Torkornoo vrs The chief executive Tema development corporation And Another (H1/119/0) [2008] GHACA 33 (20 March 2008);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL - A C C R A
CORAM: MRS. ABBAN, JA [PRESIDING]
KANYOKE, JA
BAFFOE-BONNIE, JA
H1/119/06
THURSDAY 20TH MARCH, 2008
DAVID TORKORNOO … PLAINTIFF/RESPONDENT
V E R S U S
1. THE CHIEF EXECUTIVE
TEMA DEVELOPMENT CORPORATION
2. GEORGE YAO BOTCHWAY … DEFENDANT/APPELLANT
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J U D G M E N T
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KANYOKE, JA:- This is an appeal by the 2nd defendant/appellant [hereinafter referred to as the appellant] against the judgment of the High Court, Tema dated the 31st day of July 2002, in which it was adjudged inter alia that one Madam Teresia Tamakloe is the owner of Plot No F. 50 Tema. The appellant being aggrieved by that judgment filed an appeal against the said judgment on the 1st day of October 2002 on seven grounds of appeal. However on the 15th January 2007, in pursuance of leave granted by this court the appellant filed three additional grounds of appeal. But in his written address filed on the 20th February 2007 learned counsel for the appellant argued only the additional grounds of appeal and abandoned the original grounds of appeal. The additional grounds of appeal read as follows:
“(1) The learned trial judge erred in failing to consider the lack of capacity on
the part of the plaintiff to commence the action.
(2) The learned trial judge erred in relying on the report tendered in evidence as
Exhibit C1 in arriving at her conclusion of the matter.
(3) The judgment is against the weight of evidence.”
I shall return to these grounds of appeal later on in the judgment but for the mean time the facts of the case culminating in the commencement of the action and this appeal:
On the 16th day of December 1974 one Madam Teresia Tamakloe was allocated Plot No.E. 150 now known as Plot No. F. 50 by the Tema Development Corporation (TDC).
Before then the Ashiaman Mantse had in December 1974 executed a document [Exhibit B] in respect of the disputed plot in favour of Madam Teresia Tamakloe. Exhibit B was endorsed by the Paramount Chief of Tema.
On the basis of Exhibit B the T.D.C. on 25th September 1975 by a letter [Exhibit C] dated 29th September 1975 offered to grant a lease of the said Plot to Madam Tamakloe on conditions for a term of sixty years renewalable for another thirty [30] years. On 12th November 1975 Madam Tamakloe wrote a letter [Exhibit G] accepting the offer for the Lease on the prescribed conditions and terms. It is averred that after meeting all the conditions in the offer letter Madam Teresia Tamakloe took physical possession of the disputed plot by not only obtaining a building permit [Exhibit H] but also causing to be deposited on the said plot two trips of sand, four trips of stones and 800 4” blocks. She also cleared the plot and excavated and erected a cement platform for the construction works.
Madam Tamakloe seems not to have proceeded to commence the building immediately: However some where in 1991 she discovered that the appellant had trespassed onto the plot, destroyed the excavations, and the platform and started to build and continued to build to completion a chamber and a hall which he rented out to a tenant. The appellant also erected a kiosk on Madam Tamakloe’s platform and also rented it out to a tenant. When Madam Tamakloe reported the matter to the Police and the T.D.C. the latter appeared to have leaned in favour of the appellant. She therefore decided to resort to the law court for redress. She accordingly prepared and executed a Power of Attorney [Exhibit A] dated 15th January 1992 because of old age and infirmity of body, authorizing and appointing one David Torkornoo, to among other things” institute any action for her and in her name and for her benefit in respect of any issue or matter which affects my interest in the said land” [i.e Plot F. 50, Tema].
Consequently on the 5th day of May 1993, Mr. David Torkonno issued a writ of summons in his own name instead of in the name of Madam Teresia Tamakloe as instructed and directed in exhibit A, seeking the following reliefs against the 1st defendant [hereinafter referred to as the defendant] and the appellant:
“(1) A declaration that the Plot No. F. 50 is the bona fide property of the
plaintiff by reason of the allocation by Tema Traditional Authority as
confirmed by a lease from Tema Development Corporation which lease
was concurred by the Tema Metropolitan Assembly.
(2) An order of ejectment of 2nd defendant and his privies from the said
Plot No. F. 50.
- Recovery of possession.
- An order directing the 1st defendant to do all acts and execute all necessary
documents in favour of plaintiff to ensure her quiet enjoyment of her
property.
- Perpetual injunction.
- General damages against the 2nd defendant for trespass and damages caused
to plaintiff’s property as well as damages for unlawfully utilizing plaintiff’s
building materials.”
Mr. David Torkonno prosecuted the claim by calling evidence by himself and two witnesses. The appellant also called evidence by an attorney and two witnesses. The defendant did not call evidence but at the request of the court one Mr. Maxwell Kakraba gave evidence and tendered a report which the court had earlier on during arguments on a motion for an interlocutory injunction ordered counsel for the defendant “to check all the documents of the parties and give a report to the court.” [See page 23 of the record of proceedings]. The Report was tendered through Mr. Kakraba and marked as exhibit C1 i.e. [Court Exhibit 1] during the trial.
The case of the appellant as pleaded and testified to was that he held documents of title to the disputed plot. He denied all the averments in the statement of claim and averred that he was first to enter the plot by not only depositing trips of sand and stones on it but also built thereon to a completion a chamber and hall apartment. The defendant also filed a statement of defence denying all the averments in the statement of claim.
With these brief facts of the case I now proceed to deal with the merits of the appeal. As I indicated earlier on even though the appellant filed in all eleven grounds of appeal learned counsel for the appellant abandoned all the original grounds of appeal and confined his submissions to only the additional grounds of appeal. Touching on the first ground of appeal learned counsel for the appellant concentrated his submission on the legal point that because David Torkonno initiated the action in his own name and claimed reliefs as if he was the owner of the plot in dispute the trial judge erred in granting the reliefs endorsed on the writ of summons. He further submitted that the trial judge erred in failing to consider the lack of capacity on the part of David Torkonno to have commenced the action in his own name and claiming that he was the owner of the disputed plot. According to learned counsel for the appellant in his Reply filed on 31st July 2007 the commencement of the action by the attorney [David Torkonno] in his own name rather than in the name of Madam Teresia Tamakloe and subsequently claiming reliefs for his own and not on behalf of the principal is not a mere anomaly or misdescription and consequently this court cannot properly amend the title of the suit as prayed for by the Respondent. He said the cases of Mussey v. Darko [1977] 1 GLR 147, C.A. and Issoufou Kabore v. Ghana Ports and Harbours Authority [1993-94] 1 GLR 24 cited by learned counsel for the respondent are inapplicable to this case because those cases dealt with misdescriptions of the plaintiffs.
The response of learned counsel for the respondent has been that there is overwhelming evidence on the record showing that the action was contested by the attorney on behalf of his principal Madam Teresia Tamakloe and the appellant conceded this in his pleadings. Mr. David Torkornoo tendered his Power of Attorney which was admitted in evidence unchallenged by the appellant. This Power of Attorney [exhibit A] shows beyond any shadow of doubt that the actual parties to the suit were Madam Teresia Tamakloe and the appellant. He therefore invited this court on the authority of the case of Mussey v. Darko [supra] to amend the title of the suit to reflect the real capacity of the parties since that will not spring a surprise to the appellant and since it will also do justice in the matter and prevent a relitigation of the suit again.
I think if learned counsel for the appellant had taken the trouble to study well the Power of Attorney [exhibit A] and the writ of summons this hullabaloo about the title of the suit and the capacity of David Torkornoo would have been unnecessary. The Power of Attorney is dated the 15th January 1992 whilst the writ of summons was issued on the 5th May 1993. The learned counsel for the appellant has not complained about the genuiness of exhibit A. Thus by exhibit A David Torkornoo acquired the legal capacity or locus standi to initiate the action for and on behalf of the true owner of the plot namely Madam Teresia Tamakloe long before the issue of the writ of summons.
It is equally undisputed that Madam Tamakloe was a living and existing person on the date of the issue of the writ of summons and therefore had the legal capacity to have issued the writ of summons by herself. The averments in the statement of claim make it abundantly clear that David Torkornoo intended to initiate the action and claim the reliefs for and on behalf of his principal Madam Teresia Tamakloe. Thus paragraph 1 of the statement of claim averred as follows:
“The plaintiff is the lawful attorney of Madam Teresia Tamakloe who at all material times in this action is the Lessee of Plot No. E. 155 and now Plot F. 50 of Tema Development Corporation [hereinafter referred to as T.D.C.]."
This averment is saying that Madam Teresia Tamakloe is the lessee of the plot in dispute and not David Torkornoo. Paragraphs 4 – 9 of the statement of claim go further to aver how Madam Tamakloe came by the disputed plot and paragraphs 10 – 14 of the statement of claim aver the steps Madam Tamakloe took to protect her interests in the plot when she discovered the appellant on the land.
Nowhere in the statement of claim has an impression being made that David Torkornoo was claiming to be the Lessee of the plot in dispute.
The record of proceedings show also that all the documents David Torkornoo tendered some unchallenged are in the name of Madam Teresia Tamakloe. These documents include the allocation Note from the Ashiaman Mantse and his elders [exhibit B], the offer letter from the T.D.C. [exhibit C] etc. It is clear therefore that in proceeding to exercise his legal capacity to institute the action for and on behalf of Madam Teresia Tamakloe, Mr. David Torkornoo mistakenly or inadvertently used his own name as the plaintiff. I therefore hold the view that the mere misdescription in the title of the suit does not and cannot divest Mr. David Torkornoo of his capacity or locus standi in the action which he had on the date of the issue of the writ. The question here is whether this mistake or misdescription is more than a mistake in the form. In my opinion it is not . It is not a mistake that affects the substance of the action as contended by learned counsel for the appellant. Contrary to learned counsel for the appellant’s contention that the cases of Mussey v. Darko [1977] 1G.L.R., CA and Issofou Kabore v. Ghana Ports and Harbours Authority [1993-94] 1 GLR 24 are inapplicable in the circumstances of the instant case, I hold the view that they are applicable and relevant for a proper consideration of the instant case. In Mussey v. Darko [supra] the plaintiff a sole proprietor of a firm issued the writ of summons in the firm’s name. After judgment he applied for amendment of the title of the suit by substituting his own name for the name of the firm. The application was granted by the High Court. On appeal the court of appeal dismissed the appeal holding “where the sole proprietor of a business mistakenly sued in the firm’s name and later gave a reasonable explanation for his mistake the court could treat the mistake as a mere misnomer and grant an application to have the title to the writ amended.”
I think the dictum of Francois J.A. [as he then was] in the Mussey case [supra] is apt and relevant for our purposes here. It is as follows at page 134:
“Such amendment have been allowed where the purposes of justice require or where it is necessary to put right something which is incorrectly stated and to keep its records in line with the real position…..the court below had the power to correct a misnomer or a misdescription to do substantial justice.”
Similarly in Issoufou Kabore Vrs. Ghana Ports and Harbours Authority [1993 – 94] 1 G.L.R. 24 an amendment was granted to correct a misdescription of the plaintiff from ETS Issoufou to Kabore Issoufou doing business under the name and style of ETS Kaboure Issoufou. Let me also refer to two English cases which I consider beneficial to my consideration in deciding whether or not this court should grant the amendment requested by learned counsel for the respondent.
The first case is that of Noble Lowndes and Partners [A firm] V. Hadfields Ltd. [1930] 1 ch. 569. There one N.F. Lowndes entered into a contract with the defendant in the name of Noble Lowndes and Partners under the mistaken impression that there was a partnership between himself and five other persons.
When Mr. Lowndes sued the defendant later he described the plaintiffs as “Noble Lowndes and Partners [A firm]. Mr. Lowndes applied to amend the title by substituting his own name for that of the plaintiffs when the defendant discovered that there was no such firm and also applied to strike out the action. In his judgment Farwell J. approached the matter with the following reasoning at pages 571 – 572:
“The contract which Mr. Lowndes seeks to enforce is in the same terms as that originally pleaded, and the only amendment necessary is the substitution throughout of his name
in the place of the name of a firm which does not exist. The question is whether such an amendment can be permitted under the rules. Until order XLVIII A [48A] r. I came into force such an individual forming a partnership had to sue and be sued in his own name but under this rule that is no longer necessary and a partnership can sue or be sued in the firm name.
…Before any such amendment as the applicant seeks here can be allowed the court has to be satisfied that there has been a bona fide mistake. From the evidence before me I am satisfied that there has been a bona fide mistake and on that ground the application ought not to be dismissed…”
The second English case is that of W.A. Hill & Son V. Tannerhill [1944] 1 K.B. 472, C.A. In that case Walter Hill carried on business alone and without partners under the name of “W. Hill & Son.” Mr. Hill’s car was damaged and he therefore took action against the other driver. By the inadvertence of a solicitor’s clerk “”W.Hill & Sons” were stated in the writ to be the plaintiffs.
Later Mr. Hill applied for an order substituting as plaintiff in the action the name of “Walter Hill trading as “W. Hill & Son.’ The Master made the order asked for and on appeal it was affirmed by Stabble J. The defendant further appealed to the court of appeal. It was held that as W. Hill was an actual existing person and the real plaintiff in the action he was entitled to the order.
Scott L.J. reasoned as follows at pp. 474 – 475:
“When the writ was issued in the name of W. Hill & Sons there was an individual person interested in the claim. His description as “W. Hill & Son” was a mistake by a clerk. The question is whether that mistake is more than a mistake in the form. In my opinion it is not. Under Or. 48 A r. 1 one person even if he is carrying on business in a firm name cannot issue a writ in the firm name but if a real person does issue a writ in his own name, say of “W. Hill” the fact that he adds the two additional words “and son” does not prevent his still being the real plaintiff in the action.”
These cases may be contrasted with the case of Ghana Industrial Holding Corporation V. Vincenta Publications [1971] 2 G.L.R. 24 when one O. a sole proprietor of a business operating under the name Vincenta Publications sued in the name of the business name, the Court of Appeal held that:
“(2) Order 16 r. 2 gives the court the power to add or substitute a plaintiff where the action has been taken in the name of the wrong person. However, the respondent’s application was to substitute an existing person for a business name that was not a person and therefore there was no plaintiff before the court.”
There the court found that Vincenta Publications was neither a human, person or a limited liability company and therefore that it was a non-existing person or entity.
In the instant case David Torkornoo was an existing person at the date of the issue of the writ. By virtue of the Power of Attorney (exhibit A) he had the legal capacity or the locus standi to issue the writ for and on behalf of or in the name of his principal – Madam Teresia Tamakloe. But in proceeding to initiate the action he mistakenly used his own name and described himself as the plaintiff in the title of the suit. Aside the wrong title of the suit throughout the proceedings it became clear that the real and actual plaintiff was Madam Teresia Tamakloe. By Order 16 r. 2 of the now repealed High Court (Civil Procedure) Rules, 1954 (L.N. 140A) as amended by Order 15 rules 6(2) and 7(2) of the High Court (Civil Procedure) (Amendment) (No. 2) Rules 1977 (L.I. 1129) the trial court had the power to add or substitute a plaintiff where the action as in the instant case, has been taken in the name of the wrong person. I believe it needs not be disputed that this suit was initiated and prosecuted to a conclusion under L.N. 40A as amended. I believe also that it needs not be disputed that this court has the jurisdiction to make the necessary amendment as in fact happened in the Mussey and Issoufou Kabore cases (supra). As observed by Scott L.J. in the W. Hill & Sons case (supra) at p. 474-478:
“The application under the order for directions that his name should be written in full as “Walter Hill” instead of W. Hill ‘obviously by itself would have been unobjectionable. The addition asked for trading as W. Hill and Son’ as if he were a firm is mere useless and inappropriate surplusage but it does not prevent the fact that it was Walter Hill himself who was still going to be the plaintiff just as he had originally in the writ been the plaintiff.
For these reasons I think the master and the judge were right in allowing the amendment.”
In the instant case the prayer of learned counsel for the respondent is that this court should amend the title of the suit even at this stage to reflect the actual position of David Torkornoo as the attorney of the real plaintiff/ Madam Teresia Tamakloe. Having
held that David Torkornoo had the legal capacity on the date of the issue of the writ to initiate the action in the name of Madam Teresia Tamakloe and that Mr. Torkonno’s description as the plaintiff in the title of the suit is a mere misnorma and or mistake in form and that that mistake is a minor mistake which does not affect the substance of the matter. I will grant the amendment sought in the interest of justice.
Accordingly the title of the suit is hereby amended to read as follows:
“Teresia Tamakloe suing per Her Lawful Attorney
David Torkonno - Plaintiff
v.
1. The Chief Executive,
Tema Development Corporation,
2. George Yaw Botchway - Defendants.”
The appeal accordingly fails on ground (a) of the additional grounds of appeal for the reasons given herein.
On ground (b) of the grounds of appeal the submission of learned counsel for the appellant is that because the defendant was a party to the suit Mr. Kakraba an officer of the defendant should not have been made to investigate how the plot in dispute was allocated to both Madam Teresia Tamakloe and the appellant because that tantanmounted to making the defendant a judge in its own cause. And so the rules of natural justice were flouted by the trial judge. He further contended that Mr. Kakraba’s report (exhibit C 1) was inadmissible in evidence so the learned trial judge erred in relying on that exhibit for his judgment. Finally learned counsel for the appellant submitted that having regard to the pleading of the defendant, exhibit C1 tantamounted to accepting a case different from that pleaded by the 1st defendant. This submission was made on the basis of the defendant’s paragraph 2 of the statement of defence which averred that:
“(2) The records of the 1st defendant corporation indicated that the property belongs not to the plaintiff” whilst exhibit C1 showed that the plot in dispute belongs to the respondent.
In answer to these submissions learned counsel for the respondent submitted that the overwhelming evidence on the record shows that both Madam Teresia Tamakloe and the appellant claimed their root of title to the plot in dispute from the same Traditional Council to wit the Tema Traditional Council and from the T.D.C. It was therefore appropriate for the court to direct the T.D.C. to investigate and submit a report to the court on how and why this happened.
Besides Exhibit C1 was tendered without any challenge from the appellant. Again exhibit C1 was not the only evidence on which the trial judge relied on for her judgment. Furthermore contended learned counsel for the respondent counsel for the appellant has not been able to show that exhibit C1 was inadmissible perse, that is that its admissibility offended any law or any provision of the Evidence Decree or any enactment for that matter. Since therefore exhibit C1 was tendered without any challenge from the appellant the trial judge was right in relying on it. On the contention of learned counsel for the appellant that exhibit C1 was inconsistent with the evidence of Mr. Kakraba and paragraph 2 of the defendant’s statement of defence learned counsel for the respondent/
responded that the defendant was a mere nominal defendant and that the contest was really between Madam Teresia Tamakloe and the appellant so the so called inconsistency does not affect the real substance of the case.
My reaction to ground (b) of the appeal and the submissions of counsel for the appellant on that ground is that there is no substance in that ground of appeal. In the first place as the case of Edward Nasser & Co. Ltd. V. Mcvroom [1996 -97] G.L.R. shows there is a distinction between evidence which is inadmissible perse and evidence admitted on matters not pleaded. In the case of the former, it must be shown that the evidence that was admitted was either forbidden by law or by the Evidence Decree or any other enactment. Where such evidence is wrongly admitted it cannot form the basis of a judgment. But in the case of the latter where such evidence is admitted without objection the court or judge may rely on it for his judgment.
In the instant case learned counsel for the appellant has not demonstrated that Exhibit C1 was inadmissible perse. The record of proceedings also shows that Exhibit C1 was tendered in evidence unchallenged by the appellant’s counsel. The record further shows that the appellant’s counsel cross-examined Mr. Kakraba on his evidence and on exhibit C1. Again the record of proceedings shows that both the appellant and Madam Teresia Tamakloe were claiming title to the plot from the same source ie. The T.D.C. In these circumstances I think it was appropriate for the court to seek the assistance of the T.D.C. to know how come the T.D.C. allocated the same plot to two people and what their records were on that issue. In these circumstances therefore I am of the view that the rules of natural justice had not been breached and that exhibit C1 was properly admitted in evidence. But even if exhibit C1 was wrongly admitted in evidence learned counsel for the appellant has failed to demonstrate that its admission had occasioned a substantial miscarriage of justice. Therefore the judgment of the trial judge cannot be disturbed on that ground for as Section 5(1) of the Evidence Decree, 1975 (NRCD 3230 provides:
“5(1) No finding verdict judgment or decision shall be set aside, altered
or reversed on appeal or review because of the erroneous admission of
evidence unless the erroneous admission of evidence resulted in a substantial
miscarriage of justice.”
The appeal accordingly fails on ground (b) also. The appellant’s last ground of appeal is that the judgment is against the weight of evidence. The gist of learned counsel for the appellant’s submission on this ground is that the numbering of the plot being claimed by the respondent is different from the number of the plot subject-matter of this action. He sought to show that the respondent’s plot number as at the time of its allocation was C/6 Block 2, later it changed to be Plot E/155 and again later changed to F/50E/155. In sum total the submission of learned counsel for the appellant is that the plot the subject of this action is not the plot that was allocated to the respondent and therefore the finding made by the trial judge that the plot subject matter of this action is the property of Madam Teresia Tamokloe is not supported by the evidence.
However this submission of learned counsel for the appellant cannot stand because there is evidence from the appellant’s own witness that even though the number of the plot allocated to the respondent in 1974 by the Ashiaman Mantse and his elders and by the T.D.C. in 1975 kept on changing until it finally rested on F. 50, it is the same plot or land that was also allocated to the appellant and that, that is the plot subject-matter of the instant action. Thus in his evidence Mr. Maxwell Kakraba said this at p. 51 of the record of proceedings.
“Yes I know Plot No. RP (F. 50). Yes I have had dealings with that plot. These parties Teresia Tamakloe and Botchway claim that they are the tenants of this plot.”
In his evidence in chief Mr. Ebenezer Ashitey Larttey (DW1) the Secretary of the Tema Traditional Council put the matter beyond doubt when he said in his evidence at p. 76 of the record of proceedings as follows:-
“I remember Tema Development Corporation (T.D.C.) invited the parties herein and Ayi Bonte and Senior Officers came to see us at our Traditional Paramountcy to sort out the outcome was that they have seen their fault by registering the same plot to 2 people….”
There is also overwhelming evidence showing that even though the number of the disputed plot kept on changing over the years its identity as the land subject-matter of the suit was never in doubt.
In fact a careful perusal of the record of proceedings shows that the appellant’s case is that even if his title to the plot was late in time, he had not only registered his title deed but that he had built a Chamber and Hall on part of the land and should therefore be entitled to judgment. The appellant did not seriously contend that the land allocated to the respondent was not the subject-matter of the suit. It is also significant to note that the documents tendered by the appellant through his attorney are similar to those tendered by the respondent’s attorney and the documents of both emanated from the same source ie. T.D.C. The only difference is that the appellants documents are later in time than those of the respondent. All those documents relate to the land subject-matter of the suit.
Upon a careful perusal and consideration of the evidence in the record of proceedings I am satisfied that the appellant has failed to establish that the judgment of the trial court is against the weight of evidence. On the contrary I am satisfied that the judgment is supported by the evidence and that the trial judge is right in his finding that the plot allocated to both Madam Teresia Tamakloe and the appellant by the Tema Traditional Council and the Tema Development authority is the same land subject-matter of this suit. I therefore find no merit in ground (c) of the appeal.
In conclusion the appeal is dismissed. The judgment of the trial court is thereby affirmed.
S.E. KANYOKE
JUSTICE OF APPEAL
I agree. H. ABBAN
JUSTICE OF APPEAL
I also agree. P. BAFFOE BONNIE
JUSTICE OF APPEAL
MR. D.K. AMELEY FOR THE PLAINTIFF/RESPONDENT.
MR. KWABENA NYANOR FOR 1ST DEFENDANT/RESPONDENT.
MR. OSAFO BUABENG FOR DEFENDANT/APPELLANT.
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