IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
FRANK OSEI TUTU - (Plaintiff/Appellant)
FRANK OWUSU, ANTOINETTE OSUSU ANSAH, F. G. DEVELOPERS LTD. AND EDWARD OSEI TUTU (JOINDER) - (Defendants/Respondents)
DATE: 19TH JULY, 2017
SUIT NO: H1/20/2017
JUDGES: AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.
COUNSEL FOR PLAINTIFF/APPELLANT-OSEI KUFFOUR WITH EUNICE ADU GYAMFI
COUNSEL FOR DEFENDANTS/RESPONDENTS-SAEED KOFI SAM
TORKORNOO (MRS), J.A.
The Plaintiff/Appellant’s case is that while he is very much alive, the 1st and 2nd Defendants have presented to the high court that he is dead, and obtained letters of administration to his estate. He also alleges that in 1969, his father Martin Osei Tutu (now deceased) gave him a gift of land numbered Plot 13, Block XIV situate and lying at Suame, Kumasi. His interest in the land was registered with the Lands Commission as a direct lease from the government dated 16th September 1969. His father died testate in 1989 and never mentioned this property in his Will as belonging to his estate. His father paid the property rates on the property for the first ten years between 1969 and 1979. Thereafter, he Appellant paid the arrears of the property rates on the property from 1979 till 1997.
He travelled to the United Kingdom and while living there in 2015, his attention was drawn to the unauthorized presence of the 3rd Defendant who had allegedly moved machinery on to his property and was feverishly developing same. He came to Ghana to confront the 3rd Defendant. It was on the taking of steps to find out why his land was being developed that he discovered the records covering his ‘death’ and the ‘administration of his estate’. He also discovered that after obtaining letters of administration to his ‘estate’, the 1st Defendant had allegedly executed an assignment in favor of the 3rd Defendant as an assignee of Plot 13, Block XIV Suame.
He therefore sued the first to third Defendants for
An order revoking the letters of administration granted to the 1st and 2nd Defendants on the 26th of February, 2013.
An order setting aside, revoking, quashing and rendering null and void all actions carried out by the Defendants jointly or severally pursuant to obtaining the letters of administration to the estate of Frank Osei Tutu, vesting assent and assignment of the property Plot 13, Block “XIV”, Suame-Kumasi.
An order of the court quashing, revoking or setting aside the vesting and assignment of the property, Plot No. 13, Block “XIV”, Suame-Kumasi by the Defendants as having been procured through fraudulent misrepresentation.
An order for recovery of possession of the property, Plot No. 13, Block “XIV, Suame-Kumasi to the Plaintiff.
An order restraining the Defendants (particularly 3rd Defendant) whether by themselves or their agents, assigns, workmen and all persons claiming through or under them from in any manner carrying on with any developments or activities whatsoever in respect of the said property e.g. Land Title Registration, redevelopment, etc.
An order directing Defendants to pay to the Plaintiff general and special damages.
The Appellant applied for an injunction to restrain the Defendants from developing his land. Attached to the application were documents which showed that he was alleged to have died on 7th November 1984 at Komfo Anokye Teaching Hospital, and that the 1st Defendant was alleged to be his “customary successor” whiles the 2nd Defendant was his ‘daughter’. The documents also showed that armed with the Letters of Administration dated 26th February 2015, the 1st and 2nd Defendants had executed a Vesting Assent dated 27th April 2015 over Plot No 13 Block XIV, Suame in favor of the 1st Defendant. On the strength of the Vesting Assent, the 1st Defendant had executed an Assignment to the 3rd Defendant Company which had been registered with the Lands Commission. This injunction was first granted for ten days on 1st December 2015 and an application was repeated on notice.
On 11th December 2015, when the interim injunction had just expired, the 3rd Defendant entered appearance by counsel. On the same date, one Nana Yaw Daani 11 applied to be joined to the suit as a necessary party. He said he was chief of Suame and that it is the stool of Suame that owns the land and had exercised acts of ownership and possession over the property from the 1960s. It was his case that the Appellant has no title to the plot in dispute and his presence was necessary in the suit to ensure that all matters in dispute concerning the plot are effectively and completely determined.
The application was resisted by the Appellant. In a ruling dated 8th January 2016, the court was satisfied that the said Nana Yaw Daani 11 was not a necessary party for the resolution of the dispute before him. I will set out his words found on pages 105 to 107 of the Record of Appeal (ROA) in extensor because I find them extremely relevant to the current matter on appeal. He said
‘In his submission counsel for Plaintiff argued that by the reliefs Plaintiff claims, none is against the Applicant directly. But the claim for recovery of possession perhaps remotely affects the Applicant from what he claims. However, it would seem that the Applicant’s claim should be against the Government of Ghana for it was the Government that owns the plot and leased it to Plaintiff in 1969. Applicant is therefore not a necessary party to be joined to the suit.
I am in agreement with learned counsel for the Plaintiff. By Exhibit FOJ1 the Lands Commission, the statutory body that manages Government lands, has informed the Applicant that the plot is Government land. The Exhibit does not however disclose how the Government came to own the plot i.e. the mode of acquisition. I think with the exercise of a little patience the Commission can tell the Applicant how the Government came to own the plot. And if he is not satisfied he could do battle with the Government. Looking at the reliefs claimed by Plaintiff and his mode of acquisition of the plot, I have no doubt at all that the Applicant should not be joined to this suit. If he goes after the Government and wins, whoever among the parties would attorn tenancy to Applicant could do so. in other words, this is one case where a multiplicity of suits would be desirable. I therefore refuse the application. ‘
And that is how this first application for joinder was disposed off. It would seem that no sooner had the ink on this ruling dried than the Respondent to this appeal also applied on 22nd January 2016 to be joined to this suit.
As brother to the Appellant, he said that he is the only surviving executor to the Will of their father Martin Osei Tutu. His reason for applying to join the suit is that the land in issue which the 1st and 2nd Defendants are alleged to have sold to the 3rd Defendant does not belong to the Plaintiff Appellant. He claimed that though the land was not included in the Will of their father, it has always formed part and parcel of the residue of his estate. He also claimed that it was the executors of the estate of Martin Osei Tutu who have always exercised control and management of this property ‘as the Plaintiff had been living in London.’
And that the existence of title in the name of the Appellant had only come to his knowledge in August 2015 after 1st Defendant ‘had engaged the 3rd Defendant in the transaction of same’. He prayed that in order to effectively and finally resolve issues regarding this land, and to avoid a multiplicity of suits, he should be joined to the suit. Once again, the Appellant resisted the application and the parties to this appeal filed a flurry of documentation.
After listening to the parties, the learned trial judge agreed with the Respondent and joined him to the suit as 4th Defendant. In justifying this order, the learned judge said inter alia on page 212 of the ROA:
‘It is not in dispute that the Applicant is the surviving executor of the late Martin Osei Tutu, father of the Plaintiff. The applicant denies the advancement Plaintiff claims and contends that the plot in dispute rather falls into the residuary clause in the Will and is part of the residue and should be shared amongst the beneficiaries. Although Plaintiff has the lease that he says embodies advancement, that document is not sacrosanct. It has to be proved. It has to be pitted against the residuary estate. And so, Plaintiff and the applicant can each prove his claim at a trial. Given that, the applicant appears to be a necessary party. And if joined to the suit all issues in controversy can be resolved once and for all. As between Plaintiff and the applicant, upon the divergent claims they make, there is a clear issue to be resolved. ‘
It is this order of joinder that has been appealed against. The grounds of appeal are:
1. That the ruling of the court was against the weight of the affidavit evidence
2. That the learned High Court Judge did not properly exercise his discretion when he granted the applicant/Respondent’s application to join the suit in the light of the special circumstances brought to his notice in the application.
Appellant counsel has drawn attention to the guiding principle when a court has to consider whether or not to join a party to an action. Citing the treatise of E D Kom in the Review of Ghana Law, Volume 1V 1972 titled “Test for Joinder under order 16, Rule 11”, he pointed to coms his discussion of the test set out in Gurtner v Circuit 1968 2 QB 58 by Denning MR as a party whose presence ‘enables all matters in dispute to be effectually and completely determined and adjudicated upon between all those directly concerned in the outcome’ of the case. He argued on page 9 of his submissions that the Respondent ‘is not a necessary party to be joined to this case to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon. The main issue before the court is that fraud has been perpetrated by the Defendants for which the Appellant has suffered great loss and the court’s ability to do substantial justice in the matter is being invoked.’ Although he went on to present submission about the ill faith of the Respondent in seeking to be joined, we do not find those submissions appropriate for consideration in this appeal. On appeal and as a function of rehearing, our duty is to determine whether the joinder of the now 4th Defendant constituted a proper exercise of discretion or not.
While agreeing that the various decisions of the courts point to the fact that ‘the applicant seeking to be joined must be a NECESSARY PARTY and his/her presence in the said suit would effectively and conclusively determine the issues arising out of the pleadings’, Respondent counsel rebutted these arguments with the position on page 8 to 9 of his submissions with the argument that the trial judge was clear as to the claim and issues before the court for resolution which makes the Respondent a necessary party to the final and effectual determination of all the matters in dispute.
Quoting from the judgment, he also pointed to the part in the ruling where the trial judge identified that the Plaintiff’s claim is premised on advancement, and the Respondent is the surviving executor of the estate of their father Martin Osei Tutu who denies that advancement. The learned judge opined that the document embodying the advancement is not sacrosanct and has to be proved and pitted against the residuary estate. As such if the Respondent is joined to the suit, it will enable all issues in controversy to be resolved once and for all.
It was the position of Respondent’s counsel that this need to join persons whose presence is necessary to dispose of the matters in controversy effectually and completely is the guiding principle set out in all cases including Montero v Redco Ltd 1984-86 1 GLR 710 cited with approval in Re – Presidential Petition; Nana Akufo-Addo & 2 Ors (No 1) v Mahama & Electoral Commission (National Democratic Congress Applicant) No 1 2013 SC GLR
We have considered all arguments and must roundly agree with Appellant in his submissions and position and disagree with Respondent counsel. Our reasons coincide squarely with the reasons given by the learned trial judge in his earlier ruling when he refused the application of Nana Yaw Daani 11 to join this suit, and more besides.
As copiously set out by both counsels, the purpose of joinder should only be to effectively and finally settle all matters in controversy between the parties regarding the subject matter of dispute. Thus, if there is no community of interest regarding the question to be resolved around the subject matter of dispute between existing parties and a person a court is prayed to be joined to the suit, the court does not exercise discretion judiciously if they are so joined. The following cases, though not exhaustive, give very strong pointers to the reasons for joinder.
In Apenteng v Bank of West Africa Ltd 1961 GLR 81 – The court laid down that in an application for joinder, “the most important question which the court has to answer is: would the joinder enable the court effectively and completely to adjudicate upon and settle all questions involved in the cause? If it would, the application should be granted, if it would not, the application should be refused. To arrive at the correct answer in a case where the application is by the Defendant and not by a Plaintiff, the court must be guided by certain considerations and principles. The court must first of all, look at the Plaintiff’s writ of summons, his pleadings and the reliefs he seeks. If the Plaintiff makes no claims either directly or indirectly against the party sought to be joined or if the claim could succeed without the party, the application must be refused”.
In Bonsu and Another v Bonsu 1971 2GLR 243 Taylor J (as he then was), sitting in the High Court held that parties whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the cause or matters are the persons who should be joined to the action. The test in joinder would in each case be whether the order (s) being sought for by the Plaintiff would directly affect the intervener in the enjoyment of his legal rights.
In Zakari v Pan American Airways & Another 1982 -83 GLR 975 -985 – the Court again reiterated that the most important question was whether the joinder of a party would enable the court effectually and completely to adjudicate upon and settle all questions involved in the case. Another test would be whether there are triable issues between the Plaintiff and the party sought to be joined. If not, the joinder should be refused.
These principles are cemented into our jurisprudence. The resolution of whether the above and related questions apply to a case lies in the cause of action and claims between the existing parties to the case and how they purportedly affect the one sought to be joined. In the present case, the central issue in controversy between the Appellant and the Defendants he sued is whether their application to court for letters of administration to the estate of a man who has surfaced as a living being was a work of fraud, and whether anything done with the letters of administration should be invalidated on account of that fraud. That is the genesis of the cause of action and the entire revelation from the claims which seek orders setting aside the letters of administration, vesting assent and any transfer of title to the 3rd Defendant.
The assertion of Respondent counsel on page 11 of his submissions that ‘Appellant submission that the Defendants in the suit have perpetuated fraud on him is neither here nor there, as same does not affect or link the Respondent herein whatsoever. Thus such a claim by the Appellant should be disregarded by the honorable court’ is where he trips on why the joinder he sought should not have been granted. Appellant’s position about the fraud is not at all a mere submission but the main premise of the action he embarked on. And of course, it does not affect nor is linked to the Respondent, and this is why the Respondent should not seek to get into the middle of that dispute.
Counsel for Appellant drew attention to the decision of the Supreme Court in the case of Sam (No 1) v Attorney – General (2000) SCGLR 102 where the court reiterated the guiding principle for joinder as described above and added on page 104 that ‘But this would depend upon the issue before the court, i. e. the nature of the claim’. And we find that authority utterly spot on when it comes to this case.
Appellant’s claims in the action that Respondent sought to join have nothing to do with settling the historical ownership of the property in issue (emphasis mine). Indeed, even if the 1st and 2nd Defendants file a defence challenging the authenticity of the Appellant’s alleged title to the land in issue, the central matter in controversy in the suit will still not change from the allegation of fraud and the need to invalidate any transfer of interest generated from the letters of administration. It is only after the matter of fraud has been resolved that the issue of ownership can be tackled.
That question of fraud will have to be solved as a separate matter from any challenge to Appellant’s title – should Defendants even raise that question. Because the fraud has nothing to do with the authenticity or otherwise of the Appellant’s alleged title, but whether or not the application for letters of administration was a creation of fraud and everything it touched was tainted and invalidated by fraud.
And these claims are a far cry from the matters which the court would have to consider between the Plaintiff and the respondent if this joinder is allowed to stand. The Respondent’s alleged interest in the land and cause of action for coming into the suit is grounded on title to and interest in the Suame land in his capacity as executor of the estate of Martin Osei Tutu (deceased). And given that the records indicate that registered title to this land has been in the Appellant since 1969, this controversy will require resolution of all sorts of issues of law and facts.
As rightly pointed out by the trial judge in his earlier ruling when Nana Yaw Daani 11 urged that the land belonged to the Suame stool, the proper person, apart from Appellant, to resolve any controversy against the record being waived by the Appellant as the source of his title is the Government of Ghana acting through the Lands Commission. They are the institution which can effectively and finally add light on how this land happened to stand in the name of the Appellant. Then the court also has to unravel the import of the alleged use of the land by the Suame community and alleged control over it by the executors of the estate of Martin Osei Tutu in the face of the record of property rates allegedly paid by the deceased Martin Osei Tutu in the name of Appellant for a decade, and payments by the Appellant for another decade. These are a veritable pot pourri of issues of fact and law which can only distort the simple dispute over the alleged forgery of court documents alleging death of the Appellant and the actions of the 1st and 2nd Defendants which roped in the 3rd Defendant.
In this suit, if the Appellant is not dead as his presence in court seems to show, then the resolution of his claims against the Defendants he sued should not constitute much of a quandary for any court. And I think it is a particularly sad indictment on our manner of case management that these central issues have been left lingering while Appellant has been pulled into issues such as the joinder of other parties who lay claim to the substantive title to the land in issue. Our humble view is that the high court should very quickly settle this case of alleged death and the creation of title deeds from letters of administration to enable the parties to that dispute lay that controversy to sleep. And this should be done separately from the claims of those who urge ownership of the land.
Before we close this judgment, we must also point out that a very practical difficulty arises from this joinder that the trial judge has acceded to which compels that we uphold the appeal. It is that with the present cause of action, the Appellant has no claim whatsoever against the now 4th Defendant. And the other Defendants do not also need the Respondent in any way for the purpose of answering the claims of the Appellant against them.
Thus, what will be purpose of Respondent’s presence in this particular suit? At best, to file a counter claim alleging title to the land as part of the estate of Martin Osei Tutu. He will then turn into a Plaintiff with a claim that has nothing to do with the cause of action between the existing parties, though on record, he is a Defendant. This will be a most twisted model for distorting the real cause of action that compelled the action and allowing the real Defendants to melt into the background.
Obviously, the only neat way for resolving the conundrum of the Respondent’s interests he is alleging – in view of the records at Lands Commission that have come to his notice – can be found in the ruling of the learned trial judge when he dismissed the application for joinder by Nana Yaw Daani 11. This is a good case for multiplicity of actions where the Respondent commences his own action against all the parties who are relevant to determine whether his allegation that this land forms part of the estate of Martin Osei Tutu is sustainable – without obscuring the important resolution of whether the letters of administration under attack were obtained by fraud or not.
The appeal is upheld. The order joining the 4th Defendant is reversed, the 4th Defendant is dis-joined from this action, and the High Court is directed to very quickly settle the issues between the parties in this suit in order to free the controversies around ownership of the land from the tainting matter of fraud.
Cost of Six Thousand Ghana Cedis (GH6, 000.00) in favour of the Plaintiff/Appellant against the 4th Defendant/Respondent.