...to substantiate the claim that he was indeed the head. See: KEELSON v. MENSAH (1957) 2 WALR 271 and SOKPUI II v. TAY AGBOZO II (1951) 13 WACA 241 at 242. It is now common learning, however, that where his authority is impugned, evidence by a par...
Citing of this case in DEESA PENROSE AND EBUSUAPANYIN KOFI DOODU V. NII NUERTEY AKPO I - High Court (2010)
Verity, Ag. P. In this case the plaintiffs-appellants sued in the Native Court for themselves and on behalf of the general community of Dzelukope, that is, they sued in a representative capacity.
The Native Court heard the whole of the plaintiffs' evidence and entered judgment thereafter for the defendants, having heard one defendant's evidence only. The first question that the Native Court had to determine was whether or not the plaintiffs were duly authorised to sue in a representative capacity. The Native Court considered that question and for reasons which they gave in their judgment came to the conclusion that the plaintiffs were not duly authorised. There can be no doubt that where parties sue in a representative capacity and their authority to do so is questioned, it lies upon them to satisfy the Court that they have been duly authorised. It is for the Court to consider the evidence they have tendered in that regard and to come to its conclusion. The Native Court was quite satisfied that they had failed to prove their authority.
The manner in which persons can be authorised in those circumstances is a matter which I think must be peculiarly within the province of a Native Court to determine, and for myself, I am quite prepared to accept the decision of the Native Court on that point more particularly as the Native Court of Appeal made no ruling whatsoever in that regard. I would also add that for my part, having considered the evidence tendered on this issue, I can see no reason upon which the Native Court could have come to the conclusion that the plaintiffs were duly authorised to sue on behalf of the general community of Dzelukope. The decision of the Native Court on that question was fatal to the plaintiffs and on that ground alone they were right in dismissing the plaintiffs' action.
They went further, however, to consider the case on its merits and dismissed the claim. The Native Court of Appeal set aside the judgment of the Court below and ordered a re-trial on various grounds set out in their judgment. The defendants appealed against this order for re-trial to the Land Court and the Land Court having considered the grounds of appeal reversed the order of the Native Court of Appeal and restored that of the Court below.
We have listened to the arguments on the merits of the case as well as the preliminary point which, as I have said, is fatal to the plaintiffs' case. Were it necessary to decide the main points of this case, I would for my part agree with the decision of the Land Court that the judgment of the Native Court should be restored.
There is one point on which perhaps it may be useful to make an observation, and that is with regard to the view expressed by the Native Court of Appeal that a plan was essential in this case. This view was taken upon the decision of the West African Court of Appeal in Sakpaku and . Others v. Ahiaku and . Others (1), in which, in regard to a case tried in the Divisional Court, this Court expressed the view that a plan in the particular circumstances of that case was essential to a proper trial. But I do not think that decision can be taken to mean that in every case dealing with land, whether in a Divisional Court or a Native Court, a plan is essential. In fact, I think that were there such a requirement either by decision of this Court or by rules of Court, or even by Ordinance, it would be an even greater incentive to waste of money in land cases than there appears to be at the moment. There are many cases in which no plans are essential to the proper trial of the issue and I think the Native Court of first instance in the present case properly refrained from ordering a plan.
What the Court has to consider is not a general rule, but whether in a particular case it is necessary to the proper trial for a plan to be produced. If it had been necessary to decide on that issue as a ruling factor in allowing or dismissing this appeal I would still have come to the conclusion that the judgment of the Native Court of first instance was right and that the decision, therefore, of the Land Court to restore; that judgment should be upheld and I would, therefore, dismiss this appeal with costs.
Lewey, J.A. I agree. Morgan, J. I also agree.