CAPE COAST - A.D 2018
EBUSUAPAYIN KOBINA ISSAKA - (Plaintiff/Respondent)
EGYARE KOTOMPO - (Defendant/ Appellant)

DATE:  18 TH APRIL, 2018


(1) These are two (2) interlocutory appeals from the rulings of the High Court, Cape Coast which were argued together.


(2) The first ruling was delivered on 8th July, 2016. The High Court refused to grant the Defendant/Appellant’s (Defendant) application challenging the capacity of the Plaintiff/ Respondent (Plaintiff) to prosecute the motion for interlocutory injunction on the ground that the family on whose behalf the Plaintiff had sued i.e. The Royal Ebiradze Family of Abura does not exist for the Plaintiff to be the Head of Family.


(3) The High Court in refusing the application reasoned that from the affidavits of both parties as well as their pleadings, the parties were strictly denying each other’s averments in their affidavits and pleadings as to the existence of the said family and by so doing have joined issues on the capacity of the Plaintiff. The High Court further held that with only the affidavit evidence and pleadings in hand, the court could not adequately address itself and determine the issue of capacity without taking evidence.


(4) The Defendant, dissatisfied with the said ruling, on 22nd July 2016, filed an interlocutory appeal on the ground that:-


The ruling of the court was not supported by the affidavit evidence and pleadings appearing on the record”.


The Defendant sought by way of relief to have the decision reversed and an order to be made for the issues of capacity to be determined.


(5) The second interlocutory appeal is against the ruling of the same court dated 17th July, 2017 which dismissed the application by the Defendant seeking for “an order under the inherent jurisdiction of the court to dismiss/strike out the writ of summons as being legally incompetent and non-competent with legal statute .i.e. Sections 2 and 3 of the Legal Profession Act, 1960 [Act 32] and a further order(s) discharging/vacating any process, order, rulings etc. Made and/or founded upon the defective writ”.

On 3rd August, 2017, the Defendant filed a Notice of Interlocutory Appeal against the said ruling on the ground of Error of Law and particularized the alleged Errors of Law.


(6) In respect of the first interlocutory appeal, the Plaintiff endorsed the writ with the following title:-
















The writ was accompanied by a statement of claim.


(7) Upon service of the writ and statement of claim on the Defendant, the Defendant endorsed his statement of defence with the following title:-












(8) The Defendant averred in paragraph 4 of the statement of defence as follows:-

“4. The Defendant says and will maintain that he is presently the Head of the said Royal Family and denies the claim contained in paragraph 2 of the statement of claim that he is a member of the Royal Ebiradze Family of Abura”.


(9) Subsequently, the Defendant brought an application invoking the inherent jurisdiction of the court to strike out/dismiss the Plaintiff’s application for interlocutory injunction on the legal grounds that the Plaintiff lacks capacity.


(10) In arguing the ground of appeal in respect of the issue of capacity, the Defendant contended that it is pertinent to determine who is the head of either “THE ROYAL EBIRADZE FAMILY OF ABURA” or “THE BREMPONG KODWO EBIRADZE ROYAL FAMILY OF ABURA; and the other issue was to determine whether or not the two (2) Families are one and the same.


(11) The Defendant’s counsel argued that the common denominator is ABURA, a town in Cape Coast and Sub-stool of the Oguaa Traditional Area and since the issue concerns the Head or Ebusuapayin of that Royal Sub-stool, the Trial Court was under a duty to first determine the issue of capacity which was raised in the statement of defence as a preliminary issue for determination.


(12) It is well settled by a plethora of decided cases that capacity or locus standi is a point of law which can be raised at any time or stage of a trial. It can also be raised even after judgment and on appeal. An issue raised in respect of capacity or locus standi is like a plea as to jurisdiction which goes to the foundation or root of the action and if it is sustained by the court, it brings the action to an end.




(13) In FOSUA & ADU-POKU VRS. ADU POKU [2009] SC GLR 310 Headnote 6, the Supreme Court held that;

“Capacity to sue was a matter of law and could be raised by a party at any stage of the proceedings, even an appeal. It could be raised by the Court suo motu”.


(14) Some of the judges in that case expressed their views on the issue of capacity thus; per Ansah JSC, “the Supreme Court considers the question of capacity in initiating proceedings as very important and fundamental and can have catastrophic effect on the fortunes of a case.”

Per Dotse JSC; “want of capacity is a point of law which if raised, goes to the root of the action”.


(15) It is thus not only instructive but trite learning that at whatever stage of the proceeding when the capacity of a plaintiff is put in issue, it must first be established that indeed he is clothed with the legal indices that entitles him access to the court.


(16) We have considered the ruling of the High Court in respect of the issue of capacity of the Plaintiff which was raised by the Defendant. In our view the Learned Trial Judge appreciated the law with regard to capacity of a party. He was however of the view that the issue could not effectively or adequately be determined on the basis of the affidavits and pleadings of the parties but that the issue of the capacity could be effectively determined only by taking evidence. The evidence the court envisaged in our view, was oral evidence.


(17) We cannot fault the decision of the High Court under the circumstances and therefore dismiss the ground of appeal in respect of the ruling dated 8th July, 2016.


(18) We will now proceed to consider the interlocutory appeal against the ruling of 17the July, 2017.


The gravamen of this appeal as could be deduced from the written submission of the Defendant is that the Plaintiff’s statement of claim that accompanied the writ was signed by “Tackie Otoo And Co”. a Legal Firm which is not a lawyer within Section 8(1) of the Legal Profession Act 1960 [Act 32], and Rule 4(1) and (4) of the Legal Profession (Professional Conduct and Etiquette) Rules 1969 L.I.613. The Defendant counsel relied on the decisions of the Supreme Court in the following cases to support his argument;


I SC GLR 363



(19) Counsel for the Defendant argued that the same judge in an earlier case titled “NANA EFUA  OKYIRIMAA  III  VRS.  NATIONAL  HOUSE  OF  CHIEFS  &  ORS.  (Suit No.E.12/100/2015) (unreported) a certified copy of which is at pages 184-186 of the Record of Appeal, upheld a similar application.


(20) Counsel contended that the 1992 Constitution did not vest the High Court and the Court of Appeal powers to depart from their previous decisions as it however gave to the Supreme Court under Article 129(3) thereof.


(21) Counsel submitted that though the High Court may not be bound by its previous decisions but in doing so, it is required to give the raison de’etre for departing from the previous decision.


(22) Counsel argued further that the Trial High Court also failed to follow the decision of the Court of Appeal which was placed before it in the matter of NII LANTE MILLS VRS. MILDRED AMA WOOD (Suit No.H3/563/2015) unreported. Counsel submitted that the NII LANTE MILLS case supra was quite clear and loud of the significance and interpretation of Sections 2 and 3 of the Legal Profession Act 1960 [Act 32] and its decision was binding on the lower Trial High Court.


(23T he Legal Profession Act, 1960 [Act 32] Section 8(1) and (2) state that:

“8. Practicing Certificate:

(1) A person, other than the Attorney-General, or an officer of Attorney General’s Department shall not practice as a solicitor unless that person has in respect of that practice a valid annual Solicitor’s License issued by the Council duly stamped and in the form set out in the second schedule.

(2) A person shall not be issued with a solicitor’s license unless that person has been previously enrolled as a lawyer under Section 3.


(24) Legal Profession Act, 1960 (Act 32) Section 2 and3 provide as follows:-

“2. Status of Lawyers;

A person whose name is entered on the Roll kept under           Section 6.

(a)Is entitled, subject to Section 8, to practice as a lawyer,

whether as a barrister or solicitor or both, and to sue for and recover the fees, charges and disbursements for services rendered as a lawyer.

(b)Is an officer of the courts and

(c) Is subject when acting as lawyer, to the liabilities that attach by law to solicitor.

3. Qualifications for Enrolment

(1) A person is qualified for enrolments if that person satisfies the Council in respect of:

(a) Good character, and

(b) The holding of a qualifying certificate granted under Section 13 by the Council.

(2)  person may be enrolled by the Council, if the Council is satisfied.

(a) As to the good character of that person,

(b) As to the qualification to practice in a country having a sufficiently analogous system of law and the qualifications render that person suitable for enrolment, and

(c) That the conditions prescribed by the Council in respect of the status or proficiency, have been complied with by that person.

(3) A citizen is qualified for enrolment if the citizen satisfies the Council that the citizen;

(a)Is of good character, and

(b)Is qualified to practice law in a country having a sufficient analogous system of law.

(4) Despite any other provisions of this Act, a person shall not be enrolled under Sub-section (3) unless that person has satisfactorily completed a course lectures in customary law and in any subjects prescribed by the Council of not less than three months’ duration at a school of law or any other place of instruction specified by the Council”.


(25) Under the Legal Profession (Professional Conduct And Etiquette) Rules, 1969 (L.I.613 Rule 4 Sub-rules (1) and (4) state that:-

“4(1) A lawyer shall not practice unless he is a member of professional chambers or the pupil of such a member.

(4) All professional chambers shall be registered with the General Legal Council”.


(26) Further, the Legal Profession Act, 1960 (Act 32), Section 8(1) and (2) read:-

8. Practcing Certificate

(1) A person, other than the Attorney-General, or an officer of Attorney-General’s Department, shall not practice as a solicitor unless that person has in respect of that practice a valid annual solicitor’s license issued by the Council duly stamped and in the form set out in the second schedule.

(2)A person shall not be issued with a solicitor’s license unless that person has been previously enrolled as a lawyer under Section 3.


(27) The cumulative effect of Sections 2 and 3 of the Legal Profession Act 1960 (Act 32) and Rules 4(1) and (4) of L.I. 613 supra is that only a natural person qualifies for enrolment as a lawyer. Thus a law firm cannot be enrolled as a lawyer same not being a natural person but artificially created. In our jurisprudence, a lawyer and a law firm have different legal personality, one cannot be a substitute for the other.


Thus whilst a lawyer can be in legal practice, a law firm cannot. It is thus the position of the law that a law firm does not qualify to practice law even if its members so qualify. Therefore a lawyer is mandated in law to sign a legal document under his/her name and not the firm.


(28) In the Nigerian case of HAMZAT & ANOR. VRS. SANNI & 2 ORS. [2015] IG. N.S.C.L.R. 77, the Supreme Court, was faced with the determination of the issue as to whether the statements of claim of the Appellants on which evidence was led was a nullity, same having been signed in the name of a law firm in disregard to the Provisions of Sections 3(1) and 24 of the Legal Practitioners Act, Cap 207 Laws of the Federation, 1990.


(29) In that case, the Respondent raised a preliminary objection of the Trial Court to hear the suit. The grounds of the objection inter alia were that the statement of claim of the Appellants was signed by “Olumuyiwa Obanewa & Co.” person unknown to law as a Legal Practitioner. Another ground of objection was that the Trial Court assumed jurisdiction to try the case when there was a feature in it which prevented the court from exercising its jurisdiction.


(30) The objections were raised for the first time before the Supreme Court. Kumai Bayangaka AHS, J.S.C concurring with the leading judgment held as follows:

“There is no dispute that the Statement of claim was not signed by a legal practitioner in accordance with Sections 2(1) and 24 of the Legal Practitioner Act, Cap 207 of the Federation. It is therefore not a valid statement of claim: OKAFO VRS. NWEKE [2007] 10 NWLR (PT.1043) 521. One of the conditions to be fulfilled upon which a court would be competent to assume jurisdiction is that the matter coming before the court is initiated by due process and upon fulfillment of all conditions precedent to the exercise of the jurisdiction”.


The Supreme Court in its unanimous decision therefore expunged the statement of claim from the record. Although the Court found the writ of summons valid and still legally in existence, the court held that since no issues could be joined on the pleadings unless the statement of claim is valid, by striking out the statement of claim as well as the statement of defence and the evidence adduced on the pleadings, the writ of summons could not stand thereby and therefore dismissed the suit.


(31) Similarly, in the Nigerian case of OKETADE VRS. ADEWUNMI [2010]2-3 S.C. (Rt.1) the Notice of Appeal to the Supreme Court of Nigeria and the Appellant’s brief arguments were signed in the name of “Olujimi and Akeredolu” a law firm. The Supreme Court, unanimously upheld a preliminary legal objection raised on the grounds that the Notice of Appeal was not filed by a registered legal practitioner. The Supreme Court invoked the ratio in MACFOY VRS. USA [1962] AC 150 that “you cannot put something on nothing and expect it is stand” to dismiss the entire appeal.

These Nigerian decisions though persuasive, nevertheless are relevant in view of the decisions of our own courts in similar vein.


(32) The Supreme Court of Ghana in the REPUBLIC VRS. HIGH COURT (Fast Track Division) Accra, Ex-Parte Justin Pwavra Teriwajah & Anor. (Reiss & Co. (Ghana) Limited, Interested Party) dated 11th December 2013 held that although Professional Chambers are required to be registered, that requirement exists for its members who have duly taken out solicitors’ licenses to be able to practice as such from duly registered chambers. The firm itself, although required to be registered, is not licensed to practice law, for that reason, while its members could in their practice as solicitors, sign processes to initiate proceedings, the firm per se, could not competently do so.


(33) In NII LANTE MILLS VRS. MILDRED AMA WOOD Suit No.H3/563/2015 (unreported) the Court of Appeal per Mabel Agyemang (Mrs.) JA sitting as a single judge on 20th October, 2015 relied on the Supreme Court’s decision in the Ex-Parte Teriwajah decision and held thus;


“Indeed the recent practice that has gained currency seems to be the initiation of proceedings by use of names of chambers which practice may, in this age of fraud, open the door to any person whether trained in law or not who can produce a stamp duly affixed with the name of a law firm to use same to found proceedings. This must be discouraged as not being in consonance with the relevant statutes governing legal practice”.


(34) In the instant case the statement of claim at page 2 to 4 of the record of appeal was signed by; “P.P TACKIE OTOO & CO”. Contrary to the assertion of counsel for the Plaintiff that the Defendant admitted in his submission that the writ of summons was signed by a lawyer, whose name was “Baffour Dwumah Esquire”, the submissions made by the Defendant in our view did not amount to an admission. In fact, we observed after a critical perusal of the writ of summons at page 1 of the record of appeal that the writ of summons was not signed at all either by the Plaintiff or a lawyer. The rules under Order 2 rule 4(2) and 5(1) and (2) of C.I.47 demand that the writ must disclose the requisite addresses of the parties and their lawyers, business address of the Plaintiff, the lawyer or the lawyer’s agent as the case may be as the address for service of processes. A Plaintiff who sues by “lawyer” must provide the residential and occupational addresses of the parties; the lawyer’s firm name and business address in Ghana at the back of the writ in compliance with Order 2 Rule 5(1)(b) of C.I.47.


(35) Order 81 Rule 1 of C.I.47 vests the court with discretion to waive non-compliance or set aside proceedings for non-compliance with civil procedure rules. Thus in the instant case where the writ of summons which initiates the action failed to indicate the person who filed it in our view amounts to a non-compliance so serious and so fundamental as to go to the root of the action, and no waiver of non-compliance should enure to the benefit of the Plaintiff.


(36) In REPUBLIC VRS. HIGH COURT, ACCRA EX-PARTE ALLGATE CO. LTD. (Amalgamated Bank Ltd. Interested Party) [2007-2008] SC GLR 1041, the Supreme Court held that Order 81 Rule 1 of C.I.47 does not empower the court to cure deficiencies in jurisdiction or non-compliance so fundamental as going to jurisdiction or breach of statute or constitution or natural justice.


(37) The Supreme Court in the case of GAIZIE ZWENNES HUGHES & CO. VRS. LODERS CROCKLAAN BV [2012]1 SC GLR 363 per Gbadegbe JSC was emphatic that;


“No judge has authority to grant immunity to a party from consequences of breaching an Act of Parliament. The judicial oath enjoins judges to uphold the law, rather than condoning breaches of Acts of Parliament by their orders”.


See: REPUBLIC VRS. HIGH COURT (Fast Track Division) Accra Ex-parte National

Lottery Authority (Ghana Lotto Operators Association & Others Interested Parties) [2009]



(38) It is clear on the face of the statement of claim of the Plaintiff contained in pages 2 to 4 of the record of appeal and signed by “P.P TACKIE OTOO & CO” as lawyers for the Plaintiff is unknown as a Lawyer on the Roll under Sections 2 and 3 of Act 32 and therefore the statement of claim is incurably deficient as to be allowed to stand.


For these reasons the ground of appeal to have the statement of claim struck out is hereby allowed and same is accordingly struck out.


(39) We are of the further view that with the statement of claim which is the nucleus around which the whole case of the Plaintiff revolves struck out, and in view of our finding that the is of summons was equally defective, we cannot allow the writ to stand either and same is hereby struck out as incompetent.


(40) In conclusion, the appeal in respect of the ruling of the High Court dated 8th July, 2016 is hereby refused. However the appeal in respect of the ruling of the High Court dated 17th July, 2017 is hereby allowed.