PIUS v. MENSAH AND ANOTHER [1965] GLR 242

DIVISION: HIGH COURT, HO

DATE: 9 APRIL 1965

BEFORE: SOWAH J.

NATURE OF PROCEEDINGS

APPEAL on the ground that the joinder of the co-defendant was wrong in law. The facts are sufficiently stated in the judgment.

COUNSEL

E. D. Kom for the appellant.

F. T. C. Amorin for the respondents.

JUDGMENT OF SOWAH J.

In this appeal, counsel for the appellant has raised a number of technical points, the most important of which is that the joinder of the co-defendant is wrong in law. It appears from the record that the application for joinder in the action was made in the name of Nana Kwabena Kpantey Basahia VI,

Nifahene of Nkonya State, but the person who made the application was one Jonathan Yaw Tadebi, acting stool father of Nkonya Ntumda and it was he who swore to the affidavit for joinder.

When Nana Kwabena Kpantey Basahia VI was joined, he did not appear himself to give evidence and evidence on his behalf was given by the same Jonathan Yaw Tadebi. There is therefore no means of knowing whether in fact he had any authority from the said Nana

[p.243] of [1965] GLR 242

Basahia to make the necessary application or even to give evidence on his behalf. When a party is interested in an action he must at least take the initial step of having himself properly joined in the action; in other words he should make the application himself unless there are compelling reasons why he himself could not do so and the person applying to be joined can show that he has the proper authority such as for example the production of a properly executed power of attorney authorising him so to act.

The person whose name has been used may not know that a case is being conducted on his behalf and may quite properly plead at a future date that he was not aware that his name was being used.

Consequently he could not be bound by the decision in such a matter. I consider the joinder of Nana

Basahia VI was wrongful; in any case there was no application by Nana Basahia VI to be so joined. In the circumstance I would strike out Nana Basahia’s name from the record. It is relevant to note that when the said Jonathan Yaw Tadebi died some one was substituted for him as if Tadebi was a party to the action.

Counsel has however argued that if his submission is correct then the whole of the proceedings is irregular and the irregularity vitiated the trial. I am unable to agree to this submission. It appears to me that there is sufficient evidence on record to support the finding in favour of the defendant.

The plaintiff came to court to prove that he was entitled to a pot of palm wine on each occasion that the defendant tapped palm wine from his farm. Though the local magistrate endeavoured to the best of his ability to explain to the appellant that the issue involved was one of ownership of land, the appellant resolutely refused to be drawn into conducting his case on the basis of ownership of land. As a result the evidence led by him was most unsatisfactory. The defendant gave evidence that he did not obtain his land from the plaintiff’s family and further for the number of years that he has been on the land he paid tribute to the chief of Ntumda because he had always understood the land to be stool property. He called some of the tenants or occupiers of the Nyantor land who supported his evidence as to the entity to which tributes were paid. It seems obvious to me that the only way the plaintiff could succeed in this action was by proving that the land involved was his family property or that his family were the grantors of the land to the defendant who in such circumstance could not be heard to challenge their title.

The plaintiff, as the magistrate quite rightly observed, failed to discharge the onus and he was therefore right in dismissing his claim.

[p.244] of [1965] GLR 242

The local magistrate purported to award damages against the plaintiff for what he termed the inconvenience caused to the defendant. There is no basis in law for such an award. If the magistrate considers the action frivolous and vexatious he can penalise the guilty party by the award of substantial costs and not damages. The appeal will therefore also succeed in this respect.

Subject as above, namely, that the defendant is not entitled to an award of damages which is set aside, I will dismiss the appeal in so far as it concerns the defendant and will vary the costs of £G20 15s. 6d. awarded him in the local court to £G10 0s 0d. The defendant will have his costs of appeal assessed at 15 guineas.

I will allow the appeal in so far as it concerns the co-defendant (as the person named as co-defendant is in fact not a party to the action) and will set aside the judgment of the local court and the damages awarded.

The plaintiff will have his costs against Jonathan Yaw Tadebi substituted by Chris Bright Kpehtey assessed at £G10 0s. 0d. in the local court and 25 guineas in this court.

DECISION

Appeal against defendant dismissed.

Appeal against co-defendant allowed.

E.A.-A.