ACCRA - A.D 2016
EMMANUEL KOFI MUSTAPHA - (Plaintiff/Appellant)
SAMUEL GYEKYEI & 3 ORS. - (Defendants/Respondents)

SUIT NO:  H1/87/2015


The plaintiff appellant hereinafter simply referred to as the plaintiff issued this writ against the respondent also referred to as the Defendant in the Circuit Court Accra for the following reliefs:

a. An order that defendants dealing with plaintiffs deceased father’s land amounts to trespass.

b. Order of ejectment and recovery of possession of the said land from defendants.

c. Perpetual injunction restraining the defendants’’ their agents, assigns from interfering with the land the subject matter of this suit.


The plaintiff in his statement of claim averred he is the eldest son of the late Joseph Kobina Mustapha (deceased). On the death of his father, his mother Elizabeth Wilson (deceased) tried in vain to obtain Letters of Administration to administer the estate of the deceased husband. Out of fear that the husband’s family will take all properties from her handed the document on the deceased husband’s land at Bubiashie to 1st defendant, a very good friend of the deceased husband for safe keeping.


Plaintiff’s mother later requested for the said document but 1st defendant after several excuses failed to hand it over to her till her death. 1st defendant refused to hand over same to the plaintiff after persistent demands but rather gave out portions of the land to 2nd, 3rd and 4th defendants for commercial purposes. Plaintiff averred further that the 1st defendant in his attempt to deprive them of their father’s land alleged their father owed him some money in his life time and will therefore take the portion of land he gave out to the defendants. Wherefore the plaintiff issued this writ for the reliefs stated.


The 1st defendant in his defence averred he bought his portion of the land from the plaintiff’s deceased father. He said the larger tract of land was sold by plaintiff’s father to a Priestess in 1988 and later to him. The priestess realizing the double sale by the plaintiff’s father pulled out of the sale and demanded a refund of her money. According to him the plaintiff’s father approached him to refund the money to the priestess which he did. This was against the documents on the whole land.


1stdefendant admits the plaintiff’s mother confronted him for him to prepare a site plan on his portions and return the original document covering all the land to her. He denied the plaintiff’s allegation that it is his mother who handed the documents on the land to him and that the plaintiff is not entitled to his claim on the writ of summons.


In reply the plaintiff was emphatic that it was her mother who handed over the documents on the land to 1st defendant for safe keeping and the alleged sale is a fabrication by the 1st defendant and an attempt to cheat the plaintiff and his siblings.


Issues for trial were;

1. (a) Whether or not the defendants dealing with plaintiff’s fathers land amounts to trespass.

(b) Whether or not plaintiff is entitled to an order of ejectment and recovery of possession of said land.

(c) Whether or not plaintiff is entitled to an order of perpetual injunction to restrain the defendants from further dealings with his interest in the land.

(d) Whether or not plaintiff’s father ever sold the land the subject matter of this suit to the 1st defendant.

(e) Any other issues arising out of the pleadings.


The trial judge in his judgment found as a fact that the plaintiff was not speaking the truth and that he and his witnesses appear to have cooked their story so that the court will order a return of the land to the plaintiff [Page 67 of ROA].


He also found as a fact that the evidence of PW3 was in contrast with that of the plaintiff himself and


PW2. The trial judge found as a fact that the land had been sold to the 1st defendant by the plaintiff’s late father but could not process the documents on the land before his death. The trial judge said he believed that the plaintiff’s mother knew that the land was sold to the 1st defendant but the documents not prepared before the death of her husband hence she gave the document to the 1st defendant to prepare a new indenture. [Page 68 of ROA]


The court also found that 1st defendant is properly on the land and committed no trespass and can deal with the land in any way he wishes. The court also perpetually restrained the plaintiff, his servants, agents and assigns from interfering with the defendant’s quiet enjoyment of the land in dispute.


The plaintiff dissatisfied with this judgment of the court filed the instant appeal on the following grounds;

1. The judgment is against the weight of evidence before the court.

2. That the judge failed to apply the law to the evidence.

3. That the court went beyond its jurisdiction in granting reliefs to defendants which was not before the court.

4. That the judge grossly erred in failing and or refusing to consider the glaring contradictions in the case of the defendants and his witnessed and rather declare his belief in defendants story as against the plaintiff.

5. Additional ground will be filed on receipt of the record of proceedings.


The relief sought from this court is for that judgment to be set aside and judgment entered for the plaintiff on a proper appraisal of the evidence.


Counsel for the respondent in his answer to the submissions made by Counsel for the Appellant, raised two issues;

1. The capacity of the plaintiff.

2. Attempts by counsel for plaintiff to introduce extraneous evidence.


Plaintiff’s Capacity: Since Capacity goes to the root of every case, we shall deal with that issue first before the merits of the appeal itself.


Counsel for the respondents submit that the plaintiff in the instant suit instituted the suit “for himself and other siblings” as endorsed on the writ of summons and the statement of claim. It is his contention that the plaintiff cannot as of right institute proceedings in respect of his deceased father’s estate when he has neither been appointed customary successor of his deceased father nor had he obtained Letters of Administration. He said the right to administer or manage the estate of a deceased person such as his father flows from the Administration of Estate Act, 1961, Act 63.

It is his further submission that as no Letters of Administration has been obtained it cannot be that the disputed property had even been vested in plaintiff and his siblings as required under Section 96 of Act 63 to clothe him with capacity to institute the instant proceedings. It is his case that the matter should have prematurely terminated at the trial stage. Counsel contends in light of plaintiff’s lack of capacity the writ of summons and all proceedings founded on it are a nullity. There is consequently nothing on which this appeal can stand and they pray this appeal is dismissed.


Capacity is the power, ability or authority that allows you to institute a legal action. One cannot institute any legal action unless you are clothed with that capacity to do so. Capacity to sue was a matter of law and could be raised by the party at any time of the proceedings even on appeal. It could also be raised by the court suo motu. Capacity is so fundamental and goes to the root of the case and however iron cast your case may be once you lack capacity the court cannot give you a hearing on the merits of the case.


Its trite learning that a plaintiff who sues in a representative capacity but at the date of issue of the writ he is not clothed with such capacity the writ of summons and the statement of claim are null and void and incurably bad and it is immaterial that later during the course of the proceedings he acquired the capacity. See

(i) Fosua & Adu Poku vrs Dufie (decd) Adu Poku Mensah [2009] SCGLR 310,

(ii) Sarkodie I vrs Boateng II [1982/3] 1 GLR 715,

(iii) Akrong vrs Bulley [1965] GLR 469 SC,

(iv) Yokwa vrs. Duah [1992/3] GBR 278.


Where a party lacked capacity to sue, it renders the writ and subsequent proceedings thereon null and void. Any challenge to capacity puts the validity of the writ in issue. This plea, like a plea of limitation is not concerned with the merits so that if the axe falls, then a defendant who was lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent is entitled to insist upon his right. Kpegah JSC in Rep vrs High Court Accra Ex-parte Aryeetey [2003/2004] 1 SCGLR 398.


The issue in the instant appeal is whether the appellant had the capacity to institute this action. The subject matter of his suit is land belonging to the deceased father Joseph Kobina Mustapha who died intestate in 1988. The right to administer or manage the estate of a deceased person flows from the Administration of Estates Act, 1961, Act 63.


Section 1 of Act 63 states;

1. Devolution on personal representatives

1. The moveable and immovable property of a deceased person shall devolve on the personal representatives of the deceased person with effect from date of death.

2. In the absence of an executor the estate shall until a personal representative is appointed, vest

a. In the successor, if the entire estate devolves under customary law or

b. In the Chief Justice, in any other case.


In the instant suit, the plaintiff’s father died intestate and for the plaintiff to administer or manage his estate he has to establish to the satisfaction of the court that he was appointed as the personal representative of the deceased father. In the absence of evidence of such appointment the estate is vested in the successor. There is however no evidence before the court that the plaintiff had been appointed to any of these two positions for him to enable him administer the estate of the deceased father. There is also no evidence that Letters of Administration had been obtained and in its absence the property cannot be vested in plaintiff and his siblings as required under Section 96 of Act 63 that will clothe him with capacity to institute the instant suit.


We are of the opinion that the plaintiff lacks capacity to institute this action. We hold the plaintiff lacks capacity to institute this action and since capacity goes to the roots of the case as stated above, the whole proceedings in the trial court is therefore null and void. For the avoidance of doubt we wish to state clearly that a writ of summons as well as all proceedings funded on an act by a plaintiff who lacked capacity as in the instant case is null and void. Any judgment and consequential orders made thereon by the trial court are also a nullity and of no legal effect.


The appeal is hereby dismissed.