IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
KWADWO OWUSU - (Plaintiff/Respondent/Appellant) vs.
K. KYEM - (Defendant/Appellant/Respondent)
DATE: 24 TH JULY, 2018
CIVIL APPEAL SUIT NO: H1/41/17
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
JAMES KOFFIE FOR DEFENDANT/APPELLANT/ RESPONDENT
BENJAMIN OSEI BOATENG FOR PLAINTIFF/RESPONDENT/APPELLANT
The plaintiff in his writ claimed for declaration of title to a parcel land situate and lying at Abrankese commonly known as “Kotoaso”, recovery of possession of same, an order for the demolition of all structures constructed thereon, general damages for trespass and the demolition and an order of perpetual injunction restraining the defendant etc. from further interfering with the land.
The defendant on receipt of the writ entered a conditional appearance and filed a motion for the case to be struck out since plaintiff lacks capacity to institute the case. That the plaintiff isnot the head of family and so must satisfy the “statutory, legislative and judicial” requirements that would entitle him to institute the action in the stead of the substantive head of family.
The defendant avers that the instant action by the plaintiff is an abuse of the court process and intended to embarrass and unnecessarily torment him given that the plaintiff has by his previous conduct acquiesced in his acquisition of the lands and his dealings thereof.
He averred further that the plaintiff in an earlier suit entitled KwadwoOwusuvrs K. Kyem at the Circuit Court Bekwai, Ashanti Suit No. A1/13/15, for similar reliefs, he challenged his capacity which challenge was upheld bythe court. He prayed the High Court to strike out the plaintiff’s action as incompetent and an abuse of the court process. That the plaintiff by his conduct, participation and engagement in the land clearance and development processes is legally estopped for denying the legitimacy of the defendant’s acquisition and possession of the subject matter land. He listed the particulars of the estoppel.
The defendant filed a motion on notice challenging the capacity of the plaintiff and prayed the suit be struck out for plaintiffs lack of capacity to institute the action.
The High Court in its ruling said the plaintiff clearly sued for and on behalf of the entire family because the head of family being too old had given him his consent. However, there is no power of attorney indicating that consent. In the absence of the power of attorney the writ of summons was accordingly struck out with cost of Gh¢1000 against the plaintiff/ respondent.
The plaintiff/respondent dissatisfied with the said ruling filed this appeal on the following grounds: -
The Ruling was against the weight of evidence.
Additional grounds to be filed upon receipts of records of proceedings.
Ground I & II
Counsel for the appellant submit the plaintiff/respondent/applicant instituted the action for himself and on behalf of the AsonaAkwamu family of Abrankese-Nyamiani. The plaintiff averred in his statement of claim that he has the consent and authority of his Head of Family and the other principal elders of his family to institute the action against the defendant since the head of family has become quite old. Plaintiff averred further that he is a head of a branch of the AsonaAkwamu family and that members of his family are in occupation of the land in dispute.Counsel submits further that the plaintiff endorsed the name and address of the Head of Family on the Statement of Claim as one of those to be served with the writ even though he is not a party and accordingly the writ was served on him.
In arguing ground II, counsel for the appellant submits that the respondent in his affidavit in support of his motion to set the writ aside deposed as follows; “That I have been served with the writ of summons and statement of claim in this suit at the instance of the plaintiff and I have since caused a conditional appearance to be entered”.
Counsel submits that the decision of the trial High Court Judge is wrong and should be reversed because the writ could not be set aside after filing a conditional appearance. He argued that setting aside the plaintiffs’ writ on grounds of capacity without any statement of defence challenging the plaintiff’s capacity and without setting the issue of capacity as preliminary issue was wrong.
Counsel referred this court to the case of Republicvrs High Court, Accra ExparteAryeetey (AnkrahInterestedParty) [2003/4] SC GLR 398 at 410 H3 where the Supreme Court held among others that: -
“A conditional appearance is to enable the defendant who intends to object to the issue or service of the writ or notice of the writ on him or to object to the jurisdiction of the court. It is not permissible for a defendant who has entered a conditional appearance to move the court to have the writ set aside because he has a legal defence ………”
It is his contention that the position of the law now is that the rule in Kwan vrs. Nyieni  GLR 69, is not an intractable rule and where the facts come within the necessity rule, no duty should be imposed on the ordinary family member who sues on behalf of his family to prove that there was a head of family who has refused to sue.
Counsel said Order 4 R (9) of the High Court /Civil Procedure Rules C.I.47 has prescribed a procedurefor an ordinary family member who sues on behalf of the family. It provides: -
2. The head of a family in accordance with customary law may sue and be sued on behalf of or as representing the family.
If for any good reason the head of a family is unable to act or if the head of a family refuses or fails to take action to protect the interest of the family any member of the family may subject to this rule sue on behalf of the family.
Where any member of the family sues under sub rule (3) a copy of the Writ shall be served on the head of family.
It is counsel’s contention that any member of a family can now sue over a family property and the only requirement is that he shall serve a copy of the Writ on the Head of family or should be endorsed as one of the people to be serve with the writ even though he is not a party.
Counsel contends further that the plaintiff in the instant suit averredhe had the consent and authority of his Head of Family and other principal members to institute the action. He said this authority tosue may either be expressed or implied as affirmed in the case of Amahvrs.Kaifio  GLR 23 Hs 1& 2.
It is his submission that the veracity of the plaintiff’s averment on the consent and authority received from the head of family and other principal members could only be determined after the parties had joined issues on it through their pleadings and evidence taken. The plaintiff averred he wasgiven the consent and authority because the Head of Family was old and this averment assigned reasons to meet Ord. 4 r 9(3) of C.I.47.Counsel submits further that the plaintiff gave the Head of Family’s name and address as one of those to be served as required by law and he was duly served. This piece of evidence of service on the Head of Family was never challenged.
It is his contention that the plaintiff/respondent/appellant hasmetthe requirements imposed on him under Order4 R 9(4) of C.I.47 and that the trial judge’s position that the Head of Family was not served with the writ of summons is vehemently denied.
Counsel submits that the suit filed by the plaintiff was intended to preserved the family character of the property and that it became necessary for the plaintiff to take up the duty owing to the old age of the head of family. The plaintiff therefore has capacity to institute the action under the “necessity rule” in Kwan vrs. Nyieni(supra).
Counsel for respondent in answer said this ground of appeal is misconceived.
It is his submissionthat given the opportunities provided the appellant both court at the Circuit Court,Bekwai and the High Court, Kumasi for him to provide cogent evidence of proof of his capacity, the learned trial High Court Judge did not err in striking out the action pursuant to the filing of entry of conditional appearance founded thereon.
He submits furtherthat the courts have on a number of cases givenvarious grounds for setting aside a writ or action and these grounds include lack of jurisdiction, capacity and abuse of the processes of the court.
A defendantmay enter a conditional appearance “where he intends to have the writ or the service of the writ set aside on the grounds of irregularity in the writ or the service of it or to deny jurisdiction. Irregularityhereincludes the irregularity in the issue or service of the writ orinthe form of the writ”. See Amissah-AbadoovrsAbadoo  1 GLR 490 at 498.
In thatcase, the defendantentered a conditional appearance and prayed for the writ to bestruck out based on her complaint that thewrit did not disclose any reasonable cause of action but was refused because that was not a ground which justified her entering a conditional appearance and consequently her conditional appearance was treated as an unconditional appearance. This decision was based on the old Order 19 r (29) & (25) of LN 140 A, the equivalent of Order 9 r (8) of C.I.47.
Order 9 r (8) of C.I.47 states; -
(8) A defendant may at any time before filing appearance, or if the defendant filed a conditional appearance, within 14 daysafter filing appearance, apply to the court for an order to
a. set aside the writ or service of the writ.
b. Declare that the wit or notice of it has not been served on the defendant ….
c. Discharge any order that gives leave to serve the notice on the defendant outside the country.
The meaning I get from the rules is that entry of conditionalappearance is just for a particular purpose, the writ, the service and the jurisdiction of the court.A conditional appearance is to enbale the defendantwho intends to object to the issue or service of the writ on him, or to object tothe jurisdiction of the court, to apply to the court to set aside the writ, or notice of the writ or serviceout of the jurisdiction.
See In Rep vrs High Court, Accra, Ex-Parte Aryeetey [2003/4] SC GLR 398.
This rule of conditionalappearance applies where personal service was not effected on the defendant. Where the writ or notice of it was served on the defendant in an irregular manner, then the application maybe made under Ord 9 r (8a), C.I. 47.Upon entering conditional appearance, a defendant may apply to set aside service of the writ on the ground that the service was defective – Civil Procedure A Practical Approach; S. K. Tetteh – pg. 247.We must however note that conditional appearance is not required for an application to strike out an action for disclosing no cause of action or to raise a jurisdictional defect.
In the instant appeal, the writ of summons was served on the defendant personally. He entered conditional appearance on 18/3/16. On 15/4/16 he filed a “motion on notice to strike out writ of summons/action”. In his affidavit in support of the motion he averred thus: -
2. That I have been served with the writ of summons and statement of claim in this suit at the instance of the plaintiff and I have since caused a conditional appearance to be entered.
3. That I have been legally advised by counsel and I verily believe the same to be true that the action and the writ of summons flout the rules of the honourable court regarding capacity of the plaintiff/respondent and is also an abuse of the processes of the honourablecourtand ought thereby tobe struck out and/or dismissed.
4. That I have been legally adviced by counsel and verily believe the same to be true that, the plaintiffpurporting to institute the action on behalf of the family and with the supposed consent of the head of family, ought to have complied strictly with the provisions of the rules of the honourable court to which my solicitor shall seek leave to refer inthis arguments.
5. Even further still, having admitted in his statement of claim to the effect that he isnotthe headofthe family the plaintiffapplicant was obligated to satisfy strictly, the statutory, legislative and judicial requirements that would entitle him to institute the action in the stead of the substantive headof family and which saidrequirements the plaintiff – Respondent has failed to satisfy.
6. Even further yet, capacity being a fundamental issue, I have been legally advised by counsel and I verily believe the same to be true that the conditions for the institution of the action the same ought to be definitely established and demonstrated on the pleadings before the plaintiff could be heard on the merits of the case.
7. That I have further been leally advised by counsel and I verily believe the same to be true that the instant action is an abuse of the processes of the honourable court and intended to embarrass and unnecessarily torment me; given that the plaintiff has by his previousconductacquiesced in my acquisition oftheland sand mydealings thereof.
14. That without complying with the strictrequirementsspecified in the rulesof thehonourable court and the ruling, the plaintiff respondent has instituted the instant action whose averments thereof are not only contradictory tothe previouspleadings but are blatant demonstration of an attempt to overreach the requirements of the law regarding actions for an on behalf of the family.
15. In the circumstances I respectfully pray that theWrit of Summons and or the entire action be struck out as incompetent and an abuse of the processes of the Honoruable Court.
The gravamen or crux of the defendant’s case is that he entered conditional appearance and prayed the court to strike out the case because the plaintiff had no capacity to institute the action.
To me, this appeal raised two very important issues:
1. Whether a defendant can enter a conditional appearance and have a writ strike out thereon and
2. When an ordinary member of a family or any member of family aside the Head of Family can issue an action on behalf of the family to protect the family property.
Order 9 r. 8 of C. I. 47 has given us the conditions under which a writ can be set aside after entering a conditional appearance. It is not permissible for a defendant who has entered such conditional appearance to move the court to set aside or strike out a writ because he has a legal defence to raise.
Defences like no cause of action,lack of capacity of the plaintiff or estoppel. It is trite learning that legal defences are shields and not swords. Legal defences are shields and not swords.
The plaintiff in his statement of claim paragraph 2 stated: -
2. The plaintiff brings this action for and on behalf of AgonaAkwamu family of the Abrankese/Nyameani.
4. The plaintiff herein says that he has the consent and authority of his Head of Family and the other principal elders of his family to institute the instant action against the defendant herein since the Head of Family has become quite old.
The plaintiff endorsed his own Head of Family, Kofi Kankam, Head of AgonaAkwamu Family of Abrankese/Nyameani as one of those to be served. Plaintiff also gave reasons why he is instituting the action on behalf of the family instead of the Head who he averred as being very old. All these in fulfilment of Order 4 r. 9(4) of C. I. 47.
The trial High Court in its ruling said the plaintiff/appellant could not establish his capacity before the Circuit Court, Bekwai and since the subject matter and the parties are the same as before him, the plaintiff cannot institute the action again. With the greatest respect to the learned Judge that holding is wrong. In the Bekwai case the plaintiff therein, appellant herein could not establish his capacity as suing on behalf of the family and so discontinued the case. That does not forever close the door to him. If he goes back to the family and is able to secure the necessary consent and authority from the head of family and the principal elders, then he had perfected his capacity and can institute a fresh action and that will not be an abuse of the court process nor re-judicata. That is exactly what he did in the suit before the High Court.
He averred in his statement of claim he had the necessary consent and authority from the head of family and he served the writ on him as required by law. The trial judge should have allowed him to establish his claim to capacity by taking evidence. That is if the plaintiff raises a preliminary objection to his capacity but not to strike out the writ as prayed by the defendants in his entry of conditional appearance.
I agree with counsel for the plaintiff/appellant that the issues of capacity is both law and facts. I think since the plaintiff pleaded these facts in his statement of claim, the trial Judge should have refused the motion and ask the defendant to file a defence and plead his defence to the writ and raise those legal defences like the capacity and estoppel. This affords the plaintiff in his reply to the defence the opportunity to respond to those allegations and join issues with the defendant.
As stated earlier, a plaintiff who enters a conditional appearance cannot ask the court to strike out the action as done by the trial High Court Judge. I think the trial High Court Judge with all respect to him, erred in granting the motion and striking out the action at that stage for those reasons in the ruling.
We are not oblivious of the fact that a plaintiff who lacks capacity cannot be heard on the merits of the case however cast iron his case may be. But then, when a party’s capacity especially a plaintiff is challenged, he must be offered the opportunity to respond and defend same. The courts exist to do substantial justice and will frown upon such situations where a party is not offered the opportunity to defend itself.
Again, since capacity is a question of mixture of facts and law, the court should have demanded evidence to ascertain the veracity in the plaintiff’s claim to capacity.
I think the trial court erred in striking out the action. That ruling of the court is hereby set aside. The defendant is hereby ordered to file a defence. He can raise the plaintiff’s capacity as a preliminary issue. The case should be referred to another High Court and should take its normal course.