JUDGMENT

DOMAKYAAREH (MRS) J A

1. This is an appeal against the Ruling of the Circuit Court, Kumasi dated 17^th March 2014, which went against the plaintiffs/appellants herein.

The facts which culminated in the Ruling being appealed against are as follows:

Per his Statement of Claim, the 1st plaintiff/appellant claimed to have bought a house (unidentified) from one Diana Serwaa. After buying the house, he served notices on the tenants to quit the premises per his letter dated 7^th July 2011. He averred that he had given the tenants three months’ notice to quit which expired on or before 7^th October, 2011. The vendor of the house, Diana Serwaa refunded the advances paid by the tenants to them but some of them refused to collect the advances refunded to them and also refused to quit the house. The plaintiff/appellant therefore filed a Writ against these tenants on 27^th October 2011 claiming against them, jointly and severally, recovery of possession of rooms occupied by each tenant.

2. One Madam Mary Akomah applied and joined the suit as co-defendant on the basis that she has an interest in the disputed property. The defendants and co-defendant filed a joint Statement of Defence and Counterclaim in which they denied that the 1^st plaintiff/appellant bought the house and gave the tenants notices to quit. The defendants and co-defendant denied that “Diana Asamoah” was the landlady of the house, contending instead, that the house belonged to Victor Owusu-Ansah (deceased) husband of Diana Asamoah and brother of the co-defendant. The co-defendant further averred that, upon the death of Victor Owusu-Ansah, their uncle, P.K. Konadu who is the head of family decided to complete the building so he could share it among the children of the Late Victor Owusu-Ansah and the family; that before the celebration of the deceased’s funeral, one Diana Asamoah emerged saying that she was carrying the baby of the deceased. The head of family accepted the pregnancy and responsibility for the child; that the head of family completed the building and gave some rooms to the children of the deceased including Diana’s child and the family.

3. The co-defendant further averred that, unknown to the family members, the customary successor of the deceased, Nana Osei Owusu-Ansah a.k.a Osei Kwaku connived with Diana Asamoah to sell the property without the knowledge of the family members and the children. She said the customary successor upon being confronted, admitted the connivance and disclosed that the 1st plaintiff/appellant made a part payment of Gh⊄15,000.00 leaving an outstanding balance of Gh⊄70,000.00 unpaid. The family asked the customary successor to refund the money since he had no capacity to sell the house. The co-defendant averred that the family was yet to apply for Letters of Administration. The defendants and co-defendant counterclaimed for:

(a) A declaration that there has been no lawful, valid and authorization for the customary successor and Diana Asamoah to sell the building the subject of dispute to the plaintiff and that the sale is null and void.

(b) A declaration that the defendants are lawfully in the building by the fiat of the co-defendant.

(c) An order of perpetual injunction restraining the plaintiff and all those who claim through him from interfering with the co-defendant’s and the defendants’ quiet enjoyment of the building in dispute.

(d) Costs

(e) Any other reliefs the court may deem fit

4. Diana Serwaa also applied and joined the suit as co-plaintiff. In his Reply and Defence to the Counterclaim, the1st plaintiff/appellant averred that his vendor is Diana Serwaa but wrongly referred to as Diana Asamoah in the Statement of Defence and Counterclaim by the defendants and co-defendant. He also averred that Diana Serwaa was the wife of the said Victor Owusu-Ansah (Deceased) and that on 12^th September 1989, the High Court, Kumasi granted Letters of Administration to Kwadwo Boateng and Diana Serwaa, brother/ customary successor and wife respectively of the late Victor Owusu-Ansah; that the Joint Administrator Kwadwo Boateng died and was succeeded by Nana Owusu Ansah @ Nana Osei Kwaku. The plaintiff averred that, Victor Owusu-Ansah, having died intestate, the only house and all the household effects of her late husband became vested in Diana Serwaa by operation of law and that Diana Serwaa being the only surviving Administrator is legally competent to alienate the subject property. Plaintiff further averred that the house was sold by Diana Serwaa and that the Customary Successor Nana Osei Owusu-Ansah only witnessed the contract of sale.

5. Issues were settled and joined at the application for Directions stage and the trial began. The plaintiff and co-plaintiff gave evidence and called three witnesses. PW3 completed his evidence-in-chief and was under cross-examination when the plaintiffs filed a motion for Leave to wholly Discontinue the action with Liberty to apply. The basis of the Application per their Affidavit in Support was that their new lawyer had advised them to discontinue the action since the case was not properly before the court on grounds of lack of capacity on their part. The suit was commenced on the basis of the Letters of Administration granted to the co-plaintiff and Kwadwo Boateng to administer the Estate of the deceased Victor Kwame Owusu-Ansah. With the demise of Kwadwo Boateng, the co-plaintiff became the Sole Administratrix . Documents on the said Letters of Administration which were exhibited in the Affidavit in Support of the Application for Leave to Discontinue the case with liberty to apply showed that the house in dispute was not listed in the Inventory of the Movable and Immovable property of the deceased.

6. The Application was opposed by the defendants and co-defendant. The Motion was moved and Counsel for both parties heard by the court. In its Ruling on the Motion dated 17^th March 2014, the trial Circuit Court judge granted the application but without liberty to re-litigate. The reasoning of the trial judge was that the plaintiff and co-plaintiff have confessed that they have no capacity to institute the suit nor maintain the action since the building in dispute is not included in the Inventory of the Movable and Immovable properties of the deceased for which Letters of Administration had been taken by the co-plaintiff. He said from the Amended Writ of Summons the action was started by Counsel and therefore Counsel should have seen the error from the very beginning. The trial judge noted that the case had travelled for four years and for the plaintiff and co-plaintiff to come after wasting that number of years of the precious time of the defendants and co-defendant, to be allowed to go back and gather their arsenals and re-launch an attack on the defendants and co-defendant amounted to harassment. He therefore granted the Application to Discontinue but without liberty to apply as aforesaid.

7. The plaintiff and co-plaintiff were dissatisfied with this Ruling. They launched the instant appeal seeking a reversal of the said Ruling on four grounds, namely:

a) The Ruling is against the weight of evidence submitted before the court

b) The judge erred when he refused to rule in favour of the plaintiffs/appellants though he found that they lacked capacity to have instituted the action.

c) The Ruling is bad in law for barring the plaintiffs from instituting any fresh action for instituting the first action without capacity.

d) Additional grounds will be filed upon receipt of a copy of the Record of Proceedings.

No additional grounds have been filed.

8. In his Written Submission in support of this appeal Counsel for the plaintiffs/appellants made certain observations and concessions which are worthy of note. Counsel referred to paragraphs 2 &4 in the Notice of Appeal found at pages 185 and 186 of the Record of Appeal. The said paragraph 2 states that the part of the judgment of the District (sic) Circuit Court, Kumasi complained of is “The whole Ruling, Circuit Court Kumasi, Ashanti dated 17^th day of March 2014”. Paragraph 4 which also indicates the reliefs sought from the High (sic) Appeal Court states “That the said Ruling of the Circuit Court, Kumasi dated 17^th day of March 2014 be reversed”.

9. Counsel stated that these two positions should not have been so couched. This is because they concede that the trial judge was right in appreciating that the plaintiffs lacked the capacity to maintain the action and therefore they had taken the right step in their Application to Discontinue the case. In the light of this, per the last paragraph of his Written Submission, the prayer of the plaintiffs/appellants now is that only that part of the Ruling of the Circuit judge which sought to bar the plaintiff and co-plaintiff from instituting any action in respect of the house should be reversed and their right to institute any action in respect of the house be restored. This is what has informed the appellants to abandon grounds (a)and (b) of the grounds of appeal as indicated in the third page (unnumbered) of the Written Submission of Counsel for the plaintiffs/appellants.

10. The observation and concession of Counsel is highly relevant in that the original paragraphs 2 and 4 of the Notice of Appeal would have meant that the plaintiffs/appellants want the grant of their Application to Discontinue to be also reversed by this court. This would have resulted in an incongruous situation since that would mean that the case would resume even though it was acknowledged that they lacked the capacity to initiate or maintain the action. Indeed, granting that prayer by the plaintiffs/appellants would inure to the benefit of the defendants and co-defendants who had filed an affidavit opposing the application for liberty to discontinue.

Considering these submissions by counsel for the plaintiffs/appellants, we have no option but to strike out grounds (a) and (b) of the grounds of appeal. Grounds (a) and (b) of the grounds of appeal are accordingly struck out as having been abandoned.

11. We now consider the only surviving ground of appeal, ground (c) which is that the Ruling is bad in law for baring the plaintiffs from instituting any fresh action for instituting the first action without capacity.

Counsel submitted that as there is no breach without remedy in the Ghanaian jurisprudence, the trial judge ought not to bar his clients from instituting a fresh action because they have breached a rule on capacity. Counsel referred to Article 125 (2) of the 1992 Constitution which permits citizens to take part in the judicial process. The said Article 125 (2) of the 1992 Constitution provides that: “Citizens may exercise popular participation in the administration of justice through the institutions of public and customary tribunals and the jury and assessor systems.” Counsel therefore submitted that citizens can institute actions in the appropriate forum to seek whatever redress they think they are entitled to by law and that this Constitutional right cannot be taken away simply because a person did not institute his action in the proper manner particularly when that person has no legal background. Counsel canvassed that per Article 12 (1) of the 1992 Constitution, the fundamental human rights enshrined in the Constitution are to be observed by the three Arms of Government, its Organs and Agencies and by all natural and legal persons where applicable. Specifically, the said Article 12 (1) of the 1992 Constitution provides that: “The fundamental human rights and freedoms enshrined in this chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies and, where applicable to them, by all natural and legal persons in Ghana, and shall be enforceable by the Courts as provided for in this Constitution.” Counsel therefore contended that it was wrong in law and against both the Letter and the Spirit of the Constitution for the Courts which are expected to defend and protect these rights to prevent an aggrieved person from instituting any action in any court whatsoever in Ghana for a redress for a mistake as in the instant case.

12. Continuing to quote Constitutional provisions, Counsel referred to Article 18 (1) thereof which gives every person a right to own property either alone or in association with others and Article 18 (2) which gives the right to defend and protect this property. Article 18 (1) and (2) provide thus: “(1) Every person has the right to own property either alone or in association with others.

(2) No person shall be subjected to interference with the privacy of his home, property, correspondence or communication except in accordance with law and as may be necessary in a free and democratic society for public safety or the economic well-being of the country, for the protection of health or morals, for the prevention of disorder or crime or for the protection of the rights or freedoms of others.”

Counsel found solace in the Supreme Court case of FOSUHENE V JOHN ATTA WUSU (2011) 32 GMJ 163 at 179-180 where His Lordship Anin Yeboah JSC in agreeing with the lead judgment delivered by Baffoe- Bonnie JSC, affirmed this position thus:

“The plaintiff as a citizen of this country is entitled under the Constitution to own property and can exercise his right to sue to protect the same, subject of course to the existing laws regulating any access to the Courts for redress.”

13. Counsel pointed out that the principle that parties in litigation should have their cases heard on their merits is so important that even though there are rules and timelines within which certain acts must be done, the courts have always by means of enlargement of time permitted parties who are in default to remedy the situation and compensate the other party per various Orders and Rules of C.I. 47 such as Order 80 R 4, on the power of the court to extend or reduce the period within which a person is required to do any act in any cause or matter; and also Rules 9(5) & (6) of CI 19 on extension of time for appeals, 23 (2) of CI 19 on relisting of appeals that have been struck out; and similar Rules under the Supreme Court Rules , 1996 (C16).

14. Counsel submitted that the plaintiff and co-plaintiff commenced the action without the help of a lawyer and ought therefore to be given the opportunity to rectify their error per Order 81 of C.I. 47 which provides the opportunity to save many situations in cases that would have been dismissed on technical grounds.

15. Counsel also complained that after granting the application without liberty to re-litigate same, the judge adjourned the case to another date for the defendants and co-defendant to prove their Counterclaim but surprisingly this was not recorded and so did not form part of the Record. The time to raise this matter if it was important to the plaintiffs/appellants was at the hearing of the appeal when Counsel could have filed a motion for the Record to be remitted to the court below for that adjournment to be included in the Record. It is common knowledge that not every dot in the proceedings are included in the Record of Appeal when the Appeal Record is being settled and therefore to say that the adjourned date was not in the Record because the judge did not record same in his Record Book is beside the point. Counsel is deemed to have taken part in the settlement of the Appeal Record and agreed to the contents of same in its present form.

16. Counsel also complained that the judge was bent on proceeding with the counterclaim but for the grant of an Order of Stay of Proceedings by this court on 30^th July 2014. This is also of no moment because the judge was duty bound to continue with the counterclaim since that is deemed to be an action in its own right. It is trite knowledge that an appeal per se does not operate as a Stay of Proceedings and Counsel having done the right thing by obtaining an Order for Stay of Proceedings cannot blame the judge for wanting to execute his duties in accordance with the Rules. Order 12 R 4(1) which deals with proceedings on counterclaim provides the basis for the trial Judge to proceed with the counterclaim after the discontinuance of the plaintiff’s case. The said Order 12 R 4 (1) provides that: -

“4. (1) A counterclaim may be proceeded with although judgment is given for the plaintiff in the action or the action is stayed, discontinued or dismissed.”

17. Counsel tried to distinguish the case of AFEKE V AGBLE (1987 – 1989) 2 GLR 572 relied on by the trial judge and submitted that even a vexations litigant can in certain cases, be granted leave by the court to institute a fresh action to vindicate a right which is being violated for redress. It is to be noted that in the AFEKE case, which is similar to the instant case, the Court held per Holding 3 that: -

“… Order 26, r.1 of L.N 140A gave the court discretion to make an order discontinuing an action on such terms "as may be just." In the instant case, considering the fact that the plaintiff had confessed that he could not maintain the action which had protracted for six years, the order of the court refusing him leave to make further applications and which prevented him from harassing the defendant was just.”

Order 26 r. 1 of L.N. 140A is in pari materia with Order 17 R. 2 (3) of C I 47 on Withdrawal and Discontinuance.

We must say that all the submissions of Counsel for the plaintiffs/appellants are very correct and potent statements of the law when taken on the face of it and in their own right. However, whether the situation remains the same when placed within the context of this case will be considered very shortly. Before we do that however, let us hear the response of the defendants/respondents and co-defendant/respondent to the submissions of Counsel for the plaintiffs/appellants.

18. Counsel for the defendants/respondents and the co-defendant/respondent proffered responses to all the three grounds of appeal filed by the plaintiffs/appellants. As the plaintiffs/appellants have abandoned the first two grounds of appeal, there is no need to consider the submission of Counsel for the defendants/respondents in respect of these two grounds of appeal.

19. In justifying the Ruling of the trial court judge granting the plaintiffs/appellants leave to discontinue the action without leave to re-litigate, Counsel relied on the case of C.P. CONSTRUCTION PIONEERS VRS MODERN GHANA BUILDERS LTD (1994 -95) GBR 613 SC where CP sought to enforce an arbitration award against MB in the High Court. At the hearing of the application the judge decided to take evidence on the award, in the course of which CP sought leave of the court to discontinue the application “with liberty to come back.” The application was granted without liberty. In a subsequent action by CP against MB on the same matter the High Court presided over by the same judge admitted the record of proceedings of the previous action in evidence. On appeal, the Court of Appeal held that CP was estopped by the discontinuance of the previous action without liberty to institute a fresh action. On appeal to the Supreme Court, the Court held at page 615 per Hayfron-Benjamin JSC that:

“In the present appeal after a stage of the action has been reached at which the adversaries are meeting face to face, it was only proper that no leave should be granted to commence a fresh action. It was properly a case of estoppels”.

Counsel pointed out that in the instant case there is clear evidence on the Record that the parties were meeting face to face as the plaintiff and co-plaintiff had started their case where they both gave evidence and were duly cross-examined. They also called three witnesses and indicated that the PW3 would be their last witness. PW3 was under cross-examination when they applied to discontinue the case with liberty to re-apply. In the C.P. CONSTRUCTION PIONEERS case cited supra, Supreme Court cited with approval the case of FOX V NEWSPAPER COMPANY LTD (1898) 1 QB 636 where it was stated that:

“The principle of the rule is plain. It is that after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able to escape by a side door and avoid the contest. He is then no longer dominus litis, and it is for the judge to say whether the action shall be discontinued or not and upon what terms. I think it would be a great error to construe the rule by reference to the old meaning of the term ‘discontinue’ or any mere technical sense of words. The substance of the provisions is that, after a stage of the action has been reached at which the adversaries are meeting face to face, it shall only be in the discretion of the judge whether the plaintiff shall be allowed to withdraw from the action so as to retain the right of bringing another action for the same subject-matter.”

20. In the early stages of a suit, the plaintiff who initiates the suit can be described as being

dominus litis that is, a master of the suit. The plaintiff literally owns the suit in those early stages, is in control of the case and is in a position to determine whether the case should proceed in court or not. That is why at that stage, per Order 17 R. 2 (1) of CI 47, he is allowed to withdraw the case without leave. However, after the party has appeared in court or taken steps in the case and the two sides of the respective cases have been arraigned before the judge, the progress of the suit is now in the hands of the judge. At this stage, the plaintiff the needs the leave of the court if he wishes to discontinue the case and this will be at the discretion of the judge whether to allow the plaintiff to do so or not and on what terms. Counsel therefore submitted that the learned trial judge was right when he exercised his discretion judiciously by allowing the plaintiff to escape and barred them from re-litigating.

21. In response to the Constitutional provisions cited and relied upon by Counsel for the plaintiffs/appellants, Counsel submitted that even though the citizen’s fundamental human rights and freedoms enshrined in Articles 12 and 18 of the Constitution should not be infringed upon without justification, those rights should be exercised cautiously and person(s) exercising those rights should not infringe on other person(s) rights or harass them. Counsel contended that the fact that the plaintiff and co-plaintiff have the right to sue does not give them the mandate to harass the defendants and co-defendant by going back after four years in court to re-strategise and come back to drag them to court again. Counsel submitted that as was held in the C.P. CONSTRUCTION PIONEERS case cited supra, the grant of leave to discontinue without liberty to re-litigate was not an arbitrary exercise of discretion by the trial judge.

22. We must say that we agree with all the submissions of Counsel for the defendants/respondents and the co-defendant/respondent. The issue of lack of capacity was not something new that cropped up in the course of the trial. It was there from the very beginning. When the plaintiff first personally issued his Writ of Summons without the assistance of a lawyer, he voluntarily assumed all the risks that go with same. He cannot now plead ignorance of the law which in any event is no excuse. When the plaintiff and co-plaintiff got an opportunity to file an Amended Writ of Summons and Statement of Claim following the joinder of the co-plaintiff, this was done on their behalf by Counsel who did not avert his mind to the fundamental issue of capacity. The plaintiffs/appellants take their lawyer as he is and cannot rely on their joint failure to be allowed to come gain at the defendants/respondents and co-defendant/respondent after wasting four years of their time in court with the attended financial implications. Indeed, that would amount to harassment.

23. The FOSUHENE case cited supra that was happily relied on by counsel for the plaintiffs /appellants is distinguishable from the instant case in the sense that in that case the plaintiff was granted leave to discontinue his case with liberty to come back. The plaintiff then instituted a fresh action while the defendant’s counterclaim was still pending in the first action. The defendant filed application to set aside and or dismiss the plaintiff’s Writ as an abuse of the court process. The High Court granted the application which was reversed on appeal by the Court of Appeal. The defendant then appealed to the Supreme Court which dismissed the appeal and in upholding the Appeal Court judgment held per curiam that if a plaintiff was granted leave to discontinue with liberty to come back, another court of concurrent jurisdiction could not come to the conclusion that a fresh action filed pursuant to the leave is an abuse of process. In the instant case, leave to discontinue was granted but without liberty to re-litigate.

The sole ground (c) of the grounds of appeal argued by Counsel lacks merit. It is accordingly dismissed.

24. The appeal is thus dismissed and the Ruling of the trial Circuit judge affirmed. The case is remitted to the trial court for the defendants and co-defendant to prove their Counterclaim.