Damage.~ awarded for Trespass on
alleged Stool Property Original
Plaintiff, suing as Odikro of
Dahia, died-Present Plaintiff
substituted as Od1'kro---Court
below found Plaintiff was not
Odikro-No appeal on this
point---Court below ,satisfied
that trespass committed against
Plaintiff but not in
representative capacity-writ of
Summons not amended as to
Plaintiff's capacity- ,might
have been properly done provided
Court ,satisfied would cause no
injustice
to Defendants-Defendant,~
should first be heard on this
question-No application for
amendment made in Court
below-Made informally at hearing
to Appeal Court.
Held: Appeal Court power 80 to
amend in proper case but here
considered proper course to send
case back to Commissioner's
Court' to make necessary
amendment if no injustice caused
thereby, Question of expense in
calling evidence as to whether
plaintiff was or was not Odikro
should not of itself be a bar 3S
defendants can be compensated in
awarding of costs.
There is no need to set out the
facts.
D. M. Abadoo (J. W. de Graft
Johnson
with him) for Appellants.
J, T, Sackeyfio
for Respondent.
The following joint judgment was
delivered :-
KINGDON, C.J., NIGERIA, PETRIDES,
C.J., GOLD COAST AND GRAHAM
PAUL, C,J SIERRA LEONE.
This is an appeal from the
judgment of the Provincial
Commissioner's Court, Cape
Coast. There are several grounds
of appeal but we found no
substance in any of them except
Ground 1
(b)
which is in the following
terms:-
"The learned Provincial
Commissioner misdirected himself
on the "point as to how far the
respondent could recover damages
for an •• alleged trespass on a
farm alleged to have been made
on an alleged " Stool Property
of Dahia by Nketsia the original
plaintiff in the suit "as Odikro
of Dahia, the Court having come
to the conclusion that " both
Nketsia and the respondent (who
was substituted for Nketeia) "
were not Odikros of Dahia."
The facts material to this
ground may be quite shortly
stated.
The claim in the suit was for
£100 damages for trespass
committed on land known as "
Agyinfra Land " and for an
injunction. The suit was
originally taken by Robina
Nketsia as Odikro of Dahia.
Robina Nketsia died after the
issue of the Writ of Summons and
the present plaintiff-respondent
on his own application was
substituted as plaintiff as
Odikro of Dahia. His application
was supported by his affidavit
deposing that R~bina Nketsia had
died and that he, the
plaintiff-respondent, had been
appointed. as Odikro of Dahia in
succession to Robina Nketsia.
The defendants' case in the
Court below was that the
plaintiffrespondent was not the
Odikro of Dahia and that in any
event there had been no trespass
as the alleged acts of trespass
took place on the defendants'
land.
Upon .the first point the Court
below found that the plaintiff
was not Oaikro of Dahia and
there is no appeal before us on
that finding. The Court below
however investigated very fully
the facts as to the trespass,
visited the land and inspected
the scene of the alleged
trespass. The final judgment of
the Court below after finding
that the plaintiff was not
Odikro of Dahia proceeded as
follows : -'-
"I am satisfied that the 2nd
defendant, Annobill, committed
., trespass on the land in the
occupation of' the plaintiff'
and that the " 1st defendant
Apawu, datively assisted in
this.
"On the question of damages,
since" I have· ruled already
that the! " plaintiff is 'not
the Odikro of Dabia he can only
be regarded as 'suing " for
himself and not in a
representative capacity for
other people. The " damage done
to his property is estimated by
the plaintiff at £35 and "I
award that amount to him as
damages. Further the injunction
" applied for is granted. The
plaintiff is also awarded costs,
such costs "-to be taxed,"
It is quite clear that the Court
below could not give judgment in
favour of the plaintiff "as
suing for himself and not in a
"'representative capacity"
unless and until the Writ of
Summons had been amended so as
to alter the capacity in which
the plaintiff sued.
Having come to the conclusion
that the plaintiff was suing in
the wrong capacity but that he
had made out a case in another
capacity it would in our opinion
have been quite proper for the
Court below to make the
necessary amendment to the Writ
of Summons provided the Court
was satisfied that such
amendment could be made at that
'stage of the proceedings
without injustice to the
defendants. Before making that
amendment the Court below would
have to give the defendants the
opportunity of being heard on
the question whether making the
amendment at that stage would
involve injustice to them.
The necessary amendment was not
made in the Court below, nor was
any application made by the
plaintiff in the Court below for
the amendment. Nor was any
formal written application in
and that behalf made to this
Court, but, when called upon in
regard to Ground 1
(b)
of the Grounds of Appeal,
counsel for the .. respondent
asked this Court, in the
exercise of its powers under
rule 31 of its Rules, to make
the necessary amendment, and
after doing so to uphold the
judgment of the Court below.
No doubt we have power in a
proper case to make such an
amendment but we consider that
the proper course is to send the
case back to the Commissioner
who tried the case in the Court
below to make the necessary
amendment if after hearing
parties on the question it
appears to him that no injustice
to the defendants would be
involved.
It is clear from the record that
a considerable amount of the
evidence was directed to the
question whether the plaintiff
was or was not Odikro of Dahia.
If the plaintiff had from the
outset sued in the correct
capacity it would have been
unnecessary for the defendants
to have called evidence to show
that the plaintiff was not
Odikro of Dahia but the
defendants can be compensated
for that extra trouble and
expense in the awarding of costs
by the Court below and that
extra trouble and expense ought
not therefore of itself to be
regarded as an injustice
preventing the making of the
amendment. The appeal is
therefore allowed and it is
ordered that the judgment of the
Court below be set aside
including the order as to costs
which if paid must be refunded.
The case is sent back to the
Commissioner who tried the case
for him to hear parties on the
question which we have
indicated. If the Commissioner
comes to the conclusion that the
amendment can be made without
injustice to the defendants he
may make the amendment and give
judgment on the writ as amended
on such terms as to costs as he
may think fit. If the
Commissioner decides to make the
amendment and the defendants
satisfy the Commissioner that if
the Writ originally had been in
the amended form they could and
would, because of the difference
in the capacity in which the
plaintiff sued, have called
additional evidence, opportunity
should be given to the
defendants to call such
additional evidence and for
parties to be heard upon the
effect of such additional
evidence. If the Commissioner
comes to the conclusion that the
amendment cannot be allowed at
this stage without injustice to
the defendants the claim must be
dismissed.
The defendants are awarded the
cost; of this appeal assessed
at £44 5s 0d.
