JUSTICE ARYEEQUAYE ARYEETEY & ANOTHER v. INSPECTOR GENERAL OF POLICE & OTHERS
2018
COURT OF APPEAL
GHANA
CORAM
- KORBIEH, J.A. (PRESIDING)
- AYEBI, J.A.
- SOWAH, J.A
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2018
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Sowah J.A., allowed an interlocutory appeal arising from the High Court (Land Division, Accra) order joining Sampson Odenkey Abbey as second plaintiff in a family land suit brought by the appellant, the head of the Okai-Nkpa Okaifio family of Adjen Kotoku. The respondent sought joinder based on prior substitution with the appellant in a 1996 case and a fear of being sidelined if the appellant litigated alone. Emphasizing that only the head of family ordinarily sues to protect family land unless special circumstances under Kwan v Nyieni are proven, the court found no evidence of authorization, necessity, or other exceptions; the respondent’s speculative fears did not amount to necessity. Applying well-settled limits on appellate interference with discretionary decisions, the court held the trial judge misapprehended relevant facts and gave weight to irrelevant considerations. The court also addressed an unendorsed representative capacity on the writ as an amendable irregularity, granted leave to amend, removed the respondent as a party, and set aside the joinder order.
JUDGMENT
SOWAH, J.A.:
This is an interlocutory appeal by the 1st plaintiff/appellant against the Ruling of the High Court, Land Division Accra in which an Order was made for Sampson Odenkey Abbey, the 2nd plaintiff/respondent herein to be joined as the 2nd plaintiff in the pending Suit.
The Ruling is dated 16th December 2015 and is at pages 81-82 of the record of appeal. This appellate court is being prayed to set aside the said Ruling. The grounds of appeal are as follows:
Grounds Of Appeal:
i. The trial Judge erred in law when she granted the application joining the Applicant as 2nd plaintiff on a purely speculative ground of fear of being sidelined by the substantive head of family.
ii. The ruling dated 16th December, 2015 is against the weight of the evidence.
The argument of counsel for the 2nd plaintiff when his application for joinder was being moved at the trial court was that both the 1st plaintiff and the applicant were members of the same Okaifio family of Adjen Kotoku and Accra. That in a suit No. MISC 1098/96 [see pages 49-71 of the Record] that had been pending against the family, both of them had been substituted for their Acting head of family Madam Okomfo Dedei Annan when she had died during the pendency of that Suit, and they had successfully defended the action.
The above fact was used to counter the 1st plaintiff’s contention that he was the only person entitled to represent the family as he was the present head of family. It was argued for the 2nd plaintiff that if he was not joined to the present suit instituted by the 1st plaintiff, the 1st plaintiff ‘may in the end claim that having fought alone he will be the rightful person to deal with the land in future’
The appellants' counsel argued both grounds of appeal together. Relying on Montero vs. Redco [1884-86] 1 GLR 710, it was contended that the 2nd plaintiff/respondents' affidavit in support of the application for joinder had failed to show that his presence was necessary to help the court in adjudicating the matter. Rather, paragraph 10 of his affidavit in support of the motion for joinder [at pages 47 and 48 of the Record] unambiguously showed that he merely wanted to be joined to the action because he was afraid of what would happen if the 1st plaintiff alone represented the family. However, such a reason was not within the parameters of Order 4 rule 3(2).
The appellant explains that because it was mandatory for their head of family who had died during the penden