OTEMA v. ASANTE
1991
HIGH COURT
GHANA
CORAM
- LUTTERODT J
Areas of Law
- Customary Law
- Civil Procedure
1991
HIGH COURT
GHANA
CORAM
AI Generated Summary
The plaintiff, as the senior sister and customary successor to the late Ernest Kwasi Asante, seeks a declaration that a building is family property, an injunction, and an account of rents. The defendants moved to strike out the claim, arguing lack of cause of action and locus standi. The court held that the pleadings disclosed a reasonable cause of action and that the plaintiff had standing to sue.
The plaintiff who describes herself as the senior sister and customary successor of the late Ernest Kwasi Asante has issued this writ against the administrators of the late Asante for:
"(1) a declaration that a building at Abeka (house number not supplied) which has been listed among the deceased's estate is family property;
(2) perpetual injunction; and
(3) account for all rents collected by the administrators in relation to the property."
Shortly after being served with the writ, the first and second defendants not only entered appearance but caused an application to be filed under Order 25, r.4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) praying for an order striking out the plaintiff’s writ and statement of claim on the grounds that it discloses no cause of action and/or in the alternative, that she has no locus standi to institute the instant action.
The thrust of the applicant's counsel's argument is that since by relief (a) as well as on the face of her own pleadings, particularly paragraph (14), she herself confesses that the subject matter (the unnumbered house) is family property, then in so far as she has not at the same time on the face of the pleadings shown either that: (a) she is the head of the family to whom this property belongs; or (b) that the case falls under any of the exceptions spelt out in the case of Kwan v. Nyieni [1959] G.L.R. 67 at 68, C.A. then it is very plain that her own pleadings do not disclose [p.108] a reasonable cause of action or in the alternative, she has no locus standi to institute these present proceedings.
One of the grounds upon which the plaintiff resists this application is that the motion is not properly before this court. The argument is that in applications of this kind, the proper procedure is for the applicants first, to enter a conditional appearance to the writ of summons, file a defence and then raise this question on the defence. Secondly, the plaintiff contends that she is entitled either as the customary successor or a person who is entitled to have immediate possession, since she bought the land and supplied other building materials for the construction of the building, to institute the present proceedings. The argument therefore is that she has the locus standi to institute this present action.
I would first deal with the question of the procedure where a party seeks to have his opponent's pleadings struck out on the ground that it discloses no reasonable cause of actio