The plaintiff seeks "a declaration that he is the proper person to succeed to the estate of his late uncle Kweku Fih, after the death of his cousin, Kobina Yeboah who first succeeded to the estate, after the death of the said uncle Kweku Fih.” The plaintiff further seeks another "declaration that the alleged appointment of the second defendant to succeed to the said estate of the said late Kweku Fih is contrary to native customary law."
The plaintiff gave evidence and called three witnesses. Both the first and second defendants also gave evidence and called three witnesses. In his address, Mr. Carson, learned counsel for the defendants, raised two points of law attacking the writ of summons and a pleading in the statement of claim. Although such matters could have been raised at a very early stage of the proceedings, they were never raised until at the commencement of the addresses. Nevertheless I decided to listen to those points and I wish to dispose of them now before embarking upon a proper consideration of the law and evidence in this suit.
The first point was that the writ of summons and the statement of claim are defective because although the first defendant, Opanyin Kwesi Danso, is described as head of the Yoko family of Odoben, yet it is not stated that he is being sued for and on behalf of that family. Learned counsel referred to Order 16, r. 8 (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which provides:
"The head of a family in accordance with custom, and the occupant of a Stool (or where the Stool is vacant, the Regent or Caretaker of such Stool) may sue and be sued on behalf of or as representing such Family or Stool."
Learned counsel's reason for his submission was that any judgment entered against the first defendant would not be binding on the family in the absence of the use of the words "on behalf of or as representing such family." I have tried in vain to find an adjective to clarify this submission as I consider the word “academic” even not too appropriate. I think the description in the title of the suit that the first defendant is the head of the Yoko family of Odoben indicates that he is being sued in that capacity and not in his individual capacity. Since the Yoko family consists of numerous persons, Order 16, r. 8 (b) enables the plaintiff to single out the first defendant and sue him. The family members are aware that the first defendant has been sued as such in a dispute between the plaintiff
