The plaintiff per his amended writ and statement of claim is claiming inter alia against the defendant that he is the head of the Royal Owuo We family. The suit was originally against one Solomon Nortey Owuo who died on 8th October 2015. The plaintiff then applied for leave to substitute the deceased 1st defendant with Ebenezer Kpakpo Acquaye who is now the present 1st defendant/applicant. The Court granted the plaintiff’s plea on 3rd December 2015.
On 10th February 2016, the 1st defendant/applicant filed a Motion on Notice to set aside the order of substitution granted the plaintiff on 3rd December 2015 that substituted the applicant in place of the late Solomon Nortey Owuo. The basis of the 1st defendant/applicant’s prayer is contained in paragraphs 4, 5, and 7 of his affidavit in support filed on 10/2/16 as follows:
“4. That all the issues in this suit have been resolved save the issue of headship of the Owuo We Royal family between the plaintiff/respondent and the deceased 1st defendant. See exhibit ‘A’;
5. That I am advised by solicitors and I verily believe to be true that I was wrongly substituted in this suit because the cause of action does not survive the deceased 1st defendant;
7. That …the plaintiff/respondent has also sued me at the General High Court, Accra in his alleged capacity as the head of family which I have also counterclaimed for a declaration that I am the head of family. See exhibits ‘C’ and ‘C1’
Counsel for the 1st defendant/applicant in his submission to the Court referred to order 4 rule 5 (2) (a) on misjoinder and non joinder of parties and stated that giving the relief that the plaintiff/respondent is seeking, the death of Solomon Nortey Owuo (deceased) ended the dispute. He alleges that the action mounted by the plaintiff/respondent should not survive the deceased. It is only when an action survives a deceased person that there can be substitution for the case to proceed. He cited the case of Nii Paul Aryitey Tetteh substituted by Arthur Hammond Tetteh Quarcoo Vrs B A Quarcoo & Another (delivered on 29/5/08) Unreported Suit No. HI/25/07 CA. According to Counsel for the defendant/applicant, the action against Solomon Nortey Owuo (deceased) was a personal action instituted against him and as such upon his death the action does not survive him; the action abates completely. To him, the position of a head of family is not inheritable, but with the death of a head of family, another suitable person is elected from the famil
