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Mensah Nyaku & Ors V. Otoo Pabi (1936) LJR-WACA

Mensah Nyaku & Ors V. Otoo Pabi (1936)

LawGlobal Hub Judgment Report – West African Court of Appeal

Order 8, Rule 8 of Schedule 8 of the Courts Ordinance, 1985—Action in Supreme Court—Multiple joinder of parties and causes of action—Claim to land joined with other claims.

On a preliminary point taken at the trial of an action in the Divisional Court, Eastern Division, the trial Judge refused to strike out the action.

Held on appeal (1) that the Divisional Court should have acted under the powers conferred upon it by Order 3, Rule 8 of Schedule 3 to the Courts Ordinance and struck out the writ, and (2) The multiple joinder of parties and of causes of action must inevitably result in such inconvenience and embarrassment as to make the fair and proper trial of the suit impossible, in particular the joinder of a claim as to ownership of land which is properly cognisable by a Native Tribunal with other claims involving interpretation of documents in English legal form is to be deprecated.

The Court allowed the appeal and ordered that the writ be struck out without prejudice to the various plaintiffs’ rights to bring their various claims each before the appropriate Court.

The following joint judgment was delivered :—

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND YATES, J.

The first four plaintiffs by their writ alleged that

  1. they were co-owners with Kwabena Adjepong alias Joseph Adjepong of a piece of land comprised in an indenture of 3rd January, 1988, made between Kwabena. Adjepong and the defendant who were therein described as Donor and Donee respectively and they claimed a half-share of the said land.
  2. Kwabena Adjepong by his will dated 6th September, 1928, devised his share of the said land to the sixth plaintiff.

(8) Defendant in or about 1982 falsely and fraudulently represented to Kwabena Adjepong that the said will had not been properly prepared and that the defendant should be permitted to prepare and substitute a new will therefor. Kwabena Adjepong having agreed to this, the defendant caused the indenture of 3rd January, 1938, to be prepared and falsely and fraudulently represented that this indenture was the proposed fresh will whereas it was a deed of gift as the defendant then well knew.

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In the statement of claim it is alleged that (1) the first four plaintiffs are the successors’ and head of the families of Kwaku Mantey, Kwabena Labi, Richard Adu, Yaw Ansah and Kwaku Ahia who in 1909 joined with Kwabena Adjepong in purchasing the land, the subject-matter of the indenture of 8rd January, 1988, for £100, half of which was paid by Adjepong and the other half by Mantey, Labi, Ansah and Ahia in equal shares of £10 each (sic). Kwabena Adjepong, in accordance with local custom and practice, represented and acted for all the purchasers ; (2) with the consent of Mantey, Labi, Adu, Ansah and Ahia, Kwabena Adjepong joined the Odikro of Akwatia and others in granting a lease of a large area of land, including that in dispute, to the African Selection Trust Limited, and it now forms part of a concession known as Akwatia Block 5 Concession, and (8) that rents and royalties amounting to £9,667 had been paid to the defendant in respect of the plaintiffs’ portion of the concession and that part only of the rents had been paid to them or their predecessors in title.

In addition the statement of claim contained amplifications of the matters alleged in the writ and other allegations which it is not necessary to set forth herein.

The relief claimed in the statement of claim was as follows :—

  1. A declaration that the plaintiffs Mensah Nyaku, Thomas Adu Kwaasi, Kofi. Ansah and Akua Bobia or their respective ancestors or predecessors in title Kwaku Mantey, Kwabena Labi, Richard Addoo, Yaw Ansah and Kwaku Ahia are owners of half of the land comprised in the said indenture dated the 3rd of January, 1933, and as such are entitled to half share or interest in all rents and royalties paid in respect of that portion of land included in the concession known as Akwatia Block 5 Concession leased by the said Kwabena Adjepong alias Joseph Adjepong to the African Selection Trust Limited.
  2. That the said indenture dated the 3rd January, 1933, be produced for cancellation and or for such other remedy as to the Court may seem meet.
  3. That an account be taken of all moneys collected and received by the defendant in respect of the land and hereditaments comprised in the said indenture of the 3rd of January, 1933, and for the consequential order of the Court thereupon. Or the plaintiffs Mensah Nyaku, Thomas Adu Kwaasi, Kofi Ansah and Akua Bobia claim in alternative to relief 2 supra.
  4. That the said indenture dated the 3rd January, 1933, be rectified in so far as it affects the share or interests of the said plaintiffs Mensah Nyaku, Thomas Adu Kwaasi, Kofi. Ansah and Akua Bobia in the land comprised therein.
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At the trial defendant took the objections that

  1. the Court had no jurisdiction to try the case,
  2. no cause of action was disclosed, and
  3. the claim was embarrassing.

As to (1) he contended that ownership of land was in issue and that the plaintiffs should have first established their right to the land before a Native Tribunal. That the Divisional Court had no jurisdiction to determine the ownership of land. Until the question of ownership was determined the Divisional Court could not order payment of royalties on an account thereof. That the claim of the fifth plaintiff was as successor to Kwabena Adjepong which was a claim that should be established before a Native Tribunal.

  1. If the claim was not for land it was for cancellation of a deed and the recovery of rents and royalties. That the plaintiffs were not parties to the deed and could not have it set aside, and
  2. That parties and causes of action had been improperly joined. The first four plaintiffs claimed a moiety of the land. Fifth and sixth claimed remaining moiety in opposition to each other.

He also applied to strike out paragraph 2 of the reply on the Womb ground that it was not an answer to what appeared in the statement NYak°“‘ of defence but introduced fresh matter of evidence.

The trial Judge ruled

  1. that paragraph 2 of the reply was not improperly pleaded and should not be struck out.
  2. Writ and statement of claim raised matters with which a Paramount Chief’s Tribunal could not deal and whilst the question of ownership might arise it was not the only issue.
  3. The claims as set out in the statement of claim showed sufficient community of interest, both in claim and subject-matter, to enable the plaintiffs to sue jointly.
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Our judgment is as follows :—

We are of opinion that in this case the multiple joinder of parties and of causes of action must inevitably result in such inconvenience and embarrassment as to make the fair and proper trial of the suit impossible, in particular the joinder of a claim as to ownership of land which is properly cognisable by a Native Tribunal with other claims involving interpretation of documents in English legal form is to be deprecated.

We are of opinion therefore that the Court below should have acted under the powers conferred upon it by Order 8, Rule 8 of Schedule 3 to the Courts Ordinance, 1985, and struck out the writ.

The appeal is accordingly allowed, and it is ordered that the writ be struck out without prejudice to the various plaintiffs’ rights to bring their various claims each before the appropriate Court.


The appellant is awarded costs in this Court assessed at L82 17s. 8d. and in the Court below to be taxed.

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