In the matter of the Estate of Anyankor (Deceased)26TH JANUARY 2024 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, (PA/1302/2019) [2024] GHAHC 3 (26 January 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, PROBATE AND L/A DIVISION, COURT ‘1’ HELD IN ACCRA ON 26TH JANUARY 2024 BEFORE HER LADYSHIP EUDORA CHRISTINA DADSON, HIGH COURT JUDGE. ----------------------------------------------------------------------------------------------------------------- --- IN THE MATTER OF THE ESTATE OF GEORGE TREBI ANYANKOR (LATE) SUIT NO. PA/1302/2019 AND IN THE MATTER OF PROBATE BY OSUMANU ASHITEI AMARHNKPA AND IN THE MATTER OF AN ACTION BY TABITA TREBI AND LYDIA TREBI FOR DECLARATION BY COURT THAT THE PURPORTED WILL OF THE TESTATOR IS INVALID (ORDER 66 R 28 (1)) 1. TABITA TREBI 221 LOMO ADAWU STREET, LA DIGITAL ADDRESS GL-039-3098 2. LYDIA TREBI HOUSE NO, 202, TOP HERBAL ROAD AGBOBA GA EAST DISTRICT DIGITAL ADDRESS 192-0263 VS 1. OSUMANU ASHITEI AMARHNKPA, LA 2. FRANK TREBI } } } } } }…PLAINTIFFS } } } Z14 LOMO ADAWU STREET, LA }…DEFENDANTS SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – RULING 1 | P a g e DIGITAL ADDRESS GL-039-3094 } --------------------------------------------------------------------------------------------------------- PARTIES: 1ST & 2ND PLAINTIFFS PRESENT 1ST & 2ND DEFENDANTS PRESENT COUNSEL: KWASI AFRIYIE FOR PLAINTIFFS PRESENT LIVINGSTONE DEY FOR THE DEFENDANTS PRESENT ----------------------------------------------------------------------------------------------------------- RULING ----------------------------------------------------------------------------------------------------------- [1] Introduction & Brief Background The Plaintiff/Applicant (hereinafter referred to as the Applicant) filed a motion on 17th January 2024 for an order joining the Lands Commission to the instant action as 3rd Defendant. The gravamen of the Plaintiffs’ application can be found in paragraphs 5, 6, 7, 8 and 9 of the affidavit in support. The Applicant contends that the Lands Commission are necessary party for the resolution of the issues for determination. I have not sighted an affidavit in opposition filed by the Defendants/Respondents. Counsel for the Defendants/Respondents informed the Court that they are not opposed to the present application. [2] Court’s analysis and opinion I now proceed to review and consider the arguments of Counsel in relation to the merits or otherwise of the instant application. Order 4 Rule 5 (2) (b) of C.I 47 provides as follows: “(2) At any stage of proceedings the Court may on such terms as it thinks just either of its own motion or on application SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – RULING 2 | P a g e (b) order any party who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all the matters in dispute in the proceeding are effectively and completely determined and adjudicated upon to be added as a party. It is fundamental in litigation that parties must commence action against relevant parties to the suit. Any person whose presence before the court is necessary or to ensure that the dispute is effectively and completely determined and adjudicated upon is added as a party. The main reason for joinder of cause of action is to avoid multiplicity of suits, and reduction of costs and time for trials1. In the case of Bonsu and Another vs Bonsu [1971] 2 GLR 242 at 267, Taylor J as he then was held as follows on the issue of who is a necessary party: “The power of joinder must be in respect of parties 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 questions involved in the cause or matters. To grant an order for joinder is discretionary but the exercise of such discretions is governed by the principle that the court has jurisdiction only to grant joinder to achieve the purpose specified Order 16 r. 11, namely, that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose”. In the case of Bentley Motors vs Lagonda Ltd [1945]14 LJ Ch 208, it was held that one of the main objective of Order 16 r 11 which is in pari materia with Order 4 r 5 of CI 47 is to enable the Court effectively and completely to adjudicate upon and settle all questions involved so as to render unnecessary multiplicity of proceedings. 1 Adu-Gyamfi D., Law & Practice relating to motions and affidavits in Ghana (with Precedents) SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – RULING 3 | P a g e [2.1] The test for joinder in an action in court Lord Denning MR in the case of White vs Vandervell Trustees Ltd2 stated that: “We will in this court give the rule wide interpretation so as to enable any party to be joined whenever it is just and convenient to do so. It would be a disgrace to the law that there should be two parallel proceedings in which the selfsame issue was raised, leading to different and inconsistent results. It would be a disgrace in this very case if the Special Commissioner should come out to one result and a judge in the Chancery Division should come to another result as to who is entitled to these dividends” In Efisah vs Ansah [2005-2006] SCGLR 943 At 956 Wood JSC (as she then was) delivered herself thus on the test for joinder: “It is trite law that for an application for joinder to succeed, the applicant must disclose the interest sought to be protected. This factor is so critical that an appellant, who fails to explicitly make this disclosure, is bound to fail.” In the case of Ago Sai & Others v. Kpobi Tetteh Tsuru III [2010] SCGLR 762 at 807, Dotse JSC (as he then was) delivered himself thus on the test for joinder: “The test was laid out by the Supreme Court in the case of SAM (NO.1) v ATTORNEYGENERAL [2000] SCGLR 102 as follows: Generally speaking, the court will make all such changes in respect of parties as may be necessary to enable an effectual adjudication to be made concerning all the 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 the joinder, 2 [1969]2 ALL ER 496, page 499 SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – RULING 4 | P a g e 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, i.e. the nature of the claim.” In the case of Appenteng And Others vs Bank Of West Africa And Others [1961] GLR 81-82, the court per Ollennu J (as he then was) held 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.” The issue for determination is whether the Applicant has made out a case for Lands Commission to be joined to the present suit? This Court can exercise its jurisdiction to join a party to a suit either if a) The person sought to be joined is a person who ought to have been joined to the writ originally but the plaintiff failed to do so; or b) The presence of the person 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. Counsel for Defendant states he is not opposed to the application and waived his service having seen a copy of the application in Court. The gravamen of the Applicant’s application can be found in paragraphs 3, 4, 6, 7, and 9 of the affidavit of support. It is the Applicant’s case that she has been served with a copy of a purported Will of the late George Trebi Anyankor with the Land Title Certificate No. GA 28993 volume 8 folio 260 which stands in the name of George Trebi Anyankor (her father) and it is SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – RULING 5 | P a g e the same land which the Lands Commission confirmed as belonging to the Applicant’s mother in her search dated 26th June 2009. The main reason for seeking to join Lands Commission is to for them “to enable them explain the rise to this apparently conflicting situation” In the considered view of the Court this can be resolved by serving a subpoena on Lands Commission to appear in Court and testify to this apparently conflicting situation. The Lands Commission is not a necessary party for the determination of the validity of the Will of the late George Trebi Anyorkor. At the end of the trial if there is the need to make any orders relating to Lands Commission, same can be done whether they are parties or not. The motion filed on 17th January 2024 is dismissed due to the reasons outlined above. No order as to costs. Counsel for Plaintiffs to amend his pre-trial checklist in line with the ruling of this Court. (SGD.) H/L EUDORA CHRISTINA DADSON(MRS) JUSTICE OF THE HIGH COURT SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – RULING 6 | P a g e SUIT NO: PA/0563/2023 TABITA TREBI & 1 OTHER vs OSUMANU ASHITEI AMARHNKPA & 1 OTHER – RULING 7 | P a g e