MINGLE VRS. NEEQUAYE (FAL/674/2011) [2024] GHAHC 127 (22 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE ACCRA LAND COURT DIVISION ‘9’ HELD ON MONDAY THE 22ND DAY OF APRIL, 2024 BEFORE HER LADYSHIP NABEELA NAEEMA WAHAB J. (MS.) SUIT NO. FAL/674/2011 REGINA MINGLE - PLAINTIFF (SUBSTITUTED BY ENOCK MINGLE) VRS ABIGAIL DEI NEEQUAYE - DEFENDANT RULING I. BACKGROUND INITIAL WRIT AND STATEMENT OF CLAIM 1. The instant action was initiated by a Writ and Statement of Claim filed nearly thirteen years ago on 27th June 2011 by Regina Mingle who was subsequently substituted by Enock Mingle. The suit was first instituted against only one party, Alfred Attah Aflah Coffie, as Defendant. It was essentially the case of the Plaintiff against Alfred Attah Aflah Coffie that he had re-entered a road serving the Plaintiff’s land and he had purportedly sold the land to a prospective developer whose development is blocking access to the Plaintiff’s land. By the action, the Plaintiff sought inter alia a declaration that the purported sale by Alfred Attah Aflah Coffie of the subject land, an access road serving the Plaintiff’s house was unlawful and damages for trespass. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 1 of 25 JOINDER OF 2ND DEFENDANT TO THE SUIT. 2. On 22nd February 2013 an amended Writ and Statement of Claim was filed by which Abigail Neequaye was joined to the suit as second Defendant. Alfred Attah Aflah Coffie, by the amended Writ became 1st Defendant to the action and is hereafter referred to also as “1st Defendant” or “former 1st Defendant” as the context may require. SUMMARY OF THE PLAINTIFF’S CASE 3. After the 2nd Defendant was joined the Suit, the Writ and Statement of Claim were amended on 5th November 2013 and on 15th October 2014. In the further, further amended Statement of Claim filed on 15th October 2014, it was stated that in the year 1999 the Plaintiff purchased two plots of land from the Chief of Gbawe. It is also stated that the 1st Defendant has committed and admitted to trespassing on the Plaintiff’s land. It is the further case of the Plaintiff that in or about the year 2010, the 2nd Defendant Abigail Neequaye broke into a structure on the Plaintiff’s land and started laying claim to it. The Plaintiff stated that although the matter was reported to the police, the Defendants will continue in their unlawful acts unless restrained by the Court. 4. By the amended Writ and Statement of Claim filed on 5th November 2013, the Plaintiff amended the reliefs indorsed on the initial Writ to include a declaration of title to the subject land stated to be approximately 0.53 acres, situate at North Gbawe and recovery of possession. SUMMARY OF THE DEFENCE OF THE 1ST DEFENDANT AND HIS COUNTERCLAIM SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 2 of 25 5. On 28th October 2014, the 1st Defendant, Alfred Attah Aflah Coffie filed an Amended Defence and Counterclaim to the suit. He denied the Plaintiff’s claims against him and in paragraph 11 and 12 of his Counterclaim, the 1st Defendant stated that the instant action against him is needless and frivolous as he has not granted the subject land to anyone or trespassed on same. He added that he had spent money needlessly defending the suit and he counterclaimed for general damages against the Plaintiff for instituting the action against him and the repayment of his legal fees. SUMMARY OF THE 2ND DEFENDANT’S CASE 6. In an amended Defence and Counterclaim filed on 17th March 2015, the 2nd Defendant stated that the Klotia Kwadjo and Mensah Kwashie family of Gbawe are the rightful owners of the subject land and that Greenwich Consortium limited held a leasehold of the land from the Klotia Kwadjo and Mensah Kwashie family of Gbawe. The 2nd Defendant added that she acquired the subject land from Greenwich Consortium limited and the transaction is evidenced by a Deed of Assignment dated September 2007. 7. The 2nd Defendant added that she has constructed a fence wall around the land and she is in possession and occupation of the subject land. She counterclaimed for inter alia a declaration of title to 0.16 acres of the subject land, recovery of possession, general damages and an order or perpetual injunction against the Plaintiff. CONDUCT OF THE SUIT – SUMMARY OF RELEVANT MATTERS LEADING TO THE FILING OF THE INSTANT APPLICATION 8. At the hearing of the application for directions on 26th March 2015, the issues set down for determination by this Court differently constituted are whether or not the Plaintiff has a proper grant from the Gbawe Mantse, Greenwich Consortium Limited or any SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 3 of 25 other quarter; whether or not the 1st Defendant is estopped from dealing with the plots of land in dispute; whether or not the 2nd Defendant has a proper grant and any other issues arising from the pleadings. Following the directions of the Court the Parties filed Witness Statements. 9. In his Witness Statement filed on 29th July 2015, the 1st Defendant repeated his claim in his Amended Defence and Counterclaim. He stated that he has not trespassed onto the subject land and he has no interest in it. He added that he had incurred great expense in defending the action instituted against him including borrowing from his sister to meet the cost of his representation by Counsel. 10. From the Pre-Trial check list filed by the 1st Defendant, he indicated that he will not call any witnesses and that he will testify in support of his case. 11. The Plaintiff and the 2nd Defendant also filed Witness Statements and Pre-Trial Check Lists and the record of the Court indicates that dates for trial were given off record in June 2022, however the trial could not be held as there was no substantive judge in the Court at the time. EFFORTS TO ASCERTAIN WHETHER OR NOT THE 1ST DEFENDANT HAD PASSED ON 12. On 28th April 2023, when the matter came before the newly appointed substantive judge of the Court, it was indicated on the cause list for the day that the business for the day was for mention. Tweneboana Adu-Sarkodie Esq announced himself as Counsel for the 2nd Defendant. Counsel for the Plaintiff and Tweneboana Adu- Sarkodie Esq informed the Court that they had information that the 1st Defendant had SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 4 of 25 passed on and the family was finding it difficult to substitute another person for the 1st Defendant. 13. Tweneboana Adu-Sarkodie Esq indeed stated as recorded in the Court’s notes of that day, 28th April 2023, that he had personally approached the family of the 1st Defendant, informed them of the suit and the family had assured him that they will discuss the matter with their lawyer and take the necessary steps. 14. The Court noted that there was no proof of service of hearing notice for that day on Counsel for 1st Defendant who was absent from Court. The Court adjourned the matter to 26th May 2023 for Counsel for 1st Defendant to attend Court and confirm or deny the death of the 1st Defendant. The Court directed Counsel for Plaintiff to ensure service of hearing notice of the next Court date on Counsel for 1st Defendant on record. 15. On 26th May 2023, the Court did not sit as there was a strike action. The matter thus came up for hearing on 19th June 2023. On 19th June 2023, Counsel for the 2nd Defendant was absent from Court although there was proof of service of hearing notice for that day on him on record. The Court noted that there was also no process on record filed by Counsel for 1st Defendant to officially inform the Court of the alleged death of the 1st Defendant or requesting that the 1st Defendant be substituted with any other. The matter was thus adjourned sine die to enable Counsel for Plaintiff put his house in order. APPLICATION BY COUNSEL FOR PLAINTIFF TO MISJOIN/ DISCONTINUE THE ACTION AGAINST THE 1ST DEFENDANT 16. The record of the Court indicates that the matter was adjourned a number of times after June 2023 in the quest by Counsel for Plaintiff for an Order of the Court to disjoin the 1st Defendant from the suit and proceed with the action against the 2nd Defendant only. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 5 of 25 17. On 22nd January 2024, the Court heard an application filed by Counsel for Plaintiff on 20th November 2023 pursuant to Order 17 of the High Court Civil Procedure Rules, 2004 (C.I. 47) and seeking an order of the Court to disjoin the 1st Defendant. The Court’s Notes of 22nd January 2024 indicates that the Court noted that there was proof of service of the application filed by Counsel for Plaintiff on 20th November 2023 on Counsel for 1st and 2nd Defendants as well as hearing notice for that date on record, and yet both Counsel for Defendants were absent from Court and there was no affidavit in opposition on record. 18. The Court considered the application filed by Counsel for Plaintiff on 20th November 2023 as one seeking to discontinue the action against the 1st Defendant as same was filed pursuant to Order 17 of C.I. 47. Having regard to the circumstances of the case, submissions by Counsel for Plaintiff in Court and the affidavit in support of the application. The Court made an Order pursuant to Order 17 Rule 2(3) of C.I. 47 for the suit to be discontinued against the 1st Defendant. The Court directed that the Court notes of the day, 22nd January 2024 should be served on both Counsel for Defendants on record. The Court further directed that an amended Writ and Statement of Claim was to be filed by Counsel for Plaintiff to reflect the discontinuance of the suit against the 1st Defendant and the matter was adjourned to 14th February 2024 for mention. II. CONDUCT OF THE CASE AFTER DISCONTINUANCE OF THE 1ST DEFENDANT 19. On 29th January 2024, Counsel for Plaintiff filed an Amended Writ and Statement of Claim to reflect the order of 22nd January 2024 discontinuing the suit against the 1st Defendant. By the Amended Writ and Statement of Claim, Abigail Neequaye Tetteh remained the sole Defendant to the suit. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 6 of 25 20. There is an affidavit of service on record which indicates that the Amended Writ was served on Counsel for Abigail Neequaye Tetteh on record on 2nd February 2024. 21. On 14th February 2024, Tweneboana Adu-Sarkodie Esq attended Court and announced himself as Counsel for the Defendant. He informed the Court that he intended to file an application to challenge the discontinuance of the suit/ misjoinder of the former 1st Defendant. The Court granted Tweneboana Adu-Sarkodie Esq leave to formally file his application so that same could be considered by Counsel for the Plaintiff and the Court and determined on its merits. The Court also directed that Counsel for the Plaintiff could respond to the application of he wished to do so upon service of same on him. The matter was adjourned to 13th March 2024 upon their agreement for hearing of the application Counsel for Defendant intended to file. III. THE INSTANT APPLICATION 22. The instant application was filed on 12th March 2024. It seeks an order of the Court to set aside its Order of 22nd January 2024. The affidavit in support of the application, is deposed to by Isaac Hinson who stated that he is a clerk of the Counsel for the Defendant. It is the case of the Defendant as stated in the affidavit in support of the application that the Plaintiff by his action purports to derive title to the subject land from the former 1st Defendant to the suit. 23. It is the further case of the Defendant that the former 1st Defendant to the action had a counterclaim in respect of which he was Plaintiff and the Plaintiff herein was Defendant to that Counterclaim. 24. The Defendant added that the former 1st Defendant is dead and the news of the death of the former 1st Defendant was brought to the attention of Counsel for Plaintiff at a time when Counsel for Plaintiff was in Court. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 7 of 25 25. Relying on Order 4 Rule 6(1), (2), (3) and Order 4 Rule 7(1) and (2) of the High Court Civil Procedure Rules, 2004 (C.I. 47), it is the case of the Defendant that the Court should have made an order substituting the 1st Defendant in view of his death and his counterclaim on record and the order of the Court made on 22nd January 2024 discontinuing the action which in essence non-suits the 1st Defendant should be vacated. IV. OPPOSITION TO THE APPLICATION 26. In an affidavit in opposition deposed to by Counsel for Plaintiff and filed on 25th March 2024, Counsel for Plaintiff stated that his application filed on 20th November 2023 was pursuant to Order 17 of C.I. 47 and not Order 4 of C.I. 47 and it is trite law that a Plaintiff can apply for a suit to be discontinued at anytime against a party to an action and it is the discretion of the Court to grant such an application. 27. Counsel for Plaintiff added that Counsel for the former 1st Defendant was served with many notices to confirm for the record whether or not his client had passed on and an opportunity to file the necessary papers for the former 1st Defendant to be substituted but no action was taken. 28. The Plaintiff concluded that the instant application does not indicate any reason why an order discontinuing a suit upon an application by Counsel for Plaintiff should be vacated especially as no injustice has been done to the former 1st Defendant to the action. V. SUMMARY OF SUBMISSIONS BY COUNSEL FOR THE PARTIES 29. At the hearing of the application, the Defendant was again represented by Tweneboana Adu-Sarkodie Esq. who announced himself as “Counsel for the Defendant”. He rehashed the case of the Defendant as contained in the affidavit in SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 8 of 25 support of the application. He maintained that Counsel for Plaintiff knew that the former 1st Defendant had passed on and he added that the application filed by Counsel for Plaintiff in November 2023 should therefore have been served on the personal representatives of the former 1st Defendant as the mandate of Counsel for the former 1st Defendant to represent his client expired upon the death of the former 1st Defendant. 30. Tweneboana Adu-Sarkodie Esq. submitted that he can apply for an Order of the Court that is void to be set aside at any time regardless of the fact that he had not filed an affidavit in opposition to the application that resulted in the Order. He prayed the Court to set aside its Order discontinuing the suit against the former 1st Defendant as same was contrary to the Rules of Court, and void. 31. Counsel for Plaintiff rehashed his case as contained in the affidavit in opposition. He stated that Counsel for former 1st Defendant was still Counsel on record as there was no process filed in Court to inform the Court otherwise and it was proper for processes filed to discontinue the suit against the former 1st Defendant to have been served on Counsel for the former 1st Defendant on record. 32. Counsel for Plaintiff also stated that a copy of the Order of the Court which the Defendant invites the Court to set aside is stated in the affidavit in support of the application as an Order of 23rd January 2024 and a copy of the Order is not attached as is required by practice. In view of the fact that no Order of the Court was made on 23rd January 2024, Counsel for Plaintiff submitted that the absence of a copy of the Order sought to be set aside undercuts the present application. 33. Counsel for the Plaintiff noted in concluding his submissions that the present application is filed by Tweneboana Adu-Sarkodie Esq. as Counsel for the Defendant, even though Counsel for Defendant on record is Alex Quaynor Esq. Counsel for Plaintiff informed the Court that he has not been served with a notice of change of SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 9 of 25 solicitors and therefore by Order 75 of C.I. 47, the present application signed by Tweneboana Adu-Sarkodie Esq. as Counsel for Defendant is not permitted. 34. Counsel for Plaintiff prayed that for all of the above reasons, the Defendant’s application should be dismissed with costs. VI. JURISDICTION OF THE COURT TO CONSIDER THE PRESENT APPLICATION 35. The Court finds from the present application that it is essentially an affidavit in opposition to the Plaintiff’s application filed on 20th November 2023 seeking an Order to discontinue/ misjoin the 1st Defendant from the suit, which was heard on 22nd January 2024 and not 23rd January 2024. 36. The Court notes that whilst there is proof of service of the application filed by Counsel for Plaintiff on 20th November 2023 and hearing notice on Counsel for Defendant, Counsel failed to attend Court and he did not oppose the application. The law is trite that whilst a party has a right to be heard, that right is a right to be heard within a reasonable time. In the case of Linda Akoto v. Bright Kwasi Manu[Unreported; Civil Appeal No J4/30/2021; 26 January 2022] the Supreme Court held per He Ladyship Owusu JSC that “ Giving a party hearing also means giving the party the opportunity to be heard. Therefore, where a party is given the opportunity to be heard and he failed to take it, he cannot complain that he has not been heard.” 37. The Rules of Court also enjoin on Counsel a duty to refrain from unnecessary delays in the conduct of the suit. See Order 74 Rule 9 especially of The High Court (Civil Procedure) Rules, 2004 (C.I. 47). 38. Further, in the case Omaboe v. Kwame (1978) GLR 122 at page 124, the Court of Appeal held per Apaloo C.J. as he then was, referring to Halsbury’s Laws of England SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 10 of 25 (3rd edition) Vol. 22 at page 785 that “as a general rule, except by way of appeal, no Court, judge, or master has power to rehear, review, alter, or vary any judgment or order after it has been entered or drawn up, respectively, either in an application made in the original action or matter, or in a fresh action brought to review such judgment or order. The object of the rule is to bring litigation to a finality…” (Emphasis added) 39. For the reasons stated in paragraphs 35-38 above, the instant application which is essentially an affidavit in opposition to an application already heard and determined should therefore not have been considered at all by this Court as the time for the Defendant to be heard in respect of same has long lapsed, the instant application has the potential to unnecessarily delay the suit and as a general rule the Court may not rehear or vary its orders after same has been entered. 40. The Court has however considered that in the case of Omaboe v. Kwame (1978) GLR 122 at page 124, the Court of Appeal further held that there are exceptions to the general rule against a court rehearing and varying its orders which have been made by statute generally embodied in the rules of Court and in some cases the power to set aside or amend is not statutory but inherent in the Court itself”. At page 125 of the report, the Court held that: “...a Court has inherent power to vary or set aside its own previous orders suo moto when the Court realizes that in the peculiar circumstances of the case, the ends of justice would best be achieved by varying or vacating the order or that the existence of the order is no longer necessary to achieve the purpose for which the order was made.” (Emphasis added) 41. In Ghassoub vs. Dizengoff [1962] 2 GLR 1331 SC and in the case of Mosi vs. Bagyina [1963] 1GLR 337, the Court held that it is trite learning that where a judgment or an Order is void either because it was given or made without jurisdiction or because it is not warranted by any law or Rule or procedure, the party affected is entitled ex debitio SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 11 of 25 justitiae to have it set aside and the Court or Judge is under a legal obligation to set it aside, either suo moto or on an application of the party affected. No judicial discretion arises here. 42. In the case of Attoh-Quarshie v. Okpote [1973] 1 GLR 59, the Court of Appeal similarly held as reported in holding 2 at page 60 of the report that where a Court in making a decision overlooks a certain mandatory provision of the law, it has the inherent power to vacate its own invalid Orders. 43. This Court therefore has a duty and inherent jurisdiction to set aside its own Order suo moto or upon an application to do so if it is established that the ends of justice would be best achieved by vacating the Order, or that in making the Order it overlooked a mandatory provision of the law. The instant application has been considered for this reason. VII. AUTHORITY OF TWENEBOANA ADU-SARKODIE ESQ. TO FILE THE INSTANT APPLICATION 44. The Court notes that there is no evidence on record that Tweneboana Adu-Sarkodie Esq. who signed the instant application as Counsel for Defendant is indeed Counsel for Defendant on record. On 16th April 2024, Tweneboana Adu Sarkodie Esq stated that he believed that Notice of Change of solicitors had been filed which authorizes him to file the instant action and was granted two days to furnish the Court and Counsel for the Plaintiff with a copy of the Notice of Change of Solicitors he believed he had filed, yet there is no Notice of Change of Solicitors on the record of this Court as at today. The consequences of acting without authority contained in Order 1 Rule 4 of C.I. 47 would be discussed at a later date. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 12 of 25 45. In the case of Network Computer Systems Ltd v Intelstat Global Sales & Marketing Ltd [2012] 1 SCGLR 218, the Supreme Court stated in affirming the general legal position in relation to a Court’s power to set aside its own void judgment or order that: “a court which makes a void order or a superior court can set aside such a void order no matter how the void order is brought to its notice.” (Emphasis added) 46. In the case of Munji (substituted by) Mumuni v Iddrisu & Others [2013-2014] 1 SCGLR 429 at page 434, the Supreme Court again held per Woods JSC (as she then was) that: “It is an intractable rule of law, that a court of justice has a duty, suo motu, to set aside its own void orders once this comes to its notice. It matters little how such orders are brought to its notice.” (Emphasis added) 47. In view of the nature of the challenge raised by the instant application and the fact that a Court has a duty to set aside its orders which are void regardless of how the void Order is brought to the notice of the Court, the instant application will be considered even though Tweneboana Adu-Sarkodie Esq. may not have authority to file the instant application as Counsel for the Defendant as pointed out by Counsel for Plaintiff. VIII. ISSUES FOR DETERMINATION 48. To ascertain whether or not its Order made on 22nd January 2024 is void and same should be set aside, this Court is called upon to determine or whether or not it overlooked a mandatory provision of the law in making the order challenged and or whether or not the ends of justice would best be achieved in vacating the order, for as held in Omaboe v. Kwame (supra) and in Attoh-Quarshie v. Okpote (supra), it is only in these occasions that a Court can set aside its own orders. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 13 of 25 IX. APPLICABLE LAW, ANALYSIS AND OPINION ISSUE 1: WHETHER OR NOT THE COURT OVERLOOKED A MANDATORY PROVISION OF THE LAW IN MAKING THE ORDER CHALLENGED. 49. Order 4 Rule 6 (1), (2), (3) and 4 of C.I. 47 relied on by Tweneboana Adu Sarkodie Esq. provides as follows: Rule 6—Change of parties by reason of death or bankruptcy (1) Where a party dies or becomes bankrupt but the cause of action survives, the action shall not abate by reason of the death or bankruptcy. (2) Where at any stage of the proceedings the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, for the effective and complete determination of the matters in dispute, order that other person to be substituted for the first-named party. (3) An application for an order under this rule may be made ex parte. (4) Where an order is made under this rule for a person to be made a party and the person is already a party on the other side of the record, the order shall be treated as containing a direction that the person shall cease to be a party on that side. Evidence of death of the former 1st Defendant 50. It is the case of the Defendant as stated in the affidavit in support of the instant application that the Court as well as Counsel for Plaintiff have been informed of the death of the 1st Defendant, however the Defendant did not provide any proof in support of this allegation. 51. In the case of Majolagbe vs. Larbi (1959) GLR 190 at 192, Ollenu J. (as he then was) reiterated the principle stated in Khoury v Richter [8 December 1958, unreported] that: SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 14 of 25 “Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way as by producing documents, description of things, reference to other facts, instances or circumstances ... he does not prove it by merely ...repeating that on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true”. (Emphasis added) 52. As the application filed by the Defendant was based on the claim that the former 1st Defendant has passed on, the Defendant assumed the burden of proof to establish this claim. The Court finds that there is no evidence before it of the death of the former 1st Defendant. 53. In proof of the death of the former 1st Defendant, in Court on 16th April, 2024 Tweneboana Adu Sarkodie Esq. repeated the statement in the affidavit in support of the application that he had orally informed Counsel for the Plaintiff in Court that the former 1st Defendant had passed on. Counsel for Plaintiff stated that it was rather Counsel for former 1st Defendant who orally informed him that the former 1st Defendant had passed on. 54. The Court finds that the death of a party is a fact that is capable of proof by documentary evidence such as a death certificate, burial certificate, letters of administration etc. rather than hear say. 55. The Court further finds that the unsubstantiated statements made by Counsel for Plaintiff and Tweneboana Adu Sarkodie Esq. in Court on 28th April, 2023 in the absence of Counsel for the former 1st Defendant to the action that the former 1st Defendant had passed on and the claims made in the affidavit in support of the application filed by Counsel for Plaintiff on 28th November 2023 seeking an order to misjoin or discontinue SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 15 of 25 the suit against the former 1st Defendant, or in the affidavit in support of the instant application are not sufficient evidence of the death of the former 1st Defendant. 56. The Court thus finds that whilst Order 4 Rule 6(1) of C.I. 47 is stated in mandatory terms, in the absence of evidence of the death of the former 1st Defendant to the action, Order 4 Rule 6 of C.I. 47 which is applicable upon the death of a party is inapplicable. Evidence of the interest of the former 1st Defendant assigned or transmitted to another 57. In Court on 16th April, 2024 Tweneboana Adu Sarkodie Esq. also stated that the personal representatives of the former 1st Defendant were in Court. The fact of appointment of a person as a personal representative is a matter that is capable of proof by documentary evidence. The Court therefore finds that the mere statement in Court that some persons are personal representatives of the former 1st Defendant is not sufficient evidence of the death of the former 1st Defendant or the appointment of any others as his representative(s). 58. The Court therefore finds that there is also no evidence on record that any interest the former 1st Defendant had in the case has been assigned or transmitted or devolved upon some other person. The Court therefore finds that Order 4 Rule 6(2) of C.I. 47 which is not a mandatory Rule of Court and relied on by Defendant in support of the present application is also inapplicable. Application of Order 4 Rule 7 of C.I. 47 to a Defendant who make a Counterclaim 59. Order 4 Rule 7 (1) and (2) of C.I. 47 also relied on by the Defendant in the affidavit in support of the present application provides as follows: SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 16 of 25 Order 4 Rule 7—Failure to proceed after death (1) If after the death of a plaintiff the cause of action survives, but no order is made under rule 6 substituting as plaintiff any person in whom the cause of action vests, the defendant may apply to the Court for an order that unless the action is proceeded with within such time as may be specified in the order, the action of the plaintiff who has died shall be struck out. (Emphasis added) (2) The Court shall not make an order under subrule (1) unless it is satisfied that due notice of the application has been given to the personal representatives or the customary successor or head of family of the deceased plaintiff and to any other interested persons who, in the opinion of the Court, should be notified. 60. The Defendant maintains that as the former 1st Defendant had a counterclaim he is to be regarded as a Plaintiff and order 4 Rule 7 ought to have been applied. 61. In Order 12 of C.I. 47, the Court notes that the drafters of the Rules of Court were careful and expressly stated which Rules of Court apply to Counterclaims 62. In Order 12 Rule 1 and 3 of C.I. 47 states as follows: Order 12 Rule 1 of C.I. 47—Counterclaim Against Plaintiff (1) A defendant who alleges that he has any claim or is entitled to any relief or remedy against a plaintiff in an action in respect of any matter, whenever and however arising, may, instead of bringing a separate action, make a counterclaim in respect of that matter. (2) The defendant shall add the counterclaim to the defence. Order 12 Rule 3—Application of Rules of Pleading Without prejudice to the general application of Order 11 to a counterclaim and a defence to counterclaim or to any provision of it which applies to either of those pleadings specifically SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 17 of 25 (a) rule 1 of this Order shall apply to a counterclaim as if it were a statement of claim and the defendant making it a plaintiff; and (b) Orders 13, 14 and 46 shall, with the necessary modifications, apply to a defence to counterclaim as they apply to a defence. 63. The Courts understanding of Order 12 Rule 1 of C.I. 47 and Order 12 Rule 3 (a) of C.I. 47 is that for the purpose of the application of the Rules of pleading, a Defendant who makes a counterclaim is to be regarded as a Plaintiff and Order 11 of C.I. 47 generally applicable to pleadings apply to the Counterclaim as if it were a Statement of Claim and the Defendant making it a Plaintiff. 64. In Order 12 Rule 8 of C.I. 47 it is further stated as follows: Where a counterclaim is made by a defendant, Order 4 rule 7 shall apply to the counterclaim as if the counterclaim were a separate action and as if the defendant making the counterclaim were the plaintiff and the person against whom it is made a defendant. 65. The Court however finds that as there is no evidence before the Court that the former 1st Defendant is dead and his failure to proceed in the case is because of this, Order 4 Rule 7 of C.I. 47 as reproduced above is inapplicable to this case. 66. Further, a reading of Order 4 Rule 7 shows that it is not stated in mandatory terms. It provides that the “defendant may apply…and the action of the plaintiff who has died shall be struck out.” 67. The Plaintiff who is a Defendant to the counterclaim filed by the former 1st Defendant was thus under no obligation to make an application under Order 4 Rule 7 of C.I. 47 and the order made by the Court on 22nd January 2024 was not an order to “strike out” the case of the former 1st Defendant. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 18 of 25 68. The Court is of the considered opinion that Order 4 Rule 7 and other provisions of Order 4 relied on by the Defendant and Tweneboana Adu Sarkodie Esq. are irrelevant in the absence of proof of death of the former 1st Defendant. ISSUE 2: WHETHER OR NOT THE ENDS OF JUSTICE WOULD BEST BE ACHIEVED IN VACATING THE ORDER OF 22ND JANUARY 2024. 69. In determining whether or not the ends of justice would best be achieved in vacating the order of 22nd January 2024, the Court has considered that even if there had been evidence of the death of the former 1st Defendant on record, from the defence of the former 1st Defendant to the action and his witness statement which is evidence he intended to give during the trial, it was the case of the former 1st Defendant that he is not a necessary party to the action, that the action instituted against him is frivolous and had caused him hardship especially in financial terms. 70. Is it the suggestion of the Defendant and Tweneboana Adu Sarkodie Esq. that the ends of justice would have been best served for an order to have been made to substitute the SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 19 of 25 former 1st Defendant who had maintained throughout the action that he was not a necessary party to the suit? 71. The Court finds that the claim by the Defendant contained in the affidavit in support of the present application that the Plaintiff’s claim is that his title to the subject land is derived from the former 1st Defendant is not supported by the pleadings. As a result, the Defendant and Tweneboana Adu Sarkodie Esq were not able to categorically state the paragraph in the pleadings of the Plaintiff in which the Plaintiff makes this claim. 72. Before the Order of the Court made on 22nd January 2024 discontinuing the suit against the former 1st Defendant, it was the claim of the Plaintiff as stated in paragraph 4 of the Amended Statement of Claim filed on 15th October 2014 that the Plaintiff purchased the subject land in or about the year 1999 from the Chief of Gbawe Gonsee for GHS 800. The Court therefore finds that from the pleadings, the Plaintiff’s claim to the subject land is derived from the sale transaction referred to in paragraph 4 of the Amended Statement of Claim filed on 15th October 2014. This claim is repeated in paragraph 2 of the Amended Statement of Claim filed on 29th January 2024 after the order discontinuing the suit against the former 1st Defendant was made. 73. In paragraphs 9 and 10 of the amended Statement of Claim filed on 15 October 2014, it is stated that investigations of the Plaintiff revealed that the former 1st Defendant had committed trespass on the subject land and when confronted by the Plaintiff, the former 1st Defendant agreed that the subject land was not his own. It is further stated in paragraph 10 – 17 of the Amended Statement of Claim filed on 15 October 2014 that the former 1st Defendant pleaded with the Plaintiff to construct a structure similar to what he had constructed on the subject land on another parcel of land for him or pay him the costs incurred in building the structure on the subject land. The Court does not find that these pleadings change the Plaintiff’s case that the subject land is his because he acquired same. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 20 of 25 74. The indication is that Tweneboana Adu Sarkodie Esq. and the Defendant are either not well aware of the contents of Defence and Counterclaim of the former 1st Defendant relied on, or the Defendant and Tweneboana Adu Sarkodie Esq. have deliberately misstated same. 75. The Court is of the considered opinion that it would be unacceptable to conclude that Tweneboana Adu-Sarkodie Esq. and the Defendant who rely on the Defence and Counterclaim of the former 1st Defendant for the present application failed to properly consider the contents of the Defence and Counterclaim relied on. It will also be unacceptable to conclude that aware of the contents of the Defence and Counterclaim, Tweneboana Adu- Sarkodie Esq. and the Defendant have filed the instant application. 76. In determining whether or not the ends of justice would best be achieved in vacating the order of 22nd January 2024, the Court has also considered that from the Counterclaim filed by the former 1st Defendant to the suit and summarized in paragraph 5 above, the cause of action that may have survived the former 1st Defendant would have been an action for general damages for costs incurred by the former 1st Defendant in defending the action, inclusive of the legal fees as the former 1st Defendant maintained that the action instituted against him was frivolous and without any basis. 77. The Court finds that the application made by Counsel for Plaintiff on 20th November 2023 was made pursuant to Order 17 of C.I. 47 and determined in accordance with that Rule of Court although on the face of the motion paper it was stated that Counsel for Plaintiff sought an order of the Court to misjoin the former 1st Defendant. 78. Order 4 Rule 5(1) and (2) of C.I. 47 however provide as follows: Rule 5—Misjoinder and non-joinder of parties SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 21 of 25 (1) No proceedings shall be defeated by reason of misjoinder or non-joinder of any party; and the Court may in any proceeding determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings. (2) At any stage of proceedings, the Court may on such terms as it thinks just either of its own motion or on application (a) order any person who has been improperly or unnecessarily made a party or who for any reason is no longer a party or a necessary party, to cease to be a party. (Emphasis added) 79. The Court therefore finds that the application filed by Counsel for Plaintiff on 20th November 2023 was within his right to file and the application would have been within the rights of this Court to consider even if it had been filed and considered pursuant to Order 4 Rule 5 of C.I. 47. 80. There is no evidence on record that Counsel for former 1st Defendant had seized to be Counsel for the former 1st Defendant on record. As correctly stated by Counsel for Plaintiff in his submissions in Court on 16th April 2024, in accordance with Order 75 of C.I. 47, Counsel for former 1st Defendant on record was therefore correctly considered to be Counsel for the former 1st Defendant for the purpose of service of the application filed by Counsel for Plaintiff on 20th November 2023, as correctly stated by Counsel for Plaintiff in his submissions on Court on 16th April 2024. 81. The Court finds that the application filed by Counsel for Plaintiff for an order to misjoin/ discontinue the action against the former 1st Defendant to the action was properly served on his Counsel, however he opted not to attend Court or oppose the application. 82. In determining the application “on such terms as it thinks fit” a Court would generally hear and consider submissions by Counsel for the party to be misjoined, in this case the former 1st Defendant, which would generally relate to costs and the Court would award SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 22 of 25 costs having regard to amongst others the stage of the proceedings at which the application for misjoinder is filed and Order 74 of C.I. 47. 83. Order 17 Rule 2(3) of C.I. 47 pursuant to which the application filed on 20th November 2023 was considered also provides as follows: Except as provided in this rule, the plaintiff shall not be entitled to withdraw the record or discontinue the action without leave of the Court, but the Court may before, during or after the hearing or trial upon such terms as to costs and as to any other action as may be just, order the action to be discontinued or any part of the alleged cause of action to be struck out. (Emphasis added) 84. The application which was considered as one to discontinue the suit against the 1st Defendant also afforded an opportunity to the former 1st Defendant and his Counsel to attend Court and apply for costs, however Counsel for 1st Defendant who had notice of the application and date on which same was heard opted to be absent from Court and waived any rights of claim to costs that was available to him. 85. The Court therefore finds that no injustice was done to the former 1st Defendant or his Counsel who opted to waive any rights to costs that may have been available to them. X. CONCLUSION 86. For all of the above-stated reasons, the Court finds that the application filed by Tweneboana Adu-Sarkodie Esq, on 12th March 2024 seeking an order of the Court to vacate its order of 22nd January 2024 is wholly without merit and same is refused. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 23 of 25 87. After hearing Tweneboana Adu-Sarkodie Esq. on the issue as to why the costs to be awarded on this occasion should not be awarded against him personally pursuant to Order 74 Rule 9 of C.I. 47, the Court was not satisfied that sufficient cause had been given by Tweneboana Adu-Sarkodie Esq. After hearing Counsel for the Plaintiff on the matter however, the Court will make no order as to costs. 88. The suit is to take its normal course hereafter. [SGD] NABEELA NAEEMA WAHAB (MS) J. (JUSTICE OF THE HIGH COURT) COUNSEL ANDREWS TETTEH FOR THE PLAINTIFF – PRESENT TWENEBOANA ADU-SARKODIE HOLDING BRIEF OF ALEX QUAYNOR FOR THE DEFENDANT – PRESENT CASES REFERRED TO: 1. Linda Akoto v. Bright Kwasi Manu[Unreported; Civil Appeal No J4/30/2021; 26 January 2022]. 2. Omaboe v. Kwame (1978) GLR 122. 3. Ghassoub vs. Dizengoff [1962] 2 GLR 1331 SC. 4. Mosi vs. Bagyina [1963] 1GLR 337. 5. Attoh-Quarshie v. Okpote [1973] 1 GLR 59. SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 24 of 25 6. Network Computer Systems Ltd v Intelstat Global Sales & Marketing Ltd [2012] 1 SCGLR 218. 7. Munji (substituted by) Mumuni v Iddrisu & Others [2013-2014] 1 SCGLR 429. 8. Majolagbe vs. Larbi (1959) GLR 190. 9. Khoury v Richter [8 December 1958, unreported] SUIT NO: FAL/674/2011 – Enock mingle vrs Abigail A. Neequaye Page 25 of 25