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KOJO ATTA
V.
KWAKU APAWU AND OTHERS
WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
19TH DAY OF MAY, 1941
2PLR/1941/47 (WACA)
OTHER CITATION(S)
2PLR/1941/47 (WACA)
(1941) VII WACA PP. 75 – 77
LEX (1941) – VII WACA PP. 75 – 77
BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN:
KOJO ATTA ALIAS TANDOH IV ODIKRO OF DAHIA – Plaintiff-Respondent
AND
KWAKU APAWU OF PATASSI AND SAFUHENE KOFI ANNOBIL OF OHIAW – Defendants
NANA AMANFI III, OMANHENE OF ASEBU AS REPRESENTING THE STOOL OF ASEBU – Co-Defendant-Appellants
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REPRESENTATION
D. M. Abadoo with J. W. de Graft Johnson — for Appellants
J. T. Sackeyfio — for Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW — LAND:- Damages awarded for Trespass on alleged Stool Property — Original Plaintiff, swing as Odikro of Dahia, died — Present Plaintiff substituted as Odikro — Court below found Plaintiff was not Odikro — No appeal on this point — Court below satisfied that trespass committed against Plaintiff but not in representative capacity — How treated
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PRACTICE AND PROCEDURE ISSUE(S)
PLEADINGS:- — Writ of Summons not amended as to Plaintiff’s capacity — Where no application for amendment made in Court below but made informally at hearing to Appeal Court — Legal effect
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (allowing the appeal):
1. Appeal Court has power to amend in proper case but here it is considered the proper course to send case back to Commissioner’s Court to make necessary amendment if no injustice caused thereby.
2. Question of expense in calling evidence as to whether plaintiff was or was not Odikro should not of itself be a bar as defendants can be compensated in awarding of costs.
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MAIN JUDGMENT
The following joint judgment was delivered:-
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL C.J., SIERRA LEONE.
This is an appeal from the judgment of the Provincial Commissioner’s Court, Cape Coast. There are several grounds of appeal but we found no substance in any of them except Ground 1(b) which is in the following terms:
“The learned Provincial Commissioner misdirected himself on the point as to how far the respondent could recover damages for an alleged trespass on a farm alleged to have been made on an alleged Stool Property of Dahia, the Court having come to the conclusion that both Nketia and the respondent (who was substituted for Nketsia) were not Odikroe of Dahia.”
The facts material to this ground may be quite shortly stated. The claim in the suit was for £100 damages for trespass committed on land known as “Agyinfra Land” and for an injunction. The suit was originally taken by Kobina Nketsia as Odikro of Dahia. Kobina Nketsia died after the issue of the Writ of Summons and the present plaintiff-respondent on his own application was substituted as plaintiff as Odikro of Dahia. His application was supported by his affidavit deposing that Kobina Nketsia had died and that he, the plaintiff-respondent, had been appointed as Odikro of Dahia in succession to Kobina Nketsia.
The defendants’ case in the Court below was that the plaintiff-respondent was not the Odikro of Dahia and that in any event there had been no trespass as the alleged acts of trespass took place on the defendants’ land.
Upon the first point, the Court below found that the plaintiff was not Odikro of Dahia and there is no appeal before us on that finding. The Court below however investigated very fully the facts as to the trespass, visited the land and inspected the scene of the alleged trespass. The final judgment of the Court below after finding that the plaintiff was not Odikro of Dahia proceeded as follows:-
“I am satisfied that the 2nd defendant, Annebill, committed trespass on the land in the occupation of the plaintiff and that the 1st defendant Apawu, actively assisted in this.
“On the question of damages, since I have ruled already that the plaintiff is not the Odikro of Dahia he can only be regarded as suing for himself and not in a representative capacity for other people. The damage done to his property is estimated by the plaintiff at £35 and I award that amount to him as damages. Further, the injunction applied for is granted. The plaintiff is also awarded costs, such costs to be taxed.”
It is quite clear that the Court below could not give judgment in favour of the plaintiff “as suing for himself and not in a representative capacity” unless and until the Writ of Summons had been amended so as to alter the capacity in which the plaintiff sued.
Having come to the conclusion that the plaintiff was suing in the wrong capacity but that he had made out a case in another capacity it would in our opinion have been quite proper for the Court below to make the necessary amendment to the Writ of Summons provided the Court was satisfied that such amendment could be made at that stage of the proceedings without injustice to the defendants. Before making that amendment the Court below would have to give the defendants the opportunity of being heard on the question whether making the amendment at that stage would involve injustice to them.
The necessary amendment was not made in the Court below, nor was any application made by the plaintiff in the Court below.
No doubt we have power in a proper case to make such an amendment but we consider that the proper course is to send the case back to the Commissioner who tried the case in the Court below to make the necessary amendment if after hearing parties on the question it appears to him that no injustice to the defendants would be involved.
It is clear from the record that a considerable amount of the evidence was directed to the question whether the plaintiff was or was not Odikro of Dahia. If the plaintiff had from the outset sued in the correct capacity it would have been unnecessary for the defendants to have called evidence to show that the plaintiff was not Odikro of Dahia but the defendants can be compensated for that extra trouble and expense in the awarding of costs by the Court below and that extra trouble and expense ought not therefore of itself to be regarded as an injustice preventing the making of the amendment.
The appeal is therefore allowed and it is ordered that the judgment of the Court below be set aside including the order as to costs which if paid must be refunded. The case is sent back to the Commissioner who tried the case for him to hear parties on the question which we have indicated. If the Commissioner comes to the conclusion that the amendment can be made without injustice to the defendants he may make the amendment and give judgment on the writ as amended on such terms as to costs as he may think fit. If the Commissioner decides to make the amendment and the defendants satisfy the Commissioner that if the Writ originally had been in the amended form they could and would, because of the difference in the capacity in which the plaintiff sued, have called additional evidence, opportunity should be given to the defendants to call such additional evidence and for parties to be heard upon the effect of such additional evidence. If the Commissioner comes to the conclusion that the amendment cannot be allowed at this stage without injustice to the defendants the claim must be dismissed.
The defendants are awarded the costs of this appeal assessed at £44 5s 0d.
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