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J U D G M E N T
BAFFOE-BONNIE, JSC:-
The PL/RESP/RESP (hereinafter referred to as plaintiff), originally instituted this action claiming among others:
A declaration that the original house number 160 was allocated to Moses Neequaye which house was later exchanged for plot 218 renumbered F.793a/2 and 801/2 East Christianborg Osu and same formed part of his estate.
A further declaration that the said house i.e plot 218……was never allocated to Clifford Cudjoe but that he held the house in trust for the beneficiaries of the estate of Moses Neequaye (deceased)
The basis of their claim is simply that their father and predecessor in title Moses Neequaye, was allocated the subject matter of the suit by the State Housing Corporation when his own house was wrecked by the earthquake that rocked Accra and its environs in 1939. Subsequent to the allocation but before the completion of the instalmental payments of the building, the defendants father, one Clifford Cudjoe, was permitted to live in the houe on his return from Burma Campaign in the 2nd World War. He lived there with another son of Moses Neequaye. When the installmental payment ended, the family sought to have the documentation on the building done in the name of Dina Neequaye. It was then that they got to know that Clifford Tagoe had earlier in 1949 attempted to have the documentation effected in his name through an affidavit he swore to that effect.
The affidavit of Clifford Cudjoe, notwithstanding, the SHC did the documentation in the name of Dina Neequaye and this has remained so till today. Clifford Cudjoe died and when the family of Moses Neequaye wanted to take over the property, the children of Clifford Cudjoe, with the active support of one Seth Neequaye, another son of Moses Neequaye, resisted this take over claiming, the property belonged to their father Clifford Cudjoe. The family sued Seth Neequaye who later died and was substituted by the current defendant.
At the end of the trial the trial judge dismissed the plaintiffs claim on the grounds that the plaintiff lacked capacity to bring the action. This was because at the time of the institution of the action the plaintiffs had not applied for L/A to administer Moses Neequaye’s estate and that since they were suing in a representative capacity it was only the head of family who could sue. On the basis of the evidence on record he also dismissed the defendant’s counterclaim.
Dismissing the defendant’s counterclaim the trial judge held;
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