HAGAN vs. KOTEY AND 3 OTHERS [1961]DLHC5392

Date	1961-10-23
Suit No.
Citation No.	[1961]DLHC5392

OLLENNU J.

G. KORANTENG-ADDOW FOR THE PLAINTIFF.

G. R. MCV. FRANCOIS FOR THE DEFENDANTS.

[1961]DLHC5392
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													<main id="main" class="content" style="min-height: 60rem" >HAGAN<o:p></o:p>&nbsp;vs. <o:p></o:p>KOTEY AND 3 OTHERS<o:p></o:p>&nbsp;[HIGH COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:5.0pt;text-align:center;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">[1961] GLR 594&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 23RD OCTOBER, 1961.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

G.
KORANTENG-ADDOW FOR THE PLAINTIFF.<o:p></o:p>

G. R.
MCV. FRANCOIS FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU
J.<o:p></o:p>This suit was commenced by one Salome Aku Allotey. She sued in a
dual capacity namely as successor and head of the family of the late Herbert
Charles Kotey deceased. She, the said Salome Aku Allotey, died in April, 1961,
while the case was pending and the present plaintiff was, upon his application,
substituted for her by order of the court dated the 14th June, 1961. The claim
is for accounts of rents collected by the defendants from premises known as
house No. D930/3, an order for the ejectment of the defendants from the said
house, and an injunction.<o:p></o:p>The first three defendants are children of the said Herbert
Charles Kotey, and the fourth defendant is his grandson.<o:p></o:p><o:p>&nbsp;</o:p>Although the writ and all pleadings filed on behalf of the
plaintiff were filed by a solicitor, and the said solicitor did appear as
counsel in the case on a number of occasions to take adjournment, he failed to
turn up when the case came on for trial, although he was present in court on
the 10th October, 1961 and agreed with the first and fourth defendants who
appeared in person that day that the case be fixed for trial on the 16th
October, 1961. The case remained on the list from that date up to the 19th
October, 1961, when hearing commenced but he never turned up throughout the
trial, and so the plaintiff had to conduct the case on his own.<o:p></o:p><o:p>&nbsp;</o:p>Due apparently to the handicap of conducting his case himself, the
plaintiff was not able in his evidence in chief to disclose the exact nature of
his case. But by the close of the very lengthy and exhaustive cross-examination
to which he was subjected he had painted a picture which vividly portrayed his
case in a clear light as will be seen presently. That case is, that he is a
member of the maternal family of which the late Herbert Charles Kotey was at one
time the head; the said Herbert Charles Kotey as such head was succeeded by
Salome Aku Allotey, the original plaintiff; that the said family are the owners
of the property in dispute entitled to immediate possession and control
thereof, and to receive rents and mesne profits accruing therefrom; and that he
has been appointed and authorised by the said family to prosecute this suit.<o:p></o:p><o:p>&nbsp;</o:p>It was submitted by counsel for the defendants, properly in my
view, that the substitution of the present plaintiff for the original plaintiff
is not conclusive that the plaintiff is authorised to represent the family;
counsel therefore submitted that the plaintiff must fail because he had failed
to prove his capacity to sue.<o:p></o:p>The law on this point is, that where a plaintiff sues in a
representative capacity and his right to sue is challenged, he cannot succeed
unless he satisfies the court that he possesses that capacity; see Sokpui II
&amp; Ors. v. Agbozo III &amp; Anor.1(1) and Chapman v. Ocloo &amp; Anor.2(2)<o:p></o:p><o:p>&nbsp;</o:p>The ground upon which counsel submitted that the plaintiff failed
to prove his capacity to sue on behalf of the family is that his appointment
was made exclusively by the maternal family of the late H. C. Kotey and the
late Salome Aku Allotey without the head and members of the paternal family of
the late H. C. Kotey, and the children of the said H. C. Kotey being invited to
join in. Counsel cited the case of Car</main>