KWADWO OWUSU & OTHERS v. K. KYEM
2018
COURT OF APPEAL
GHANA
CORAM
- ADUAMA OSEI, JA (PRESIDING)
- DZAMEFE, JA
- M. WELBOURNE, JA
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2018
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The plaintiff sought various court orders concerning land disputes, challenging the defendant's possession, but was struck out for lack of capacity by the High Court due to the absence of a power of attorney. The plaintiff appealed, arguing he had the requisite family consent. The court held that a conditional appearance should not strike out a writ for reasons like capacity. The appeal was granted, and the case was ordered to proceed, allowing the plaintiff to establish his capacity through evidence.
DZAMEFE, JA
The plaintiff in his writ claimed for declaration of title to a parcel land situate and lying at Abrankese commonly known as “Kotoaso”, recovery of possession of same, an order for the demolition of all structures constructed thereon, general damages for trespass and the demolition and an order of perpetual injunction restraining the defendant etc. from further interfering with the land.
The defendant on receipt of the writ entered a conditional appearance and filed a motion for the case to be struck out since plaintiff lacks capacity to institute the case. That the plaintiff isnot the head of family and so must satisfy the “statutory, legislative and judicial” requirements that would entitle him to institute the action in the stead of the substantive head of family.
The defendant avers that the instant action by the plaintiff is an abuse of the court process and intended to embarrass and unnecessarily torment him given that the plaintiff has by his previous conduct acquiesced in his acquisition of the lands and his dealings thereof.
He averred further that the plaintiff in an earlier suit entitled KwadwoOwusuvrs K. Kyem at the Circuit Court Bekwai, Ashanti Suit No. A1/13/15, for similar reliefs, he challenged his capacity which challenge was upheld bythe court. He prayed the High Court to strike out the plaintiff’s action as incompetent and an abuse of the court process. That the plaintiff by his conduct, participation and engagement in the land clearance and development processes is legally estopped for denying the legitimacy of the defendant’s acquisition and possession of the subject matter land. He listed the particulars of the estoppel.
The defendant filed a motion on notice challenging the capacity of the plaintiff and prayed the suit be struck out for plaintiffs lack of capacity to institute the action.
RULING
The High Court in its ruling said the plaintiff clearly sued for and on behalf of the entire family because the head of family being too old had given him his consent. However, there is no power of attorney indicating that consent. In the absence of the power of attorney the writ of summons was accordingly struck out with cost of Gh¢1000 against the plaintiff/ respondent.
The plaintiff/respondent dissatisfied with the said ruling filed this appeal on the following grounds: -
1. The Ruling was against the weight of evidence.
2. Additional grounds to be filed upon receipts of records of proceedings.
SUBMISSIONS
Ground