BUAFUL v. CONSTRUCTION PIONEERS

JUDGMENT OF WUAKU

The original parties to the suit herein were Nana Kofi Amanyi III and Carl Ploetner Engineering Construction (Ghana) Ltd. The original plaintiff died before the hearing of the case could be started and was substituted for by Opanyin Kweku Buaful. It appears that the original defendants too for one reason or the other have [p.1060] ceased to operate in Ghana and have been replaced by Construction Pioneers.

The plaintiff's claim is based on an agreement dated 21 February 1977 whereby the defendants had agreed to pay ¢2,000 for the removal of 6,000 cubic yards of gravel from the plaintiff's land. The plaintiff's case is that the defendants had paid the ¢2,000 for the 6,000 cubic yards of gravel or soil taken but had not paid for the gravel or soil taken in excess of the 6,000 cubic yards agreed upon. The plaintiff says that in all, the defendants took 117,000 cubic yards of gravel and the defendants are therefore liable to pay to him for 111,000 cubic yards of gravel at the rate of ¢2,000 per each 6,000 cubic yards.

The defendants admit the existence of the agreement but plead that what they took from the plaintiff's land was mineral which is vested in the government and that they paid the ¢2,000 under a mistake of law or fact. They have thus sought the Attorney-General to be joined as a third party to represent the Lands Department which they say had advised them not to pay any money to the plaintiff.

The third party notice was duly served on the Attorney-General who without entering appearance, delivered a defence. The Attorney-General, apart from delivering the defence aforesaid, never took any other part in the proceedings although served with hearing notices and a written order of the court to appear to defend the action.

The defendants took part in the proceedings up to the close of their defence, since then, they stopped attending court and thus did not address the court. In my view, there was no need to serve the defendants with hearing notices before attending court once they were in court when the case was adjourned. And as in this case, where the defendants have a counterclaim to prosecute, if they mean to defend and or prosecute their counterclaim, they should have taken it upon themselves to find out the next hearing date if they are not already aware of it.

However, on 18 November 1982 upon the order of the court, the registrar of this court wrote to the defendants and the third party to attend court on 8 December 1982,