HIGH COURT, KUMASI
DATE: 14TH FEBRUARY, 1962
BEFORE: DJABANOR, J.
CASE REFERRED TO
Re Clay [1919] 1 Ch. 66, C.A.
NATURE OF PROCEEDINGS
APPLICATION to strike out the writ of summons and the statement of claim on the ground that they disclose no reasonable cause of action.
COUNSEL
D. S. Effah for the defendant-applicant.
Y. B. Amoatin for F. A. Jantuah for the plaintiff-respondent.
JUDGMENT OF DJABANOR J.
By her writ of summons the plaintiff claimed from the defendant, the admitted head of her family, the following declarations: (1) that she (plaintiff) is also a member of the Afra family — to which the defendant also belongs (and of which defendant is head); (2) that the property valued at £G900 left by certain named deceased members of the
[p.75] of [1962] 1 GLR 74
family has now become family property; (3) that defendant as head of the Afra family holds the properties left by the extinct line of Manyam, as trustee for the remaining two lines of descent which constitute the Afra family. A detailed statement of claim was attached to the writ.
By his statement of defence the defendant admitted all the facts for which the declaration is sought, namely, that the plaintiff is a member of the Afra family, that the defendant is the head of that family, and that the properties valued at £G900 or so became family property and were held by the defendant as such. The defendant however now seeks under Order 25, rule 4 to have the writ and particulars of claim struck out as not disclosing a reasonable cause of action. The plaintiff resisted this application under Order 25, rule 51(1) that “No action or proceeding shall be open to objection, on the ground that a merely declaratory judgment or order is sought thereby, and the court may make binding declarations of right whether any consequential relief is or could be claimed, or not”.
I think the submissions of counsel for the defendant are well founded. The plaintiff herself acknowledges the defendant as head of family. I am not sure whether such an action is maintainable by native custom. There is no issue as to whether or not the properties are family property. The defendant is not being accused of claiming them as anything other than family property. That he holds these family properties in trust for the whole family is a matter of native customary law. I do not understand the need for these declarations at all. I think the whole action is frivolous. I am fortified by the case of Re Clay2(2) where it was held that a declaration cannot be made against a defendant who has asserted no right nor formulated a specific claim.
I will strike out the writ and claim and dismiss the action, and it is accordingly dismissed with costs to the defendant assessed at 20 guineas.
DECISION
Writ struck out.
Action dismissed.
