avoid adjourning the case to obtain plaintiff’s affidavit in opposition, I have accepted the statement verbally made by applicant’s counsel in court explaining the necessity for the substitution of the plaintiff and the nature of Abina Twum’s opposition. There is authority for this: See for instance, the case of Wooton v. Joel [p.39] of [1972] 1 GLR 36 (1920) 36 T.L.R. 193, C.A. where the court dispensed with the filing of an affidavit and just relied on the statement of the applicant’s counsel.
A plaintiff who has filed an action in court cannot be forced by any person to stop litigating and give
place to some other person to carry on as plaintiff. In case he or she has made a bona fide mistake in
instituting the action the plaintiff can make the necessary application for the court to permit substitution of the appropriate person as plaintiff. But if a plaintiff insists on prosecuting his or her claim to a conclusion then no matter how worthless the nature of the claim, no person can deny him or her the right of prosecuting his or her case. After all the filing fees were paid by the plaintiff and if the action or suit is non-maintainable due to lack of capacity it is the plaintiff and not the family who will be mulcted in costs.
It is the policy of the law however to avoid as far as possible multiplicity of suits and to save a defendant the terrible inconvenience of going through the entire trial of a case to be ultimately told by the court that the plaintiff lacks capacity to sue, a situation which in law means the defendant must expect a fresh action from a competent person. Ample provisions have been made vesting the court with power in the exercise of its discretion to join or strike out a party. The relevant provisions that call for consideration in this application are contained in Order 16, rr. 2, 8 (b), 11 and 12 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A).
Referring to the nature of Abina Twum’s opposition to this application, counsel for the applicant handed to the court a copy of Abina Twum’s affidavit filed in one of the series of cases. In the said opposing affidavit filed on behalf of Abina Twum in the said test case of Essie Gyaaba v. Obaahimaa Abina Twum and Kojo Owusu alias Kwadjo Prison, one of the series of cases affecting the plaintiff ‘s family land in dispute, the plaintiff stated inter alia as follows:
“(3) That in the latter part in 1970, I learnt by rumour that Yaw Dankwa had been appointed head of the Asona family, Nana Adasemase Nyakrom by a handful of some irresponsible members of the family.
I called on Nana Kwesi Krampa to ascertain the fact. I was told that Yaw Dankwa had been presented
to him as head of my Asona family by some few men from the family; I was not satisfied with such
unceremonious appointment, I therefore swore to an affidavit in opposition to such appointment.
(4) That information copies of my affidavit were sent to Nana Omanhene, Agona Nyakrom, the Regional Administrative Office, Cape Coast, Administrative Officer, Winneba and the Officer-in-Charge, Ghana Police Service, Agona Nyakrom. (5) That in view of the fact that sub-chief Barima Adjaye did not consult me for my consent and approval about such unceremonial appointment, I summoned him to appear before the Omanhene of Agona Nyakrom to show reasons why he flagrantly ignored to consult me in regard to Yaw Dankwa’s appointment, to assign the functions of a queenmother in a family as to the nomination of a stool occupant. [p.40] of [1972] 1 GLR 36
(6) That as a queenmother (Obaahimaa) and by virtue of my office I am solely responsible for the
administration of all the family properties and without my consent and express knowledge, nothing
could be done as to appointment of a stool occupant, destoolment litigation, etc. (7) That I nominated and installed ex-chief Kojo Adjaye as Asona family stool occupant about eight
years ago and due to his mismanagement I had to destool him. That after his destoolment, the
Omanhene of Nyakrom sent his linguists to inform me that as I objected to Kojo Adjaye’s
re-instatement, he had banned further nomination to the stool for 25 years. (8) That I administered the family properties for the said period and some time in 1970 Yaw Dankwa whowas at that time a driver in Accra approached me and revealed to me that he had had a dream and that I should find some one to occupy the Asona stool. Therefore, after a deep consideration of his appeal,
I approached the Omanhene of Agona Nyakrom, Kyeame Kofi Nyarko, Abusuapanyin Debra and
Okyeame Kwesi Kom to entreat the Omanhene of Nyakrom to rescind the order of suspension.
(9) That I slaughtered six sheep during the lifting up of the ban and also presented nine bottles of
schnapps, fifty new cedis, forty new pesewas. In all I spent one hundred and eighty new cedis at the
ceremony. The Omanhene of Nyakrom ordered me to nominate a member to the stool within one
month and to this, I nominated Barima Adjaye as stool occupant which no member objected to my
nomination. (10) That it is very strange that Yaw Dankwa did not mention in his affidavit the responsible person who nominated him to the Asona stool and again it is quite incredible to believe that I am only a mere member who holds no rank in the Asona family.”On the available evidence it is clear that the plaintiff’s family is split at the moment into two opposing factions, Yaw Dankwa’s supporters and Abina Twum’s followers. In order therefore to get the entire family fully represented, I deem it advisable to get Yaw Dankwa’s group also fully represented by joining Yaw Dankwa as a party. In view of the nature of Abina Twum’s opposition the application that she be removed or struck off as plaintiff is misconceived. Abina Twum should remain as plaintiff while Yaw Dankwa is joined as co-plaintiff.
It should be pointed out at this stage that the defendant herself could and should have applied for Yaw Dankwa to be joined as co-plaintiff the moment she learnt of the split in the plaintiff’s family to obviate the possibility of having to face more than one action. In this connection the case of Dix v. The Great Western Railway Co. (1886) 55 L.J.Ch. 797 may be cited. The brief facts of that case were as follows: By an indenture dated 30 May 1884 certain pieces of land, belonging to the plaintiff and two others, Owen and Jullion respectively, were conveyed to the defendants who covenanted with each of the vendors, his heirs and assigns [p.41] of [1972] 1 GLR 36 separately to make a road between certain points on the land bought and to allow the plaintiff, Jullion and Owen, their respective heirs, tenants and assigns, to use the road for all purposes. The defendants failed to make the road and the plaintiff therefore brought this action for specific performance of the covenant and damages. As Owen and Jullion were not made parties to the action the defendant company applied by summons to have Owen and Jullion added as plaintiffs if they consented, or as defendants if they did not consent. The court citing Order 16, r. 11, granted the application holding at p. 798 that the joinder would enable the court “effectually and completely to adjudicate upon and settle all the questions involved in the cause” as the rule now is to try and get everybody before the court who can assist in disposing of the whole matter.
The authorities show that a co-plaintiff may be added where the original plaintiff’s action is defective and the joinder is likely to help cure the defect. An obvious example is where an equitable owner commences an action without joining the legal owner. As Viscount Cave L.C. aptly observed in Performing Right Society Ltd. v. London Theatre of Varieties Ltd. [1924] A.C. 1 at p. 14, P.C.
“That an equitable owner may commence proceedings alone, and may obtain interim protection in the form of an interlocutory injunction, is not in doubt; but it was always the rule of the Court of Chancery, and is, I think, the rule of the Supreme Court, that, in general, when a plaintiff has only an equitable right in the thing demanded, the person having the legal right to demand it must in due course be made a party to the action: Daniell’s Chancery Practice, 7th ed., vol. i., p. 172. If this were not so, a defendant after defeating the claim of an equitable claimant might have to resist like proceedings by the legal owner, or by persons claiming under him as assignees for value without notice of any prior equity, and proceedings might be indefinitely and Oppressively multiplied . . . Further, under Ord. XVI., r. 11, no action can now be defeated by reason of the misjoinder or nonjoinder of any party; but this does not mean that judgment can be obtained in the absence of a necessary party to the action, and the rule is satisfied by allowing parties to be added at any stage of a case.”
In that case where Viscount Cave L.C. made his observation quoted supra the legal owner of a copyright was joined as party to an action instituted by the equitable owner.
Also the joinder of a party will generally be made where it is necessary to determine the real dispute
between the parties. Thus in the case of White v. London General Omnibus Co. [1914] W. N. 78 a tenant was added in an action for nuisance originally instituted only by the reversioner.
Finally the case of Emden v. Carte (1881) 17 Ch.D. 169 must be cited as the plaintiff in that case, very
much like the plaintiff in this case, stoutly resisted the application seeking to get the plaintiff removed or struck off from the case to be substituted by another person as plaintiff. The facts of
[p.42] of [1972] 1 GLR 36 that case were as follows: The plaintiff who had been adjudicated bankrupt instituted an action in his own name without joining his trustee in bankruptcy, who therefore took out a summons applying to have himself substituted as plaintiff on the ground that the plaintiff had no interest in the subject-matter of the action. The plaintiff was an architect and surveyor. He had become bankrupt in 1878, and subsequently, without the consent of his trustee, acted as architect for the defendant under a prior agreement of April 1877. He instituted his action in June 1880 against the defendant, stating that the defendant had, in or about April 1877, agreed to employ him as architect in certain works; that in the year 1879 the plaintiff prepared specifications and drawings and incurred expenses as the defendant’s agent and architect; and that on 9 June 1880, the defendant had dismissed him from being his architect, at the same time making against him an unfounded charge of dishonesty, and the plaintiff claimed: (1) An injunction to restrain the defendant from employing any other person as architect; (2) Specific performance of the agreement of 1877; (3) The remuneration due to him for his services; (4) Damages for wrongful dismissal and breach of contract.
The defendant denied that the services had been performed by the plaintiff as alleged by him, but stated his willingness to pay some remuneration in respect of his services, although his plans and specifications were not useful and could not be used by him and paid £369 into court as being the utmost sum due to him. The plaintiff’s adjudication in bankruptcy was dated 30 April 1878, and he was undischarged so the trustee in bankruptcy took out this summons dated 26 November 1880 to be substituted as plaintiff but the same was bitterly opposed by Emden, the plaintiff. Counsel for the trustee in bankruptcy urged that as the trustee was entitled to all the plaintiff was seeking to recover in the action the trustee ought to be substituted as plaintiff in place of Mr. Emden; that the court had power to strike out a party improperly made plaintiff, and to substitute another as was done in Tildesley v. Harper (1876) 3 Ch.D. 277.
In opposing the summons for substitution counsel for the plaintiff pointed out that the court had no
jurisdiction to substitute one plaintiff for another against the will of the first plaintiff; that whether he was right or wrong in his action the first plaintiff had the right to carry it on as he pleased; that the case of Tildesley v. Harper was distinguishable because in that case the first plaintiff consented to the application for substitution. In his ruling joining the trustee in bankruptcy as co-plaintiff, Fry J. observed at p. 173: “I have some difficulty about substituting the trustee for the bankrupt, because, as I read the Orders under the Judicature Act, they do not allow such substitution except when the action has been commenced under a bona fide mistake on the part of the plaintiff. Here the Plaintiff does not admit any mistake, but insists on his rights. I am of opinion, however, that I may add the trustee as plaintiff under Order XVI, rule 13, and I think the most proper and convenient course is to add [p.43] of [1972] 1 GLR 36 his name as plaintiff and to give him the conduct of the action, especially as the Plaintiff has asked for relief (such as an injunction) which he does not seem entitled to, while the damages and remuneration to which he may be entitled pass, in my opinion, to the trustee. As, therefore, the trustee has the substantial right to action, I hold that it is just and fit to make the order I have stated.”
The plaintiff appealed to the Court of Appeal which confirmed the order of Fry J. joining the trustee in bankruptcy as co-plaintiff: See Emden v. Carte (1881) 17 Ch.D. 768, C.A.
As the plaintiff’s family is at the moment split into two factions, in order that the entire family may be fully represented in this action, Yaw Dankwa who is willing to prosecute the action herein as plaintiff for and on behalf of his section of the family is hereby ordered to be joined as co-plaintiff. Let a formal order be drawn up and served on Yaw Dankwa. The co-plaintiff is hereby given seven days to file his statement of claim.
DECISION
Applicant to be joined as co-plaintiff
without any substitution being made.
S.A.B.
