J U D G M E N T

ADJEI-FRIMPONG, JSC:

My Lords, the provisions in Order 4 rule 9 subrules (2) --(5) of the High Court (Civil Procedure) Rules, (2004) C.I. 47 have codified the customary law principles on family representation in suits to protect family property as espoused in KWAN VRS NYIENI (1959) GLR 67 C.A.

To sum them up, the provisions prescribe that the head of 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 family is unable to act or if he refuses or fails to take action to protect the interest of the family, any member of the family may, subject to the rules, sue on behalf of the family. Where any member of the family sues, a copy of the writ shall be served on the head of family. The head of family when served may, within three days of the service of the writ apply to the court to object to the writ or to be substituted as Plaintiff or to be joined as Plaintiff. And where the head of family is sued as representing the family, but it appears that he was not protecting the interest of the family, any member may apply to the Court to be joined as a defendant in addition to or in substitution for the head. Ostensibly, the provisions are intended to formalize customary rules, bring certainty to bear on them and ensure their integration into the regular judicial processes. Such integration is necessary to ensure relativity among the units of the pluralistic legal system created under the 1992 Constitution.

The foregoing is worth-stating and at the very outset of this delivery. Running through this ligation, has been the disputed capacity of the Plaintiff/Appellant/Respondent (herein ‘Plaintiff’) to commence the action on behalf of his family. The issue has dominated the decisions of the two lower courts and is still pertinent in this second appeal. The rules referred to are a subject of consideration in this decision.

The trial High Court applied the law to the evidence on record and in the end disposed of the matter on the singular question of want of capacity on the part of the Plaintiff. The Court declined determining the merits of the matter even though evidence had been received on the merits through numerous witnesses in a full trial.

We pause here to comment that the approach of the trial court did not demonstrate a good case management practice. If the learned judge knew the matter could be settled on the question of capacity, then it was not