Dumenu & 2 Others Vrs Korkuste & 4 Others [2023] GHAHC 236 (5 June 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, HOHOE, HELD ON WEDNESDAY THE 5TH DAY OF JUNE 2023 BEFORE HIS LORDSHIP AYITEY ARMAH-TETTEH J. SUIT NO E1/4/2020 1. LUCY DUMENU - PLAINTIFF Suing as the Head and lawful representative Dumenu Family of Hohoe 2. JULIUS DUMENU 3. HOLY DUMENU Principal Members of the Dumenu Family V 1. KWAME KORKUSTE 2. JAMES AKPABLI 3. MAC-H. CRAH 4. MR. & MRS AYITEY 5. EMMANUEL AGBALENYO J U D G M E N T - DEFENDANT By their writ of summons dated 9 December 2019, the Plaintiffs claim against the defendants as follows: - 1. A declaration that the Plaintiff’s family is the lawful owners of the disputed property located at Blave and bounded as follows: On one side by the Agbana. On another side by the Agbana Family property. On yet another side by the Agbana family property On the last side by the Agbana family property 2. Recovery of possession. 3. Injunction 4. General damages 5. Cost(s) Upon service of the Plaintiffs’ writ of summons and statement of claim on the 1st defendant, he entered appearance on 27 January 2020 and subsequently filed a defence denying the claim of the Plaintiffs in its entirety. He did not counter claim. The Plaintiffs were not able to effect personal service of the writ of summons and statement of claim on the 2nd to 5th defendants. On 21 October 2020 they applied for and obtained an order for substituted service of the writ of summons and statement of claim on 2nd to 5th Defendants. The order was drawn up and carried out. The 2nd to 5th defendants did not enter appearance. The Plaintiffs did not proceed in accordance with Order 10 Rule 6(1) of the High Court (Civil Procedure) Rules, 2002 C. I. 47 against the 2nd to 5th defendants who failed to enter appearance. The rule provides as follows: Where the Plaintiff makes a claim of a description not mentioned in rules 1 to 4 against a defendant , and the defendant fails to file appearance, the plaintiff may, after the time limited for appearance and upon filing an affidavit proving due service of the writ and statement of claim on defendant, proceed with the action as if the defendant had filed appearance. The Plaintiffs thus proceeded against the 1st defendant alone in this matter. I guess the reason for not proceeding against them was because according to the Plaintiffs, it was the 1st defendant who allegedly sold the lands to the 2nd to 5th defendants. Indeed the 1st defendant in his defence admitted selling the lands to 2nd to 5th defendants and claimed that the land belongs to his Kwakuste family and not Plaintiffs’ Dumenu family. So the real battle is between the Plaintiffs and the 1st Defendant. CASE FOR PLAINTIFFS The case of the Plaintiffs is that the 1st Plaintiff is the Head and lawful representative of the Dumenu Family of Hohoe, and she sues in that capacity. The 2nd and 3rd Plaintiffs are principal members of the said family. According to Plaintiffs, the 1st Defendant is their maternal relative. It is the case of the Plaintiffs that their paternal grandfather Togbui Kwakuste acquired a large parcel of land from the Agbana family of Kpoeta, Hohoe. That after the acquisition, Togbui Kwakuste took possession and occupation and reduced the land into the cultivation of food crops. That after the death of Togbui Kwakuste he was succeeded by their grandfather Tse Korsi and continued to cultivate on the land. After the death of Togbui Tse Korsi he was succeeded by Plaintiffs’ father Solomon Dumenu. Solomon Dumenu continued to farm on the land till his death and was succeeded by the 1st Plaintiff. According to Plaintiffs the 1st Defendant has trespassed onto the land and sold portions to 2nd to 5th defendants. CASE FOR 1ST DEFENDANT The case of the 1st Defendant is that Togbui Kwakuste was the paternal grandfather of 1st Defendant and maternal grandfather of the Plaintiffs. That the land described by the Plaintiffs in their claim belongs to the Kwakuste family and not the Dumenu family having acquired by Togbui Kwakuste for Antofe Dumenu and Andreas Kwakuste. That Togbui Kwakuste begat Andreas Kwakuste and Andreas Kwakuste begat Raymond Kwakuste and Raymond Kwakuste begat 1st defendant, Kwame Kwakuste. According to the 1st Defendant the land belonged to Andreas Kwakuste and after his death, his son Raymond Kwakuste who is the father of the 1st Defendant succeeded him and the land in dispute. At the close of pleadings the only issue raised by the Plaintiffs in their application for directions was: Whether or not Togbe Kwakuste land at Blave belongs to the Domenu family or Kwakuste family. However, one issue that was raised by the pleadings is the capacity of the Plaintiffs to mount this action against the Defendants. By their 1st Plaintiff brings this action as the head of the Dumenu family whiles the 2nd and 3rd Plaintiffs are principal members of the said family. The 1st Defendant in his written address raised this issue and submitted that the 1st Plaintiff did not have the capacity to institute this action against the Defendants. The law is that the issue of capacity could be raised at any stage of the proceedings even on appeal. Atuguba JSC in the case of Fosua & Adu-Poku v. Dufie (Deceased) & Adu Poku- Mensah (2009) SCGLR 310 at 337-338 & 344 had this to say: “It is therefore unfortunate the trial judge did not consider the issue of capacity anywhere in his entire judgment.................... whether or not the plaintiffs were clothed with the requisite capacity to sue in respect thereof. That was irrespective of whether or not the parties made that an issue for trial. Capacity to sue was a matter of law and could be raised at any stage of the proceedings even on appeal. It can also be raised by the court suo motu...’’ ( emphasis mine) In Manu v Nsiah (2005-2006) SCGLR 25 at 30-31 Lartey JSC had this to say: ‘’It should be noted that whatever capacity in which the plaintiff claims to have instituted the action would require proof. He alone bears the responsibility of establishing that status if he could....’’ Again in the case of Sarkodie I v Boateng II (1977) 2 GLR 343 the full Bench of the Court of Appeal held at page 346 thereof: “It is now trite learning that where the capacity of a plaintiff or complainant or petitioner is put in issue, he must, if he is to succeed, first establish his capacity by the clearest evidence.’’ In the instant case, per the title of the suit 1st Plaintiff sues as the Head and lawful representative of Dumenu family of Hohoe. And it is pleaded at paragraph 1 and 2 of the statement of claim as follows: 1. The 1st Plaintiff is the Head and lawful representative of the Dumenu family of Hohoe. 2. The 2nd and 3rd Defendants are the Principal members of the Dumenu family of Hohoe. The 1st defendant in his statement of defence paragraph 2 thereof pleaded as follows: 3. Paragraph 1 of the Statement of Defence is denied and the 1st Defendant requires strict proof from the 1st Plaintiff thereof. So, from the pleadings the capacity of the 1st Plaintiff to mount this action against the defendants as the head and lawful representative of the Dumenu Family has been put in issue and even though the parties did not set it out as an issue for determination at the application for directions stage, this court cannot close its eyes to it. Since the capacity of 1st Plaintiff to bring this action has been challenged and put in issue by the 1st defendant, it behooved the 1st Plaintiff to lead evidence that would tilt in her favour the existence of the facts as to her capacity to bring this action against the defendants, failing which her action must fail. Section 14 of the Evidence Act 1975 (NRCD) 323 provides as follows:- ‘Except as otherwise provided by law, unless it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence that is asserting. ‘ In civil cases, it is trite learning that the parties are required to prove their respective cases on the preponderance of probabilities. Section 12(1) of the Evidence Act (supra) provides as follows: ‘Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of probabilities.’ In Takoradi Flour Mills v. Samir Faris [2005-2006] SCGLR 882 at 900 the Supreme Court held as follows: “To sum up this point, it is sufficient to state that this being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out his claim on a preponderance of probabilities, as defined in section 12(2) of the Evidence Decree 1975(NRCD 323). Our understanding of the rules in Evidence Decree, 1975 on the burden of proof is that in assessing the balance of probabilities, all the evidence, be that of the Plaintiff or the defendant, must be considered and the party in whose favour the balance tilts is the person whose case is more probable of the rival versions and is deserving of a favourable verdict.” Also, in Okudzeto Ablakwa (No. 2) v. A-G & Obestebi Lamptey (No.2) [2012] 2 GLR 845 at 867: “ ….. if a person goes to court to make an allegation, the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that, the ruling on that allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation, which he fails to prove or establish. This rule is further buttressed by section 17(b) which, emphasizes on the party on whom lies the duty to start leading evidence.” It must be noted that there were 25 court sittings in this case. 1st Plaintiff never attended court, not even once. She also did not give any power of attorney to anyone to testify on her behalf. Even though a party is not obliged to testify in a case, where the capacity of the party is challenged at least one expects that the 1st Plaintiff whose capacity has been put in issue should be in court to testify on his capacity or credible evidence should be produced to establish her capacity. It is the 2nd and 3rd Plaintiffs who testified and called one witness. The 2nd and 3rd Plaintiff and Plaintiffs’ first witness filed witness statements which were adopted as their evidence in chief. In those witness statements none of them testified that the 1st Plaintiff is the Head and lawful representative of the Dumenu family. They also did not give any evidence to show that 1st Plaintiff brings this action on behalf of the Dumenu family. Except to say that the 3rd Plaintiff in his testimony said Togbe Kwakuste died and was succeeded by Tse Korsi, Solomon Dumenu and Lucy Dumenu the 1st Plaintiff. Plaintiffs’ first witness also testified as follows: “Togbe Kwakuste later died and was succeeded by my grandfather, Tse Korsi. Tse Korsi also died and was succeeded by Solomon Dumenu. Solomon Dumenu died and was succeeded by the 1st Plaintiff.” However under cross examination of the 3rd Plaintiff he denied that the 1st Plaintiff is the head of the Dumenu family. Indeed, he said it was one Wilson Dumenu who is the head of family and that 1st Plaintiff as a female member of the family 1st Plaintiff cannot be a Head of family according to Ewe customary law. This is what ensued when 3rd Plaintiff was cross examined: Q. Do you know one Morgan Dumenu? A. Yes, I do. Q. Who is he in the Dumenu family? A. He was once a head of family. Q. Is he still alive ? A. No Q. So after his death who became the head of the Dumenu family ? A. Wilson Dumenu. Q. So you agree with me that your sister the 1st plaintiff suing as representative to Dumenu family is a falsehood. A. No she is my Aunty. Q. I put it to you that your Aunty is not the head and lawful representative of the Dumenu family. A. By Ewe custom a woman is not made a head of family, but she is the oldest and she is represented by a male. Q. Is Wilson Dumenu also a descendant of Togbe Korkuste ? A. Yes. Q. Wilson Dumenu is still alive ? A. Yes, my lord. Q. And as a head of family he neglected to defend family property ? A. No. Q. Is he aware of this suit before this court ? A. Yes. The testimony of the Plaintiffs’ first witness is that the head of the Dumenu family is Wilson Dumenu and not the 1st Plaintiff as claimed by the Plaintiffs. The 3rd Plaintiff testified that by Ewe custom the 1st Plaintiff is a female and cannot be the head of family. This position of the Ewe customary law stated by the 3rd Plaintiff stated by A. P. K. Kludze in his book Ewe Law on Property 2nd Edition. At page 94 he wrote In his, the Author at page 94 wrote : “Among the ewes as a general rule the head of family is not elected. Succession to the office is automatic on the principle of seniority the oldest male member of the senior generation becoming of the head without choice or an election. In the instant case the 3rd Plaintiff admits that the said Wilson Dumenu is a descendant of Tobge Korkuste, who Plaintiffs’ claim was the one who founded the land in dispute. This position of the Plaintiffs’’ only witness vindicates the position of the 1st Defendant that 1st Plaintiff is not the Head and Lawful representative of the Dumenu family. If indeed Wilson Dumenu is a direct descendant of Togbe Korkuste and as such a beneficiary of the land allegedly acquired by Togbe Korkuste and also the Head of family the said family, then in my view he is the rightful person to institute the present action against the defendants and not the 1st Plaintiff. It is trite that it is the head of family who can sue and be sued in respect of a family property. Order 4 rule 9 (2) of High Court (Civil Procedure) Rules, 2004 provides as follows: (2) The head of a family in accordance with customary law may sue and be sued on behalf of or as representing the family. (3) if for any good reason the head of family is unable to act or if the head of a family refuses or fails to take action to protect the interest of the family any member of the family may subject to this rule sue on behalf of the family. (4) Where any member of the family sues under subrule (3) a copy of the writ shall be served on the head of family. (5) A head of family served under subrule (4) may within three days of service of the writ apply to the Court to object to the writ or to be substituted as a plaintiff or be joined as plaintiff. In Fosua & Adu-Poku v. Dufie (Deceased) & Adu Poku-Mensah supra at 344 Doste JSC held as follows: In Nyamekye v. Ansah[1989-90]2 GLR 152-163 it was held that as a general rule, the head of a family as representatives of the family was the proper person to institute suits for recovery of family land. And where the authority of a person to sue in a representative capacity was challenged, the onus was upon him to prove that he had been duly authorized. He could not succeed on the merits without satisfying the court on that important preliminary issue. The customary law position was that when a successor was appointed, he was ipso facto the head of the immediate family. In the instant case on the balance of probabilities I find and hold that the 1st Plaintiff is not the head of the Dumenu family, and she has no capacity to institute the instant action against the defendants as the head of family. Can the action be maintained by the 2nd and 3rd Plaintiffs? I do not think so. The 2nd and 3rd defendants say they are principal members of the Dumenu family. The only situation where a principal member of the family or any member can institute an action in respect of a family property is where the head of family is unable to act or has refused to protect the family property as provided for under Order 4 rule 9(3). In Agbosu and others v Kotey and others [2003-2005] I GLR 685 it was held as follows; The rule in Kwan v Nyieni did not establish an intractable rule that an action instituted to protect family property by a non-head of family, specifically ordinary members of the family could only succeed upon proof that there was a head of family who was deliberately refusing to act or save the property. The rule recognised special circumstances in which ordinary members of the family could in their own right sue to protect family property and identified only two broad special circumstances under which the general rule that only head could sue would not apply: (1) where the member of family had been authorized by members of the family to sue; and (2) upon proof of necessity to sue. Therefore, the question whether any particular case fell within the stated exceptions rather than the rule, or even an exception not identified in Kwan v Nyieni, was dependent on the particular facts of the case. I have made a finding that the 1st Plaintiff is not the head of the Dumenu family and cannot mount this action against the Defendants. According to the 3rd Plaintiff, Wilson Dumenu a descendant of Togbe Kwakuste is the Head of the Dumenu family. There is no evidence on record to show that the said Wilson Dumenu is unable to take the current action against the defendants in respect of a Dumenu Family land the subject matter in dispute. There is also no evidence that the 2nd and 3rd Defendants have been authorized by the family to institute this action. There is also no evidence that the said Wilson Dumenu is unwilling to protect the family’s interest in the property. The 3rd Plaintiff in his testimony said Wilson Dumenu is aware of the suit. Order 4 rule 9 (4) requires that when a member of the family sues under subrule (3) a copy of the writ shall be served on the head of family. There is no evidence that the 2nd and 3rd Plaintiffs have complied with this procedural requirement. The service of the writ on him would have enabled the head of family apply to the court to either object to the writ or be substituted as a plaintiff or be joined as plaintiff. The law is that where a statute prescribes a procedure by which something is to be done it is that procedure that must followed. In Jonah v. Kulendi & Kulendi [2013-2014] it was held that: “The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed.( Boyefio v NTHC Properties [1996-97] SCGLR 531 at 533 ) The 2nd and 3rd Plaintiffs having failed to comply with the rules in serving a copy of the writ on the head of family Wilson Dumenu as required by Order 4 Rule 9(4) cannot maintain the action against the defendants. The 2nd and 3rd Plaintiffs have also not shown any exceptional circumstances that entitle them to institute this action against the Defendants. In conclusion, I will dismiss the action of the Plaintiffs for lack of capacity. I will award the 1st defendant costs of Gh10,000.00 and against the Plaintiffs. (Sgd) Ayitey Armah-Tetteh J. (Justice of the High Court) 12