SAEED K. GYAN, JA

I have had the privilege of reading before hand the judgment of my worthy brother Suurbaareh, JA and I entirely agree with his conclusion that this interlocutory appeal should be disallowed or otherwise that it ought not to be granted. I would however like to discuss aspect of this case bordering on procedure which I believe bears considering in relation to the competence of the step taken by the Defendants/Applicants/Appellants herein to ensure an early or precipitous ending of the case brought against them by the Plaintiff/Respondent/Respondent herein without determining the case on the merits through a plenary trial.

It has always been a fundamental principle of the law that unless in the clearest cases, a party should not be debarred from the judgment seat before they have been heard as required by law.

It is equally a principle of considerable eminence that where a stature sets out preconditions which are mandatory in order to access a relief “ a person entitled to take a step under the statute would not have any authority to do so” unless he follows the procedures enjoined under the statute. See JONAH VRS. KULENDI & KULENDI [2013-2014] 1 SC GLR 272.

Anin Yeboah JSC has stated that “the courts have shown remarkable consistency” in upholding the principle that mandatory preconditions in statutes ought to be complied with before steps could be validly taken.

His Lordship Mr. Anin Yeboah strongly emphasized this matter in the now celebrated case of HENRY NUERTEY KOBOE VRS. FRANCIS AMOSA; CIVIL APPEAL No. 34/56/2014 dated 21/04/2016 (unreported) where the Supreme Court of Ghana, by a majority decision declared that a court process prepared and filed by a Lawyer without the requisite Solicitors License was invalid and void and ought not to be countenanced by the court despite the far-reaching or eventual consequences that could have on the so called innocent litigant, who is the client of the erring Lawyer.

See also; AFRANIE II VRS. QUARCOO & OR. [1992] 2 GLR 561, SC; REPUBLIC VRS. DISTRICT MAGISTARTE, ACCRA; EX PARTE ADIO [1972] 2 GLR 125.

To my mind the question which irresistibly confronts us in the instant case is whether the procedure adopted by the Defendants to ensure a truncation of the case or otherwise to achieve an early dismissal of the case against them was correct, valid or competent.

It may be useful to set out the background of this case.

The Plaintiff/Respondent/Respondent herein [hereafter referred to as the Plaintiff) commenced on action at the Circuit Court, Agona Swedru against the Defendants) Applicants/Appellants herein [hereafter referred to as Defendants] seeking the following relief:

(1) A declaration of title and recovery of possession of all that large tract of land approximately thirty (30) acres bounded on the North by Ebusuapanyin Sockeyes land on the South by 1^st Aboradze family of Agona Nyarkrom’s land on the East by Agona Nsaba/Okeseku’s land on the West by 1^st Aboradze family of Agona Nyarkrom’s land.

(2) General damages trespass;

(3) Perpetual injunction.

(4) Cost including legal cost.

By paragraph 1 of the accompanying Statement of Claim, the Plaintiff described himself as a farmer and head of the 1^st Aboradze family of Agona Nyarkrom. The Plaintiff stated further that he was suing for and on behalf of the 1^st Aburadze family of Agona Nyarkrom.

According to the Plaintiff, the Defendants had trespassed unto his family’s land. The Plaintiff averred that the 1^st Defendant whom he described as a farmer and the head of family of the Juman family of Agona Nsaba had wrongfully or unlawfully placed the other defendants in the case on the (the Plaintiff’s) family land whose particulars and identity had been set out in the Plaintiff’s PLEADINGS.

By his pleadings the Plaintiff had set out his cause of action against the Defendants and claimed the reliefs endorsed on his Writ of Summons. The Plaintiff filed his Writ of Summons on and Statement of Claim on 22/12/2010. On 31/12/2010, the Defendants through their Lawyer, John Frimpong-Armah, Esq. of Ampeaah Owoahene Chambers of H/No. C5/4 Kokomlemle, Accra filed “Notice of Entry of Conditional Appearance”. On 10/01/2011 the Defendants through their legal Counsel filed a “Motion to dismiss suit for want of capacity and jurisdiction”. Accompanying the Motion paper was a thirteen paragraph Affidavit in Support deposed to by Ebusuapanyin Kofi Andoh (the 1^st Defendant).

The Affidavit of the 1^st  Defendant maintained that whereas the Plaintiff in the case asserted in his pleadings that he was the head of the 1^st Aboradze family of Agona Nyakrom and consequently had the authority of his said family to institute the present action. The 1^st Defendant then proceeded in is Affidavit to contend that the Plaintiff was not in fact the head of his family as he claimed and that the Plaintiff was only seeking to “throw dust into the eyes of the Court”. (see paragraph 7 of the Affidavit on page 7 of the Record of Appeal (ROA).

The 1^st Defendant challenged the capacity of the Plaintiff in his claim to the position of Ebusuapanyin and in his authority to commence the action on behalf of his family. The 1^st Defendant also maintained that the value of the thirty acres of land claimed by the Plaintiff to have been trespassed upon at the cost of GH¢200 per acre came to GH ¢6000.00 or ¢60 million”which amount is far in excess of the jurisdiction” of the Circuit Court and consequently ousted the jurisdiction of the Court to handle the case brought before it by the Plaintiff.

The substance and foundation of the Defendants’ objection is contained in paragraph 12 of the Affidavit in support of their Motion which is stated as follows:

12” That in the event the Plaintiff has neither the capacity nor the Court the jurisdiction to entertain this suit.”

The question is, can this be a valid, fit and proper ground for filing a “Conditional Appearance” and proceeding to move the Plaintiff’s suit? In otherwise is the ground canvassed by the Defendants and set out above a sufficient and valid basis to non-suit the Plaintiff?

On 13/11/2011 the Plaintiff filed a 10 paragraph Affidavit in Opposition to the Motion filed by the Defendants. For the sake of Convenience I hereby set out in full the relevant portions of the said Affidavit, as follows:

1, EBUSUAPANYIN Asi Yaw of H/No. AN 25/1 Agona Nsabamake oath and say as follows:

That I am the deponent and respondent herein.

That I have been served with a motion challenging my capacity to sue and the jurisdiction of this honourable court.

That Defendant failed to disclose the name of the Ebusuapanyin of the 1^st Aboradze Family of Agona Nyarkrom if they know of any such person apart from the Plaintiff.

That I am the Ebusuapanyin of the 1^st Aboradze Family of Agona Nyarkrom having being appointed head of family by the Council of the 1^st Aboradze family after the death of Yaw Adjei who was the head of the 1^st Aboradze family.

That after the death of Yaw Adjei, Nana Kontoh IV, Chief of Aboradze, Agona Nyarkrom and members/Council of Plaintiff’s family appointed Plaintiff as head of family about two years ago.

That have been advised by my counsel and verily believe same to be true that matters of capacity are evidence to be adduced as the trial.

That in any event, Defendants do not have the right to determine who the head of the 1^st Aboradze Family of Agona Nyarkrom should be.

That have been advised by Counsel and verily believe same to be true that assuming without admitting that I am not the Ebusuapanyin of the family, I could still bring an action where the family head has failed to act or the family property is in jeopardy or there was the need to preserve the family property.

That this honourable court has unlimited jurisdiction to determine matters on ownership, possession and occupation of land according to the courts Act as amended”

In response to the Affidavit in Opposition the 1^st Defendant on 5/5/2011 filed a supplementary Affidavit in which he declared that he had in his previous Affidavit inadvertently omitted to stat the “name of the actual Ebusuapanin of the Plaintiff’s family”, whose name he now gives as Opanin Kwame Fosu whom he described as being “alive and kicking.” He contended in his supplementary Affidavit that the Plaintiff was not the true Ebusuapanyin of the Aboradze family of Agona Nyarkrom, and re-iterated that not being the Ebusuapnyin as he claimed, his action should be struck out.

On 01/06/2011, the Plaintiff filed a Supplementary Affidavit in Opposition in which he maintained that contrary to the 1^st Defendant’s allegation Opanyin Kwame Fosu was not the Ebusuapanyin of the Aboradze family of the Agona Nyarkrom and proceeded to explain his assertion. He conceded that Opanyin Fosu had indeed previously been Ebusuapanyin and was not longer so. He said he was not the current Ebusuapanyin. The Plaintiff maintained that not being members of his family it did not lie with the Defendants to determine who was the head of the Plaintiff’s family. He concluded by insisting that, be that as it may, the issue as to who was or was not the Ebusuapanyin could not be established by Affidavit evidence without evidence.

On 18/02/2013, the 1^st Defendant filed yet again a Supplementary Affidavit in support of the Motion to dismiss suit for want of capacity and jurisdiction.

In his Affidavit 1^st Defendant sought to “delete paragraphs 10 and 11 of the affidavit in support filed on 10^th day of January, 2011” and to substitute same as follows:

5.That the thirty acres of land being claimed by the Plaintiff (the subject matter) cost GH¢700 per plot.

6.That the thirty acres of land being claimed by the Plaintiff therefore cost GH¢84,000.00 which amount is far in excess of the jurisdiction of the court?

It would appear from the record that along the line of Defendant’s motion was struck out for want of prosecution and subsequently was re-listed. It would appear further from the record that on 24/8/2011 the Motion to dismiss the action was heard.

The Court notes for the day’s proceedings seems to record counsel’s submissions as follows: [at page 23 of the ROA]

“Plaintiff has no capacity to sue. The property is family property and he is not the head of family. If the value of the land is GH¢6,000.00 then it exceeds this court. The Plaintiff is not the Ebusuapayin of the defendants’ family. The real Ebusuapanyin is called Opanin Kwame Fosu. See paragraph 4 of the Supplementary Affidavit in support filed on 5/05/11). Defendant has no right to file a Supplementary affidavit in opposition. Order 19 rule (1 ) of C. I. 47.

BY COURT: The suit is adjourned to 4/10/11”

Thereafter the case kept being adjourned until 7/12/2011 when the Court notes (page 26 reveal the following:

“Mr. Alex Graham for Plaintiff present.

Mr. Frimpong-Armah for Defendants present.

By Counsel for Defendants: We are ready to give evidence in respect of Plaintiff’s capacity.

By Counsel for Plaintiff: During evidence we shall prove that the Plaintiff is the head of family.

BY COURT: The suit is adjourned to 24/01/12 for the Court to take evidence about the Plaintiff’s capacity”.

Now, what motivated or actuated the Court to order the adduction of oral evidence at this staGe when the Defence had obviously not filed their statement of Defence, and Application for Directions had not been filed or taken.

On 3/02/2012, the Court proceeded to take evidence as earlier ordered on 7/12/2011. The case protracted but finally evidence was led by both the Defendants and the Plaintiff on the issue of the Plaintiff’s capacity as head of his family as challenged by the Defendants.

On 9/7/2013, His Honour Mr. N.K. Osam (as he then was) gave a short ruling as follows:

RULING

“This is a ruling in respect of an application by Defendant/Applicants to dismiss the suit for want of capacity and jurisdiction. This Court has unlimited jurisdiction so far as the ownership, possession and occupation of land is concerned. So the portion of the application which says that this court lacks jurisdiction due to the value of the land is misconceived and is accordingly dismissed.

Evidence was adduced as to the capacity of the Plaintiff and from the evidence led I am convinced by defendants claim that plaintiff is not the Abusuapanyin. There is no evidence that after the dispute between Nana Kontoh and Abusuapanyin Kwame Fosu anything was done to formally remove Kwame Fosu as the Abusuapanyin.

However in view of Kwame Fosu’s refusal to carry out the functions of Abusuapanyin and his refusal to even step in the palace, plaintiff is entitled as a member of the family to act to preserve the family property. See the case of Kwan v. Nyieni (1959) (CA) GLR 67 especially at pages 68and 69.

I therefore dismiss the motion to dismiss the suit. Plaintiff is granted GH¢1,800.00 costs against defendants.

It is against the above Ruling that, being aggrieved the Defendants mounted the instant appeal on 13/7/2013.

The Grounds of Appeal which appear on the Notice of Appeal (page 58) state thus:

a)The Court erred in law when upon finding as a fact that Plaintiff/Respondent is not the head of family, went ahead to rule that Plaintiff/Respondent can impersonate the head of family to have capacity to sue as head of family.

b) Further grounds may be filed upon receipt of record of proceedings.”

Now, I find the whole procedure adopted by the parties and Counsel as well as the Court itself in this matter to be unusual, if not strange.

On what basis was evidence taken to determine the capacity of the Plaintiff as Abusuapanyin of his family when pending before the Court was just a motion filed by the Defendants pursuant to the Conditional Appearance which they had earlier filed, upon being served with the Plaintiff”s Writ and Statement of Claim?

My esteemed brother Suurbareh JA has sought to deal with the matter on the “merit” of the case based on the oral evidence adduced in relation to the, Plaintiff’s Capacity to institute the.

But the real question for determination, in my respectful opinion, is whether the procedure adopted was proper.

Was the filing of Conditional Appearance the right procedure to adopt ion the circumstance of this case?

And was the motion filed pursuant to the Entry of Conditional Appearance appropriate and competent?

I believe that that must be the central issue for determination. That is what should excite the attention and interest of this Court in the instant case.

Was Conditional Appearance appropriate in the circumstances of this case?

What is Conditional Appearance and what is the purpose of or rationale behind the filing of a Conditional Appearance?

At page 199 of the 1963 Edition of the “White Book”, the Learned Authors describe Conditional Appearance in the manner as follows:-

“The term ‘Conditional Appearance’ means an appearance in qualified terms reserving to the appearing defendant the right to apply to the Court to set aside the Writ, or service thereof, for an alleged informality or irregularity which renders either the Writ or Service invalid or for lack of jurisdiction.” There is no real distinction between the terms “Conditional Appearance’ and appearance under protest’. The latter is more usually applied to an appearance by a person served as a partner under Order 48A Rule 3 and 4, but who denies that is a partner, for entry of which no leave is required…”

Thus, Conditional Appearance is resorted to in a situation where the Defendants or their Lawyers are of the opinion that the Writ is irregular and/or that service of the Writ is improper or invalid and, further or in the alternative, that the Court has no jurisdiction. Notice is, accordingly given, under this procedure, to the effect that the defendant intends to subsequently apply to the Court to have the Plaintiff’s Writ or service thereof set aside on the ground of irregularity and invalidity or for want of jurisdiction.

Order 9 Rule 7 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), deals with Conditional Appearance. C.I. 47 does not specifically define the term Conditional Appearance. All it states, under Order 9 Rule 7, is as follows:- “7(1) A defendant may file a Conditional Appearance

(2) A Conditional Appearance, except by a person sued as a partner of a firm in the name of the firm and served as a partner, is to be treated for all purposes as unconditional appearance unless the defendant applies to the Court within the time limited for the purpose, for an order under rule 8 and the Court makes an order under that rule”. (Emphasis provided).

Rule 8, quoted in full, states thus:

“8. 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

(a) Set aside the Writ or service of the Writ

(b) Declare that the Writ or notice of it has not been served on the defendant, or

(c) Discharge any order that gives leave to serve the notice on the defendant outside the country.”

It will be noted that under C.I. 47 the purpose for filing Conditional Appearance is as set out in order 9 rule 8. The rules further circumscribe or limit the applicability of Conditional Appearance.

Firstly, Conditional Appearance becomes invalid and is automatically treated as Unconditional Appearance unless, within fourteen days of filing the Conditional Appearance, the Defendant had filed an application praying for any of the orders or reliefs contained in Order 9 rule 8.

Secondly, unless a defendant had been sued as a partner of a firm in the name of that firm and served as such a partner, he is only entitled to file Conditional Appearance if he intends or proposes to file a motion to obtain any of the orders envisaged under Order 9 rule 8 of C.I. 47 and not otherwise.

It may well be taken or understood therefore that, grounds for obtaining an order setting aside the Writ or for a declaration that the Writ or service of the Writ or for a declaration that the Writ or notice of it had not been served on the defendant would be that the Writ or service thereof is improper, defective or otherwise irregular in that the Writ or service thereof is invalid or that the Court lacks jurisdiction.

How does the instant application fare under the above stated considerations? The Defendants/Applicants cleared the first hurdle when they filed the motion within ten days after filing the Conditional Appearance.

But did the motion satisfy the requirements set out under Order 9 rules 7 and 8 of C.I. 47?

It does appear to me that the Defendants’ application did not satisfy the other requirements of Order 9 rules 7 and 8 of C.I. 47.

The Defendants’ motion sought an order dismissing the Plaintiff’s action for want of capacity and on jurisdictional grounds.

Let me take the issue of jurisdiction first. The Defendants objection to the jurisdiction of the court, in the circumstances of this case, is clearly misconceived and frivolous.

The Plaintiff’s action is not a LIQUIDATED claim for which the amount of money claimed will determine whether or not the Circuit Court has jurisdiction to deal with the matter. The basis of the Defendants’ complaint about jurisdiction hinges on the fact that the total cost or value of the land in dispute did far exceed the Circuit Court’s mandate. The Defendants contended that were the land in dispute to be divided into residential plots and assessed by the cost of each plot and aggregated into the value of 30 acres, the total will exceed the monetary jurisdiction of the Circuit Court.

This contention of the Defendant is surprising to the extreme.

As pointed out previously, the Plaintiff’s action is not a liquidated claim. Like all Courts, the jurisdiction of the Circuit Court is determined by law and not by the sentiments of the parties.

By Section 42 (1) (a) (iii) of the Courts Act 1993 (Act 459), in relation to its civil jurisdiction the Circuit Court is mandated to deal with causes or matters “involving the ownership, possession, occupation of or title to land.”

It is clear from the above provision that the Circuit Court’s jurisdiction in respect of a claim to land either in connection with ownership, possession, occupation or title is not limited whatsoever by the value of the land.

This is in contradistinction with the Circuit Court’s jurisdiction in relation to personal actions arising under a contract or a tort, or for the recovery of a liquidated sum of money which is limited or circumscribed by the amount of money involved. See section 42 (1) (a) (i) of the Courts Act, 1993 (Act 459).

That being so, the objection to the Plaintiff’s claim on the basis of the Defendants’ own assessment of the value or cost of the land in dispute is totally misconceived and misdirected.

Filing of the Conditional Appearance upon the ground of the value or cost of the land in dispute makes the process filed wholly incompetent and frivolous.

Similarly, it must be obvious, that a complaint or issue with the capacity of a party cannot under the rules justify an entry of conditional Appearance which should lead to an application to dismiss the Writ or the action on the score of a Plaintiff’s lack of capacity. Want of Capacity may found a defence, but it certainly will not justify an application under Order 9 rules 7 and 8 of the C.I. 47.

The process for Striking out or otherwise dismissing an action under Order 9 rules (7) and (8) should be distinguished from such a process under

Order 11 rule 18 C.I. 47: See Republic vrs. High Court: Ex parte Aryeetey (Ankrah Interested Party) [2003-2004] SCGLR 398.

In the Ex parte Aryeetey case (supra) the Supreme Court held that a Conditional Appearance was not to enable a defendant “who intends to object to the issue or service of the Writ or Notice of the Writ on him or to object to the jurisdiction of the court” to apply to the court to set aside the Writ, or notice of the Writ or the service thereof on him.

The Supreme Court held that it is impermissible for a Defendant who had entered Conditional Appearance to move the court to have a Writ set aside because he has unimpeachable defence, nor is such an application “available to a Defendant who seeks to rely on a plea of res judicata.”

The same goes for a defence related to capacity, as is the situation in the instant action, which can only be established through evidence.

Similarly, it was the opinion of the Supreme Court in Ex parte Aryeetey, that a Defendant cannot equally apply,l after entering Conditional Appearance, to have the Writ set aside

“on grounds that the action is either frivolous, vexatious or an abuse of the process of the court: (See Holding 4).

From the forgoing, it is obvious that seeking to dismiss the Plaintiff’s action on the ground of lack of capacity on the part of the Plaintiff, following the Defendants’ entry of Conditional Appearance is a fundamentally inappropriate procedural flaw, which makes the said application of the Defendants incompetent.

It should have been obvious to both the Court and Counsel in the case that immediately there arose the need to call oral evidence to determine the issue of the capacity of the Plaintiff, then, ipso facto, the Defendants’ application to dismiss the suit, following their Entry of Conditional Appearance, could not be sustained.

In the circumstances, the Defendants’ motion to dismiss the Plaintiff’s action, based on the facts contained in their Supporting Affidavit, was fundamentally flawed and irregular. Defendants’ motion ought consequently to have been dismissed by the Circuit Court as being INCOMPETENT and frivolous, without the need to call any oral evidence to shore up the application.

In the event, I would dismiss the appeal as being without merit. The case should be remitted to the Circuit Court for it to take its normal course.

SAEED K. GYAN, JA.

I agree.           -                                                   C. J. HONYENUGA

[JUSTICE OF APPEAL]

I also agree.   -                                                   G. S. SUURBAAREH

[JUSTICE OF APPEAL ]