IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUMASI- A.D 2019
HASHEM ABUKAF - (Plaintiff)
AYUM FOREST PRODUCTS LIMITED AND ANOTHER - (Defendant)
DATE: 5 TH MARCH, 2019
SUIT NO: OCC 36/2019
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
KAREN WOBIL FOR PLAINTIFF/RESPONDENT
ANNIS MOGHTAR MOHAYIDEEN FOR DEFENDANT/APPLICANT
This is an application by the 1st& 2nd Defendants/Applicants, hereinafter referred to as “the
Applicants", praying for an order striking out/non-suiting the 2nd defendant’s name from the instant suit and all other processes relative to the instant suit.
The background to the application is that on 9th November, 2018 the Plaintiff/Respondent, hereinafter referred to as “the Respondent” issued a writ of summons against the Defendants herein seeking the following reliefs:
1. The payment of forty thousand six hundred and sixty-one United States Dollars, Forty-Five Cents (US$40,661.45) being salary arrears and allowances.
2. Interest on the sum of forty thousand six hundred and sixty-one United States Dollars, Forty-Five Cents (US$40,661.45) at the prevailing commercial bank’s rate from 2015 till date of final payment.
On 19th November, 2018, conditional appearance was entered on behalf of the applicants by their lawyer.
The Applicants are unhappy with the inclusion of the name of one of them (Naja David Group of Companies) as a 2nd Defendant to the suit and have in this motion on notice which is backed by a 13-paragraph affidavit in support invited the court to strike out the name of the 2nd defendant as a party to the suit. The affidavit was deposed on the authority of the applicants by a clerk of their lawyers.
The relevant parts of the affidavit in support read as follows:
3. That I have the authority and/or consent of the 1st and 2nd Defendants/Applicants herein to depose to this affidavit the facts of which are within my personal knowledge and belief, by reason of the duties I have been assigned to as a clerk in the conduct of this suit.
4. That the Plaintiff/Respondent herein, by a writ of summons accompanied by a statement of claim, commenced an action against the 1st and 2nd Defendants/Applicants herein and same was served on the 1st and 2nd Defendants.
5. That the 1st and 2nd Defendants/Applicants caused counsel to enter a conditional appearance on their behalf.
6. That there is no such creature both in law and in person known and or described in the plaintiff’s words as Naja David Group of Companies, Kumasi, i.e. 2nd Defendant/Respondent. It simply doesn’t exist in law.
7. That I am advised and verily believe same to be true that a non-existing entity in law, is incapable of incurring liability whatsoever to the Plaintiff.
8. That the 2nd Defendant/Applicant in this matter has no or owe no liability to the Plaintiff/Respondent.
9. That I am advised and verily believe same to be true that, a party (artificial or otherwise) must exist in law to validly sustain an action.
10. That I am again advised and verily believe same to be true that the 2nd Defendant/Applicant have nothing to do with the claim of the Plaintiff/Respondent and its presence in the suit constitute a misjoinder and same ought to be non-suited or struck out.
11. That I am further advised and verily believe same to be true that, this Honorable Court has power to strike out the 2nd Defendant/Applicant’s name out of the instant suit.
On 19th December, 2018 the applicants filed a supplementary affidavit which emphasized the notion that the 2nd applicant herein is not a proper party to the suit.
The Respondent herein is opposed to the instant application and has demonstrated that in a 15-paragraph affidavit in opposition to the motion. It is the Respondent’s case that the Naja David Group of Companies has not been misjoined because it has everything to do with its claim. That the 2nd applicant is a registered entity and comprises three companies including the 1st applicant company.
Order 4 rule 5 (2) of the High Court (Civil Procedure) Rules, 2004 (CI 47) provides:
(2) At any stage of proceedings the Court may on such terms as it thinks just either of its own motion or on application.
a. order any person who has been improperly unnecessarily made a party or who for any reason is no longer a party or a necessary party to cease to be a party;
I agree with counsel for the applicant that parties who appear in a suit must exist. A nonexistent party cannot be described as a proper party to a suit and the court has the power to strike out the name from the suit. It was also rightly submitted by counsel for the applicant that when the issue of existence of a party is raised the court must ascertain whether the party do in fact exist to be clothed with the capacity to sue or be sued. See Kowus Motors v Check Point Limited and Co.  SCGLR 230 at 238-239 and Edusei v Diners Club [1982-83] 2GLR 814-815.
The question is: who bears the burden of proof in an action such as the instant application where the existence or nonexistence of a party is challenged?
Counsel for the applicant has submitted that it is a basic principle of law that even in criminal matters the burden of proof rests with the prosecution and not the accused. He submitted that the same principle is applied in commercial cases and in this case the plaintiff bears the burden. Counsel’s point is that in the instant application, it is the respondent who is required to proof that the 2nd applicant exists.
In a rebuttal to counsel for the applicants’ argument on the issue, counsel for the respondent made reference to section 12 of the Evidence Act, 1975 (NRCD 323) and submitted that the burden of proof can otherwise be called the burden of producing evidence. She submitted that if a party alleges that something does not exist then the burden is on the party who is alleging that it does not exist to proof same. Thus, the applicant bears the burden of proof as to whether the 2nd applicant exists or not.
In the light of this controversy which touches on the basic principle of law of evidence, it is important for us to remind ourselves of the burden of proof relating to civil matters.
In all civil suits, the legal burden of proof is placed on the party who asserts the existence of a fact in issue or any relevant fact. Depending on the admissions made, the party on whom the burden of proof lies is enjoined by the provisions of sections 10, 11(4), 12 and 14 of the Evidence Act, 1975 (NRCD 323) to lead cogent evidence such that on the totality of the evidence on record, the court will find that party's version in relation to the rival accounts to be more probable than its non-existence.
Sections 10, 11, 12 and 14 of NRCD 323 provide:
Section 10—Burden of Persuasion Defined.
(1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.
(2) The burden of persuasion may require a party to raise a reasonable doubt concerning the existence or non-existence of a fact or that he establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt.
Section 11—Burden of Producing Evidence Defined.
(1) For the purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.
(2) In a criminal action the burden of producing evidence, when it is on the prosecution as to any fact which is essential to guilt, requires the prosecution to produce sufficient evidence so that on all the evidence a reasonable mind could find the existence of the fact beyond a reasonable doubt.
(3) In a criminal action the burden of producing evidence, when it is on the accused as to any fact the converse of which is essential to guilt, requires the accused to produce sufficient evidence so that on all the evidence a reasonable mind could have a reasonable doubt as to guilt.
(4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.
Section 12—Proof by a Preponderance of the Probabilities.
(1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.
(2) "Preponderance of the probabilities" means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.
Section 14—Allocation of Burden of Persuasion.
Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.
This basic principle of proof in civil suits is expounded in Zambrama v Segbedzie (1991) 2 GLR 221 and the same has been applied in numerous cases including Takoradi Floor Mills v Samir Faris (2005/06) SCGLR 882; Continental Plastics Ltd v IMC Industries (2009) SCGLR 298 at pages 306 to 307; Abbey v Antwi (2010) SCGLR 17 at 19 (holding 2); and Ackah v. Pergah Transport Limited and Others  SCGLR 728.
In Ackah v. Pergah Transport Limited and Others (supra), Adinyira, JSC succinctly summed up the law, at page 736:
“It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail…It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence. This is the requirement of the law on evidence under section 10 (1) and (2) and 11 (1) and (4) of the Evidence Act, 1975 (NRCD 323).”
There is, indeed, a clear distinction between the legal burden of proof and evidential burden of proof. Whilst the legal burden of proof is mostly borne by the plaintiff or whoever makes an assertion, evidential burden exists to produce evidence in support of an assertion or exists in the form of tactical onus to contradict or weaken the evidence that has been led by an adversary.
Once an action has been instituted against a party and the said party has caused an appearance to be entered on its behalf, it is presumed that the party exists. Thus, any other party who claims that a party to a suit does not exist bears the burden of persuasion on the issue. Indeed, the burden of proof lies on a party who avers a fact in issue as stipulated under section 14 of NRCD 323.
In the instant case, the 1st applicant bore the legal burden of proof on the issue and it was required to produce sufficient evidence to establish its existence i.e. the fact that the 2nd applicant does not exist. It is, therefore, my considered opinion that counsel for the applicant’s legal submission on the issue is palpably at odds with the requirements of the principle of proof in civil and criminal cases. If counsel’s argument were to hold sway, then the prosecution would bear the burden of proof when, for instance, the defence of insanity is raised by an accused person in a criminal trial.
I also find it very intriguing that a party which claims to be nonexistent can instruct a lawyer to enter conditional appearance on its behalf, as proffered by the 2nd applicant in a Notice of Conditional Appearance dated 19th November, 2019. The 2nd applicant went ahead to file the instant application together with the 1st applicant herein and in pursuit of this application instructed the clerk of its lawyers to depose to an affidavit on its behalf. A company acts through it directing minds. It therefore goes without saying that an officer of the 2nd applicant company gave the instructions that led to the instant application. There is no better way of demonstrating one’s existence!
Be that as it may, the onus lied on the applicants particularly the 1st applicant to demonstrate whether indeed the 2nd applicant does not exist. This could be done by presenting affidavit evidence to show that the 2nd applicant does not exist by virtue of liquidation or any other reason. They rather chose the wrong path by calling on the respondent to bear the legal and evidential burden on the issue. Although he was not legally mandated to do so in the light of the applicants’ failure to prove their case, the respondent also accepted the challenge by exhibiting an offer of appointment letter (Exhibit to proof the existence of Naja David Group of Companies, the 2nd applicant herein. From the scheme of things, this was meant to be a tactical move to contradict the applicants’ bare assertion and he succeeded. The said offer of appointment letter was signed by Naja David, the Chairman of the 2nd applicant. It is apparent from the content of the letter that the 1st applicant company forms part of the 2nd applicant and per the letter, the respondent was also welcomed into the fold of the 2nd applicant.
I find exhibit A to be credible inspite of counsel for the applicant’s charge against it. I disagree with counsel’s assertion that the document cannot pass the test of admissibility because the acceptance of employment section was not signed. So long as this document was exhibited to demonstrate the existence of the 2nd applicant, it remains valid and of evidential value. The document was not meant to show the existence of a valid contract of employment between the parties.
Having failed to discharge their legal and evidential burden, the applicants’ application fails. The presumption that the 2nd applicant exists has not been rebutted in any shape or form.
For the foregoing reasons, the application fails. Costs of GHC 2,000.00 awarded against the defendants/applicants.
DR. RICHMOND OSEI-HWERE
JUSTICE OF THE HIGH COURT