OBAAPANYIN ADJOA NYARKOA vs. KWABENA DARKO & 3 OTHERS
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KOFORIDUA - A.D 2017
OBAAPANYIN ADJOA NYARKOA - (Plaintiff/Appellant)
KWABENA DARKO AND 3 OTHERS - (Defendants/Respondents)

DATE:  12TH JULY, 2017
CIVIL APPEAL NO:  H1/24/2016
JUDGES:  ADJEI J.A. (PRESIDING), SOWAH J.A., MENSAH J.A.
LAWYERS:  STEPHEN OKPOTI MENSAH FOR PLAINTIFF/APPELLANT
NO REPRESENTATION FOR DEFENDANTS/RESPONDENTS
JUDGMENT

SOWAH, J.A.:

This is an appeal from the judgment of the Circuit Court, Nsawam, dated 11th May 2015. By that judgment, the trial Circuit Court dismissed the case of the Plaintiff/Appellant on the grounds that she lacked the capacity required to bring an action for declaration of title to, and recovery of possession of the “family land” which was the subject of the Suit.

 

The notice of appeal which is dated 1st June 2015 has the following grounds of appeal:

1. The judgment is against the weight of the evidence;

2. The trial judge erred in not considering the case of the Plaintiff at all;

3. Additional grounds of appeal will be filed upon receipt of the record of proceedings.

 

It is also noted for the record that no other grounds of appeal were filed as had been intimated in the Notice of appeal.

                     

Also, on the 6th January 2017, the appellant filed written submissions [wrongly titled ‘Statement of Case’] arguing the two grounds of appeal. However, the record does not show that the defendants/respondents filed their written submissions in answer. Be that as it may, I proceed to consider the merits of the grounds of appeal.

 

It is trite that an appeal is by way of re-hearing particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence. It is then the duty of the appellate court to analyze the entire record of appeal to satisfy itself whether or not on a preponderance of the probabilities, the evidence reasonably or amply supports the conclusions of the trial judge.

 

In the first ground of appeal, the appellant seeks to demonstrate from the evidence adduced at the trial that she was entitled to judgment on the reliefs she had sued for. The submissions in the second ground of appeal is dedicated to showing that the trial judge was wrong to hold that the appellant lacked capacity to institute the action with the result that the trial court did not find it necessary to determine the fundamental issue of the ownership of the land in dispute.

 

Capacity is a point of law which is very fundamental and goes to the root of the action. Lack of capacity to sue, would render the writ and subsequent proceedings thereon null and void. In

Republic vs. High Court, Accra, Ex parte Aryeetey (Ankra Interested Party, [2003-2004] SCGLR 398, it was held that:

Any challenge to capacity therefore puts the validity of a writ in issue. It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with the merits so that if the axe falls, then a defendant who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist upon his rights: see Akrong v Bulley [1965] GLR 469 SC.”

 

Thus when the issue of capacity is raised, it must be decided before any consideration of the merits of the case. The trial judge was therefore right to first tackle the issue of capacity. Likewise, I will consider and dispose of the second ground of appeal before proceeding, if necessary, with the first ground.

 

In the endorsement on the writ of summons, the plaintiff described herself as “suing for and on behalf of the Jumuana Abusua of Adoagyiri-Nsawam”. She also averred in the statement of claim that she was a “principal member” of that family and “brings this action on behalf of the family”.

 

The defendants challenged plaintiff's capacity to sue in their statement of defence. They denied that the plaintiff was a principal member of the Jumuana family of Adoagyiri-Nsawam or that she had brought the action with the consent and knowledge of the family. The defendants' also denied that the Head of plaintiff's family was aware of the suit filed by the plaintiff. Consequently, it was set down as an issue for trial whether the plaintiff had the requisite capacity to sue. [See page 10 of the record of appeal]

 

The traverse of plaintiffs’ claims to having capacity meant that she carried the legal burden to prove her assertions to the requisite standard imposed under sections 10, 11, 12 (2) of the Evidence Act, 1975 NRCD 323

 

In Sarkodie I vs. Boateng II [1982-83] GLR 715, the Supreme Court said that

 

“It was elementary that a plaintiff or petitioner whose capacity was put in issue must establish it by cogent evidence. And it was no answer for a party whose capacity to initiate proceedings has been challenged by his adversary to plead that he should be given a hearing on the merits because he had a cast-iron case against his proponent.”

 

In deciding on the issue of Plaintiff’s capacity, I agree with the trial judge that subject to some exceptions, the general principle is that it is only the head of family who can sue and be sued in respect of family property. Authority for this proposition is the case of Kwan vs. Nyieni [1959] GLR 67 C.A. and Nyamekye vs. Ansah [1989-90] 2 GLR 152, where the Court of Appeal again restated that

 

As a general rule, the head of a family as representatives of the family was the proper person to institute suits for the recovery of family land. And where the authority of a person to sue in a representative capacity was challenged, the onus was upon him to prove that he had been duly authorized. He could not succeed on the merits without satisfying the court on that important preliminary issue’.

 

Kwan vs. Nyieni [supra] also provided some exceptions to the general rule which were subsequently expanded in Agbosu & Ors vs. Kotey & Ors [2003-2005] 1GLR 685 S.C [Also reported in [2003-2004] SCGLR 420 as In Re Ashalley Botwe Lands; Adjetey Agbosu & Others vs. Kotey & Others]

 

In particular, holding 2 says:

 

“The rule in Kwan v Nyieni did not establish an intractable rule of law that an action instituted to protect family property by a non-head of family, specifically ordinary members of the family, could only succeed upon proof that there was a head of family who was deliberately refusing to act or save the property. The rule recognised special circumstances in which ordinary members of the family could in their own right sue to protect family property, and identified only two broad special circumstances under which the general rule that only the head could sue would not apply: (1) where the member of family had been authorised by members of the family to sue; and (2) upon proof of necessity to sue. Therefore, the question whether any particular case fell within the stated exceptions rather than the rule, or even an exception not identified in Kwan v Nyieni, was dependent on the particular facts of the case….”

 

Upon careful consideration of the cases to which I have referred, and other judicial decisions on the customary law in this regard, we come to the following conclusions.

 

First, as a general rule the head of a family, as representative of the family, is the proper person to institute suits for the recovery of family land.

 

To this general rule there are exceptions in certain special circumstances, such as:

i. Where the family property is in danger of being lost to the family, and it is shown that the head (either out of personal interest, or otherwise) will not make a move to save or preserve it; or

ii. Where, owing to a division in the family, the head and some of the principal members will not take any step; or

iii. Where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole.

 

In any such special circumstances, the Court will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property.

 

The question is whether the Plaintiff met the requirements as enumerated above, so as to be clothed with the capacity to bring this action?

 

In her Statement of Claim, the plaintiff averred that she was a principal member of the Jumuana family of Adoagyiri – Nsawam and was thus bringing the action on behalf of and with the consent and knowledge of the family. However, she did not call any witness to corroborate these assertions even though she had had adequate notice of the challenge to her capacity. The defendants had averred in their statement of defence that the head of the Plaintiff’s family was unaware of her action and could not have granted consent to it.

 

The Plaintiff may have had a legitimate reason for suing the defendants, but she did not deem it necessary to call any family member to corroborate that the suit was with the consent and knowledge of the family. She did not prove to the trial court that the family property was in danger of being lost to the family, and that the head (either out of personal interest, or otherwise) would not make a move to save or preserve it. Contrary to her claim that she did inform the head of her family before instituting this action, the head of family who was rather called as a witness by the defendants denied that he was aware of the Plaintiff’s action.

 

Neither did the plaintiff demonstrate that there was a division in the family, for which reason the head and some of the principal members would not take any steps to protect the family property.

 

She also did not establish that the head and the principal members were deliberately disposing of family property in their personal interest, to the detriment of the family as a whole.

 

Apart from plaintiff’s failure to demonstrate any special circumstance to clothe her with capacity, she also failed to fulfill an important procedural requirement for a family member, not being the head of family, to successfully bring an action in respect of family property.

 

Order 4 rule 9 (2) - (4) of the High Court (Civil Procedure) Rules, 2004 (C.I 47), provides as follows:

 

Representation of stools and families

9. (2) The head of a family in accordance with customary law may sue and be sued on behalf of or as representing the family.

(3) 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.

(4) Where any member of the family sues under subrule (3) a copy of the writ shall be served on the head of family

 

Had the plaintiff caused a copy of the writ of summons to be served on her head of family in compliance with the requirements of rule 9 of C.I 47, I daresay that there may have been a better outcome of her suit considering that she purported to be a principal member rather than an ordinary member of the family, and considering also that on the evidence the head of family appeared reluctant to act.

 

Having examined the evidence on record, we find that the trial court did consider plaintiffs case and rightly dismissed the suit in limine for want of capacity to prosecute the case. We accordingly endorse the conclusion of the trial judge that: “the plaintiff has not been able to establish by cogent evidence that she has the capacity to institute this action on behalf of the family”.

 

Having come to this conclusion, this Court cannot deal with the merits of her case. It is therefore not necessary to determine the first ground of appeal which is hereby also dismissed.

 

Judgment of the trial court is affirmed.

 

Appeal is dismissed

 

(Sgd.)

CECILIA H. SOWAH

(JUSTICE OF APPEAL)

 

(Sgd.)

ADJEI, (J. A.) I agree            DENNIS ADJEI

(JUSTICE OF APPEAL)

 

(Sgd.)

MENSAH, (J. A.)        I also agree    LAWRENCE L. MENSAH

(JUSTICE OF APPEAL)