IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
GEORGE LAMPTEY - (Plaintiff/ Appellant)
MEKLLOYDS CO. LTD AND THEOPHILUS OHENE POKU - (Defendant / Respondent)
DATE: 19TH DECEMBER, 2017
CIVIL APPEAL NO: H1/163/2017
JUDGES: GYAESAYOR JA, DORDZIE JA (MRS.), AMADU JA
MR. KWAKU GYIMAH KYA FOR APPELLANT
MR. PETER KWAKU NTI FOR 2ND RESPONDENT
This is an interesting appeal against the decision of the High Court Accra dated 13th June 2016 refusing to grant leave to the plaintiff judgment creditor to amend the final judgment. It is interesting because, the appellant is the victor in the trial but not the defendants who lost the case in the court below.
The facts of the case are relatively simple. The plaintiff/judgment /creditor/applicant/ appellant with the help of his employers acquired two plots of land at Millennium City Kasoa. In the nature of his work he was transferred to the Volta Region but on a visit to Accra, he went to the land and saw that 2nd defendant had trespassed onto the land and was constructing a structure when all attempts to stop him failed, he took the matter to court. According to the judgment, the 2nd defendant claiming through the 1st defendant did not go to court after filing appearance and did not take part in the ensuing proceedings. The High Court therefore proceeded to hear the suit on available evidence on record.
The issues to be determined at the High Court as set down were as follows:
Whether or not the plaintiff is the bonafide owner of Plot Nos. 80 and 82 at Kasoa Millennium City.
Whether or not Adom Spinning Company the Assignors of Plot Nos. 80 and 82 to the Plaintiff fraudulently acquired the land.
Any other issue arising out of the pleading.
In the end, the trial judge entered judgment for the plaintiff at page 10 of her judgment when she wrote “Having determined that the plaintiff is the owner of or has title to the land in dispute, it follows that the defendants are not entitled to maintain their grant with respect to the said land.
An evaluation of the evidence adduced indicates that the plaintiff has discharged the burden of proof on him as required by Section 11(1) and (4) of the Evidence Act 1975 (NRCD 323). Judgment is therefore entered in favour of the plaintiff against the defendants herein for all the reliefs sought. She proceeded to award damages to the plaintiff because she found that defendants had trespassed unto the plaintiff land”.
The reliefs sought are endorsed on page 2 of the write of summons:
A declaration that plaintiff is the bonafide owner of plot No.80 and 82 Millennium City Kasoa.
A declaration that the purported sale of plot No. 80 ad 82 which forms part of a larger piece of parcel of land sold to the 1st defendant contained in an unregistered indenture dated 20th May, 2007 is null and void and of no legal effect.
Perpetual injunction restraining the 2nd defendant his workmen, agents and assigns from interfering or dealing with the land.
Against the defendants jointly and severally damages for trespass.
Essentially therefore, the judgment obtained by the plaintiff in the High Court is declaratory in nature. I have already mentioned that the defendant/debtor did not appeal against the decision and that judgment is not the subject of this appeal.
The event giving rise to this appeal was a result of an attempt to go into execution. It then dawned on the plaintiff that he had not endorsed a relief of recovery of possession to the land. He therefore applied for an amendment to amend the final judgment in order to be able to apply for a writ of possession. The trial judge unfortunately refused the application on three main grounds.
Firstly, the application was refused because the plaintiff did not request recovery of possession, the court did not consider the factors for the grant of that relief as a court may grant declaration of title and not recovery of possession.
Secondly, having given judgment in January it is my opinion that the court is functus officio.
It is this refusal to grant leave to amend which has led to the instant appeal now before us. The notice of appeal is found at page 95 of the record of appeal and the appeal is against the entire ruling. The ground of appeal is:
The learned judge erred in refusing to grant the plaintiff’s application for leave to amend the final judgment to include recovery of possession.
Additional grounds of appeal to be filed upon receipt of the ruling.
The relief sought from the court is to set aside the ruling of the court refusing an amendment of the judgment to include recovery of possession. This appeal is therefore in respect of the ruling and does not touch and concern the substantive judgment delivered by the High Court.
In his written submission filed plaintiff argued that having been declared owner of the land and having been declared a valid title holder the grant of recovery of possession should naturally be the logical conclusion. A refusal would mean he has to commence a fresh action before the same judge and this can lead to avoidable difficulties. On the other hand, the defendant in the suit cannot go to the land since there is a perpetual injunction granted against him in the same judgment.
He cited the case of Rep vs High Court Exparte Boateng [2007-2008] 1 SCGLR 404. Where in a similar situation the Supreme Court held that “We think that the interest of justice would be served and a protraction of this litigation avoided in this case if, instead of quashing the orders herein the trial court is directed to amend the plaintiffs’ claim so as to clarify, the same by including a claim for recovery of possession and making an order for the same”.
Cited is also Land Law practice and Conveyancing in Ghana by Justice Dennis Dominic Adjei in which he wrote “the position now is that a court could grant leave to amend a judgment with a declaration to title to include recovery of possession and thereafter grant leave to a party to issue a writ of possession”.
The underlying principle for granting an amendment is to assist the court to determine the real question in controversy between the parties. The legal authorities support this assertion Branwell L.G. said in Tildesley vrs. Harper 10 CHD 393 at page 396 C. K. “my practice has always been to give leave to amend unless I have been satisfied that the party applying was acting malafide that by his blunder. He had done some injury to his opponent which he would be compensated for costs or damages” and in Cheapside Co. vrs Commercial Union Association  32 W.R. 262 C. A Bret said “However negligent or careless may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by cost.”
E. D. Kom at page 55 of his Civil Procedure in the High Court wrote “Our courts have always followed and acted upon the above principle and have allowed amendments before, at or after the trial or even after judgment or an appeal so as to:
Determine the trial question in controversy and
Avoid multiplicity of suits. He mentioned several authorities like Hodo vrs. Gbogbolulu  WACA 164, Nkyi XI vrs. Kuma  GLR where the court of appeal granted to the plaintiff leave to amend his claim by adding action for declaration of title”.
C. I. 47, the Civil Procedure Rules of 2004 of the High Court in Order 1(2) provides that “the 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 as between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided”.
Consequently, the rule provides in Order 16 for amendments. Order 16 of C.I. 47 allows an amendment to be made at any stage of the proceedings under rule 5. It reads “Subject to Order 4 rules 5, and 6, and to the following provisions of this rule the court may at any stage of the proceedings upon an application by the plaintiff or any other party grant leave to;
The plaintiff to amend the plaintiff’s writ; or
Any party to amend the party’s pleading; on such terms as to costs or otherwise as may be just and in such manner as it may direct”.
Indeed Order 16 5(5) provides that amendment may be allowed under sub rule (2) notwithstanding that the effect of the amendment will be to add or substitute a new cause of action, if the new cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make amendment.
In the case now before us, the appellant succeeded on the ground canvassed by him including the fact that he is the legitimate owner of the land. The trial court found that the defendant depended on an unregistered document to claim land which did not find favour with her. Naturally but for the unfortunate omission to endorse a claim for recovery of possession, that would have been granted. The plaintiff appellant who has genuine documents and a High Court judgment in his favour has a better claim then the defendant who has been adjudged to be a trespasser on the land.
The application before the learned trial judge was a call on her to exercise her discretion. An appellate court cannot on the authority of Crentsil vrs. Crentsil  2 GLR 171 interfere with the exercise of a judge’s discretion unless there are compelling reasons to do so. It is true she exercised her discretion but the legal authorities allow such an amendment to be made in order to avoid the waste of money and time. The leave to amend ought to have been granted for the relief sought to be included. We shall therefore set aside the order of the High Court refusing the amendment for as it is the plaintiff has been given a hollow judgment. This amendment would not cause any inconvenience to the defendant who for all reasons did not succeed is his bid to claim the land and also did not appeal against the judgment.
We grant leave to the plaintiff/appellant to amend the plaintiffs claim so as to clarify the same by including a claim for recovery of possession and making an order for the same. See also Hanna Assi vrs. Gihoc Refrigeration & Household Products Ltd  1 SCGLR 16 where the Supreme Court held that “it is trite learning now that a court is not confined to only the specific reliefs claimed by the plaintiff and the court if necessary, can amend the claim to cover an appropriate relief though unclaimed”.
In the light of these authorities and with the reasons given above as supported by decisions of the Supreme Court, we allow the appeal.
This Court under rule 8(1) of C.I.19 provides that “Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as “the notice of appeal” and has power to make orders which ought to have been made by the Court below. In particular rule 32 provides in rule 32(1):
“The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs.
(2) These powers of the court may be exercised notwithstanding that the appellant may have asked that part only of a decision be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although the respondents or parties may not have appealed from or complained of the decision”.
Under the General powers of the Court in Rule 31 the court may:
a. Make any order necessary for determining the real question in controversy;
b. Amend any defect or error in the record of appeal;
c. Direct the court below to enquire into and certify its finding on any question which the court considers fit to determine before final judgment;
d. Make any interim order or grant any injunction which the court below is authorized to make or grant; and
e. Direct any necessary enquires or accounts to be made or taken and shall generally have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a court of first instance.
We therefore exercise our power as a rehearing court to make the requisite orders to allow the writ of summons to be amended so as to effectually bring this case to an end.
We therefore direct that the plaintiff/appellant is allowed to include recovery of possession of the two disputed plots in the endorsement. The registrar of the court should bring these orders to the notice of the defendant/respondent. The registrar of the court upon the necessary application should put the plaintiff/appellant in possession. Appeal is accordingly allowed.
(JUSTICE OF APPEAL)
AMADU JA, I AGREE I. O. TANKO AMADU
(JUSTICE OF APPEAL)
A. M. DORDZIE JA
The appellant instituted an action in the High Court for the following reliefs:
“A declaration that plaintiff is the bonafide owner of plots N0 80 & 82, Millennium City Kasoa.
A declaration that the purported sale of plots N0 80 & 82 which form a part of a larger piece or parcel of land sold to the 1st defendant contained in an unregistered indenture dated 20th May 2007 is null and void and of no legal effect.
Perpetual injunction restraining the 2nd defendant his workmen, agents and assigns from interfering or dealing with the land
Damages for trespass against the defendants jointly and severally Cost.”
The High Court heard the matter and on the 28th of January 2016 delivered its judgment in favour of the plaintiff and granted all the reliefs plaintiff prayed for. It was the finding of the High Court that the plaintiff owns the disputed property and the defendants have trespassed on the plaintiff’s property therefore the court awarded the plaintiff GHc5, 000 damages for trespass. The court further perpetually restrained the 2nd defendant, who is building a structure on the land, his privies and workmen from entering or dealing with the property.
On the 3rd of June 2016 the plaintiff filed a motion on notice to amend the final judgment. In the affidavit supporting the motion the plaintiff deposed to the following facts:
“That on 11/07/2013 I caused a writ of summons to be issued against the defendants for reliefs as endorsed on the writ of summons
That although I asked for declaration of title, I did not ask for recovery of possession because I had the impression that it was the defendant who had trespassed onto my land which I was in possession of and not need to ask for recovery of possession.
Judgment was given in my favour on 28th of January 2016.
That among the reliefs granted to me was a declaration that I was the owner of plots number 80 & 82, Kasoa Millennium City.
That the 2nd defendant has put up an uncompleted structure on a portion of my said plot of land for which I need leave for writ of possession to issue.
That having been declared the bonafide owner of the said plot of land I am entitled by law to its possession.
That I am advised and verily believe same to be true that I am entitled to an amendment of the judgment to include recovery having been declared the owner of the land in dispute”
There is no indication on the record that the respondents opposed the application. The application however was refused by the court below. The applicant dissatisfied, filed the present appeal praying this court to set aside the ruling of the court refusing the application for amendment and make an order directed at the High Court to grant the appellant leave to amend the final judgment.
Grounds of Appeal
The notice of appeal has one ground of appeal with the indication of further grounds to be filed however the record does not disclose that any further ground had been filed.
The sole ground of appeal therefore is: “the learned judge erred in refusing to grant the plaintiff’s application for leave to amend the final judgment to include recovery of possession.”
In arguing the appeal counsel for the appellant maintain that once the court has given judgment declaring the appellant’s title to the land he is entitled to the relief of recovery of possession. He relied on the authority of Republic v High Court, Kumasi Ex parte Boateng [2007-2008] SCGLR 2004. Counsel argued that the trial judge is bound by the Supreme Court Decision in this case and therefore erred in not following it.
It is counsel’s further argument that it is not enough for the trial court to refuse the application to amend the judgment without assigning reasons.
Counsel for the respondent in his argument opposing the appeal did not limit his arguments to the ground of appeal but gave a wild range of authorizes to argue that the respondent had built substantially on the land and therefore is presumed to be owner until someone proves a better title. The issue of who has better title had been decided by the judgment, the respondent had not appealed against it; arguments of the nature offered by learned counsel for the respondent in this appeal in my opinion are not sustainable so far as the issue before this court is concerned.
The issue at stake in this appeal is whether the High Court erred in refusing to grant an application brought after judgment for an amendment to include a relief not originally claimed in the writ of summons.
The judgment of the court below had decided the appellant has a better title, he therefore owns the land and declared the 2nd respondent who is building on the land a trespasser and awarded damages for trespass in favour of the appellant. The respondents, as I have said had not appealed against the decision. The court having declared the 2nd defendant a trespassers means any possessory right he might have had been terminated by the judgment of the High Court. What is more the 2nd respondent who is building on the land had been restrained from entering or having anything to do with the land. In such a circumstance it is not a right statement when the High Court in its ruling said it had not considered the issue of recovery of possession because it was not a relief the plaintiff / appellant asked for. That the court had considered that issue is implied in the findings of the court that led to pronouncing the 2nd respondent a trespasser, awarding damages against him and restraining him perpetually from entering the land.
It is trite learning that the reliefs of declaration of title to land and recovery of possession are separate reliefs which must be distinctly endorsed on a writ of summons. The appellant herein failed to include the relief of recovery of possession in the endorsement on his writ, as a result though the judgment of the court below had declared him owner of the disputed property, he is handicapped in initiating the process to recover the portion of land the 2nd respondent had trespassed on.
In the ruling on appeal before us the court below refused to grant the appellant’s application for amendment to include the relief he did not ask for, for two reasons: 1.The court in its judgment did not consider the factors for the grant of the relief of recovery of possession because the appellant did not request for the said relief. 2. The court had delivered its judgment, therefore it had become functus officio.
I do not consider these grounds appropriate grounds to refuse the application. For the second reason I have stated above; it is trite learning that the courts have inherent jurisdiction to grant amendment at any stage of proceedings, after judgment and even at the appellate court. See the case of Ghana Ports and Habours Authority v Issoufou [1993-94] 1 GLR 24. In this cited case the Court of Appeal granted an oral application by the plaintiff to amend its title to the case. The defendant appealed against this decision to the Supreme Court on the ground that the oral application for the amendment was wrong and the Court of Appeal erred in granting same. The Supreme Court dismissed the appeal and the court Per Archer CJ (as he then was) held: “In my view, the courts have a duty to ensure that justice is done in cases before them, and should not let this duty be circumvented by mere technicalities. Since the power to make such amendments rests in the inherent jurisdiction of the courts, the courts can, when the issue is raised either in the trial court any time after judgment is delivered, or in the appellate court on the application of a party to the suit (orally or otherwise), grant such amendments as are necessary to meet the justice of the case;”
The trial court had the duty in view of the findings and the conclusions it came to in the judgment to ensure that justice is done in this case by allowing the appellant to amend the endorsement to include the relief of recovery of possession.
For the first reason I have stated above as the reason for the refusal of the application by the trial court, I must say that case law in recent times has demonstrated that the courts have turned away from strict adherence to considering only reliefs endorsed on writs of Summons. The courts now look at the totality of the endorsement on the writ of summons, the pleadings and the evidence adduced before the court to grant the appropriate reliefs the circumstance of each case demands.
In the case of The Republic v High Court Kumasi Ex parte Boateng [2007-2008] 404 cited by counsel for the appellant, the Kejetia Traders Association sued the Kumasi city authorities because they were ejected from their place of business at Kejetia, with the promise that they would be allocated new stores being built elsewhere, and were asked to contribute to the construction of those stores. They did contribute but were not allocated the stores. The relief they asked for was specific performance to compel the defendants to allocate stores to the plaintiffs. The High Court granted the relief and subsequently granted their application for writ of possession. The defendants applied to the Supreme Court for certiorari to quash the order for writ of possession on the ground that the relief of recovery of possession was not part of the relief sought by the plaintiffs in their original writ of summons.
The Supreme Court dismissed the application, the position of the Supreme Court in the circumstance of that case is that recovery of possession was implied in the claim for specific performance, the plaintiffs were not by their action asking for mere allocation of the stores but access to them as well.
Thus the court’s approach was to look at the totality of the claim originally endorsed on the writ and its implications, to come to a conclusion that will give the appropriate justice to the parties. The Court per Atuguba JSC made the position of the law clear in these words at page 408 “…the courts in modern times administer justice not classically but functionally. Looking at the plaintiff’s action realistically,… their action could not be intended just for getting title to the stores granted them but to have full access thereof. This is borne out by the course of events in this case. It is trite learning now that a court is not confined to only the specific reliefs claimed by the plaintiff and the court, if necessary, can amend the claim to recover an appropriate relief though unclaimed.”
The Supreme Court further demonstrated this readiness to depart from the rigid and technical application of the law to do substantial justice and to avoid multiplicity of suits when in its review decision in the case of Hanna Assi (N0 2) v Gihoc Refrigeration & Household Products Ltd. (N0 2) [2007-2008] 16 it granted the defendant declaration of title in the property in dispute and recovery of possession even though the defendant did not counter claim for those reliefs.
The majority of the ordinary bench of the Supreme Court in the Assi case affirmed the Court of Appeal decision which upheld the decision of the trial court that in the absence of a counter claim the court had no jurisdiction to grant the reliefs of declaration of title and recovery of possession.
At page 30 of the report of the Assi case on review, the learned Jurist Atuguba JSC expressed the decision of the court in the following words: “I would allow this application and vary the aforementioned judgment of the ordinary bench of this court by granting the applicant the reliefs of declaration of title and recovery of possession. These are clearly established on the evidence. In such a situation the essential consideration is whether there was surprise or unjust denial of opportunity to meet the matters concerned.”
The guiding principle in my opinion is whether from the evidence on record it could be ascertained that the unclaimed reliefs had been established and whether the other party had the opportunity to consider matters relating to the grant of such reliefs and therefore would suffer no injustice.
In the case before us the record unfortunately does not include the full proceedings of the trial, probably because the appeal is not against the judgment itself. The record however has the judgment of the trial court. It is part of the findings of the trial court that the 2nd respondent is a trespasser on the disputed land, damages had been awarded against the 2nd respondent for trespass. The respondent had been restrained perpetually from entering the property recovery of possession is the sine qua non to the execution of the decision of the court in the circumstances. There is no surprise to the respondent in view of the orders of the court in the judgment.
If the trial court had adhered its mind to the decisions I have referred to above and considered the factors the Supreme Court considered in allowing reliefs not requested for in a writ of summons and even in cases where counter claims are not part of a defendant’s defence, am sure the ruling would have been different. The ruling which is the subject matter of this appeal was clearly given per incuriam and cannot stand.
This court has the inherent jurisdiction to order an amendment to the plaintiff / appellant’s writ of summons to include the relief of recovery of possession, to make the judgment he obtained from the High Court meaningful.
The appeal I find has merit, it is hereby allowed.
Per Rule 32 of the Court of the Appeal Rules, 1997 C. I. 19, this court has the power to assume the jurisdiction of the trial court to make orders that should have been made by the court below in the appropriate circumstances. Rule 32 (1) reads:
(I ) “The Court shall have power to give any judgment and make any order that ought to have been made, and to take such further or other order as the case may require including any order as to costs.”
We would therefore grant the appellant leave to amend the endorsement on his writ of summons to include the relief of recovery of possession. The Registrar of the High Court to comply
A. M. DORDZIE
(JUSTICE OF APPEAL)