IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
NANA KODIAWUDE - (Pliantiff)
NANA ACKAKYI AND NANA AZIA EIKU IV - (Defendant/ Appellant /Respondent)
DATE: 28 TH NOVEMBER, 2018
CIVIL APPEAL NO: H1/21/18
JUDGES: IRENE CHARITY LARBI MRS. J.A (PRESIDING), L. L. MENSAH (J.A), ANGELINA M. DOMAKYAAREH MRS. ( J.A)
PETER KING BADU PRAY FOR APPLICANT/APPELLANT
EMMANUEL ARTHUR FOR DEFENDANT/RESPONDENT
Irene Charity Larbi (Mrs) J.A.
(1) This is an appeal against the ruling of the High Court, Cape Coast dated 18th March, 2015.
(2) The brief facts of the case are that the Plaintiff (Substituted) filed a suit on 23/08/2011 against the Defendant as the Odikro of the village of Bissikrom also called Kodiawudie near Agona Ahanta in Western Region of Ghana. The Plaintiff in his Amended Statement of claim stated that he is one of fourteen (14) Odikro under the Agona Ahanta Divisional Stool of Ahanta. He stated further that his land covers an area approximately five (5) square miles which is bounded on the South by Anyamkroom Stool lands on the East by Assini Stool lands on the North by Nsuaem Stool lands and the West by the Morrison/Axim Road area.
(3) On 16th October, 2014 the Appellant filed a Motion on Notice for joinder as the Divisional Chief of Agona Ahanta on the ground that the disputed land is situate within his area. After hearing arguments from both counsel for the Appellant and Respondent, the High Court gave its ruling that as between the stool of Agona Ahanta and that of the Respondent Apimenyim there is res judicata and therefore the Appellant cannot lawfully join the suit.
(4) Dissatisfied with the said ruling, the Appellant filed a Notice of Appeal against the whole ruling/decision on the following grounds.
a) That the decision is not supported by the weight of the evidence adduced at the trial.
b) That the Trial Judge erred in law when she failed to consider that the disputed land is not identical with any land which was the subject of a previous litigation between the Appellant and the Defendant.
c) That the Trial Judge erred in law when she stated that as between the Appellant and the Defendant there is res-judicata.
d)That the Trial Judge erred by not adverting her attention to the issue of limitation of action that enures to the benefit of the Appellant assuming without admitting that the Defendant ever won a case against his stool about a century ago.
(5) Before we consider the appeal, we find it pertinent to address a comment which though not raised as a preliminary legal objection was made by counsel for the Respondent. The comment was that the Notice of Appeal which was filed by the Appellant did not slightly suggest that the present appeal is an interlocutory appeal and therefore misleading as it tends to give an impression that it is a regular appeal. He contended that there is a clear distinction between a regular and interlocutory appeal and a party exercising any of the two must clearly make same known to the court by the process filed. Counsel again contended that the appeal ought to have been headed “NOTICE OF INTERLOCUTORY APPEAL” and not in the manner it is headed i.e. “NOTICE OF APPEAL”.
(6) We have patiently considered these comments of counsel for the Respondent regarding the heading of the Notice of Appeal as appears at page 204 of the record of appeal. Much as we concede that it would have been a better practice for the appeal to be headed as suggested by counsel for the Respondent, we are of the view that the heading of the appeal as it is, does not in any material manner derogate from the nature of the appeal itself. This is because in the body of the notice it is stated that “the Applicant/Appellant herein being dissatisfied with the ruling/decision of the High Court…………”
(7) This is a clear indication that the appeal is nothing more than against an interlocutory decision and not in respect of a final/judgment or order. We noticed further that counsel for the Respondent did not refer to any specific rule that prescribed that an appeal against a ruling should take the form counsel suggested. However, we take authority from the decision of the apex court of the land in the case of OKOFO ESTATE LTD. VRS. MODERN SIGNS LTD. [1996-97] SC GLR 224 at 255 where the Supreme Court expressed the view that where a wrong heading is used, the important thing to consider is whether the application has any substance regardless of the form in which it has been intituled. See: REPUBLIC VRS. HIGH COURT; ACCRA EX-PARTE ANYAN (PLATINUM HOLDINGS INTERESTED PARTY) heading  SC GLR 255. In our view therefore the wrong hearing of the appeal is not fatal.
(8) We will now proceed to consider the appeal. Contrary to Rule 8(4) of the Court of Appeal Rules, 1997 C.I.19 which provides that “where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”; the grounds and (c) in this appeal failed to give any particulars of law. Having failed to comply with the rule supra, we accordingly strike out these two grounds of appeal. This however does not preclude this court from rely on any law relevant to the consideration and determination of this appeal in order to do substantial justice to the parties.
Further since ground (d) of the appeal was not argued by the Appellant, we deem it as having been abandoned. Accordingly the ground (d) of the appeal is hereby dismissed.
(9) This leaves us with ground (a) of the appeal to consider. Counsel for the Respondent’s response to this ground boarded on the interpretation to be placed on Order 4 Rule 5(3) of High Court (Civil Procedure) Rules, 2004 C.I.47 which provides as follows:-
“5(3) No person shall be added as Plaintiff without that person’s consent, signified in writing or in such other manner as may be authorized by the court”.
(10) Counsel contended that the rule is a mandatory requirement of the law demanding the Plaintiff’s consent in a form recognizable by the court, but there is nothing on the face of the record to suggest that the consent demanded by the rules was met by the Appellant. He contended further that the test as to who is a proper and necessary party has been decided in BONSU & ANOR. VRS. BONSU 2 GLR 242 by Taylor J. (as he then was) and subsequently by the Supreme Court in the case of SOON BOON SEO VRS. GATEWAY WORSHIP CENTER [2008-2009] I GLR 21 at page 34 per Akuffo JSC.
Counsel submitted that under the circumstances, the failure to comply with the rules of court is another clear flaw which is fatal to the application.
(11) Under Rule 16(1) of C.I.19 “A Respondent who intends to rely on a preliminary objection to the hearing of the appeal shall give the Appellant three clear days’ notice before the hearing of the preliminary objection, setting out the grounds of objection and shall file the notice in the Form 8 set out in Part One of the schedule”. Contrary to the rule supra, counsel for the Respondent decided to raise objection in the manner unknown to this court, first as a comment and secondly in the Submissions in Answer to the appeal.
(12) The essence of a preliminary objection was considered by the Supreme Court in the case of the TRUSTEES OF THE SYNAGOGUE CHURCH OF ALL NATIONS VRS. AGYEMAN  SC GLR 717. The Supreme Court held that procedurally, preliminary objection is to give the objector the right to begin and to have the last word, after which the other side has a reply. “Tactically it has the practical effect of depriving the Applicant who is being prevented from moving his motion of the important procedural right to begin first and have the last word, as he would if he was allowed to argue his motion unimpeded”.
We have however considered the submissions of counsel for the Respondent in respect of Order 4 Rule 5(3) of C.I.47 and we are of the view that his interpretation with due respect is not correct.
(13) In the instant case, it is the Appellant himself who applied to be joined as a Plaintiff. We would have agreed with counsel for the Respondent’s interpretation if any of the parties had applied to join the Appellant as a Plaintiff to the action. The consent required under the rule is the consent of the person intended to be joined as a Plaintiff by another person who is already a party in the action. We therefore find the submissions and interpretation placed on Order 4 Rule 5(3) of C.I.47 misconceived and without merit.
(14) Coming back to the ground (a) being considered, the land claimed by the Plaintiff as stated in paragraph 4 of Amended Statement of claim, is:
“An area approximately (5) square miles which is bounded on the South by Anyamkrom Stool lands on East by Assini Stools/lands, on the North by Nsuaem Stool lands and the West by Morrison/Axim Road area”.
(15) In the Appellant’s affidavit in support of the application for joinder at page 69 of the record of appeal, the Appellant, deposed that he is the Divisional Chief of Agona Ahanta where the disputed land is situated. He deposed further that the disputed land forms part of his stool land and annexed Exhibits ‘PNC1’ and ‘PNC2’ as proof of his Stool lands which he alleges the Defendant/Respondent has trespassed upon
(16) The Respondent in his affidavit in opposition (page 71 of record of appeal) deposed that the interest of the Appellant in the land in dispute had already been determined by their predecessors and attached two judgments Exhibits ‘NA’ and ‘NA1’ to support his deposition that the matter is therefore res-judicata. The Respondent subsequently filed a supplementary affidavit and attached Exhibits ‘NA2’, ‘NA3’, ‘NA4’ and ‘NA5’. The Respondent contended that the Exhibit ‘NA5’ which is a judgment of the Court of Appeal determined finally between the predecessors of both the Applicant and Respondent title in the land in dispute.
(17) Exhibit PNC1 at page 154 is a decision before the Stool Lands Boundaries Settlement Commission held at the State House Accra on Thursday 24th July 1986 before Mr. J.K. Essiem-Deputy Commissioner or in Enquiry. No.1 & 2/85 (Consolidated). It was “In the matter of Boundary Dispute between Abura Stool, Mpatase And Ajumako Stools, Agona Stool and Nsuaem Stool”.
The Plan showing the boundaries was also attached at page 151 of the record of appeal.
From the decision supra, the 2nd Enquiry was a dispute between Agona and Nsuaem. The boundaries of the land claimed by Agona from its pleading before the Commission was that Agona Stool “has occupied the land described herein since 18th century without let or hindrance”.
They pleaded in the Enquiry that they have set up a number of cottages within the land including the village of “Tetrem” where they have granted an area for concessions numbered CV32, CV16 and CV29 for quary operation. They also pleaded that they were granted compensation by the Government of Ghana when it acquired lands from them for Ghana Rubber Estates commencing from Aboabo stream.
(18) At page 165 of the record of appeal, the Deputy Commissioner found that the land of Agona Stool was as follows:-
“The boundary of Agona Stool commenced from Aboabokuma Stream to A/18 from where it continues along Aboabokese through points A/19, A/20; A/21; A/22; A/1; A/2; A/3; A/4; A/5; A/6; A/7 or UDM/12; A/8 or LDA/12; UDM/11; A/9 (i.e. confluence of Firam and Sumi Streams): A/10 or LDA/11A/11; to the South-Eastern corner of Ekukubaka concession along its Western boundary and two-thirds of the Northern boundary from where the boundary turns and crosses over Abiriwanfo Bippo to Aboabokuma Stream, the starting point”.
(19) The Exhibit ‘NA’ attached to the Respondent’s Affidavit in opposition is a Deeds Registry document Nos.57/1945 which is an Assignment made on 4th October 1944 between PAMPAP SYNDICATE LIMITED of the one part “the Vendors” and CENTRAL ASHANTI GOLD PROPERTIES LIMITED “the purchasers” of the other part. The concession, the subject of the Assignment was described in the schedule which gave the names of the parties as Chief Kudjo Korkolbro of Agoona and others to Douglas John Neame.
The land was described as:- “ALL THAT PIECE OR PARCEL of land situate in the District formerly known as Ahanta now Ahanta Nzima of the Western Province of Gold Coast Colony bounded as shewn on the plan attached to Certificate of Validity No.17 and known as Ancheyin Concession and having an area of 1.29 square miles”.
(20) At page 77 is the Respondents Exhibit ‘NA1’ which is also an Indenture made 6th March 1900 between Kudjo Korocolbro chief of Agoona near Dixcove as Lessor of the first part and Headman Kudwo Aka, Kweku Amane, Kwamin Edgai, Acquau Taidoe and Kwesie Akankroo of the second part and Douglas Neame by his Attorney William Herbert Swift on the third part. The land was described as:-
“ALL THAT PIECE OR PARCEL of land generally known as Ancheyim situate at Agoonah Lands measuring One Thousand fathoms along line of reef and Five Hundred fathoms each side of the said reef at a right angle making in all One Thousand fathoms square as the same with its boundaries and situations is more particularly delineated in the map or plan hereto”.
(21) In the ruling under our consideration, the Learned Trial Judge of the High Court, relied on the Respondent’s Exhibit ‘NA5’ which is the decision of the Court of Appeal dated 16th March 1977 titled SAFOHENE KOFI EDIYIE VRS. NANA AKAKYIE II & NANA KROMOSY II. That decision is at page 174 of the record of appeal. The Learned Trial Judge relied on the following statement of the Court of Appeal thus:-
“The truth of the matter is that the Plaintiff pleaded and relied on a grant from the Agona Stool while the Defendant claimed the same land in his own right as owner. To succeed in his action, the Plaintiff had perforce to prove his title but this he lamentably failed to do. In my opinion, the trial magistrate’s judgment dismissing the action and entering judgment for Defendant in his counterclaim is correct and unassailable”.
As the Trial Judge rightly noted, an application for review of the above finding was dismissed on 10th November, 1977 by the Court of Appeal (page 187 of the record of appeal).
(22) The Plaintiff in the Exhibit ‘NA5’ which commenced from the Magistrate Court had claimed the land known as the village of Akaagyira Krom which is within the Akaagyina Forest as his ancestral land. The Magistrate in his judgment made inter alia the following findings based on which he concluded that the Plaintiff had failed in his claim:-
“1) That the land edged blue on the plan Exhibit ‘A’ , being the Amuyaw concession belongs to the Stool of Apemenim (i.e. Defendant Stool). That the ruined village called Akaagyina is within the Amuyaw concession”.
(23) In ASARE VRS. DZENY  I GLR 473 at 478, AZU GRABBE C.J (full Bench) explaining the doctrine of estoppel per rem judicatam stated thus:-
“By the doctrine of estoppel per rem judicatam a final decision of a concrete issue between parties by any court having jurisdiction to determine that issue will forever thereafter preclude either party from raising the same against the other party to the decision, whether the trial is before the same court, or before any court of higher or lower jurisdiction”
(24) IN RE MENSAH (DECD); MENSAH & SEY VRS. INTERCONTINENTAL BANK (GH)
LTD.  SC GLR 118 at 128-129 Sophia Adinyirah JSC, had this to say:
“Cause of Action” has been defined in Halsbury’s Laws of England (4th ed), Vol.37 paragraph 20 at page 27 as follows:-
“………………a factual situation the existence of which entitle some person to obtain from
the court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the Plaintiff to succeed, and every fact which the Defendant would have a right to traverse. Cause of action has also been taken to mean that particular act of the Defendant which gives the Plaintiff his cause of complaint, or subject matter or (page 129) grievance founding the action, not merely the technical cause of action”.
(25) Adinyirah JSC continued at page 129 that;
“In determining whether the cause of action or issues arising from the subject matter of the two suits are the same, the court is permitted to scrutinize the pleadings proceedings and the judgment in the previous or proceedings”.
It is therefore settled law under the rule of estoppel that the parties themselves and their privies are precluded from bringing an action on the same claim or issue if a court of competent jurisdiction has previously tried and disposed of the case on its merit. Suffice to state that the parties herein do not dispute that the parties in Exhibit ‘NA5’ are their predecessors and therefore bound by the decision.
As stated earlier in the Exhibit NA5, the village of Akaagyina-Krom which was the subject matter in dispute was held to be within the “Amuyaw Concession”. This is what the Court of Appeal in affirming the decision of the Magistrate Court quoted at page 10 of its judgment at page 183 of the record of appeal;
“Here the trial magistrate found as a fact that the Plaintiff had based his claim of possession from Agona, whereas the Defendant “had proved ownership of the whole area of Amuyaw concession including the Akaagyina village and the area in dispute”.
(26) The Appellant attached to his supplementary affidavit in support of Exhibit ‘PNC2’ at page 151 of the record of appeal the Plan upon which Justice J.K. Essiam J. based his judgment in S.L.B.S Commission of Enquiry Nos.1/85 & 2/85 (Consolidated).
(27) In the said judgment, Exhibit ‘NA5’, the Magistrate referred to a Plan Exhibit ‘A’ being the Amuyaw Concession which the Respondent’s predecessors won in Exhibit ‘NA5’
(28) However, we notice that whereas the Appellant exhibited the Plan in support of Exhibit ‘PNC2’, the Respondent failed to make available the Exhibit ‘A’ in respect of the Amuyaw Concession which would have shown clearly the exact geographical location which the Court of Appeal endorsed in favour of the Respondent’s predecessors in Exhibit ‘NA5’.
Order 4 of C.I.47 is clear on the factors that would necessitate the court to make an order for joinder of a necessary party. As the High Court rightly stated, the acceptable legal practice is that in land litigation it is essential in effectively determining one’s title to join the person’s grantor - See ABRAHAM VRS. AKWEI 1 GLR 675.
From our own scrutiny of the Plan at page 151 of the record of appeal AMUYAW CONCESSION is conspeciously missing as well as the village of Akaagyina.
(29) Order 5 Rule (1) of C.I.47 provides that:
5(1) No proceedings shall be defeated by reason of misjoinder or non-joinder of any party; and the court may in any proceedings determine the issue or questions in dispute so far as they affect the rights and interest of the persons who are parties to the proceedings”.
(30) The majority of the Supreme Court speaking through Ampiah JSC (Atuguba dissenting) in SAM (NO.1) VRS. ATTORNEY-GENERAL(No.1)  SC GLR 102 held as follows:-
“Generally speaking, the court will make all such changes of parties as may be necessary to enable an effectual adjudication to be made concerning all matters in dispute. In orther words, the court may add all persons whose presence before the court is necessary in order to enable it effectually and completely adjudicate upon and settle all the questions involved in the cause or matter before it. The purpose of the joinder, therefore, is to enable all matters in controversy to be completely and effectually determined once and for all”.
Applying the facts in the instant case to the ratio decidendi above, the Plaintiff was asking for Declaration of title to its stool lands described in paragraph 4 of the Amended Statement of claim specifically a piece or parcel of Bissikrom Kodiawudie Stool land (See paragraph 9(a) of Amended Statement of claim).
The Defendant/Respondent in his Amended Statement of Defendant stated his land shares common boundaries with Nsuaem (Kyekyewere) Adiewoso, Mpatase and Himakrom. These places mentioned supra did not feature with any prominence in the Exhibit ‘NA5’ in that litigation.
(31) In our view therefore, it would be premature to come to the conclusion at this stage that the land in dispute now covers the land declared in favour of the Respondent’s Ancestors in Exhibit ‘NA5’ with any certainty in the absence of the Plan Exhibit ‘A’ for res judicata to apply. For these reasons, we will set aside the ruling of the High Court dated 18th March 2015 and in its place order that the Appellant be joined as Plaintiff in order to avoid a multiplicity of suit and effectively adjudicate all matters in controversy between the parties.
(32) The appeal accordingly succeeds on this ground.