IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
THE REGISTERED TRUSTEES OF THE UNIFICATION CHURCH OF GHANA AS REPRESENTED BY EDWARD ABOAGYE AND ANOTHER - (Plaintiffs/Applicant)
MUSTAPHA MOHAMMED AND 9 OTHERS - (Defendants/Respondents)
DATE: 16TH JANUARY, 2018
CIVIL APPEAL NO: HI/19/17
JUDGES: IRENE CHARITY LARBI MRS. J.A (PRESIDING), L. L. MENSAH (J.A), ANGELINA M. DOMAKYAAREH MRS. (J.A)
ENOH-AMAH ANDOH ESQ. - (FOR THE PLAINTIFF/APPELLANT)
FAUSTINUS KOFI KORANTENG ESQ. (FOR THE 3RD, 5TH, 6TH, 7TH AND 8TH DEFENDANTS)
ABDUL-AZIZ MOHAMMED ESQ. - (FOR 4TH DEFENDANT/RESPONDENT)
IRENE CHARITY LARBI (MRS) J.A.
This interlocutory appeal emanates from the ruling of the High Court, Agona Swedru dated 12th November, 2015.
The brief facts are these;
By a writ filed at the Registry of the High Court, Agona Swedru on 30th January, 2014, the Plaintiffs sought the following reliefs against the Defendants:
A declaration of title to all that piece or parcel of a land situate lying and being at West Kasoa i.e. Kasoa Odupong Kpehe in the Central Region of Ghana which land is more particularly described in their indenture dated 10th June 1986 and registered as CR 378/91.
General Damages for trespass.
Recovery of possession.
An order of the Honourable Court directed at the 9th Defendant to expunge the name of Mustapha Plus from its records and replace it with that of the Plaintiffs Church.
Any further order or orders as this Honourable Court would deem fit in the circumstances.
Accompanying the writ was a 16 paragraph statement of claim which set out the case of the Plaintiffs.
Upon service of the writ as well as the statement of claim, the 1st, 2nd and 8th Defendants entered conditional appearance through their lawyer, Oliver Atsu Ababa Esq. of Abada & Co.
On 10th February, 2014 the 4th Defendant entered appearance for and on behalf of himself.
On 20th February, 2014 Lawyer Oliver Atsu Abada Esq. of Abada and Co. entered appearance for and on behalf of the 3rd, 4th, 5th, 6th and 7th Defendants. Subsequently the said Lawyer filed a Statement of Defence and Counter-claim on behalf of the 1st to 9th Defendants.
On 13th day of November, 2015 pursuant to an application filed by the Plaintiff for an interlocutory judgment in default of defence against 3rd, 4th, 5th, 6th, 7th and 8th Defendants, the learned Trial Judge after hearing arguments from the Lawyer for the Plaintiffs, dismissed the said application and further proceeded to strike out the names of the 3rd to 8th Defendants from the suit. Hence this interlocutory appeal which is a complaint against the whole ruling.
The ground of appeal as amended pursuant to leave of this court on 31st January, 2017 are as follows:-
“a. The Ruling was against the weight of the evidence.
a. The learned Trial Judge erred in law by failing to enter Interlocutory Judgment in default of defence against the 3rd, 4th, 5th, 6th, 7th and 8th Defendants.
b(i) That the learned Trial Judge erred in law in summarily striking out the names of the 3rd, 4th, 5th, 6th , 7th and 8th Defendants from the suit as Defendants.
c. Additional grounds of appeal to be filed upon receipt of the entire record of Appeal.
Rule 8(4) of the Court of Appeal Rules 1997 (C.I.19) provides as follows:
“(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated”.
The Plaintiffs in grounds (b) and b (1) of the Amended grounds of appeal alleged that the Trial Judge erred in law but failed to give particulars thereof. Having failed to adhere to the specific provisions for invoking arguments on point of law, we would in this context, unless there are any exceptional reasons limit discussions on these two grounds to findings of fact.
The role of the Appellate Court in determining the omnibus ground of appeal has been decided in several cases including AKUFO-ADDO VRS. CATHLINE I GLR 377; DJIN VRS. MUSAH BAAKO [2007-2008] I SC GLR 686; ABBEY VRS. ANTWI  SC GLR 17; ARYEH AND AKAKPO VRS. AYAA IDDRISU  SC GLR 891.
IN DJIN VRS. MUSAH BAAKO (supra) the Supreme Court explained the omnibus ground in Headnote (1) thus:-
“Where (as in the instant case), an Appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him”.
Under Rule 8(1) of the Court of Appeal Rules (C.I.19), an appeal is by way of rehearing. It was explained by their Lordships of the Supreme Court in TUAKWA VRS. BOSOM [2001-2002] SC GLR 61 at 65 per Sophia AKUFFO JSC (as she then was), that:-
“In such a case………………….it is encumbent upon an Appellate Court in a civil case to analyze the entire record of appeal, take account of the testimonies and all documentary evidence at the trial before arriving at its decision so as to satisfy itself that on the balance of probabilities, the conclusion of the Trial Judge are reasonably or amply supported by the evidence”.
Further, the Appellant is expected to properly demonstrate what lapses in the judgment that he is complaining about: See DJIN VRS. MUSAH BAAKO [2007-2008] I SC GLR 686; CONTINENTAL
PLASTICS ENGINEERING CO. LTD., VRS. IMC INDUSTRIES TECHNIK GMBH  SC GLR 298; QUARCOOPOME VRS. SANYO ELECTRIC TRADING CO. & ANOR.  SC GLR 213.
In arguing the appeal on the omnibus ground which counsel for the Plaintiff argued together with ground (b), counsel stated that even though the Respondents were served with the application, they failed to file any affidavit in opposition.
Counsel submitted that to the extent that the Amended Statement of Defence and Counter-claim filed at the registry of the High Court on 3rd July, 2015 excluded the 3rd to 8th Defendants, it meant that in the eyes of the court, the 3rd to 8th Defendants did not have any Statement of Defence or Counter-claim before the court. He submitted further that under Order 13 Rule 6 of C.I.47 (High Court (Civil Procedure) Rules 2004, the Plaintiffs were entirely within the full parameters of the law to bring the application.
Counsel for the Plaintiffs relied on Order 13 Rules 6(1) and (2) of C.I.47 which provide that:
6(1) Where the Plaintiff makes against a Defendant a claim of a description not mentioned in Rules 1 to 4 and the Defendant fails to file a defence to the claim, the Plaintiff may, after the expiration of the period fixed by these Rules for filing the defence, apply to the court for judgment.
(2) On the hearing of the application, the court shall give such judgment as Plaintiff appears entitled to by the statement of claim of the Plaintiff”.
The Plaintiff’s counsel submitted that the word “shall” appearing in Order 13 Rule 6(2) makes it mandatory for the Trial Judge to enter judgment for the Plaintiff if the Defendant fails to file a defence. He submitted further that the Trial Judge therefore ought to have granted the application.
As argued by counsel for the 4th Defendant, a careful examination of every part or the whole provisions of Order 13 especially Rule 6(2) in respect of the use of the word “entitled” or the phrase “appears entitled”, reveals that the grant of such an application is predicated on condition that the party applying must be entitled to such grant in order for the court to grant same.
In other words, the Applicant only succeeds in obtaining such a grant on condition that the precedent of “entitlement” is satisfied.
In our view, if the mandatory word “shall” is read in isolation of the word “entitled” or phrase “appears entitled” the provision in Order 13 Rule 6(2) would be deprived of the intended effect or purpose it is to serve, namely, to do justice to both the Applicant and Respondent in the interlocutory application.
In the ruling under discussion The High Court stated that the affected Defendants did not react to the Plaintiff’s writ served on them. The High Court Judge was of the opinion that the parties, against whom the Plaintiff sought the Interlocutory Judgment, were from the pleadings of the Plaintiff and 1st and 2nd Defendants not necessary parties in the action and therefore ordered their names to be struck out from the suit.
Counsel for the 4th Defendant totally agrees with the decision of the High Court and quoted from the Supreme Court’s decision per Dotse JSC in SAI VRS. TSURU III  SC GLR 762 at 807 in support.
He submitted that the issue of title to the disputed land between the Plaintiffs and the 1st and 2nd Defendants at the lower Court, can be determined without the presence of the 4th Defendant who is a mere grantee of the 2nd Defendant. He submitted that the presence of the 4th Defendant in the suit is therefore unnecessary as a party as was rightly held by the Trial Judge.
On his part, counsel for the 3rd, 5th, 6th 7th and 8th Defendants argued that the grant of an Interlocutory Judgment by the High Court, against the parties supra would have been premature and disastrous. The reason being that if the Interlocutory Judgment was granted while the substantive case is still pending and the Plaintiffs execute the Interlocutory Judgment and in the course of so doing, the 1st and 2nd Defendants get judgment in their favour, it would defeat the purpose of Order 1 Rule 1 (2) of C.I.47.
We have considered all the written submissions of counsel for all the parties in this appeal.
We observed that on 15th July, 2014 the High Court, Court found and held that the 5th and 6th Defendants as at 21st March, 2014 had not been served with the writ and statement of claim and therefore the entry of appearance and statement of claim filed on their behalf by Oliver Atsu Abada Esq. on 24th February 2014 were null and void ab initio.
The search result annexed to the application for Interlocutory Judgment i.e. Exhibit “EAA-1” at page 208 still indicated that the 5th and 6th Defendants had not been served with the writ and statement of claim as at 2nd September 2015. In our view, the Plaintiff ought not to have included the 5th and 6th Defendants in the application for Interlocutory Judgment when they had not been served with the writ and statement of claim and therefore owed no legal obligation to enter appearance nor for that matter file a statement of defence.
It is not disputed by the parties that apart from the 1st and 2nd Defendants, the other Defendants properly served with the writ and statement of claim failed to file a statement of defence.
From the search at page 214 of the Record of Appeal, the 4th, 7th and 8th Defendants were served with the motion for Interlocutory Judgment but they did not file any affidavit in opposition to the application.
We concede that under Order 4 Rule 5(2)(a) and (b) of C.I 47 the High Court may exercise a discretion on its own motion as it thinks just to have the name of a party improperly and unnecessary made a party to cease to be a party. The court has a similar discretion to order a person whose presence before the court is necessary for effective and complete adjudication and determination of the matter to be added as a party.
In our view, the discretion of the court to add or remove any person who has improperly and unnecessarily been made a party ought to be sparingly used. The Court ought to be guided by the following two words namely “improperly” and “unnecessarily”.
In the instant case the application that was before the High Court Judge was for interlocutory judgment in default of defence. However, the High Court Judge decided not to consider the application on its merit but to dismiss the application by striking out the names of the 3rd, 4th , 5th, 6th, 7th and 8th Defendants in the action because they are grantees of the 1st and 2nd Defendants.
This in our view is very unfortunate.
The Plaintiffs claims as per the endorsement on the Amended Writ are inter alia for declaration of title and recovery of possession. The 1st and 2nd Defendants by their counterclaim also claimed inter alia for declaration of title and Recovery of possession.
A careful reading of Order 13 Rule 6 of C.I.47 shows that the application could not properly be brought under this rule because apart from the claim for possession, there were other reliefs for general damages for trespass and perpetual injunction and an order directed at the 9th Defendant Lands Commission to expunge the name of Mustapha Plus from the record.
In our view, the nature of the reliefs were such that the Plaintiff’s claim against the 4th, 5th, 6th, 7th and
8th Defendants were tied to the final determination of the suit as the identity of the area occupied by those Defendants supra were not given to enable the court make separate orders in respect of them. It is obvious from the claims that the portion of lands alleged to have been trespassed upon by the Defendants fell within the bigger area of land covered by relief (a) of the Plaintiffs claim which the Defendants have also counterclaimed for. In NYIKPLORPO VRS. AGBEDOTOR [1987-88]1 GLR 165 at 171, Abban JA (as he then was) held that;
“To succeed in an action for the declaration of title to land, injunction and recovery to possession, the Plaintiff must establish by positive evidence the identify and limits of the land he claims”.
Thus in our view it would be premature at this stage to grant an interlocutory judgment against the 3rd, 4th, 6th, 7th and 8th Defendants when the claims against them is in our view inseparable from the 1st and 2nd Defendants.
Further, should interlocutory judgment be entered against the 3rd, 4th, 5th, 6th, 7th and 8th Defendants and the Plaintiffs go into execution and in the course of so doing should the 1st and 2nd Defendant have judgment in their favour concerning the same matter, this scenario would clearly defeat the purpose of Order 1 Rule 1 (2) of C.I.47 which provides that:
“These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided”.
At best, looking at the entire case, it would be more appropriate for the Plaintiffs to have proceeded to have the matter completely, effectively and finally determined between themselves and the 1st and 2nd Defendants. By so doing, the final judgment will directly affect and bind all the Defendants properly served with the writ and statement of claim who failed to contest the claim. It would no doubt prevent a multiplicity of suits.
It is for these reasons that we would allow the appeal by restoring the names of the 4th, 5th, 6th, 7th and 8th Defendants name to the action.
However we are unable to grant the Plaintiff’s relief for an order entering Interlocutory Judgment in default of Defence against the 3rd 4th, 5th, 6th, 7th and 8th Defendants at this stage.
Accordingly, the appeal is allowed in part.
IRENE C. LARBI (MRS).
(Justice of Appeal)
L. L. MENSAH
I also agree (Justice of Appeal)
I also agree ANGELINA M. DOMAKYAAREH (MRS).
(Justice of Appeal)