FOLI AND OTHER VRS DAMANKA (A1/08/2021) [2023] GHADC 714 (25 May 2023)

25: 05: 2023 IN THE DISTRICT MAGISTRATE COURT HELD AT VAKPO ON THURSDAY THE 25TH DAY OF MAY, 2023 BEFORE HER WORSHIP GIFTY CUDJOE THE MAGISTRATE. SUIT NO. A1/08/2021 1. HUMPHREY FOLI 2. CHRISTOPH MAWULI BAKU …. PLAINTIFFS VERSUS MALWINE ADZOVI DAMANKA ) …. DEFENDANT J U D G E M E N T The plaintiffs claim against the defendant is as follows:- 1. Declaration of title and ownership of all that piece of parcel of land situated and lying at Vakpo near the Post Office and bounded as follows:- On one side by Kpikpitse, On another side by Ofori family and On the last side by the town road. 2. An Order of the court directed at the defendant by herself, agents, privies workmen and servants to remove all temporary structures on the land with immediate effect. 3. Perpetual Injunction restraining the defendant her agents and servants from carrying out any project on the said land. 4. Cost. EVIDENCE OF 1ST PLAINTIFF The 1st plaintiff in his Witness Statement tells court that he is Head of family of the late Robert Damanka’s grandchildren and the defendant is his Paternal Cousin. That somewhere in 2020, he received a call from the late George Damanka, the Head of their clan asking him whether he was aware of the new development on the subject matter of dispute. That on the 8th August, 2020 he came to Vakpo and met with the defendant who had her dwelling place on part of the disputed land. He noticed that the defendant had dug trenches on one portion of the land he ordered her to stop whatever work he had commenced. He also told the defendant that the grandchildren of the late Robert Damanka are all beneficiaries of the disputed land and that the defendant is not a sole beneficiary. He also made it clear to the defendant that the subject matter was not bequeathed to any of the deceased grandfathers children nor his grandchildren before he died. The 1st plaintiff revealed the names of children of his deceased grandfather’s children as Roland Damanka, Emmanuel Damanka, Gladys and Cecilia Damanka respectively. It is his evidence that although he stopped the defendant from dealing with the subject matter of dispute, the defendant disregarded his Orders and erected and placed a Metal Container Shop on the land. He reported her conduct to elders of the family and all efforts to let the defendant desist from further interference with the subject matter of dispute proved futile hence the present action. 2ND PLAINTIFFS EVIDENCE The 2nd plaintiff tells court that they are all relatives and that the owner of the subject matter of dispute is one Robert Damanka. He revealed that he is a son of Gladys Damanka and the 1st plaintiff is the eldest grandchild and Head of family of the late Robert Damanka’s grandchildren. That on the 8th August, 2020 , he received a call from 1st plaintiff with the complaint that the 1st plaintiff is preventing her from erecting a Metal Container on a portion of the disputed land. That he informed the defendant that the portion of land she has her dwelling place on, does not solely belong to her. That on the 11th August 2020, the 1st plaintiff narrated the conduct of the defendant in respect of the subject matter of dispute and the family appointed them to institute the present action. The defendant in defence, states that her father had been in possession of the said house for years and she lived in the subject matter of dispute with her father from infancy. That the old house collapsed and she built a 3-bedroom house for him to live in till his demise in 2013. The defendant contends that she continued to live in the house even after her father’s demise. It is her case that she placed a metal container on a portion of the land where she carried out her retail business but the plaintiff began to lay adverse claim to the land and house whereas same does not belong to them. The defendant revealed that the 1st plaintiff is not the Head of family of the Damanka family but rather one George Damanka deceased. Again, the 1st plaintiff has been in the United Kingdom (U. K.) since 1972 but returned home recently and so she does not know when he was selected, nominated by the other members to become the Head of family. The defendant states that although her grandfather had 4 children, it was her father who stayed in that house till his death and the reason his name is on the property rate of the house. It is her case that the plaintiffs lack capacity to institute the present action and their rights have been seized through laches and acquiescence and their action is caught by statute of limitation. The issues raised for determination are as follows: - 1. Whether or not the plaintiffs have the capacity to institute the present action. 2. Whether or not the plaintiffs rights have been seized through laches and acquiescence. 3. Whether or not the plaintiffs action is caught by statute of limitation. 4. Whether or not the 1st plaintiff is Head of Damanka family. 5. Whether or not the subject matter of dispute is Damanka family property or personally acquired property of Roland Damanka, father of the defendant. 6. Whether or not the plaintiffs are entitled to the reliefs as endorsed on the Writ of Summons. In Civil Cases, a plaintiff bears the burden to adduce sufficient evidence to prove his case and the standard there is on the balance of probabilities as stated in Section 11(4) and 12(2) of The Evidence Decree 1975 (NRCD 323). Inviably, this is also a land and landed property case and as such, the plaintiff must succeed on the strength of their own case and not on the weakness of a defendant’s case. This was stated in the case of:- Tanoh vrs. Abban - Mensah & Ors. Part (1) [1992 - 93] GBR 308 CA. Again, the meaning of proof in law was explained in the case of:- Abbey & Ors. vrs. Antwi [2010] SCGLR 17 at 27 Per Ansah JSC that:- “The reason was that it was trite law (per Ollenu J, as he then was) in Majolagbe vrs. Larbi [1959] GLR 190 AT 192 that:- “Proof in law is the establishment of facts by proper legal means where a party makes an assertion capable of proof in some way e. g. by producing documents description of things reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his Witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true”. I will begin and consider the issue of Capacity of the plaintiffs in instituting the present action. As endorsed on the Writ of Summons, the plaintiffs gave their respective names as Humphery Foli thus 1st plaintiff and Christoph Mawuli Baku as the 2nd plaintiff. The defendant challenged the capacity of the plaintiff’s and as the rule require that must be determined first. In the case of:- Asante - Appiah vrs. Amponsah alias Mansah [2009] SCGLR 90 AT 95. Brobby J. S. C. states: - “The relevant rule applicable to the instant case is that whenever the capacity of a persons to sue is challenged, he has to establish it before his case can be considered on its merits. In the instant case, the defendant challenged the capacity of the plaintiff’s right from the inception of the trial………”. In the present case, the 1st and 2nd plaintiffs intimated to court that at a meeting of the larger Damanka family, they were instructed and authorized to institute the present action against the defendant herein. What is missing from the Writ of Summons is the plaintiff’s failure to indicate on the Writ of Summons and title of the Writ that they are in court in that representative capacity. The court therefore finds that having stated their respective names, thus Humphery Foli and Christoph Mawuli Baku, do suggest that they instituted the present action in their various personal capacity not indicative of suing for and on behalf of the Damanka family. Besides the bare assertion that at a meeting the family authorized them to institute the present action, no further evidence was adduced to support same. This however reflected on the title of case which the defendant is opposed to. [In the case of):- Alpha Musah vrs. Dr. Francis Asante, Appeagyei [2018] DLSC. 475 Anin-Yeboah JSC (as he then was). Stated:- “We think the law is that when a party Lack capacity, it should be construed that the proper parties are not before the court for their rights to be determined”. Again the defendant herein challenged the 1st plaintiff as not the Head of family for the Damanka family. To her, one George Damanka was the Head of family who was deceased. Cross examination by Counsel for defendant reveals:- Q. In which year were you nominated Head of Damanka family? A. There was no Head of family. If you are the 1st grandchild you are clothed with that capacity of Head of family. Q. I am putting it to you that is not correct because per the laws of Ghana you must be selected, nominated before you can act. A. I am not Head of Clan. Robert Damanka has 4 children. I am the eldest of the 4 grandchildren. I am not the Head of family of the Clan. The 1st plaintiff did not corroborate his headship but relied heavily on the exception in the case in Kwan vrs. Nyieni. [1957] GLR 67, C. A. The defendant revealed that the substantive Head of family of the Damankas is deceased, and did not affirm the 1st plaintiff as the substantive. In analyzing the evidence of the parties on the Head of family and with reference to the authority cited by the 1st plaintiff the court does not loose sight of the last paragraph in Kwan vrs. Nyieni Supra thus:- “In such special circumstances, the court will entertain an action by any member of the family, either upon proof that he has been authorized by other members of the family to sue, or upon proof of necessity provided that the court is satisfied that the action is instituted in Order to preserve the family character of the property”. The catch word is that a member of any family who institutes an action regarding family property must prove to the satisfaction of the court that he had been clothed with the authority of the family before same action will be entertained. In the present case and on the face of the record the plaintiffs have instituted the present action in their own Personal Capacity and not as though they have been clothed with the authority from the Damanka family. The Writ of Summons did not disclose same nor the title of the Writ. I capture a phase in one of the eldest cases on capacity thus in the case of Akrong vrs. Bulley. [1965] GLR 469 SC. “………. But the question of Capacity, like the plea of limitation, is not concerned with merits….…….” Again, in the case of:- Ghana Muslim Representative Council vrs. Salifu [1975] 2GLR 246, ca, it was held that in a representative action it was necessary, both in the Writ and all subsequent pleadings to state clearly that the parties were suing or being sued in their representative capacity on behalf of the members of a defined class. Having established that the plaintiffs herein lack the proven adequately their representative capacity clearly, I refrain from determining further any issues the evidence disclosed before the Court. [In the case of]:- Ebusuapanyin Yaw Stephen vrs. Kwesi Apoh. [2018] DLCA 6178 it was held that:- “It is therefore the law that if the action succeeds on a plea of Iimitation, lack of Jurisdiction, or lack of locus standi, the trial court for that matter the appellate court should not proceed to determine the Merits of the case irrespective of the evidence”. All of the plaintiffs claim fails for lack, of Capacity to sue. Cost of sGH₵2,000.00 awarded against the plaintiffs. ……………SGD………………….. GIFTY CUDJOE THE MAGISTRATE 9