GYAESAYOR, JA

This is an interlocutory appeal against the decision of the High Court, Accra dated 20^th July 2016.

The plaintiff/respondent is known as Board of Governors created under Section 3 of CAP 114 pursuant to the incorporation of Achimota School Ordinance No. 7 of 1948 (CAP 114).

It is the claim of plaintiff that it is vested with the Achimota School Lands pursuant to Section 29 of CAP 114. These lands include 172.68 acres acquired for the school as a reserve. It is also the case of the plaintiff that under the guise of a judgment dated 28/7/2011 and titled Nii Ako Nortei vrs Lands Commission (Suit No. Sol/21/10, the Osu Stool has taken over the land and parceled it out for sale.

The 1^st defendant on the other hand disputes the claim of plaintiff and asserts that they originally granted the land to the school but for several years the land was not used for the purpose for which it was acquired and they consequently took action against the Lands Commission, the custodian of government lands in the High Court which ordered the release of the land to them and therefore are on the land by virtue of a court order.

The 1^st of a series of judgments which went against the plaintiff was written by Justice Oppong dated

28^th July 2011. In the last paragraph of the judgment he wrote “Accordingly I enter judgment for plaintiff and declare that they are entitled to remain in possession of all that piece of land which is approximately 172.6 acres attached to the supplementary legal submission filed on 21^st April 2011. I hereby by an order of this court restrain the defendant, their agents, hirelings, workmen, servants, assignees, whosoever and howsoever described from dealing with the said land in any way in consistent with the possessory right of plaintiff”.

A reading of the judgment shows that the Lands Commission did not challenge the claims set forth in the plaintiff’s statement of claim and rather requested that the suit be heard on legal grounds. The court also found that the plaintiff and subjects have done (sic) on the land for over 80 years and that was adverse and inconsistent with the acquired right of the government who failed to do anything by way of protest or raising the least objection. He also mentioned the fact that over the years the subjects of Osu Stool have built permanent places of abode on the land without protest from any government.

According, to their own statement of claim, the plaintiff/respondent claims the Lands Commission i.e. 3^rd defendant brought the result of the action to their notice. In paragraph 10 of the statement of claim the plaintiff averred that “the plaintiff adds that the 3^rd defendant also informed the school that the 1^st defendant had obtained judgment in Suit No. Sol.21/10 and had applied for an order to compel the 3^rd defendant to “plot” or register the 172.68 acres in the 1^st defendant’s name.

It is interesting to note that no appeal was filed by the school and neither was any step taken to have the judgment set aside. Consequently, the judgment still stands and operates against the plaintiff/respondent. When the plaintiff now appellant wanted to go into execution, Achimota School per the Board of Governors filed notice of claim under Order 44 rule 12 but never pursued it and as claimed by the appellant herein, the application of interest died a natural death.

The plaintiff/ respondent herein then proceeded to file an application for injunction which was refused by Ocran J.

Again on 24^th March 2015 the Attorney General as the chief legal Officer of the government of Ghana also issued a writ seeking to set aside the judgment delivered by Oppong J.

Justice G.A. Mills-Graves who heard that suit dismissed the case of the Attorney-General as being an

abuse of the court process in the following words “from the above analysis of the 1^st defendant application vis-à-vis the plaintiffs opposition to same, I find that the plaintiff’s present suit qualifies to be so described as an abuse of the court process which must not be entertained as the matters in controversy have been determined by a court of competent jurisdiction between the parties and basically on the same subject matter and it will therefore amount to abuse of the process of the court to allow 2^nd defendant hiding behind the cloth of the plaintiff to have an open ended opportunity to be litigating and religating over and over again in respect of the same issue which has over the period and in previous decisions been decided against them”.

In its untiring effort to claim the land, plaintiff in Suit No. Sol/21/10 sought to invoke the inherent jurisdiction of the court to set aside the earlier judgment delivered by Oppong J on 28^th July 2011. In refusing to grant the request Oppong J described the earlier judgment as having “remained intact undisturbed and binding as no higher court has overturned or set it aside. Following the said judgment certain orders have been applied for and granted by the court. These orders included an order for writs of possession dated 5^th December 2012 and 24^th April 2014 respectively and an order for mandamus dated 30^th May 2013”. We gave a full history of the case so far to show the extent of litigation in respect of the land up to the present writ which has led to the instant appeal when the writ was issued, the 1^st defendant/appellant raised objection on the grounds that the plaintiff lacked the requisite capacity to sue and also claimed that the action itself is an abuse of the process of the court, a finding which has already been made by Justice Mills-Grave in an earlier judgment.

Capacity to sue or be sued is central or fundamental and a party taking action must be vested with the authority before taking an action. See Akrong vrs. Bulley [1965] GLR 469 where it was held that “At the date when the plaintiff issued her writ, she was neither an executrix nor administratrix. No action was therefore vested in her and she could not and did not commence a competent action. what then is the legal nature of the writ? The case on which counsel for the defendant relied show that the writ was a nullity and was incurably bad”.

Clearly then an action brought without the requisite capacity cannot stand because it is a nullity and incurably bad.

Upon being overruled by the High Court, the 1^st defendant/appellant filed this interlocutory appeal to challenge the ruling of the High Court.

The notice of appeal is found at page 210 of the record of appeal as follows:

The ruling is against the weight of the evidence.

The court erred when it held that the plaintiff had capacity to mount the action.

The court erred when it held that the plaintiff was not a party to Suit No. Sol/21/10 and so could mount the instant action.

The court erred when it held that the instant suit did not amount to an abuse of the court process and not frivolous

The court erred when it held that the action a sustainable on account of the allegation of fraud made by the plaintiff in the statement of claim.

Additional grounds to be filed upon receipt of the record of appeal I intend to deal with Ground 1 of the ground of appeal.

The first ground of this appeal is that the ruling is against the weight of the evidence. By this ground, the court as a court of rehearing is entitled to look at the entire proceedings in order to arrive at a decision. It’s also the duty of the appellant to point out lapses in the judgment which when corrected will enure to his benefit.

The case of Tuakwa vrs Bosom [2001-2002] SCGLR and Djin vrs Musa Baako [2007-2008] 1 SCGLR 689 supports the position of the law on this.

In this appeal therefore it is the defendant/appellant who must show those pieces of evidence or the law were not properly applied to his case.

In so doing, the defendant/appellant in ground (b) asserts that the court erred when it held that the plaintiff had capacity to mount the action. The issue of capacity is central to each action and ultimately decides the fortune of the suit. It is so important that it can be raised at any stage of the trial and even on appeal.

In Fosua & Adu Poku vrs Dufie (deceased) & another [2009] SCGLR 310 holding 6 the Supreme Court held; “In considering whether or not the properties in dispute were properties for the family, the trial judge should have gone forward to also consider on the properties whether or not the plaintiff had the capacity to sue thereof. That was irrespective of whether or not the parties had made that an issue for trial. Capacity to sue is a question of law and could be raised at any stage of proceedings even on appeal. It could also be raised by the court suo motu”.

The learned judges of the Supreme Court agree that capacity is so fundamental and important and can have catastrophic effect on the fortune of the case. Indeed Dotse JSC summed it all up when he wrote that “want of capacity is a point of law which, if raised goes to the root of the action”.

In a similar suit titled Asante Appiah vrs Amponsah @ Mansah [2009] SCGLR 90. It was held by the Supreme Court per Brobbey JSC as he then was that “where the capacity of person to sue is challenged, he has to establish it before the case can be heard on its merits. In the instant case, the defendant challenged the capacity of the plaintiff from the inception of the trial. The challenge was explicit in the first paragraph of the statement of defense and in the cross-examination of the person who gave evidence on his behalf as holder of power of attorney which has been declared invalid and inadmissible. The plaintiff had to establish his capacity before he could expect the trial court to have considered the case on its merit. He woefully failed to establish the capacity in which he sued by his reliance on the invalid power of attorney”.

In the present action, the plaintiff i.e. the Board of Governors revealed their source of authority in paragraph 1 of the statement of claim as follows “the plaintiff is a body incorporated pursuant to section 5 of the Achimota School Ordinance No.7 of 1948 (Cap 114) as the governing body of Achimota School, which was established pursuant to Section 3 of Cap 114. They further to this claim averred that section 29 of the said Cap 114 vested it with Achimota School land as described in the first schedule to Cap 114.

It is the case of the appellant that the education Act 1961, Act 87 repealed Cap 114 in Section 34 when it provides that the following enactments as subsequently amended are hereby repealed; The Achimota School Ordinance (Cap 114), The education (Southern Ghana and Ashanti) Ordinance Cap 121, The education (Northern and Upper Regions Ordinance (Cap 122).

Cap 114 since its repeal in 1961 had ceased to be law in order to confer any authority on the board of governors that was created under that law. Moreover, another law, Education Law of 2008, Act 778 has since also repealed Act 87. Indeed at the time of the repeal of Act 87, Cap 114 has since long ceased to exist. Since the Board of Governors was not one of the Officers saved upon the repeal of Cap 114, it cannot now resurrect to mount a successful action as is being done in this case.

The learned trial judge was under an obligation to determine the issue of capacity before proceeding to hear the matter on its merits. The case of the plaintiff that it was not a party in the earlier suits does not help them. The lands commission duly informed them of the outcome of the suit and the Attorney General unsuccessfully took action in respect of the same land. The Achimota School would have enjoyed the fruits of the litigation if they had been successful. On the other hand, if the school felt that they had been given a raw deal they had to obtain the leave of the defendant in the suit to use his name and then apply to the court in the said defendant’s name to have the judgment set aside.

Alternatively, in case for some reason he cannot use the name of the defendant he can take out a summons in his own name, but in that case, the summons should be served on both the plaintiff and the defendant asking of the court to set aside the judgment and be allowed to defend the action on such terms of indemnifying the defendant as the judge may consider just. See the case of Lamptey vrs Hammond [1987-88] 1 GLR 322 and the case In The Nungua Chieftaincy Affairs; Odai Ayiku IV vrs. AG (Borketey Laweh XIV Applicant) [2010] SCGLR. This is not the procedure adopted by the Achimota School which is currently under the Ministry of Education under Act 778 of 2008 which has in Section 3(1) repealed the education Act, of 1961 (Act 87).

In our view the objection raised by the defendant regarding the capacity of the plaintiff to bring this action is valid and ought to have been decided before considering the merits of the case. It will be an exercise in futility to allow the trial to proceed when the plaintiff/respondent lacks the requisite capacity to sue. Any such trial in the light of Bulley vrs Akrong shall be declared a nullity.

The court is said in paragraph ‘D’ to have erred in finding that the suit did not amount to an abuse of the court process and frivolous.

When shall pleadings be struck out? The appellant in its case is inviting us to strike out the writ and subsequent pleadings as being an abuse of the court process. Order 11 r 18(1) of C.I.47 of 2004 permits the court to strike out an action for certain reasons. Rule18(1) provides:

The court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that;

It discloses no reasonable cause of action or defence, or

It is scandalous, frivolous or vexatious

It may prejudice, embarrass, or delay the fair trial of the action

It is otherwise an abuse of the process of the court; and may order that the action to be stayed or dismissed or judgment to be entered accordingly

No evidence whatsoever shall be admissible or an application under sub rule (1) (a).

Elsewhere in this judgment I alluded to Mills-Graves decision in which he described the various suits filed in respect of this same land as an abuse of the court process. This is so because several judgments have been delivered against the plaintiff/respondent and which have not been appealed against. We have looked at the record and we find no record of appeal and no evidence that the various rulings delivered have been reversed by any higher court. The Achimota School is privy to the actions involving the Lands Commission and the Attorney-General in respect of the same land and is bound by the decisions of the court.

In the case of Nyame vrs Kesse @ Konto [1999-2000] 1 GLR 235-282 Wiredu JSC in discussing the principle of res judicata said “its objective is to prevent an abuse of the court process by estopping a party to a litigation against whom a court of competent jurisdiction has already determined the issue now being raised by re-opening the same subject matter for further litigation. The principle can be raised against the privies of the original party”.

Acquah JSC of blessed memory on the same subject in the same case had this to say “the plea of res judicata was never a technical plea. It is part of our received law by which a final judgment rendered by judicial tribunal of competent jurisdiction on the merit is conclusive as to the rights of the parties and their privies and as to constitute an absolute bar to a subsequent action involving the same claim, demand or cause of action”.

As it is, there have been various suits in respect of this same land in which various court of competent jurisdiction have decided against the plaintiff/respondent. These judgment and court rulings still stand tall against the plaintiff, the Lands Commission, and the Attorney-General who did not appeal against the decision. They are bound by these judgments. The writ of summon can therefore rightly be described as an abuse of the court process and should not be entertained by the court.

Consequently, we arrive at the conclusion that the plaintiff lacks capacity to bring the action in the High Court as canvassed by the appellant; In effect the writ was a nullity.

We also find that the subject matter of this appeal has been litigated upon in various courts and decisions delivered are still effective and operate as res judicata against the plaintiff. We also find that the entire suit is an abuse of the court process and should be brought to an end.

Accordingly, we shall declare the suit together with the proceedings so far before the High Court a nullity and of no effect. In the end we uphold the appeal and grant the relief sought.