NANA ESSEL AMOQUANDOH III & 2 ORS VS RICHARD KWESI MENSAH & 3 ORS (H1/66/2022) [2023] GHACA 223 (4 May 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: GEORGE KINGSLEY KOOMSON JSC PRESIDING P. BRIGHT MENSAH JA JENNIFER DADZIE JA SUIT NO. H1/66/2022 4TH MAY 2023 BETWEEN: NANA ESSEL AMOQUANDOH III EBUSUAPANYIN KOBINA OKOKYE NANA YAW KWADROMANU II … PLAINTIFFS/RESPONDENTS vs RICHARD KWESI MENSAH KWESI ALHAJI @ CHARLES GRAHAM NII BOKOBOKO SAMUEL BORTEY @ BODY MAN 1 ISSAKA HARUNA … DEFENDANTS/APPELLANTS ========================================================= JUDGMENT ========================================================= BRIGHT MENSAH JA: This is an appeal from the decision of the High Court, Winneba handed down on 13/12/2021 in favour of the plaintiffs/respondents herein, simply referred to in this judgment as the respondents. The judgment of the lower court complained of, appears on pp 552-579 of Vol.2 of the record of appeal [roa]. Being dissatisfied with the judgment, the 2nd-5th defendants/appellants herein presently referred to simply as the appellants, have launched the instant appeal per a notice of appeal filed with this court, on the grounds that: 1. The learned trial judge erred by finding that the land in dispute belongs to Fetteh Kakraba and not Gomoah Fetteh. 2. The learned trial judge erred by coming to the conclusion that although the plaintiffs had failed to identify the land on which the defendants had trespassed their claim ought to succeed. 3. The learned trial judge erred by giving judgment against the 1st defendant when he had not been substituted. 2 4. The judgment is against the weight of the evidence. See: pp 580-581 Vol.2 [roa]. The appellants, by this notice of appeal, pray this court to set aside the judgment of the court below and make any other order that it may deem fit. To appreciate the nature of the case, it is desirable for us to chronicle the events leading to the initiation of the case, the trial and the judgment generally, and the conclusion the lower court reached. The writ of summons: The plaint of the respondents was that the appellants have trespassed unto portions of their family land situate and lying at Gomoa Fetteh Kakraba and operating thereon as land guards, making the respondents’ ownership and control of their family lands unbearable. According to the respondents, the appellants have arrogated to themselves the power to dispose portions of the family lands. All efforts including reports to the Police to stop them have failed. So, they issued a writ of summons in the Winneba High Court claiming the under-listed judicial reliefs against the appellants: i) An order setting aside any purported alienation made to or by the defendants relating to the Gomoa Fetteh Kakraba lands which alienation was made without reference to the plaintiffs. ii) A further order restraining the defendants from having any- thing to do with Gomoa Tetteh Kakraba lands except with the express authority of the plaintiffs. iii) Recovery of possession. 3 iv) Damages for trespass. v) Perpetual injunction restraining the defendants, their agents, assigns, privies and workmen from having anything to do with Gomoa Tetteh Kakraba lands including policing the land and patrolling on same as land guards. See: pp 1-2 Vol.1 [roa] Upon being served with the writ which was accompanied by a statement of claim, the appellants in compliance with the rules of the court entered appearance and subsequently filed a statement of defence denying substantially, the respondents’ claims. See: pp 56- 58 Vol.1 [roa]. Issues set down for hearing: On record, the respondents filed for the consideration of, and determination by the lower court, the following issues: 1. Whether or not the land in dispute belongs to the plaintiffs’ family. 2. Whether or not defendants have any interest in the land in dispute. 3. Whether or not the land in dispute belongs to the Gomoa Fetteh Stool. 4. Any other issues arising out of the pleadings. Judgment of the lower court: At the end of the trial, the lower court delivered its judgment on 13/12/2021 in favour of the respondents which judgment appears on pp 552-579 Vol. 2 [roa]. This is the judgment complained of, the subject of the instant appeal. The lower court after evaluating the evidence, made a finding of fact at p. 510 Vol. 2 [roa] that Fetteh Kakraba belongs to Fetteh Kakraba ie the Royal Essel Amoquandah Twidan 4 family of Gomoa Fetteh Kakraba. Specifically on Issue 1 supra, the lower court held as follows: “From the foregoing, I find that the land in dispute belongs to Fetteh Kakraba and NOT Gomoa Fetteh. I further find that the power and authority to alienate Fetteh Kakraba lands are vested in the Royal Essel Amoquandoh Twidan famukly of Gomoa Fetteh Kakraba headed by the Chief or Odikro and his principal elders.” See: p. 574 Vol. 2 [roa] On Issue 2, the lower court held that the appellants [defendants] do not have any interest in the lands in dispute. See: p. 575 Vol. 2 [roa]. In the final analysis, the court below granted all the reliefs the respondents sought as per their writ of summons except the claim for damages for trespass [relief iv]. Significantly, the lower court relying on the principle so stated in Yormenu v Awute & ors [1987-88] 1 GLR 9 refused to award damages for trespass on the ground that the respondents failed to describe with clarity, the extent of the alleged trespass by the appellants to warrant the court’s intervention to do so. See: p. 577 Vol. 2 [roa]. As recounted supra, it is against the decision of the lower court that the instant appeal has been launched. The appeal: We now proceed to evaluate the evidence the parties led on record and analyze the arguments of Counsel. 5 By a stream of decided cases, the law is certain that an appeal is by way of re-hearing the case. The Court of Appeal Rules, C.I 19 rule 8(1) provides that any appeal to the court shall be by way of re-hearing. The phrase, “an appeal is by way of re-hearing” has received several judicial interpretation in a legion of cases. In Nkrumah v Ataa [1972] 2 GLR 13 Holding 4, for eg., the court emphasized: “Whenever an appeal is said to be ‘by way of re-hearing’ it means no more than that the appellate court is in the same position as if the rehearing were the original hearing, and the appellate court may receive evidence in addition to that before the court below and may review the whole case and not merely the points as to which the appeal is brought, but evidence that was not given before the court below is not generally received.” Re-echoing the principle, the Supreme Court in Akufo-Addo v Catheline [1992] 1 GLR 377 @ 392 stated the law as follows: “It must be pointed out that the phrase does not mean that the parties address the court in the same order as in the court below, or that the witnesses are heard afresh. What it does however indicate is that the appeal is not limited to a consideration whether the misdirection, mis-reception of evidence, or other alleged defect in the trial has taken place, so that a new trial should be ordered. It does also mean, as pointed out by Jessel M.R in Purnell v Great Western Rail Co. [1876] 1 QBD 636 @ 640, C/A that the Court of Appeal is not to be confined only to the points mentioned in the notice of appeal but will consider (so far as may be relevant) the whole of the evidence given in the trial court, and also the whole course of the trial.” [emphasis ours] The settled rule, therefore, is that the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case and the evidence led on record just like a trial court. Where the court below comes to the right conclusion based on the evidence and the law, its judgment is not disturbed. The opposite is equally true 6 and the judgment is upset on appeal where it is unsupportable by the facts and or the evidence. Traditionally, it is a key duty of a trial court to resolve primary issues of fact. The Supreme Court in Quaye v Mariamu [1961] 1 GLR 93 @ 95 in stating that general rule that it is the duty of the trial court to resolve the primary facts, held that once the facts are found, an appellate court is in as good a position as a trial court to draw inferences or conclusions from those facts. The law is also that where the appellate court was obliged to set aside a judgment of a lower court, it must clearly show it in its judgment where the lower court went wrong. We need to reiterate that it is not every error committed by the lower court that attracts the sanctions of the appellate court. For the appellate court to interfere in the judgment of the lower court to set it aside, the error must be so fundamental that goes to the root of the case capable of overturning the judgment. In other words, ordinary error(s) which are at the periphery do not attract sanctions of the appellate court. In summary, therefore, when the appellate court is invited to rehear a case, it exercises the same power as the trial court to review the case as a whole. In exercising that power the appellate court has the jurisdiction as the trial court to make its inferences from the available evidence led on record and to come to its own conclusions. See: rules 31 & 32 of the Court of Appeal Rules, 1997 [C.I 19]. ARGUMENTS OF COUNSEL FOR THE APPELLANTS: 7 In arguing out present appeal, learned Counsel for the appellant submitted that the learned trial judge erred by finding that the land in dispute belongs to Fetteh Kakraba and not Gomoa Fetteh. Canvassing arguments to support that contention, Counsel drew the court’s attention to Exhibits 5, 5a, 5b and 5c being indentures Nana Abor Yamoah II executed to the appellants indicating they covered lands situate at Gomoa Fetteh. Those documents had site plans certified by the Regional Director of Surveys in accordance with Regulations 3(1) of the Survey (Supervision and Approval of Plans) Regulations 1989, L.I 1444, he maintained. Counsel advocated that since those documents were certified and authenticated and or approved with site plans as per Exhibits 5, 5a, 5b and 5c, the location of the lands covered thereby must be deemed to be Gomoa Fetteh and not otherwise. In the light of the lower court’s own finding that the respondents were unable to establish which part of their family lands were trespassed upon, the trial court’s finding that the disputed land belongs to Gomoa Fetteh Kakraba was in error, he added. Counsel next argued that on record Nana Abor Atta II, the occupant of the Gomoa Fetteh Stool who executed Exhibits 5, 5a, 5b and 5c applied to join the suit. However, the lower court refused the application for joinder. In Counsel’s view by refusing to join those who applied to join the suit, the lower court denied them the right to be heard before making a determination against their interest, a Constitutional and inalienable right that cannot be taken away. In support, Counsel relied on R v High Court, Accra Exparte: Salloum (Senyo Coker, Interested Party) [2011] 1 SCGLR 574. Counsel therefore invited the court to allow the appeal on that ground. 2nd ground of appeal: THE LEARNED TRIAL JUDGE ERRED BY COMING TO THE CONCLUSION THAT ALTHOUGH THE PLAINTIFFS HAD FAILED TO IDENTIFY 8 THE LAND ON WHICH THE DEFENDANTS HAD TRESPASSED THEIR CLAIM OUGHT TO SUCCEED. On this ground, Counsel contended that the lower court erred by coming to the conclusion that although the respondents had failed to identify the land on which the appellants had allegedly trespassed, the respondents’ claim nevertheless must succeed. The success of the respondents’ claim, Counsel maintained, flew in the face of the settled principle in Yormenu v Awute & ors [1987-88] 1 GLR 9. Counsel submitted further that since the appellants denied any trespass unto the respondents’ land but insisted that they were in possession of Gomoa Fetteh Stool land and by the respondents’ own admission that they share boundary with Gomoa Fetteh Stool the respondents ought to have established with clarity the portion of their land in possession of the appellants unto which trespass has allegedly been committed. In conclusion, Counsel emphasized that the respondents having failed to prove the alleged trespass and or to prove the identity of the land so trespassed upon, the lower court ought not to have given judgment in favour of the respondents on all the claims. In support, Counsel referred this court to Anane & ors v Donkor & anr [1965] GLR 188. He thus invited this court to allow this other ground of appeal. 3rd ground of appeal: THE LEARNED TRIAL JUDGE ERRED BY GIVING JUDGMENT AGAINST THE 1ST DEFENDANT WHEN HE HAD NOT BEEN SUBSTITUTED It was the argument of Counsel that at the time of the judgment was delivered the 1st defendant had passed on. However, by a terse ruling of the lower court found at p. 549 Vol. 2 [roa] the court had dismissed the application for his substitution, Counsel added. 9 To Counsel, as at 13/12/2021 when the lower court delivered its judgment in the case against all the defendants, it knew that the 1st defendant was dead. That being the case, Counsel opined, the suit and or judgment against the 1st defendant was a nullity. In support, he relied on Ofori v Star Assurance Co. Ltd [2015-2016] 1 SCGLR 339 and this court’s decision in Amora Mumuni (subt’d for Sumani Munje v Aljahi Adamu Iddrisu, Civ. App. H1/262/2004 dated 26/07/2006. 4th ground of appeal: THE JUDGMENT IS AGAINST THE WEIGHT OF EVIDENCE. Under this omnibus ground, it was submitted on behalf of the appellants that there was no evidence on record to support the finding by the lower court that it could be safely concluded that the trespassory conduct of the defendants was not in doubt. There was no basis for that conclusion since the lower court itself had earlier held that the respondents had not been able to establish any trespassory conduct against the appellants. Again, it was argued that since the respondents were unable to describe with clarity the area of the alleged trespass, it could not be said that there was evidence to establish that the indentures the appellants tendered as Exhibit 5 series sought to alienate Gomoa Fetteh Kakraba lands. Finally, Counsel argued that the Cape Coast High Court judgment, Exhibit G the respondents tendered in evidence and on which the lower court heavily relied, gave only one boundary owner as Awutu Bereku. Therefore, in the instant case where the boundary owners are given as three (3) the earlier judgment cannot be said to have established the respondents’ title to the land in the instant case. The earlier Cape Coast High Court judgment could also not create estoppel per rem judicatam because the respondents failed to put in evidence the proceedings in that suit in addition to the 10 judgment as required by law and approved in Appeah v Asamoah [2003-2994] 1 SCGLR 226 @ 229. ARGUMENTS OF COUNSEL FOR THE RESPONDENTS: First, Counsel supported the judgment, submitted that it was unassailable and therefore should not be disturbed. Proceeding further, he took issue with the notice of appeal filed in the case. He contended that if it was the case that the 1st defendant was dead then the deceased person could not have offered instructions to Counsel to have filed the notice of appeal on behalf of all the defendants including the 1st defendant. Next, Counsel submitted that the various judgments of the High Court and the evidence on record showed that the disputed land belonged to the respondents’ family to the knowledge of the Fetteh Stool. Witnesses in the case admitted that pursuant to the Cape Coast High Court judgment a writ of possession was executed, Counsel added. On the joinder application, Counsel did argue that the lower court did not allow the joinder of the Fetteh Stool because the present suit was about Gomoa Fetteh Kakraba Stool land and not Gomoa Fetteh lands. In Counsel’s opinion, the application for joinder was meant to re-litigate the issue contrary to the Cape Coast judgment. Arguing in response to the 2nd ground of appeal, Counsel submitted that the land in dispute was known to the parties and therefore, was not in issue. In support, he relied on the case, Anyetey Chantey v Tei Kwablah Kwabiah Kweinor, Suit No. J4/25/2019 [2020] Unreported SC 19 (20th May 2020). 11 On the 3rd ground of appeal, Counsel submitted that the appellants had failed to demonstrate with ample evidence that indeed the judgment was against the weight of evidence. In support, Counsel referred us to a number of cases including Djin v Musah Baako [2007-2008] 1 SCGLR per the dictum of Ahinakwa JSC. Counsel further referred us to Koglex Ltd (No.2) v Field (2000) SCGLR 175 which lays down the principle upon which an appellate court will set aside findings of fact by a trial court. He concluded that the evidence on record supports the judgment of the lower court therefore, it should be affirmed. Legal analysis & opinion of this court: We have critically read and evaluated the evidence led on record, the judgment of the lower court as well as the written submissions of the lawyers for the parties. To begin with, we are persuaded by the available evidence on record to hold that the instant appeal is properly laid before this court. Per the notice of appeal filed with this court and which appears on pp 580-581 Vol.2 [roa] it is plainly clear that the appeal was mounted on behalf of the 2nd – 6th defendants. That settles the argument that the 1st defendant, now deceased could not have given instructions for an appeal to be launched on his behalf. From the available evidence and guided by well settled principles of law, it is not difficult to find that the impugned judgment is fraught with errors both on the facts and the law. It goes without saying, therefore, that it is liable to be set aside on appeal. First, it is particularly important to point out that the trial court rightly, in our view, dismissed the respondents’ claim for damages for trespass because they were unable to establish with clarity, the portion(s) of the disputed land the appellants had allegedly 12 trespassed unto. We only cross swords with the learned trial judge when regardless, held that the respondents led sufficient evidence to establish their claim save the claim for damages. The claim for damages for trespass: Admittedly, the respondents tendered in evidence some judgments of the High Court and also named the number of communities that form part of their family lands. However, the evidence the respondents led was imprecise as regards portion(s) of the land, the subject matter of the instant suit the appellants laid claim to, and exactly where the appellants had allegedly trespassed unto, as the trial court itself found. It is trite learning that the court would not grant a declaration for title to land, damages for trespass; recovery of possession and or for a perpetual injunction when the land, the subject matter of the dispute has not been sufficiently identified or described with clarity or the portion(s) allegedly trespassed unto has not been sufficiently established. It is worth re-echoing the principle of law this court stated in Yormenu v Awutey & ors [1987- 88] 1 GLR 9 Holding 2 as follows: “The plaintiff’s claim was founded in trespass which was in law a violation of his possessory rights. And since he had admitted that the defendants had land adjoining his, in order to succeed it was necessary to have described the trespassed area in his possession with clarity.” [emphasis added] Trespass simply refers to the physical interference with the property of an owner. In Property Law, trespass may be said to have been committed when specific acts as taking possession of a piece or parcel of land and or dealing with it without the express authority of the land owner. Put differently, it is when a party is said to have taken possession of 13 an identified piece of land and dealt with it inconsistent with the right of ownership or quiet enjoyment of the landowner. See: Ani & ors v Amoh [1959] GLR 214 @ 216. See also: Ngmati v Adetsia & ors [1959] GLR 323. Now, having regard to the finding of fact of the lower court in the instant appeal that the respondents were unable to establish with clarity the extent of the trespass, we do roundly agree with the submissions of learned Counsel for the appellants that the trial court erred in law when it granted the first relief of the respondents for an order to set aside any purported alienation allegedly made to or by the appellants. There is no clear evidence as to which portions of the disputed land the appellants have allegedly alienated to third parties. The claim for recovery possession: Next, it is worth observing that the lower court equally granted the respondents’ claim for recovery of possession in the face of the trial court’s own finding of fact that the claim for trespass was unsustainable. The law is certain that an action for recovery of possession must fail unless the identity of the land, the subject matter of the dispute was established with certainty. The case, Darko v Affrim & ors [1966] GLR 36 illustrates the principle that in a claim for, inter alia, a recovery of possession, a party cannot succeed without a clear proof of the identity of the land to which the court may find had been trespassed upon. Insofar as the lower court found that the area the appellants were alleged to have trespassed unto and or in their possession was unidentified, by parity of reasoning, the appellants’ alleged possession of the disputed land was unidentified. Therefore, the order for recovery of possession in the instant case was unwarranted and unsustainable in law. The courts of law are not required to make orders that are brutum fulmen and 14 which cannot be enforced. Rather, the orders must be clear and unambiguous so as to be enforced against the affected party without any legal constraints and or difficulty. See: Dakar Ltd v Industrial Chemical & Pharmaceutical Co. Ltd [1981] GLR 453. At the risk of sounding repetitive, it is important to stress that there cannot be an order for recovery of possession when the land, the subject matter of the suit or the area allegedly trespassed upon has not been identified with any clarity. The enforcement of the order of recovery of possession in our present case in terms of the execution of any writ of possession pursuant to the judgment shall be problematic having regard to the lack of clarity of the identity of the portion(s) of the land allegedly trespassed upon. Once the respondents in the instant appeal were given a recovery of possession to enforce the judgment of the court, they were required to strictly observe and comply with the provisions of law as captured under Order 43 r 3 of the High Court [Civil Procedure] Rules, 2004 [CI 47]. That rule of procedure with the sub-title “Enforcement of judgment for possession of immovable property” stipulates: “(1) Subject to these rules, a judgment or order for the recovery of possession of immovable property may be enforced by one or more of the following means (a) A writ of possession; (b) In a case in which rule 5 applies, an order of committal or a writ of sequestration. (2) A writ of possession to enforce a judgment or order for the recovery of possession of immovable property shall not be issued 15 without leave of court of the court except where the judgment order was given or made in a mortgage action to which Order 56 applies. (3) The leave shall not be granted unless it is shown that every person in actual possession of the whole or any part of the immov- able property has received such notice of the proceedings as appears to the court sufficient to enable the person apply to the court for any relief to which the person may be entitled. (4) A writ of possession may include provision for enforcing the payment of any money adjudged or ordered to be paid by the judgment or order which is to be enforced by the writ.” [emphasis underscored] The Supreme Court has strongly deprecated against this kind of judicial practice where a writ of possession enforcing an order for recovery of possession was issued but there is the lack of clear identity of the disputed land. See: Nene Narh Matti & 2 ors; Oyartey v Yete (Consolidated) [2017-2018] SCLRG 746 @ 773 per Dotse JSC The grant of perpetual injunction: 16 We think that the lower court committed an error of law in granting a perpetual injunction against the appellants on ground of the failure of the respondents to describe the portion of land, the subject matter of the suit allegedly trespassed upon. For the law is that a claim for declaration of title or an order for injunction must always fail if the plaintiff fails to establish positively the identity of the land claimed with the land the subject matter of his suit. See: Anane & ors v Donkor & anr [1965] GLR 188 SC. At the risk of sounding repetitive, the lower court granted perpetual injunction when it had earlier on refused an application for joinder by the grantors of the appellants. The effect of the grant of the order for perpetual injunction is that the order shall bind non- parties to the suit but who had not been given the opportunity to be heard, in violation of the audi alteram partem rule. See: In Re Ashaley Botwe Lands: Adjetey Agbosu & ors v Kotey & ors [2003-2004] SCGLR 420. Declaration of title: It is also material to point out that in our present case, although the respondents never asked for a declaration of title to the disputed land, the lower court nevertheless made certain pronouncements that clearly decreed title of the land in the respondents. See: for eg. p. 571; pp 573-574 Vol. 2 [roa]. It is arguable whether the lower court could suo motu grant a declaration of title when the respondents per their writ of summons had not sought such relief. We are not unmindful of such cases as Hanna Assi (No. 2) v GIHOC (No. 2) [2007-08] 1 SCGLR 16 and Miller v Home Finance Co. Ltd [2012] 2 SCGLR 1234 that seek to establish that the court could go ahead to enter judgment for a relief not sought for but where evidence has been led on it. It bears stressing, however, that there are recent decisions from the Supreme Court such as R v High Court, Accra; Exparte Finali Ltd & ors (Civ. Motion No. J5/1/2016 dated 17 30/11/2016 SC and Empire Builders Ltd v Top Kings Ent. & 4 ors (Civ. App. No. J4/10/2019 dated 16/12/2020 that seem to depart from earlier position of the court held in Hanna Assi (No. 2) v GIHOC (No. 2) [supra]. Significantly, in Empire Builders Ltd v Top Kings J Enterprise Ltd & 4 ors [supra] the records show that the appellant in that case had applied for leave to amend its writ of summons after judgment to include the relief for recovery of possession. However, for unexplained reasons the appellant never took the procedural steps to amend the writ. The Supreme Court in unanimity speaking through Tanko Amadu JSC stated the rule as follows: “……………..Since the appellant failed to amend its reliefs by the inclusion of a relief for possession after it had obtained leave to do so, the leave granted thus became void ipso facto and there was therefore no claim for possession to enable the trial judge make any order for possession. The order for possession is therefore null and void and thereby nullified.” The Court of Appeal has equally deprecated the judicial practice where the court suo motu decreed title in a party when the relief was not sought for. See: Dzaba III v Tumfuor [1978] GLR 18 and Boateng v Dwinfour [1979] GLR 360. Significantly, this court has propounded the law in Dzotepe v Hahormene II & ors [1984- 86] 1 GLR 289 @ 292 that the court would not grant order for writ of possession to issue unless same was expressly sought for as a relief and or granted by the court in the substantive suit. 18 In the light of the above stated settled legal principles, we think that it was unjustifiable for the lower court to have decreed title in the respondent in absence of a specific claim for a declaration of title to the disputed land. Suffice is to say that the declaration by the lower court flies in the face of settled principles of law. Furthermore, we hold that the lower court erred in law when it did grant almost all the reliefs the respondents sought per their writ of summons. In the result, we allow this ground of appeal. We now turn our attention to the 3rd ground of appeal. 3rd ground of appeal: THE LEARNED TRIAL JUDGE ERRED BY GIVING JUDGMENT AGAINST THE 1ST DEFENDANT WHEN HE HAD NOT BEEN SUBSTITUTED. On record, the lower court’s attention was drawn to the death of the 1st defendant in the course of the trial of the case. That was by way of an application for substitution filed with the court on 19/11/2021. See: pp 542-548 Vol. 2 [roa]. Although there is nothing on record to show that the respondents opposed the application by filing an affidavit in opposition, neither was the application opposed on legal grounds by Counsel, the lower court nevertheless dismissed the application simpliciter without assigning any reason whatsoever for the dismissal. See: pp 548-549 Vol. 2 [roa]. Admittedly, there are no binding precedents in exercise of judicial discretion as each case is decided on its own merit provided the judge or judicial officer took into consideration, all the necessary facts and circumstances of the case; the judge or the judicial officer was not biased or capricious or that he did not take into account, extraneous matters. See: Agyeman v Ghana Rly & Ports Auth. (1969) CC 60 C/A. 19 However, we find the exercise of the discretion by the lower court in the instant case dismissing the application for substitution as totally unsatisfactorily when there was the prima facie evidence that the 1st defendant was dead at the time and when the court was yet to deliver its judgment in the case. Once there was that evidence to show the 1st defendant was dead, the trial court ought to have allowed the application for substitution however late that might be or at that stage of the trial. Ordinarily, an appellate court will not interfere with the exercise of trial court’s discretion save 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 unapproved or omitted to take relevant matters into account. See: Adjetey Agbosu v E.N. Kotey [2006] 2 MLRG 111 @ 122 [Holding 2]. The Supreme Court had much earlier echoed the principle that it was a rule of law deep rooted and well-established that the appellate court will only interfere in the exercise of a court’s discretion in exceptional circumstances. See: Nartey Tokoli v Valco [No.3] [1989-90] 2 GLR 530. Given the facts in the present case, it cannot be over-emphasized that the lower court did not properly exercise its judicial discretion when it dismissed the application for substitution of the 1st defendant who was deceased at the time and worse still, offering no reason for it. Refusal of application for joinder: It has to be reiterated also that the lower court had remarked in its judgment as appearing on p. 570 Vol. 2 [roa] that a key person such as Ebusuapanyin Kojo Yamoah the court identified as one of the custodians of Gomoa Fetteh land chickened out when his attempt 20 to overturn the decision in the earlier case in suit No. E1/36/2010 Nana Essel Amonquandoh & 1 or v Mark Asare & 7 ors failed and was nowhere near the instant case. In other words, the said Ebusuapanyin Kojo Yamoah stood by and watched on without participating in the trial. It is ironic, however, to observe that the same trial court had earlier on dismissed an application by representatives of the Gomoa Fetteh stool to join the suit as defendants. It is on record that it was filed with the lower court on 25/06/2020, an application for joinder by some applicants named therein as Nana Obirikafo Gyebu II, Nana Kow Obrenu II, Nana Kofi Ansah who claimed as per their affidavit in support of the application that the land, the subject matter in dispute forms part of the Gomoa Fetteh Stool and thus, have interest in the subject to project. The penultimate averments deposed therein which are relevant for our consideration are reproduced here below for purpose of clarity. The said paragraphs read: “5. That the 1st applicant’s attention has been drawn to the instant suit involving a parcel of land which forms part of a larger parcel of land situate, lying and being at Gomoa Fetteh. Please see Exhibits “1” and “1a” being two judgment plans which were litigated upon by the occupant of the Gomoa Fetteh Stool. 6 That the other applicants also have their lands situate at Gomoa Fetteh, the subject matter of this suit whose Director is the 1st defend- ant herein who had been wrongly sued. Please see Exhibits “2”,3” “4”, “5”, “6” and “7” attached. 7. That since the land in dispute being claimed by the plaintiffs falls 21 within the applicant’s stool land, any decision of the court would affect the interest of all the applicants, it would be prudent to join the applicants to protect the interest. 8. That to avoid a multiplicity of suits and for issues in controversy to be effectively and effectually determined and also to protect the interest of the applicants land, it would be proper and just to join the applicants as 7th, 8th, 9, 10th, 11th, 12th and 13th defendants in this suit.” The 1st applicant had deposed in the said affidavit in support of the application that he is the chief of Gomoa Fetteh, claiming that Gomoa Fetteh as the allodial owners of Gomoa Fetteh Stool, part of which the Stool had granted to the defendants in the case. See: pp 293-344 Vol.2 [roa] It needs reiterating that the application was vehemently opposed. In an affidavit in opposition deposed to by Counsel for the respondents that appears on pp 345-347 Vol. 2 [roa] it was averred, inter alia, that the plaintiff [sic] – it appears the deponent meant the 1st applicant], is not a chief of Gomoa Fetteh and has no capacity to join the present suit in the said capacity. It was averred to in paragraph 10 thereof that the Fetteh stool has no control over Gomoa Fetteh Kakraba lands which is the land, the subject matter in dispute. It was also specifically averred to in paragraph 14 of the affidavit in opposition that Gomoa Fetteh Kakraba lands belong to the plaintiffs’ family which lands are distinct from Gomoa Fetteh lands. Additionally, it was deposed to in paragraph 17 that the 1st defendant claimed he represents the interest of the alleged companies in the suit and for that matter joining the applicants in the suit would cause unnecessary delay of the trial. To the deponent of the affidavit, the presence of the applicants was not necessary to the 22 final determination of the suit and that the application was most unnecessary, an abuse of judicial process and so, the application must be dismissed. The lower court after hearing both lawyers on the application proceeded to dismiss, and indeed dismissed the application for joinder. See: pp 417-424 Vol. 2 [roa]. The basis for the dismissal/refusal of the joinder application was that the applicants had failed to convince the lower court to exercise its discretion in their favour. The applicants also never made any evidence available to show that they had interest in the disputed land. In the result, the court ruled that the applicants were not parties whose presence before it was necessary to effectively and completely determine and adjudicate upon the suit the respondents mounted against the appellants. Having regard to the dismissal/refusal of the joinder application by the representatives of Stool of Gomoa Fetteh, we think that the learned trial judge’s remarks in his judgment that those stool elders “chickened out and were nowhere near the instant case” was absolutely unnecessary, with due deference. Meantime, the respondents in answers to questions under cross-examination had even admitted they share boundary with lands belonging to the Gomoa Fetteh Stool. We reproduce here below an interaction between the witness for the respondents and Counsel for the appellants in cross-examination that appears on p. 476 Vol. 2 [roa]. “Q. The land you claim to be your family land; that it has boundaries on two sides, three sides or four sides. A. We share boundaries with Awutu Breku, Gomoa Fetteh and Buduburam. Q. You have three boundary neighbours, not so. A. That is so. 23 x x x x Q. I am suggesting to you that the High Court judgment you are relying on as Exhibit “G” did not determine your land or your family’s land in relation to other boundary neighbours apart from Awutu Breku. A. That is correct. We share boundary with Gomoa Fetteh and Buduburam as well.” [emphasis underscored] Besides, the respondents had challenged the grant of the land by the applicants in the joinder application to the 1st defendant [now deceased] in terms of execution of deeds of indenture in Exhibits 5 series. In the light of the clear evidence that established that the respondents do share common boundary with the appellants’ grantors and the grant of the land in Exhibits 5 series which land, the respondents claimed belonged to them, the lower court’s refusal/dismissal of the joinder application was clearly against settled principles of law. Additionally, the refusal/dismissal was in clear violation of Order 4 r 5(b) of the High Court (Civil Procedure) Rules, 2004 [C.I 47]. To begin with, it is provided in Order 4 r 5(2)(b) of the High Court [Civil Procedure] Rules, 2004 [CI 47], the fulcrum of the instant appeal that: “(2) At any stage of proceedings the court may on such terms 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.” 24 It is instructive to note that there was such a similar provision in the old rules, the High Court (Civil Procedure) Rules, 1954 LN140A. It was provided in Order 16 r 11 in part as follows: “The court or a judge may, at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the court or a judge to be just, order that the names of any parties improperly joined, whether as plaintiffs or as defendant be struck out and that the names of any parties, whether plaintiff or defendant who ought to have been joined, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter, be added.” The overriding theme running through both rules of procedure herein referred to, is that the presence of the person sought to be joined is to ensure that all “matters in dispute” are effectively and completely determined and adjudicated upon by the court. Much judicial ink has been spelt on the subject matter. Judges have differed in opinion as regards the grounds for joining a person whose presence is necessary for the effectual determination of a matter. By a stream of decided cases, 2 concepts lend themselves to critical scrutiny and analysis. There appears to be two views holding sway. Whilst one school of thought is for a narrow view, another school takes a wider position. Such cases as: (i) Appenteng v Bank of West Africa Ltd. (1961) GLR 81; 25 (ii) Bonsu v Bonsu (1971) 2 GLR 242; and (iii) Zakari v Pan American Airways (1982-83) GLR 975 illustrate the narrow view. In analyzing what constitutes the test for joinder, Ollennu, J (as he then was) postulated in Appenteng v Bank of West Africa [supra] @ 82 as follows: “In an application for joinder, the most important question which the court has to answer is: would the joinder of the party enable the court effectually 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.” His Lordship then proceeded to give some general guidelines. According to Ollennu, J, the court must first of all, look at the plaintiff’s writ, his pleadings and the reliefs sought: if the Plaintiff makes no claim either directly or inferentially against the party sought to be joined, or if the claim could succeed without the party sought to be joined being made a party the application must be refused. In Zakari v Pan American Airways Inc. (supra), Wiredu, J. (as he then was) also after stating the general rule, added yet another test. He held in holding 2 as follows: “Another test would be whether the order if granted would raise any triable issue between the plaintiff and the party sought to be joined. If not, the only proper order to make was to refuse the joinder where the application was by the defendant under Order 16 r 11.” 26 Applying the test to the case, the learned trial judge held that since the Plaintiff was making no claim against the party to be joined, any order made in favour of the Plaintiff on his writ would not affect the legal rights of the party. Now, falling under the wider view are cases like: (i) Ussher v Darko (1977) 1GLR 476 C/A and (ii) Coleman v Shang (1959) GLR 389 . In Ussher v Darko (supra), the Court of Appeal per Apaloo JA (as he then was) stated that there were no such fixed rules for a joinder of a party. It held in Holding 1: “The jurisdiction of a court to join a party to an action to avoid multiplicity of suits under Order 16 r 11 might be exercised at any stage of the proceeding, so long as anything remained to be done in the action …………………………………………………………… Whether the application should be acceded to or denied, was a matter for the exercise of the trial judge’s discretion and save that such discretion must be exercised judicially and in a manner con- formable with justice, no fixed rules existed as to when and how it should be exercised.” [emphasis underscored] In an article, TEST FOR JOINDER UNDER ORDER 16 r 11(under LN 140A) published in the August 1972 Vol. IV No. 2 of the Review of Ghana Law the learned author, E.D. Kom (now of blessed memory) postulated that the best approach to an application for joinder is to adopt the wider test laid down by Denning MR in Gurtner v Circuit (1968) 2 QB 587 C/A. The test as appearing at p. 598 of the Law Report read as follows: 27 “When two parties are in dispute in an action at law, and the determination of that dispute will directly affect a third person in his legal rights or his pocket, in that he will be bound to foot the bill, then the court in its discretion may allow him to be added as a party on such terms as it thinks fit. By so doing, the court achieves the object of the rule. It enables all matters in dispute to ‘be effectually and completely determined and adjudicated upon’ between all those directly concerned in the outcome.” The learned author expressed the view that if that English authority had been cited to Taylor J. when dealing with the application in Bonsu v Bonsu (supra) His Lordship would not probably have adopted the “Devlin test” as laid down by Devlin J in Amon v Raphel Tuck & Sons Ltd (1956) 1 All ER 273 @ 290 which test has then been disapproved as being too narrow a rule of construction of the rule. From the above discourse, it is plain that whereas the wider school of thought advocates that the court has the unfettered discretion in the matter and that the judge’s discretion ought to be exercised in a manner which conforms to justice and for the court not to pay obeisance to any fixed rule of thumb, the narrow school of thought, on the other hand, postulates that there should be a demonstration that the order for the joinder if granted should raise issues to be tried between the applicant and the party sought to be joined. With this legal criteria in mind, we now examine whether the lower court properly exercised its judicial discretion when in the face of the affidavit evidence put before it, dismissed the application for joinder. 28 Now, applying the litmus test that a necessary party’s presence in the trial is indispensable to an adjudication of a case to the instant suit, we hold the respectful view that the grantors of the appellants [the applicants in the joinder application] were necessary parties, having regard to the facts of the case and the evidence on record. The respondents had admitted that the appellants’ grantors are their boundary owners. The appellants’ grantors executed Exhibits 5 series in their favour that the respondents claim covered part of the disputed land. That being the case, the refusal/dismissal of the application for joinder was a gross miscarriage of justice to the appellants as well as the applicants in the joinder application. We think the application ought to have been granted. In coming to the conclusion that the joinder application ought to have been granted, we find as a useful guide, the dictum of Ampiah JSC in Sam (No. 1) v Attorney-General [2000] SCGLR 102 in which case His Lordship is credited with that statement of law that runs as follows: “Generally speaking, the court will make all such changes in respect of parties as may be necessary to enable adjudication to be made concerning all matters in dispute. In other words, the court may add all persons whose presence before the court is necessary in order to enable it effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter before it. The purpose of joinder, therefore, is to enable all matters in controversy to be completely and effectually determined once and for all. But this would depend upon the issue before the court, ie the nature of the claim.” In conclusion, we emphasize that C.I 47, Order 4 r 5(2) (b) gives the judge, judicial discretion in any given case to join any person whose presence before the court is necessary to enable the court to dispose of effectually and completely, all matters in controversy in the matter. That opportunity was lost in the instant appeal with the 29 refusal/dismissal of the appellants’ grantors application for joinder, thus causing a gross miscarriage of justice to the appellants. The appeal therefore succeeds on this ground also. We now move to another important segment of the case. That is to say, the effect of the judgments tendered in the case. From the available evidence, it does appear that the lower court was very much preoccupied with the judgments of Justices Dennis Adjei and Anthony Yeboah the respondents tendered, and over relied on them to decree title to the disputed land in the respondents. Undoubtedly, the said judgments were delivered by courts of competent jurisdiction. On general, principle such judgments may be used in proof of a relevant fact without necessarily raising the issue of estoppel res judicata. For, the law does not prevent a judgment from being used as a relevant fact from which the court may draw a conclusion in favour of the person who tendered it though not used as an estoppel. See: Nana Akoto v Nana Kwesi Agyeman [1962] 1 GLR 524 SC @ 529. With those two (2) judgments coming from courts of co-ordinate jurisdiction, the lower court in the present suit ought to have, however, gone beyond them to properly evaluate the whole evidence led on record to satisfy itself that the respondents had indeed satisfied the threshold of proving the identity of the land claimed; proof of root of title; proof of mode of acquisition; and proof of acts of ownership and possession, more particularly the precise area allegedly trespassed upon. See: Mondial Veneer (Gh) Ltd v Amuah Gyebu XV [2011] 1 SCGLR 466. We think that was insufficiently done in the instant appeal. In the circumstance, we allow this other ground of appeal. 30 At this stage, from the summary of the rival cases of the parties and having regard to the applicable principles of law discussed supra, we think we have sufficiently addressed all the salient issues raised in the instant appeal, capable of disposing of the appeal. In the result, we do not find it necessary to consider any other ground of appeal that may be outstanding. It suffices to state that any other outstanding ground of appeal is at the periphery. Overall, we hold that the appellants had made a case strong enough to compel this court to interfere with the judgment of the lower court. For the reasons so copiously outlined supra, our conclusion is that the appeal succeeds in its entirety. By the powers conferred on this court by rule 32(1) of the Court of Appeal Rules, 1997 [C.I19], we hereby set aside the judgment of the lower court and dismiss all the claims of the respondents endorsed on their writ of summons. Appellants’ costs assessed at Ghc20,000 sgd P. BRIGHT MENSAH (JUSTICE OF APPEAL) sgd I agree GEORGE K. KOOMSON (JUSTICE OF SUPREME COURT) 31 sgd I also agree JENNIFER DADZIE (JUSTICE OF APPEAL) COUNSEL S. K. AMOAH FOR 2ND TO 6TH APPELLANT ROLAND ATAK K. HAMMOND FOR DEFENDANT/RESPONDENT 32