THE BOARD OF GOVERNORS, ST. JUDE EDUCATIONAL ACADEMY HIAWA-KROFOROM vs. SUSANA ANIM A.K.A MADAM WEREKOA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2017
THE BOARD OF GOVERNORS, ST. JUDE EDUCATIONAL ACADEMY HIAWA-KROFOROM - (Plaintiff/Respondent)
SUSANA ANIM A.K.A MADAM WEREKOA - (Defendant/Applicant/Appellant)

DATE:  29TH MAY, 2017
CIVIL APPEAL NO:  H1/21/17
JUDGES:  HONYENUGA JA (PRESIDING), GYAN JA, SUURBAAREH JA
LAWYERS:  MR. EMMANUEL ARTHUR FOR THE PLAINTIFF/RESPONDENT
MR. JOHN MERCER FOR THE DEFENDANT/APPELLANT
JUDGMENT

SAEED K. GYAN, J.A

This is an appeal from the Ruling of the Circuit Court, Tarkwa, in the Western Region of Ghana, dated 7th November, 2016

 

The decision of the Court is summed up in the concluding paragraphs of the Ruling which I find expedient to set out in full as follows:

Having gone into the merits and demerits of the opposing arguments of both Counsel, this Court rules that the Defendant has not justifiable basis to support the reliance on the civil procedure rule quoted by her Counsel to overcome the writ since the Courts in Ghana are clothed with jurisdictional power to deal with all manner of cases under the sun and moon and similarly for companies incorporated and statutorily known as legal persons.

 

Counsel submitted that the Plaintiff is an unincorporated body, and not being a partnership or legal entity cannot sue or be sued as it has no persona to issue a writ and in other words the jurisdictional capacity and prays for the suit to be struck out, citing GRMC V. SALIFU and that of MENSAH V. GFA.

 

This Court disagrees with Counsel for Defendant on the authority of GHANATTA V. BOARD OF TRUSTEES OF NICHEREN SHOSHU SOKAGAKKAI OF GHANA [1993-94] IGLR 316, CA, IN RE ASSESMENT OF INCOME TAX THE COMMISSIONER OF INTERNAL REVENUE ; CHAPEL HILL SCHOOL V. ATTORNEY GENERAL & IRS [2009] SCGLR 432, AND SOON BOON SEO V. GATEWAY WORSHIP CENTRE [2009] SCGLR 278 and dismiss the application prayed for. Costs of GH¢500.00 for the Plaintiff”.

 

Being aggrieved by and dissatisfied with the aforesaid decision, the Defendant/Applicant/Appellant has mounted the instant appeal against the whole ruling seeking an order reversing the ruling and a further order of the court of Appeal striking out or dismissing the Plaintiff/Respondent/Respondent’s suit.

 

The grounds of appeal indicated in the notice of appeal show as follows:

“ i) The Plaintiff has not the legal capacity to sue and the suit ought to have been struck out or dismissed.

ii) Additional ground(s) of appeal may be filed”.

 

No additional or further ground of appeal was filed or argued.

 

 

It may be in order to place the appeal in context by setting out some background facts.

 

On 2/9/2016 the Plaintiff sued the Defendant at the Circuit Court, Tarkwa, seeking the following reliefs:

 

“a) Declaration of title and recovery of possession of all that piece and parcel of land measuring approximately 3.60 of an acre and lying and situate at a place commonly known as “Hiawa Krofoforom”

 

General damages for trespass

 

Perpetual injunction restraining the Defendant, her workmen, agents, assign, privies, etc. from dealing with the Plaintiff’s Land.”

 

The writ of summons was issued in the name of “The Board of Governors, St. Jude’s Educational Academy, Hiawa Krofoforom, Huni-Valley”.

 

Accompanying the writ was an 8-paragraph statement of claim, the first paragraph of which sets out the position or capacity of the Plaintiff in mounting the suit.

 

It states simply as follows:

“Plaintiff is the Board of Governors of St. Jude’s Academy and brings this action on behalf of the school whereas the Defendant is a resident of Tumatu”.

 

According to the Plaintiff it is the owner of 3.60 acre piece of land located at a place called Hiawa Krofoforom which it obtained from the divisional Chief of Ehyireso, which piece of land is covered by a lease plotted at the Lands Commission.

 

It is the contention of the Plaintiff that having duly obtained the land it proceeded to construct school buildings thereon and that while engaged in that activity it found that the Defendant had also started developing portions of its said land. The Plaintiff averred further that upon a complaint lodged with its grantor a settlement was reached by which it was made to pay an agreed amount of GH¢8,000 purportedly to cover the expenses the Defendant had incurred in developing the land. The Plaintiff maintained that despite the said settlement the Defendant had gone back to the land and was continuing with her trespassory conduct on the Plaintiff’s said land, which conduct had necessitated the Plaintiff’s action at the Circuit Court and which is intended to protect the Plaintiff’s interest in the land it had duly acquired.

 

From the very beginning the Plaintiff was represented by the Law firm of Bosumtwi Sam and Associates of Takoradi

 

It is significant to note that the Plaintiff’s statement of claim did not disclose whether or not it was a legal entity or it was a firm duly registered under the laws of Ghana.

 

In other words, it was not shown whether the school named as St. Jude’s Educational Academy, was a sole proprietorship, or it was a firm which was registered under or by virtue of the Trustees Incorporation Act, 1962 (Act 106), or that it had been incorporated under the Ghana Companies Act, either as a Limited Liability company or as a Company Limited by Guarantee.

 

Simply put, the statement of claim did not set out clearly or identify the Plaintiff’s corporate personality, and hence its capacity to properly sue in the name endorsed on the writ of summons.

 

The record of appeal (ROA) does not show that the Defendant entered any appearance or filed a Statement of Defence. However, on 13/9/2016 the Defendant through her Lawyer filed a process entitled: “Application for an order setting aside writ order 9 rule 8”.

 

It is worth noting that the said application sought an order of the Court “setting aside the writ” on the ground that “The Plaintiff lacks the jurisdictional persona to institute this action and the writ so issued is a nullity”.

 

Significantly, the application was not accompanied by any affidavit in support.

 

This apparent omission did not seem to have been noticed by opposing counsel nor did it excite the interest or attention of the trial Court.

 

The Circuit Court is governed in, respect of its civil proceedings, by the High Court (Civil Procedure) Rules, 2004 (C.I. 47).

 

Order 19 of C.I. 47 deals with Applications before the Court.

 

The relevant provisions of Order 19 state as follows:

“1 (1) Every application in pending proceedings shall be made by motion (2) Proceedings by which an application is to be made to the Court or Judge of the court under any enactment shall be initiated by motion and where an enactment provides that an application shall be made by some other means, an application by motion shall be deemed to satisfy the provision of the enactment as to the making of the application”.

“4) Every application shall be supported by affidavit deposed to by the applicant or some person duly authorised by the applicant and stating the facts on which the applicant relies, unless any of these rules provides that an affidavit shall not be used or unless the application is grounded entirely on matters of law or procedure which shall be stated in the motion paper

 

It would be noted that Order 18 rule 2 of C.I. 47 precludes entirely any evidence, including, of course, Affidavits, from an application to strike out any pleading on the ground that “it discloses no reasonable cause of action or defence”.

 

The above exclusion does not however appear to be relevant to the instant case under review.

 

Be that as it may, the issue of the competence or otherwise of the application filed by the Defendant did not become an issue raised for determination at the Court below and, therefore, save tangentially drawing attention to the matter, I do not intend to rely on it in the determination of the present appeal before the Court.

 

In considering the instant appeal, another matter that incidentally caught my attention relates to the judicial authorities which the trial Circuit Court Judge cited in the concluding part of his Ruling in purported justification for his decision to dismiss the Defendant’s application.

 

The Learned Judge merely cited the cases without in any way or manner relating them to the issue under consideration. That excited my interest and I have taken time to read them myself. The cases are as follows:

i) Ghanatta V. Board of Trustees of NicherenShoshuSokagakkai of Ghana [1993-94]

ii) In re Assessment of Income Tax; The commissioner of Internal Revenue; Chapel Hill School V Attorney General and IRS (2009) SCGLR 432

iii) Soon Boon Seo v. Gateway Worship Centre (2009) SCGLR 278.

 

I do find that none of the above referred to authorities supports the trial Court’s decision to dismiss the Defendant/Appellants application.

 

It is clear that all the bodies or entities involved in the above stated cases were duly registered under the relevant laws of Ghana either as trustees or as companies Limited by shares or by Guarantee.

 

That is not the case here because, as noted earlier on in this judgment, the statement of claim failed or otherwise neglected to state exactly or disclose the legal identity of the Plaintiff as set out on the writ of summons.

 

The Board of Governors is not shown to be trustees of the school. Nor is the St. Jude’s Educational Academy indicated as an entity or body registered under the Trustees (Incorporation) Act, 1962 (Act 106); or even as a Partnership.

 

Surprisingly, when the objection was taken as to the capacity or legal competence of the Plaintiff to sue in the way it had been designated on the writ of summons, the opportunity was not seized to duly file an Affidavit to provide cogent evidence or proof of the Plaintiff’s capacity to sue as a registered corporate body or as an entity with appropriate corporate personality.

 

Arguing the appeal, Learned Counsel for the Defendant/Applicant/Appellant (hereafter referred to either as Defendant or as Appellant) in his written submission filed on 23/2/2016 pointed out that the application at the Court below was filed pursuant to order 9 rule 8 of the High Court (Civil Procedure) Rules, 2004, C.I. 47.

 

Order 9 rule 8 of C.I. 47 provides as follows:

 

“ A Defendant may at any time before filing appearance, or if the Defendant has filed a conditional appearance, within fourteen days after filing appearance, apply to the Court for an order to:

 

Set aside the writ or service of the writ;

 

Declare that the writ or notice of it has not been served on the defendant; or

 

Discharge any order that gives leave to serve the notice on the Defendant outside the country”.

 

Counsel for appellant submitted that the Plaintiff was not shown on the pleadings to have capacity to sue.

 

Accordingly to Counsel the parties who appear before our Courts of law must establish their due identity either as natural or artificial legal persons in order to have the capacity to sue or be sued. Without the requisite capacity the Court cannot assume jurisdiction to entertain the party or its suit.

 

Counsel relied on the cases of Attorney General V. Levandowsky& B.A.S.E Group (1971) 2 GLR 58 and Benyarko V. Mensah (1992) 2 GLR 404.

 

Counsel also cited S. Kwami Tetteh’s book: “Civil Procedure; A practical approach”, page 109 to the effect that the names appearing on a writ of summons as parties must be shown to be persons capable of litigating as Plaintiffs or Defendants, being recognised according to law as individual persons or as entities for or against whom the judgment of the Court could properly be enforced.

 

According to the Learned author, reliefs claimed in an action derived from the capacity in which a person sues or is sued; therefore, a challenge to the capacity, tends to put the validity of the writ in issue.

 

Counsel was of the view that the “Board of Governors was not a legal entity, either natural or artificial, which could validly sue or be sued. Additionally, Counsel contended that St. Jude’s Educational Academy on whose behalf the Board of Governors purported to sue was not shown on the pleadings to be a legal entity by way of having been registered under any existing law in Ghana which thereby entitles it to sue or be sued.

 

Counsel further submitted that, in the circumstances of this case, an amendment could not be properly granted. Counsel referred to Benyarko V. Mensah (supra) where it was held that “where a Plaintiff who initiated the Proceedings did not exist as a natural or juridical person, the Court could not permit an amendment that sought to substitute a new party for the non-existing party”.

 

Counsel maintained that, in the circumstances, the Court could not rely on order 16 of C.I. 47 to grant any necessary amendment to cure the Plaintiff’s demonstrated want of capacity to sue. Learned Counsel concluded by submitting that, in the circumstances, the Learned trial Judge erred in dismissing the Defendant’s application, declaring further that the judicial authorities which the trial Court purported to rely on for its decision in no way or manner supported the Court’s Ruling.

 

In his written submission filed on 03/01/2017 Counsel for the Plaintiff/Respondent/Respondent, to his credit and in the best traditions of the Bar, conceded the basic proposition involved in this appeal to the effect that the failure of a party to establish the capacity in which his action is commenced and prosecuted is fatal and that a challenge to capacity puts the validity of a writ in issue, rightly citing in support the case of Fosu and Adu-Poku V. Dufie (deceased) and Adu-Poku Mensah (2009) SCGLR 310.

 

Counsel, however, contended that the Board of Governors “is an identifiable entity within St. Jude Academy” with “identifiable set of human beings” responsible for specific activities in relation to the school and in protecting the interests and property of the school.

 

Learned Counsel opined that, being so identifiable, it can sue or be sued and that in the instant case it was suing in a representative action in terms of the principle enunciated in Ghana Muslims

Representative Council V. Salifu (1975) 2 GLR 249

 

According to Learned Counsel, the Plaintiff, “being a school or entity has legal rights which have been invaded by the Defendant” and that the said interest was being protected through a representative action.

 

Counsel went further to suggest that, assuming the Plaintiff was found to lack capacity, this court still had the power to save the writ by allowing the appropriate amendments for “the purpose of settling the real issues between the parties”. Counsel called in aid the case of Robertson V. NiiAkramah II and others (consolidated) [1973] GLR 405.

 

Counsel concluded by stating that what was raised in the instant appeal is a mere technicality which should not be allowed to stand in the way of the Plaintiff but ought to be cured through an amendment granted appropriately by this Court.

 

It is obvious to me that, in the end, Counsel for the Plaintiff/Respondent/Respondent, in spite of his valiant attempt to shore up the case of the Plaintiff, nonetheless, misconceived or misapprehended the real import of the objection respecting the capacity of the Plaintiff.

 

The simple question raised for determination in the instant appeal is this: is the Plaintiff shown on the pleadings, and on the material on record, to be a corporate personality or a duly registered entity which by law is capable of suing or being sued? In other words, was the action brought to Court in connection with or founded on a non-existent capacity?

 

In this regard, it would seem to me to be patently clear that the Learned trial judge also misconceived and misconstrued the issue of the capacity of the Plaintiff in its relation to the Court’s plain jurisdiction or its power to determine cases in accordance with its mandate under the statute establishing the Court.

 

This is apparent from the Ruling where the Judge incredibly states as follows:

“……… this Court rules that the Defendant has no justifiable basis to support the reliance on the Civil Procedure rule quoted by her Counsel to overcome the writ since the courts in Ghana are clothed with jurisdictional power to deal with all manner of cases under the sun and moon and similarly for companies incorporated and statutorily known as legal persons”.

 

It is obvious that the objection raised by the Defendant had nothing to do with the jurisdiction or power of the Circuit Court to handle cases or matter that the statute creating the Court had vested in the Court.

 

It was purely a question related to the legal capacity of the Plaintiff to sue with regard to the manner in which its identity or standing was formulated and settled on the writ of summons and accompanying statement of claim.

 

A similar and comparable situation arose for determination in the case of NAOS HOLDING INC V.

GHANA COMMERCIAL BANK [2005-2006] SCGLR 407.

 

In the said case, the Plaintiff sued the Defendant Bank in relation to the payment of some promissory notes. The writ, contrary to order 3 rule 4 of the old High Court (Civil Procedure) Rules, 1954 (now re-enacted as order 2 rule 4(1) of C.I. 47) failed to disclose the Plaintiff’s address either as a resident or external company in Ghana. The Plaintiff had purportedly sued per an attorney resident in Ghana.

 

The Defendant Bank applied to dismiss the writ inter alia on the ground that the Plaintiff did not exist as a legal entity with capacity to sue. The High Court upheld the Bank’s motion and declared the writ as a nullity because the Plaintiff had failed to establish itself as a legal entity existing either in or outside Ghana. The Court of Appeal upheld the decision of the High court and, upon a further appeal to the Supreme Court, the Court declared that the real effect of the Defendant’s motion in the High Court was to challenge the very existence of the Plaintiff as a corporate legal entity and to place in issue its capacity to sue.

 

The Supreme Court clarified the situation further, per Holding (2) of the Head notes, as follows:

“(2) Once its legal status was challenged and its corporate capacity was placed in issue, it was incumbent upon the Plaintiff to produce more cogent evidence of its registered office address or copy of its certificate of incorporation, to satisfy the Court that it had the requisite legal capacity was placed in issue, it was incumbent upon the Plaintiff to produce more cogent evidence of its existence (such as its registered office address or copy of its certificate of incorporation) to satisfy the Court that it had the requisite legal capacity to sue. And having failed to do so, the trial Court was justified in arriving at the conclusion that the Plaintiff did not exist. Furthermore, having dismally failed to satisfy the trial Court in regard to such a fundamental issue as capacity to sue, it would have been pointless for the trial Court to order the matter to proceed to trial. Since the Plaintiff had failed to take the opportunity to prove its capacity during the hearing of the motion, it did not merit any further opportunity to do so, nor was the Court obliged to act suo motu to grant the Plaintiff leave to amend the writ to include its residential address. The writ was rightly held as void”.

 

The issue of capacity is so fundamental and so crucial in litigation that, where the issue is appropriately raised in a case and upheld, the Court need not go further to probe or establish the actual merits of the case.

 

A good illustration of this position may be found in the case of: Republic v High Court, Accra; Ex parte Aryeetey (Ankrah Interested Party) [2003-2004] SCGLR 398 where Kpegah, JSC provides a brilliant exposition of the law on the issue.

 

Holding (2) of the Headnotes of the said case is particularly apposite and I, accordingly, find it appropriate to set it out in full as follows:

 

“(2) The requirement that a party endorses on the writ the capacity in which he sues is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has a right to sue. Whether a person who has sued in a representative capacity, indeed, has the capacity he claims to have or not, is a question of fact; and if challenged, he must prove same to avoid his suit being dismissed since it is analogous to taking an action against a non-existent defendant. But if the representative capacity he claims is not challenged, naturally a Plaintiff assumes no such burden.

The requirement as to endorsement of the capacity of suing, enables the defendant if so minded, to challenge the capacity the Plaintiff claims he has, and such a challenge may be taken as a preliminary issue. This is because if a party brings in a capacity he does not have, the writ is a nullity and so are the proceedings and the judgment founded on it. Any challenge to capacity puts the validity of the writ in issue”

 

In his didactic judgment, Kpegah, JSC, relying on Akrong v Bulley [1965] GLR 469 and Sokpui II v.

Agbozo III (1951) 13 WACA 241 declared thus:

 

“It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with the merits so that if the axe falls, then a defendant, who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist upon his rights.”

 

As pointed out earlier on in this judgment, the Plaintiff’s Statement of Claim did not properly and appropriately set out the legal identity or capacity of the Plaintiff, nor was the purported representative capacity clearly and well articulated. And when the Plaintiff’s legal identity and its capacity were challenged in the motion filed by the Defendant, the Plaintiff neglected or failed to take the opportunity to prove its said identity and due capacity. Indeed, the pleadings of the Plaintiff ought to have sufficiently disclosed enough material to demonstrate on the face of the pleading the Plaintiff’s said legal capacity.

 

The Plaintiff woefully failed to do so.

 

As the facts stand, the real ownership of the school remains unclear and unsettled. Nor is it settled if the so-called Board of Governors are Trustees duly and properly appointed and registered for the purpose of holding landed property on behalf of the School in accordance with Sections 1(1) and 1(4) of the Trustees (Incorporation) Act, 1962 (Act 106).

 

Besides, at the Court below the Plaintiff did not take any steps to file a Motion for amendment of its writ or Statement of Claim for the purpose of regularising its capacity or position under Order 16 rule 5(1)(a), (2), (3), (4) and (5) of C.I. 47.

 

In the circumstances, it is unthinkable that the Court of Appeal could or should be expected suo motu to grant an amendment to cure any inadequacy or impropriety in the Plaintiff’s case.

 

Of course, were the School to belong to a sole owner, that person, were he a natural person, could assume the position of a Plaintiff suing in the name and style of the School and hence for and on behalf of the named School. That way the identified human being would be held personally liable for any judgment delivered in the case.

 

In the light of the foregoing, and in all the circumstances of the case, I am firmly satisfied that there is merit in this appeal and, accordingly, same must be upheld on the basis of the sole ground of appeal filed in this case.

 

In the event, the appeal succeeds and the Ruling of the Circuit Court, Tarkwa, dated 7th November, 2016 is hereby set aside; the Plaintiff’s writ is struck out as being null and void for want of capacity in the Plaintiff.

 

SGD

…………………..

SAEED KWAKU GYAN

(JUSTICE OF THE COURT OF APPEAL)

 

SGD

 I AGREE                                                                    …………………

HONYENUGA

(JUSTICE OF THE COURT OF APPEAL)

 

                                                                                         SGD                      

I ALSO AGREE                                                  …………………

SUURBAREAH

(JUSTICE OF THE COURT OF APPEAL)