MARFO vs. BONSO AND ANOTHER [1993]DLCA4333

Date	1993-05-27
Suit No.
Citation No.	[1993]DLCA4333

LAMPTEY JA

ADJABENG JA

BROBBEY JA

KUMI FOR OWUSU FOR THE APPELLANT.

OPPONG FOR THE 2ND RESPONDENT.

[1993]DLCA4333
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													<main id="main" class="content" style="min-height: 60rem" >MARFO<o:p></o:p>vs.<o:p></o:p>BONSO AND ANOTHER<o:p></o:p>[COURT
OF APPEAL, SUNYANI]<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">

[1992-93] 2 G B R&nbsp; 892 – 896&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 27 MAY 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KUMI,
FOR OWUSU, FOR THE APPELLANT.<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">

OPPONG
FOR THE 2ND RESPONDENT.<o:p></o:p>

</div>CORAM:<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">

LAMPTEY
JA, ADJABENG JA, BROBBEY JA<o:p></o:p>

</div>ADJABENG
JA. On 29 July 1988, the Circuit Court, Sunyani, dismissed the plaintiff’s
claim in this matter. The plaintiff, being dissatisfied with the court’s
decision, appealed to this court. The plaintiff, who took his action in a
representative capacity, claimed as follows:<o:p></o:p>“The plaintiff, as a member of the
Aduana family of Yamfo claims against the defendants jointly and severally for
himself and on behalf of the Aduana Family of Yamfo:<o:p></o:p>(a) A declaration that House No SNT 68
which is situated at Sunyani, is the property of the Aduana family of Yamfo;<o:p></o:p>(b) A declaration that Yaw Konto,
deceased and Kwabena Bonso, the 1st defendant herein, being members of the said
Aduana family cannot sell or transfer the said House No SNT 68, Sunyani to the
2nd defendant without the knowledge and concurrence of the family and that
purported sale and transfer made of the said property are null and void and of
no legal effect.<o:p></o:p>(c) An order of perpetual injunction.”<o:p></o:p>The
plaintiff’s case is that the house in dispute was built by a deceased member of
the family, one Nana Kwasi Krah, and that on his death, the house was succeeded
to by DW2 in this case. The plaintiff contended that in or about 1981 the said
DW2, Kwabena Bonso, the head of the family, according to the evidence, and one
Yaw Konto, a principal member, without the consent, knowledge and concurrence
of the family sold this house to the 2nd defendant. He therefore took the
action against the defendants.<o:p></o:p>The
defendants’ answer is that the house in dispute was a self-acquired property of
Yaw Konto and that Yaw Konto (deceased) about four years before his death
validly sold the same to the 2nd defendant. It was also contended on behalf of
the defence that the plaintiff, a junior member of the family, could not
establish that he took the action for and on behalf of the Aduana family since
none of his witnesses, two of whom were family members, gave evidence to that
effect.<o:p></o:p>The
trial judge found that the disputed house was the self-acquired property of Yaw
Konto (deceased) and that he validly disposed of it during his lifetime. The
court also held that the plaintiff had failed to adduce evidence in support of
the representative capacity in which he had sued.<o:p></o:p>The
plaintiff-appellant’s complaint in the appeal before us is contained in ground
(c) of his grounds of appeal. The ground states as follows:<o:p></o:p>“(c) There was sufficient evidence on
record that the house in dispute was a family property of the plaintiff and as
an undisputed member of the family the plaintiff was right in law in
instituting the action to save the house.”<o:p></o:p>In
respect of this complaint, the trial judge’s decision was attacked on two
grounds. Firstly, it was argued that the judge’s finding that the house in dispute
was the self-acquired property of Yaw Konto, deceased and not family property
was wrong. It was contended that the finding was contrary to the evidence
adduced. It was also contended that the judge was wrong in basing this finding
on the evidence of DW2 in that the evidence of DW2 was contradicted by the
statement of defence filed on behalf of DW2 whose name appeared as the 1st
defendant.<o:p></o:p>It
must be stated here that DW2 (or 1st defendant) in his evidence vehemently
denied that he had ever been served with the plaintiff’s writ of summons and
statement of claim. He denied therefore ever instructing any solicitor to
prepare and file on his behalf the statement of defence which counsel for the
plaintiff-appellant referred to as contradicting the evidence of DW2. Indeed,
the solicitor who had prepared and filed the statement of defence was himself
called to give evidence and after the trial judge had considered his evidence
and that of DW2, the judge believed and accepted the story of DW2 that he never
instructed the said solicitor, PW5 to file any statement of defence on his
behalf. I do not think that the trial judge’s decision on this issue can be
questioned since his findings thereon are amply supported by the evidence
before him.<o:p></o:p>The
other ground upon which the trial judge’s decision has been attacked concerns
the capacity of the plaintiff to institute the action. The judge’s decision is
that the plaintiff failed to prove positively that he had been authorised by
the family to institute the action on behalf of the family. The judge held that
even though two members of the family had given evidence in support of the
plaintiff’s case, yet because none of them said positively that the plaintiff
had been authorised to institute the action, it could not be said that the
plaintiff had proved the representative capacity in which he had brought the
action.<o:p></o:p>It
was argued on behalf of the plaintiff that this finding is wrong because the
fact that two members of the family gave evidence in support of the plaintiff meant,
at least impliedly, that they supported the action even though they did not say
specifically that they had authorised it. Reliance was placed on Koran v Dokyi
(1941) 7 WACA 78 and Armah v Kaifio [1959] GLR 23.<o:p></o:p>As
was held in the famous case of Kwan v Nyieni [1959] GLR 67 at pages 68 and 69:<o:p></o:p>“(1) as a general rule the
head of a family, as representative of the family, is the proper perso</main>