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On 25-07-2002, Cynthia Clerk,
suing for and on behalf of the
Fofo Ashong family of Osu, Alata
of Accra, caused a writ to be
issued in this court against the
Archbishop of the Accra Diocese
of the Catholic Church and the
Parish Priest of the St. Marion
Catholic Church, Osu, Accra,
whereby she claims the following
reliefs:
“i. Declaration of title to all
that piece or parcel of land
situate, lying and being at
North-East Christianborg, Osu,
Accra and bounded on the
North-East by the property of
the grantor and a drain
measuring 154 feet more or less
on the south by the property of
Ofori Cofie measuring 147 feet
more or less on the East by Osu
Alata Stool land measuring 70
feet more or less and on the
West by a proposed Road
measuring 120 feet more or less
and containing an approximate
area of 0.32 of an Acre.
ii. Recovery of Possession of
the said property.
iii. Damages for Trespass.
iv. An order of perpetual
injunction restraining the
Defendants, their agents,
workmen and privies whatsoever
from entering the land in
dispute, remaining thereon,
carrying on any work whatsoever
thereon or in any manner
interfering with the plaintiff’s
ownership and or possession of
the said land pending the final
determination of this suit.
v. Any other relief found due.”
The case of the plaintiff is
that her family inherited the
land described above from one
Madam Fofo Ashong (deceased) who
was the owner in possession by
virtue of a Deed of Gift dated
04-04-1949 made between Nii
Kwabena Bonne III, the Osu Alata
Manche, as the grantor on the
one hand and Madam Fofo Ashong
as the grantee on the other hand
which Deed of Gift was
registered at the Land Registry
as No. 1266/77.
The plaintiff’s family has been
in undisturbed possession of
this land until the year 2000
when the Archbishop of the Accra
Diocese (the 1st
defendant) entered the said land
and erected a fence wall around
it in preparation of carrying
out constructional work thereon.
As a result, the plaintiff’s
family reported the matter to
the current Osu Alata Manche,
Nii Kwabena Bonne IV who tried
unsuccessfully to resolve the
issue.
The plaintiff contends that,
without the knowledge of her
family, the defendants submitted
their land documents to the Land
Title Registry for registration
of their title and when they got
to know of it they informed the
Osu Alata Manche who wrote to
the Chief Registrar of Lands not
to register the defendants’
title. Upon their own
investigations, however, she got
to know that the defendants
purported to have purchased the
land from one Adueley Hammond
and Ann Lutterodt, who are not
the rightful owners.
According to the plaintiff,
despite protests from her
family, the defendants,
fraudulently and in collusion
with officials of the Land Title
Registry, registered their title
at the Land Title Registry and
are defiantly preparing to carry
out the constructional works on
the land and have in fact
erected a fence wall around it.
As a result, she instituted the
present action.
The case of the defendants is
that they acquired the land in
dispute separately from two
persons namely Adueley Hammond
and Ann Lutterodt by Deeds of
Gift dated 13-05-1999. Their
grantors similarly acquired
their grants separately from Nii
Okwei Omaboe by Deeds of Gift
dated 05-12-1952. Their grantors
after their acquisitions had
been in possession since 1952
till they granted same to the
defendant in 1999. It was in
2000 that the plaintiffs began
to lay adverse claim to the said
land. According to the
defendants, they conducted
various searches at the Lands
Commission and the results
confirmed their title. They,
therefore, registered their
documents at the Land Registry.
Subsequent searches after
registration revealed that they
are the only people who acquired
the land in dispute.
At the directions stage, the
following issues were set down
for trial:
i.
Whether the plaintiff is a
member of the Fofo Ashong Family
of Osu.
ii.
Whether Madam Fofo Ashong was
the owner of the piece of land
registered at the Land Title
Registry as No. 1266/77.
iii.
Whether the defendants’
grantors, Adueley Hammond and
Ann Lutterodt ever owned or have
been in possession of the piece
or parcel of land registered as
No. 1266/77.
iv.
Whether upon the death of Madam
Fofo Ashong, the piece or parcel
of land registered as No.
1266/77 devolved on the
plaintiff as grandchild of Madam
Fofo Ashong.
v.
Whether Madam Fofo Ashong
acquired the said piece or
parcel of land by a Deed of Gift
executed between her and Nii
Kwabena Bonne III, Osu Alata
Mantse dated 04-04-1949.
vi.
Whether the plaintiff is
entitled to her claims.
vii.
Any other issues arising out of
the pleadings.
I would first of all determine
whether the plaintiff is a
member of the late Fofo Ashong
family of Osu. I would also
determine the incidental issue
of whether the plaintiff has the
capacity to institute this
action.
The plaintiff, in her
evidence-in-chief, testified
that Madam Fofo Ashong is her
grandmother. In
cross-examination, the plaintiff
made it clear that Madam Fofo
Ashong is her grandmother
because her father is the son of
Madam Fofo Ashong. In other
words, Madam Fofo Ashong begat
the plaintiff’s father and the
latter begat the plaintiff. So,
there is sufficient evidence to
prove that the plaintiff is a
member of the family of Madam
Fofo Ashong through her father.
What follows is whether, as such
a family member, she has the
capacity to mount the instant
action for and on behalf of the
Fofo Ashong family. It is trite
law that generally it is the
head of family who sues or is
sued in respect of family
property. To this general rule,
there are exceptions. If the
plaintiff of course was the head
of family, she would have sued
as such. So, the plaintiff’s
capacity then depends on whether
she falls within the exceptions.
The exceptions are set out in
Order 4, Rule 9(2), (3) and (4)
which I reproduce hereunder as
follows:
“9.(2) The head of a family in
accordance with customary law
may sue and be on behalf of or
as representing the family.
(3) If for any good reason the
head of 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 … 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.”
“It is obvious from the writ and
pleadings as well as the
evidence of the plaintiff that
she is not the head of the Madam
Fofo Ashong’s family.
Furthermore, the plaintiff has
not shown, either in her
pleadings or evidence, that the
head of family is unable to take
action to protect the interest
of the family. In any case,
there is no evidence that the
plaintiff has served a copy of
the writ on the head of family.
From the above, the plaintiff
lacks capacity to institute the
instant action. As the plaintiff
has no capacity, the entire
action is void and of no
consequence and all proceedings
herein follows the same path.
The plaintiff’s action is thus
not maintainable for want of
capacity. It follows that the
plaintiff is not entitled to the
reliefs she claims from this
court as endorsed on the writ of
summons for a person who lacks
capacity to mount an action
cannot seek a declaration of
title, recovery of possession,
damages for trespass and
perpetual injunction.
It also follows that it would be
moot determining the other
issues set out in the
directions.
The plaintiff’s action is hereby
dismissed. The defendants are
awarded cost of GH˘5,000.00.
COUNSEL:
1. Mr. Eric Tieku for Plaintiff.
2. Aku Shika Dadzie for
Defendants.
(SGD.) UUTER PAUL DERY
JUSTICE OF THE HIGH COURT
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