SALIFU NUHU VRS AIR COMMODORE BASIN DANIS DERY (C1/29/2022) [2022] GHACC 358 (9 August 2022)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON TUESDAY, 9TH DAY OF AUGUST 2022 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. SUIT No: C1/29/2022 SALIFU NUHU PLAINTIFF/ RESPONDENT V AIR COMMODORE BASIN DANIS DERY DEFENDANT /APPLICANT RULING On the 29/03/2022 the Defendant/Applicant filed a motion before the court as application to strike out defendant’s name from suit for mis joinder pursuant to order 4 rule 5 (2) (a) of the High Court (Civil Procedure) Rules, 2004 C. I. 47. The applicant deposed to a 9- paragraph affidavit in support and exhibited a deed of lease for the benefit of Bertha and Collins Dery who are wife and child of the applicant as exhibit A. The said application was served on Counsel for the Plaintiff. On the 22nd of April 2022, the Plaintiff /Respondent filed an affidavit in opposition deposed to by the Plaintiff/Respondent himself and two other affidavits deposed by one Samuel Ben and Kingsley Bless Nettey. The first deponent Samuel Benn was sent by the Respondent to send building materials to the site, and he had engagement with the applicant. The second is a member of the Sempe Mensah Family of Ablekuma, the grantors of the Plaintiff/Respondent. The second deponent deposed in paragraph 5 and 6 of the affidavit that the applicant has laid rival claim to the land in dispute and has seen the applicant on several occasions supervising workers and agents to develop the land under the protection of thugs and land guards. On Tuesday, 12th Day of July 2022 Counsel for the Defendant/Applicant moved the application before the Court. Counsel for the Defendant/Applicant moved the motion and in summary submitted that, the plea of the Defendant/Applicant is that the Plaintiff/Respondent suit against him is indeed misdirected, and his joinder is therefore wrongful and therefore his name should be struck out. The submission of counsel is that the applicant is not the rightful person to be sued because the land the subject matter of the suit does not belong to him neither has, he made any claim proprietary or possessory. The submission of counsel is that the land belongs to the applicant’s wife and child called Bertha and Collins Dery and they are the rightful persons to be brought to court. Counsel refereed the court to these authorities: Dadazie II v Arthur & Others J4/20 of 2016 (2017 GHASC) Nkyi XI v Kuma (1959) GLR 28 Onugblo v Odaja (1933) 2 WACA page 24 Counsel for applicant rapping up his submission stated that plaintiff is making a claim against someone who makes no claim to any interest whatsoever and said that it means that plaintiff will be forced to establish title against someone who says I make no adverse claim to the land, judgment cannot be enforced, and it will lead to waste of resources of the court, counsel and a person whose presence is not necessary. Counsel ended his submission by indicating that per the applicant’s paragraph 5, he knows the land but has no dealings with same and pray for the application to be granted. Counsel for the Respondent rose to vehemently oppose the application indicating that they are opposed to the application and said they mounted the action against the defendant as a trespasser unto their land. Counsel submitted that in the circumstance the plaintiff needed to lead credible evidence to illustrate to the court that he owes the land that the defendant and his agents have trespassed on. It was the case of the respondent that their factual depositions in their pleadings which they have repeated in their affidavit in opposition has not been traversed by the applicant. Counsel referred the court to the case of Hammond v Armah & Another (1991) 1 GLR 89. Counsel then submitted that the court should allow the Plaintiff to prove his case and in case the plaintiff is not able to do that the applicant can be adequately compensated with cost. After the submission by counsel for the plaintiff, counsel for applicant indicated that he was no more going to cross examined the two other deponents of the plaintiff/respondent. The application was adjourned for ruling. Per the reliefs of the plaintiff, and this includes declaration of title, Recovery of possession, damages for trespass and most importantly as related to the current application that is relief (d) and for that I will state it extensively. (d) Perpetual Injunction restraining the Defendant and his grantor, whether by themselves, servants, agents, privies whomsoever from entering on and/or encroaching upon the land or doing any works thereon (or a portion thereof) the subject matter of this suit or interfering in any manner with the Plaintiff’s right and ownership of the Land. I must say that the authorities are littered and replete in our jurisprudence that when reliefs include damages for trespass and an order for perpetual injunction, title to land must necessary be determined. See Sagoe and Others v SSNIT (2012) 2 SCGLR 1093, Odonkor and Others v Amartei (1992) 1GLR 577 among others. This means that it does not matter whether or not, as in this case defendant/applicant claims, has not made any claim proprietary/possessory reechoed by counsel for the defendant/applicant over and over in his submission. The plaintiff, from his pleadings has manifestly established, demonstrably overwhelming cause of action against the defendant, to sustain a legal action against him personally in a competent court of law. From the statement of claim of the plaintiff, as he has pleaded in paragraph 12, 13, 14, 15, 18 and 19, the various activities of the plaintiff for which he has brought this action, establishes a cause of action against the defendant. Therefore, from the pleadings and the affidavits before the court, there is no misjoinder with respect to the defendant/applicant. For these pleadings, it does not matter whether the defendant/applicant has made a proprietary/possessory claim against the plaintiff’s land or not as his actions as pleaded indicates a cause of action against him. The plaintiff/respondent in his response to this application filed a sworn affidavit in opposition which he again deposed to various act of the defendant for which he has brought this action against the defendant. The plaintiff/respondent again filed sworn affidavit of two deponents as indicated supra who also deposed to specific activities of the defendant against the plaintiff for which they are witnesses. These affirm the activities of the defendant/applicant and a cause of action against the defendant. It therefore does not lie in the mouth of the defendant/applicant to now come to court and question why he has been brought to court and claim he has not done anything and hence should be unsuit as he has been mis joined, when the plaintiff has meticulously and overwhelmingly demonstrated that he has a cause of action against him. The applicant’s contention that the land belongs to other people and tenders an indenture to that effect and say the suit against him is misdirected and therefore wants the court to strike out his name from suit for misjoinder is untenable. See Nsowaa & 2 Others v Bamba & Anor (2015) 86 GMJ @ 37, Daasebre Asare Baah II & 4 Others v Ag (2010) SCGLR 463. From the records, before the court, the defendant/applicant was served with the affidavit in opposition where various acts of him against the Plaintiff were deposed but till the time the application was moved before the court, the applicant did not file any supplementary affidavit to deny the depositions from the plaintiff/respondent and his witnesses. Therefore, all these affidavit evidence stands firm on the record not traversed, not challenged and same is considered as admitted. See Hammond v Armah & Another (1991) 1 GLR page 89, Fori v Ayirebi (1966) GLR 627, S. C., Quagraine v Adams (1981) GLR 599, CA. The court has considered order 4 rule 5 (2)(a) of CI 47 under which the application was brought as well as order 4 rule 5 (2)(b) of CI 47 and the court is of the opinion that the proper parties are before the court. Any application with respect to joinder when brought before the court will be considered on its merits. The application by defendant/applicant will be dismissed accordingly. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE.