The Dead Defendant, the Disputed Family Head and the Last-Minute Amendment
Nana Asona, describing himself as head of the Asona family of Nsawam, issues a writ on 3 June 2024 against (1) Osei Developers Ltd and (2) Kwame Osei, the company's director, for a declaration of title to 12 acres of family land at Nsawam, trespass, and a perpetual injunction. The indorsement states that he sues 'for and on behalf of the Asona family'. The limitation period for recovery of the land expires on 20 June 2024. It later emerges that (a) Kwame Osei died on 17 November 2023 and the writ was served on his son; (b) the family's recognised head is Nana Asona's elder sister, Akosua, who says Nana Asona has no authority; and (c) the company's defence says the family sold the land to it in 2009 and that Nana Asona consented. Nana Asona wants to amend the writ to substitute Kwame Osei's widow, who has obtained letters of administration, as second defendant and to add Akosua as a third defendant. The company says the suit is incompetent and time-barred.
1. What is the effect of suing a defendant who died before the writ was issued? Can the defect be cured by amendment, and what procedural route should be taken?
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A dead person cannot be a party. The writ is incompetent as against Kwame Osei, and service on his son is ineffective because the son was not the defendant and had no authority to accept service for the estate. The action is not, however, automatically a nullity against the company. The court can strike out the deceased's name and allow the claim to continue against the surviving defendant, or permit the personal representative to be substituted.
The proper route is an application to strike out the second defendant and to substitute the widow, who has letters of administration, as the person representing the estate. The court has power to order substitution where the cause of action survives death; a claim for declaration of title and trespass survives. The court will consider whether the estate would be prejudiced, whether the claim is the same, the reason for the delay and the stage of proceedings. If substitution is allowed, the court may order that the amendment relate back to the original writ, but it retains a discretion.
The practical steps are: do not serve the deceased further; apply promptly with evidence of death and the grant; serve the widow; and seek directions. There is a real risk that the court will refuse substitution after the limitation period and leave the plaintiff to a fresh action against the estate, which may then be met by a limitation defence.
2. How should the court deal with the challenge to Nana Asona's capacity, and what does he need to prove?
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Capacity is not a mere pleading point. A person who sues in a representative capacity must have authority to do so. For family land, the recognised head of family, or a person authorised by the family, may sue on the family's behalf. A self-description in the indorsement proves nothing.
Nana Asona must prove his status under the applicable customary law: selection or installation by the family elders, or subsequent ratification by the family. If Akosua is the recognised head and denies his authority, there is a triable issue. The court can direct the trial of a preliminary issue or order evidence on the point. The burden is on Nana Asona. The court may permit the proper head to be substituted or added, or allow the family to ratify the action, but it should not allow a person without authority to litigate on the family's behalf.
If authority is absent, the action is incompetent and may be struck out or dismissed with costs. The company's defence of a 2009 sale and consent is a substantive issue, but capacity comes first: without it, the plaintiff has no standing to raise the substantive claim at all.
3. Advise on the proposed amendment to add Akosua as a third defendant and on the company's limitation objection.
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Adding Akosua as a third defendant is likely to be refused. She is not alleged to be liable for the trespass or to claim the land adversely to the family. Her dispute with Nana Asona is about internal authority. Joining her would confuse the issues and could prejudice the family's case. The better course is to resolve authority by evidence or a preliminary issue, not by making her a defendant.
The limitation objection is more serious. Under the Limitation Act, 1972 (NRCD 54), an action to recover land must be brought within 12 years. The writ was issued just before expiry against the company, but the substitution of the widow after expiry raises the question whether that is a new claim against the estate or a continuation of the same claim. The court has a discretion to allow an amendment notwithstanding limitation where no new cause of action is introduced and the new party is not unfairly prejudiced, but it will be slow to deprive a party of a limitation defence.
On the 2009 sale, if the company has been in possession since 2009, the family's right of action may have accrued then, and the 12-year period could have expired before the writ. The claim may be statute-barred unless there was a later acknowledgment, concealed fraud, or a continuing trespass giving rise to a fresh cause of action. That issue should be pleaded and determined on evidence.