SOWAH, J.A.:

This is an interlocutory appeal by the 1^st plaintiff/appellant against the Ruling of the High Court, Land Division Accra in which an Order was made for Sampson Odenkey Abbey, the 2^nd plaintiff/respondent herein to be joined as the 2^nd 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:

The trial Judge erred in law when she granted the application joining the Applicant as 2^nd plaintiff on a purely speculative ground of fear of being sidelined by the substantive head of family.

The ruling dated 16^th 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 1^st 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 2^nd 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 pendency of the suit to be substituted before the case could be determined, he and the 2nd plaintiff/respondent were substituted in 2006. The judgment in that case is dated 19th October 2006. Since then, he the 1st plaintiff has been installed as the Head of the Okainkpa-Okaifio family.

Further relying on Kwan vs. Nyienyi [1959] GLR 67, it is submitted that since the 2nd plaintiff/respondent concedes that the 1st plaintiff is the substantive current family head, the door was not open in law for him to be joined to the suit as he had not brought himself within any of the exceptions to the general rule that it is only the family head who can take steps to protect family property.

In the submissions of counsel for the 2^nd plaintiff/respondent, he argues, relying on Ussher vs. Darko [1977] 1 GLR 47, that as the joinder was in exercise of a discretion, the grounds of appeal cannot hold as they do not conform to the principles which govern appeals against the exercise of discretion as laid down in Ballmoos vs. Mensah [1984-86] 1 GLR, Crentsil vs. Crentsil [1962] 2 GLR 171 at 175 and Blunt vs. Blunt [1943] AC 517 at 518 HL; 2 All ER 76.

Now, the learned trial judge gave as reason for the grant of the application for joinder, the fact that in Suit No. MISC 1098/96, both the applicant and the plaintiff in the suit before her, [that is the 2^nd plaintiff/respondent and the 1^st plaintiff/appellant herein] had been substituted together to act on behalf of the family and therefore she was persuaded that the applicant was a necessary party to the suit. In making the Order, she exercised the discretion given by Order 4 rule 5 (2) (b) of C.I. 47

As rightly submitted for the 2^nd plaintiff/respondent, the issue in this appeal is whether the reasons the trial judge gave for granting the application meets the criteria for exercise of such discretion. This is not an appeal from the discretion of the trial court to the discretion of the appellate court.

Order 4 Rule 5(2) (b) of the High Court (Civil Procedure) Rules 2004, C.I. 47 provides:

(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.

The power given to the court by this Rule to order joinder is discretionary. It is trite that judicial discretion cannot be fettered so long as it is exercised judicially having regard to the facts and the surrounding circumstances of each case and guided by principles of justice and fairness. It is also trite that an appeal relating to the exercise of discretion is not an appeal from the discretion of the trial court to the discretion of the appellate court.

The Supreme Court in Agbosu & 5 ors vs. Kotey & ors [2003-04] 1 GLR 685 stated:

“an appellate court will only interfere with exercise of trial court’s discretion in exceptional circumstances on the grounds that the discretion was exercised on wrong or inadequate materials, if it could be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account.”

See also Ballmoos v Mensah [1984-86] 1 GLR 724 where the Court of Appeal quoted the SC observation in Crentsil vs. Crentsil (supra) that:

‘as to appeals from the exercise of the courts discretion, it is a rule of law deep rooted and well established that the Court of Appeal will not interfere with the exercise of the courts discretion save in exceptional circumstances.’

In the unreported case of Yaw Agyei vs Mike Similao (Civil Appeal J/4/28/2011 dated 23^RD November 2011), the Supreme Court speaking through Ansah JSC said:

“…..in the absence of a strong showing that the judge overlooked or allowed his discretion to be interfered with by irrelevant considerations whilst ignoring substantial ones, an appellate court will be loath to interfere with the exercise of the discretion”.

Some of the exceptional circumstances were stated in Blunt v Blunt [supra] to be that:

“An appeal against the exercise of the courts discretion may succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of facts in that it did in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account, but the appeal is not from the discretion of the court to the discretion of the appellate tribunal.”

The only parties to this appeal being the 1^st plaintiff/appellant and the 2^nd plaintiff/respondent, I will hereafter simply call them the ‘appellant’ and the ‘respondent’.

Now to the merits of the appeal.

It is important to observe some undisputed facts from the pleadings and affidavit evidence in the Record of appeal.

First, the subject matter of the suit instituted by the appellant against the defendants' at the trial court was family land. This is clearly stated at paragraphs 4 to 6 of the amended statement of claim at pages 37-40 of the Record.

Second, the appellant described himself in the statement of claim as Head of family of the Okai-Nkpa Okaifio family of Adjen Kotoku.

It is on the basis of the above that the appellant contends that the respondent had not shown any cause to be joined to the suit since he [respondent] did not deny that the appellant was the substantive head of family and thus the only person recognized by law to initiate and defend any action on behalf of the family.

The crucial question is: what are the relevant matters that should guide a Court to arrive at a just and fair conclusion as to whether to grant or refuse an application for joinder in respect of a family land suit? Without doubt, an important consideration must be the principles of law with respect to who has capacity to represent the family. To omit to do so would mean that there was failure to take relevant matters into account.

The general rule that the head of a family as a representative of the family is the proper person to institute a suit for the recovery of family land is so settled that there is no need to belabour the point. (See Kwan vs. Nyieni [supra] and Yormewu v. Awute [1987-88] 1 GLR 19, CA).

Holding 2 in Kwan vs Nyieni stated exceptions to the general rule in special circumstance such as:

“(i) where family property is in danger of being lost to the family, and it is shown that the head, either out of personal interest or otherwise, will not make a move to save or preserve it; or

(ii) where, owing to a division in the family, the head and some of the principal members will not take any steps; or

(iii) where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole.

In any such special circumstances the Courts will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property;”

To exercise her discretion judicially, the trial judge had a duty to enquire into whether on the facts before her, the appellant was in fact the head of family and if yes, then whether the respondent had brought himself within the stated exceptions in which the court's will entertain an action by any member of family.

We are of the view that if the trial judge had not omitted to take into consideration the relevant rules in Kwan vs. Nyieni, she would have come to the conclusion that the respondent is not a necessary party and would have refused his application. Rather, the trial judge appears to have misapprehended the facts about the previous case in which the parties were both substituted and gave weight to irrelevant considerations.

The respondent in his affidavit in support of motion for joinder deposed as follows at the following paragraphs:

4. Both Justice Aryeequaye Aryeetey and I come from the Okaifio side of the family. Plaintiff being from a male child whilst I come from the female side.

8. I say that in the present suit, the plaintiff alone has described himself as Head of the Okainkpa-Okaifio Family

9. Indeed, during the pendency of the 1996 suit, the defendant, Madam Okomfo Dedei Annan died, and because she hailed from the Okaifio side of the family met and appointed the plaintiff and myself to substitute he deceased.

10. Though we are not in principle against the present suit being mounted to vindicate the rights of the Okainkpa-Okaifio Family, we feel that after the trial the plaintiff will claim that he alone represented the family in the capacity as Head.

11. I say therefore that just as the two of us were substituted for my mother Madam Okomfo Dedei Annan in the 1996 suit, I be joined to the plaintiff as 2^nd plaintiff.

12. I say that I am a necessary party and that to prevent a multiplicity of suits and to effectively and effectually deal with all matters in controversy, I be joined to the present action.

There is a tacit admission by these averments that the appellant is head of family and that the action had been taken to preserve family property. There are however no averments regarding authorization by other members of the family to apply to join the suit or any of the special circumstances that permit a court to entertain an action by a member of the family. His say so that he is a necessary party and his speculative feeling of fear about what the appellant might do if judgment was obtained does not amount to evidence of necessity.

As to paragraph 12 of his affidavit, there is nothing in the respondents' affidavit to suggest that there are issues as between him and the appellant which may be left unresolved if he is not joined to the suit. As clearly shown by the writ of summons and statement of claim, the claims are for declaration of title, perpetual injunction and damages against the defendants' on behalf of the family. As respondent himself deposed to, in principle, he is not against the suit initiated by the appellant. Moreover, his affidavit does not show how his presence is necessary to help the court adjudicate the matter.

The sole reason or the“burden of our submission” as respondents' counsel put it when moving the application for joinder was that “just as the two persons were substituted in order to represent the family’s interest. In this case also the applicant must be joined to the action.”

One does not have to look far to know the reason for the substitution of the appellant and respondent in the earlier case. By his own showing, this was a 1996 suit in which judgment was delivered in 2006. According to the appellant, the substitution was done in 2006 for the purpose of carrying on with the case. The title of the case at page 49 of the record attests to these facts which are not refuted by the respondent. Indeed the respondent concedes that since the judgment in Exhibit SOA ‘1’, and as at 2015 when the appellant instituted the suit at the trial court, he had been installed head of family.

We are of the considered view that the fact that a family member has been substituted for a deceased family head for the purpose of continuing a case does not give that family representative a prerogative to be named in subsequent suits affecting the family even when a substantive head has been appointed.

On the facts and circumstances of this case, the trial judge did not exercise her discretion judicially when she took irrelevant matters rather than substantial ones into consideration, and made an order of joinder which is not in accord with the established rules on protection of family property.

Before concluding, there is a legal question that was not raised by respondents' counsel, but this court is duty bound to consider as it arises on the facts of the case and concerns non-compliance with the Rules of Court. It is a point of law that can be disposed of without the need for further evidence. Attorney-General v Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 applied.

It was observed that although the appellant averred in the statement of claim that he was the family head and the land in dispute was family property, his writ of summons at pages 1 and 2 of the record was not indorsed with his capacity as suing in a representative capacity for himself and on behalf of the Okai-Nkpa Okaifio family of Adjen Kotoku as is required by order 2 rule 4 of C.I.47

Order 2 rule 4 of C.I.47 provides:

4. (1) Before a writ is filed it shall be indorsed

a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which the plaintiff sues; or

I daresay that had the appellant properly endorsed his capacity on the writ, the fears of the respondent as to his future motives would in a large measure have been allayed.

The question is whether this failure to indorse his capacity on the writ changes the conclusions I have earlier drawn.

In the case of Ghana Muslims Representative Council & ors vs. Salifu & ors [1975] 2 GLR 246 it was held;

“In a representative action it was necessary, both in the writ and in all subsequent pleadings, to state clearly that the parties were suing or were being sued in their representative capacity, on behalf of the members of a defined class. The representative capacity should also be stated in the title of both the writ and the statement of claim and not merely in the endorsement of the writ or the body of the pleading.”

Based on this authority, should an action be defective where the representative capacity was not indicated on the writ as in the instant case?

Our laws in many ways promote the substance of a suit over form or procedural rules as long as questions of jurisdiction do not arise. This is evidenced by the provisions on irregularity and non-compliance found in Order 81 of CI 47. In Boakye vs. Tutuyehene [2007-2008] 2 SCGLR 970 at 980, Twum JSC stated

“The new order 81 has made it clear that perhaps apart from lack of jurisdiction in its true and strict sense any other wrong step taken in any legal suit should not have the effect of nullifying the judgment or the proceedings”

This view was also applied in Republic vs. High Court, Accra, Ex Parte Allgate Co. Ltd (Amalgamated Bank Ltd, interested party) [2007-2008] 2 SCGLR 1041 which held that the short service was to be regarded as an irregularity which does not cause an automatic nullity. Thus without the default judgment being a nullity, certiorari did not lie to quash it.

It is in line with this view of substance over form that the court in Ghana Muslim Representative Council v. Salifu (supra) further held that:

“however where it appeared in the trial in a representative action that the plaintiff had failed to state the representative capacity of the parties, as in the instant case, the court would give leave even at this stage to amend either the writ or subsequent pleadings by adding a statement that the plaintiff was suing on behalf of himself and all others of the defined class and the capacity in which the plaintiffs sued and the defendant were sued.’’

Although the Appellant failed to indicate on the writ that he was suing in representative capacity, this however does not change the fact that the Appellant intended a representative action as seen by his statement of claim.

In Kama Health Services Ltd v. Unilever Ghana Ltd [2013-2014] 2 SCGLR 861 at 866, it was held that:

“The reliefs which were stated in the statement of claim and on which facts have been pleaded would supersede the endorsement on the writ.”

Although the Appellant’s description as head of family in his statement of claim was not sufficient to meet the requirements of a representative action, it had the effect of defining the action as a representative one. Thus his failure to indicate his representative capacity on the writ does not change the action from a representative one to an individual action.

Had the point been raised by the respondent, it would still not be sufficient reason for the Respondent to be joined to the suit as second plaintiff, considering the fact that this omission can be remedied by granting leave to amend the writ and subsequent pleadings to include an indorsement that the Appellant was suing as head of his family.

In conclusion, the failure of the Appellant to endorse the writ with his representative capacity is not fatal. The interest of the Respondent as well as the whole family is adequately represented by the Appellant, their head of family. The joinder of the Respondent will only result in an unnecessary delay of the proceedings and a duplication of interests.

Rule 32 of the Court of Appeal Rules 1997, C.I.19 gives general powers to this court to “make any order that ought to have been made, and to take such further or other order as the case may require…”

In exercise of that power, the appellant is hereby granted leave and is hereby ordered to amend the title of the suit to reflect on the writ and in his pleadings filed in the suit the capacity in which he sues.

It is further ordered that the Respondent should be removed from the suit since he is not a necessary party.

In the event, for the reasons given and subject to the orders hereby made, the appeal succeeds.

The Ruling of the trial High Court is accordingly set aside.