KWAKYE v. TUBA AND OTHERS (DAWUDA-TUBA-APPLICANT)

JUDGMENT OF OLLENNU J.

The plaintiff instituted this action in his capacity as successor to one Kwasi Kuma, late of Asokore, New Juaben, who died intestate in or about February, 1958. By his writ he claims a declaration of title to, injunction, and an account of proceeds from, certain land with cocoa farms thereon, the self-acquired property of the late Kwasi Kuma, which has become family property.

[p.537]

The applicant who claims to be the head of the said family, seeks to be joined as co-plaintiff on the ground that as head of family, he is the proper person entitled in law to sue and be sued in respect of the said property which has become family property by reason of Kwasi Kuma's death intestate. There is nothing in the affidavit supporting his motion to show that he disputes the plaintiff’s allegation that he is the duly appointed successor to the deceased. On the contrary, the inference to be drawn from his said affidavit is that he admits that the plaintiff is the successor to the deceased, but contends that he is the head of the big family of which the family of the late Kwasi Kuma is a branch family, and that as between the head of the big family and a person appointed successor to a deceased member of that family, it is the head of the big or wider family and not the successor, who in law is entitled to litigate over the property which was self-acquired property of the deceased and which becomes family property by reason of the original owner's death intestate.

In the affidavit he filed in opposition to the motion, the plaintiff denied that the applicant is the head of the family but said, however, that in any event, as successor he is the proper person entitled to litigate the title of Kwasi Kuma's family to the land, and to protect the family's interest in the property.

In these circumstances the motion is to be dealt with on the same principle as proceedings under Order 25, rules 2 and 31, where a point of law is taken, that even if the facts pleaded by a plaintiff are true, they do not in law, disclose a cause of action: see Apenteng v. B. W.A. Ltd.2

For the applicant it was submitted that as a general rule the head of the family is the proper person to sue and be sued in respect of family property, except in certain special circumstance; the case of Kwan v. Nyieni & Anor.3 was cited in support of that proposition. Whilst that submission is sound law, learned counsel failed to appreciate that the term "head of family" and "successor"