pg 164 Appeal Court, 4th Dec .• 1941. Appeal from Deputy Commis­sioner exercising appellate jurisdiction.

Both parties suing in representative capacities-Not so stated in writ-Judgment of Magistrate in Plaintiff's favour  upset, by Deputy Commissioner on that account.

Held: It is duty of Courts (i) to aim at doing substantial justice and (ii) to make any formal amendment in the claim as to capacity in _ which parties sue. Appeal allowed; judgment of Deputy Commissioner set aside and that of Magistrate restored.

There is no need to set out the facts.

J. Sarkodee Adoo for Appellant.

W B. Van Lare for Respondent.

The following joint judgment was delivered:-

KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND STROTHER-STEWART J.

This suit was instituted in the Court of the Magistrate, Kpandu, with the title of the writ:- Between

Divisional Chief Gbogobolulu of Vakpo Afeyi, Plaintiff

and

Chief Hodo of Anfoega Akukome, Defendant."

Although that writ does not specifically so state, it was abundantly clear from the proceeding!! in the Magistrate's Court that the action was brought by Chief Gbogbolulu in a representative capacity, i.e., as representing the Stool of Vakpo, pg 165 and also that he was suing Chief Hodo reprehensive capacity, i.e., as representing the Stool of Anfoega. The Magistrate begins his careful, and well-reasoned judgment with the statement:-

" This is a land case between the Divisions of Vakpo and

" Anfoe as represented by their Divisional Chiefs."

And the Acting Deputy Commissioner of the Eastern Province, to whose Court the defendant appealed, stated in his judgment:

. , The proceedings make it perfectly clear that the plaintiff­"' respondent Chief Gbogbolulu II is in fact suing on behalf of " his division'."

Nevertheless the Acting Deputy Commissioner held that, inasmuch as the respective representative capacities were not expressed in the writ, the decision of the Magistrate in favour of the plaintiff could not be upheld and he allowed the defendant's appeal.

We are of opinion that he was wrong to do so. It is the duty of Courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities especially when, as in this case, the parties are unrepresented by counsel and unversed in the procedure of the Courts. As soon as any question arose as to the capacities of the respective parties it was, in our view, the duty of the Court to make any formal amendment in the claim which would make clear the capacity in which the plaintiff sued and the defendant was sued and the real point of controversy between them, provided that that could be done with­out any hardship to either party.

This Court has full powers to take this course and since it appeared that no hardship would accrue to either party by the heading of the suit being amended, even at this late stage, so as to make clear the representative capacities of the parties, we ordered in the course of the hearing of the appeal that the title of the suit be altered to read as now appears as the heading of this judgment.

That disposes of the ground upon which it seems that the Acting Deputy Commissioner allowed the defendant's appeal to him, although it is not quite clear whether or not this was the only~' ground.

We have accordingly given learned counsel on behalf of the defendant-appellant-respondent every opportunity to show us any other ground upon which the decision of the trial Court should be disturbed. He has failed to show us any.

The substantial part of the claim was for damages for trespass and the real dispute was as to the boundary between the divisions. As to this both parties agreed that the boundary was that laid down by Dr Gruner, the then German Commissioner at Misahohe pg 166 somewhere between 1908 and 1912, but they were not agreed as to how that boundary should run. This was a question of fact which was fully and carefully investigated by the Magistrate and he gave his decision in favour of the plaintiff's contention. We can see no reason to vary that decision. Indeed before us the respondent's counsel hardly attempted to attack it, but rather argued that Dr Gruner's boundary ought not to be accepted. In making such a contention he has not got a leg to stand UPOli, in view of the fact that his client in his counterclaim in the trial Court had relied upon the Gruner boundary.