ASARE v. DZENY

JUDGMENT OF AZU CRABBE C.J.

This appeal came before us by virtue of section 3 sub-section (2) (d) of the Courts (Amendment) Decree, 1972 (N.R.C.D. 101).

The circumstances giving rise to the appeal may be briefly stated. On 24 November 1960, a writ of summons filed in the High Court, Ho, was entitled:

[p.475]

"1. KWAME GOMADO—Head of family of late )

Clemence Kwadjo Ntibiri, Kpandu Main Road, )

Zongo—at Adame Anfoega ) PLAINTIFFS

2. SYLVESTER KWASI NTIBIRI also of Aveme,)

successor to Clemence Kwadjo Ntibiri )

versus

1. JONATHAN KLU of Ve Deme near Golokwati )

2. HONOURABLE F. Y. ASARE, Regional ) DEFENDANTS."

Commissioner, Regional Office, Ho. )

The plaintiffs' claim against the defendants was for (a) a declaration that the sale of the plaintiffs' family land under a writ of fi. fa. on 15 August 1959, was "unlawful, null and void"; (b) revocation of the certificate of purchase issued to the second defendant; (c) declaration of title and recovery of possession of the land sold; (d) damages; and (e) accounts.

The pleadings in the case were not incorporated in the record of proceedings for this court to know the precise averments that were made by the parties, but in two passages from the judgment of the trial judge (Prempeh J.) it is clear that two fundamental issues were raised in the pleadings of the defendants. The learned trial judge said:

"In paragraph (2) of both statements of defence filed on behalf of the first and second defendants, the point was taken that the first plaintiff was not the head of family of the late Clemence Kwadjo Ntibiri, and that he was incompetent to bring this action against the defendants.

Further in paragraph (3) of both statements of defence it was denied that the second plaintiff was the customary successor of the late Clemence Kwadjo Ntibiri and the point was also taken that he was incompetent to bring the action against the defendants."

The capacity of each of the plaintiffs to bring the action was thus plainly challenged, and, therefore, put in issue, by the defendants.

It is a well-established principle of law that where the authority of persons to sue in a representative capacity is challenged the burden always rests on them to satisfy the court that they have been duly authorised: see Keelson v. Mensah (1957) 2 W.A.L.R. 271. Thus, in Sokpui II v. Tay Agbozo III (1951) 13 W.A.C.A. 241 at p. 242, Verity Ag.P. said:

"There can be no doubt that where parties sue in a representative capacity and thei