AGYEMANG JA:

In this interlocutory appeal against the ruling of the High Court, Land Division Tema, delivered on 19^th December 2017, the defendant/appellant seeks a setting aside of the said ruling, and a further order joining the three clan heads of Appollonia as second, third and fourth defendants.

The plaintiff sued out a writ of summons against the defendant/appellant at the court below seeking interalia, a declaration of title to “all that piece or parcel of land …which pieces of land total 103.68 acres”, a declaration that the defendant has trespassed onto a large portion thereof, and an order for recovery of possession of the said land. In the accompanying statement of claim, the plaintiff pleaded that it had on 27^th January 2014, acquired the said parcel of land as the assignee of the unexpired term of a lease for a term of ninety-nine years held by a real estate company: Delimawue Company Limited (referred to hereafter as “Delimawue”).The said lease had been acquired by Delimawue from the Appollonia stool on 11^th November 2008 with the consent and concurrence of the principal elders of the stool, as well as the Paramount Chief of Kpone: Nii Tetteh Otu, the occupant of the Kpone Paramount Stool. The said Stool allegedly held a Land Title Certificate over Kpone Lands which allegedly included Appollonia Lands, and had to give its consent and concurrence to the alienation of land within the Kpone Traditional Area.

It was the case of the plaintiff that the defendant which had acquired a parcel of land measuring 1000.36 acres more or less from ‘some elders of Apollonia’ had gone beyond the land alienated to it, trespassed on a large portion of the plaintiff’s land and had started fencing same. It was the plaintiff’s further pleading that the Secretary to the Appollonia Stool had on behalf of the Regent and entire stool acknowledged an error in survey work which had resulted in the defendant’s trespass, and had apologized for it.

In its pleading, the defendant which denied that it had trespassed onto the plaintiff’s land, alleged that it had acquired large tract of land measuring 1000.30 acres which was stool land from the lawful heads of the three ruling families of Appollonia: Bediako We, Sanshie We, and Kojo We, who together with the Chief of Appollonia were the lawful grantors of Appollonia Stool Land (as confirmed by letter from the Lands Commission) and that the defendant had in its possession a lease dated 15^th September 2010 duly plotted by the Lands Commission.

At the close of pleadings and after directions were given for the conduct of the trial, the defendant applied for the joinder of the said heads of Bediako We, Sanshie We, and Kojo We. In the supporting affidavit, it was deposed on behalf of the defendant/applicant that the presence of the three was necessary for them to defend their interest in and capacity to grant the land in dispute to the defendant and in that regard, that their presence was necessary for the effectual and complete determination of the suit.

The application which was strongly opposed by the plaintiff, was dismissed by the trial court which held inter alia, that the said persons ought to have been notified but were not, and in any case did not need to be joined as parties as they could be called as witnesses in support of the defendant’s case.

It is the said ruling which is the subject of complaint in the instant appeal.

The defendant/appellant set out two grounds of appeal which we reproduce as follows:

The learned trial judge erred in his holding that the persons sought to be joined by defendant to the substantive suit ought to have been served with the application for joinder before same was moved and this has occasioned a miscarriage of justice;

The learned trial judge erred in law by refusing the application for joinder of the three clan heads of Appollonia;

Particulars:

i. That the joinder of the three clan heads of Appollonia was not necessary to completely and effectively determine the suit.

In the instant application, what the court was called upon to do was to exercise its discretion to join three clan heads who the defendants averred, were the grantors of land part of which was the subject of dispute in the suit. An order for joinder is an exercise of discretion which must be “exercised judicially and in a manner conformable with justice, no fixed rules existed as to when or how it should be exercised. Such exercise must depend on the facts and special circumstances of each case, see: Ussher v Darko [1977] 1 GLR 476

The instant appeal is thus against the exercise of the court’s discretion.

In our consideration of the matters raised herein, we must set out at the outset our recognition that the appellate court’s jurisdiction to interfere with the exercise of discretion precludes the substitution of the appellate court’s discretion for that of the trial court. This is having regard to the fact that such an appeal is not from the discretion of the trial court to the discretion of the appellate court, see per Adzoe and Baddoo JJSC Kyenkyenhene v Adu [2003-2004] SCGLR 142: also Ballmoos v Mensah [1984-86] 1 GLR 724. We are empowered to interfere with such exercise of discretion where its wrongfulness has been demonstrated by the appellant, see: Patience Arthur v Moses Arthur, Review Motion 34/19/2013 decided on 4th February 2014 (Unreported). In this regard, we must be persuaded that the trial judge exercised the discretion on “wrong or inadequate materials, if it can be shown that the court acted under a misapprehension of fact in that it gave weight to irrelevant or unproved matters or omitted to take relevant matters into account”, see: Blunt v Blunt [1943] AC 517 at 518 HL, approved in Ballmoos v Mensah (supra).

In determining the propriety of the order of the trial court, we have had regard to the matters that properly ought to exercise a trial court in the consideration of an application for joinder, especially where title to land is in controversy.

Order 4 Rule 5 (2)(b) of the High Court (Civil Procedure) Rules CI47 reads: “(2) At any stage of proceedings the Court may on such terms as it thinks just either of its own motion or on application

(b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party.”

It is manifest from the said rule that the paramount circumstance under which the joinder of a person to a suit may be made is to ensure the complete and effective determination of all matters in dispute. This was expatiated y the Supreme Court in Sam (No.1) v Attorney-General [2000] SCGLR 102. For this reason, even though a suit may not be defeated by non-joinder or mis-joinder, where it becomes clear that a person’s presence in the suit will aid in this primary duty of ensuring completeness and effectiveness in adjudication of the matters in controversy, a party may bring an application to join that person. Indeed in the absence of such application, the court may for the purpose, do so on its own motion.

The rule (Rule 5) says nothing about giving notice to such person if he is to be joined as a defendant. Indeed, Order 4 rule 5 (3) specifically mentions that where joinder is sought for a person to be made a plaintiff, he must be given notice and his consent obtained therefor: “(3) No person shall be added as a plaintiff without that person's consent, signified in writing or in such other manner as may be authorised by the Court.” Even though there is no corresponding provision where the application seeks to join a defendant, it is instructive that sub-rules (4) and (6)provide that the application must be made by motion supported by an affidavit showing that person’s interest, and furthermore, that such application having been granted, and the amendment duly effected of the writ within fourteen days, the defendant so joined be served with the amended writ of summons, to ensure that the person so joined and served with the amended writ, enters an appearance. By reason of the prescription set out in sub rule(3) that such application should be by motion, this application is brought within Order 19 Rule 1(3) of CI 47. The said sub-rule reads:

(3) Except where these Rules otherwise provide, no motion shall be made without previous notice to the parties affected.

Yet non-service is not made fatal by sub-rule (1)(4) which permits the trial judge to exercise discretion either to adjourn the matter and order notice to be given or to dismiss same. We find that in the peculiar circumstance of the instant matter, the learned trial judge exercised his discretion wrongly when he dismissed the application altogether. In our judgment, by reason of what the application sought: to join the grantors of land in a suit against their grantee, the proper order for the trial judge to have made should have been an order for notice to be given and for the application for joinder to be heard thereafter.

We say this for the reasons following:

The right, and indeed, the responsibility of the grantor of land to defend the title he passes onto his grantee is settled law, and is set out in a panoply of cases, see: per R.C. Owusu in Sasu Bamfo v. Sintim [2012] 1 SCGLR 136; Bruce v. Quarnor [1959] GLR; Abrahams v. Akwei 1961 2 GLR 676. In Egyir v. Hayfron1984-86 1 GLR 501, it was put succinctly thus: “Where a party derived his title to land from someone else, either by way of gift or purchase or other form of alienation of land, it was incumbent upon that party whose title was derivative to prove the title of his grantor or vendor or donor as the case might be. Consequently, a grantor had a duty to sue or defend jointly with his purchaser in any dispute relating to the land sold and the purchaser had a corresponding duty to bring his vendor into the suit in his own interest. That principle was transferable to all forms of alienation of land by one person or body of persons to another…”

In this suit, the plaintiff effectively challenges the boundaries of the defendant’s acquisition – for she complains that the defendant, in fencing off its acquired land had encroached on a sizeable portion of the plaintiff’s land. The defendant pleads: “Defendant contends that it acquired a large tract of Appollonia Stool land from the respective lawful heads of the 3 ruling families: Bediako We, Sanshie We, and Kojo We” thus setting out the said clan heads as its grantors. The plaintiff confirmed it in pleading when she said that to her knowledge, the defendant had acquired 1000.36 or 404.84 hectares from “some elders of Appollonia.” In face of her challenge that some of the land over which the defendant is exercising the right of possession is in fact not included in the defendant’s acquired land, but is her own, it seems to us that title to the land in dispute is in question. Thus a joinder of the defendant’s grantors to this suit would enable the court to adjudicate completely and effectively, the matters in dispute, and merely calling the said persons as witnesses as the learned trial judge postulated, would not suffice. While the defendant could indeed call his grantors as witnesses in the defence of the suit, it seems to us that the better course would be what was sought – a joinder, where the grantors could establish their title in answer to the plaintiff’s claim against the grantee, the defendant.

We have noted the argument of the plaintiff regarding the persons to represent a stool in a case involving stool land. We are not concerned by it, for such was not the reason for the ruling of the learned trial judge, and in this appeal against the exercise of discretion, we must have regard to what ought to have exercised the trial judge and what in fact did. But in any event, in view of the defendant’s pleading that the land in dispute was alienable by three clan heads together with the Chief of Appollonia and that the said heads jointly granted same to the defendant, whatever the legal effect of the ratification by the Appollonia Stool should not preclude the participation of persons the defendant has held out be its grantors. In our judgment, a joinder of the said persons to the suit, being alleged grantors makes them necessary parties to the resolution of the matters in dispute and is not improper.

For all these reasons, we are persuaded that the learned trial judge’s refusal of the joinder altogether was an improper exercise of discretion. We therefore set aside the order of the court refusing the joinder. We go ahead, having regard to all the matters placed before us, in the exercise of our jurisdiction, on our own motion, to make an order for the said clan heads to be joined to the suit.

The appeal therefore has merit and in consequence succeeds.

The ruling of the court below is set aside.

Costs of GH¢1000.00 to the defendant/appellant.