YAA BOAFOWAA & OTHERS v. WESAMOS LIMITED & ANOTHER

ASIEDU, JA.

My Lords, on the 28th March 2018, the Plaintiffs/Respondents (hereinafter referred to as the Plaintiffs) issued a writ of summons against the Defendants/Appellants (hereinafter referred to as the Defendants) for various reliefs indorsed on the writ. The suit was instituted by the Plaintiffs “for themselves and on behalf of the Asona family of Apromase.” In paragraphs 1, 2 and 3 of the statement of claim the Plaintiffs averred that:

“1. The Plaintiffs are members of the Asona family of Apromase with the 1st and 2nd Plaintiffs as principal members of the said family and they live in Kumasi.

2. The Asona family of Apromase does not currently have any Head of family because the family has not selected one after the death of its immediate past Head, Paul Manu @ Yaw Manu.

3. The Plaintiffs have thus commenced the present action for themselves and on behalf of the said family out of necessity with the consent, concurrence and approval of the members of the said family.”

After entering appearance to the writ, the Defendants filed a statement of defence in which they averred at paragraphs 1 and 2 that:

“1. The Defendants deny paragraphs 1, 2 and 3 of the statement of claim, and state further that the Plaintiffs have no capacity to institute this action.

2. The Defendants repeat paragraph 1 above and state that Abusuapanin Yaw Manu who is the head of family is still alive; he is not dead.”

The first two issues set down in the application for directions are (a) Whether or not the Plaintiffs have capacity to institute this action and (b) Whether or not Abusuapanin Yaw Manu who signed the indenture filed by the Plaintiffs on 14th November 2018 is alive.

Following the above, the Defendants then filed an application styled “motion on notice on capacity” on the 27th March 2019, for an order to “dismiss the Plaintiffs’ action on the basis of lack of capacity as per the averments contained in the supporting affidavit.” In the accompanying affidavit, the Defendants deposed that the head of the Plaintiffs’ family is one Yaw Manu and not Paul Manu and that the said Yaw Manu is alive and not dead. The Defendants also deposed that the issue of capacity of the Plaintiffs ought to be determined first before the court go into the merits of the case. The Defendants again stated in their affidavit that Yaw Manu had stated in an Indenture, exhibit B that he is “Abusuapanin of the late John Kofi Berku” who is the original owner of the property subject matter of