IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
ROBERT MENSAH - (Plaintiff)
GARIBA MOHAMMED AND ANOTHER - (Defendants)
DATE: 23 RD NOVEMBER, 2018
SUIT NO: OCC 65/2016
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
EVA OKYERE FOR THE PLAINTIFF
JAMES MARSHALL BELIEB FOR THE DEFENDANTS
One of the issues set down for trial in this suit is:
“Whether or not the Plaintiff is a legal entity with the capacity to sue and be sued.”
After the case management conference an application was made for the determination of the afore stated issue which is for all intents and purposes a preliminary point of law.
On 14th May, 2018 the court ordered the parties to file their written submissions for the determination of the preliminary point of law. Both counsel have complied with the order by filing their respective submissions.
The plaintiff is claiming that he sued in a representative capacity but the Defendants are challenging this assertion.
The plaintiff’s claim to capacity to institute the instant action is captured in the amended statement of claim as follows:
The plaintiff is a licensed small scale miner engaged in the mining of gold and leader of the group known as, Thy Kingdom Mining Group.
The Plaintiff avers that sometime in 2011, he together with nine other persons, formed a group by name, Thy Kingdom Mining Group, to obtain a Small Scale Mining Licence from the Minerals Commission, as is the settled practice of the Commission, to operate a mining concession at Prambonso, Fosu in the Obuasi Municipal District of the Ashanti Region of Ghana.
In his statement of defence, the 2nd defendant rebutted the above claim as follows:
Save as hereinafter expressly or impliedly admitted, the 2nd defendant denies each and every allegation of fact as if same were expressly set out and denied seriatim.
Paragraph 1 is denied and the Plaintiff shall be put to strict proof.
Paragraph 4 is denied to the extent that there is no legal entity called Thy Kingdom Mining Group,
2nd Defendant is not in a position to admit or deny the rest of the said paragraph.
Clearly, the parties are at cross purposes on the issue of the plaintiff’s capacity. Capacity to sue is a point of law that may be raised in a pleading and can be determined by means of a preliminary hearing. This, may lead to the disposal of the case without going through a full trial. In the UK, the rules of court contain specific provisions relating to the determination of a point of law as a preliminary issue. These provisions are analysed in the book Civil Procedure in the Superior Courts (2nd Edn) by Delany and McGrath, at p.505, paragraph 19-01 as follows:
"Issues of law may arise in pleadings which lend themselves to being determined by means of the trial of a point of law as a preliminary issue. Provision for the determination of a point of law as a preliminary issue is made in two separate orders. Order 25, rule 1 provides that, by the consent of the parties, or by order of the court, on the application of either party, any point of law may be set down for hearing and disposed of at any time before the trial. Order 25, rule 2 goes on to provide that if in the opinion of the court, the decision on this point substantially disposes of the action, or any distinct cause of action, ground of defence, counterclaim or reply, the court may dismiss the claim or make such other order as may be just. In addition, Order 34, rule 2 provides that if it appears to the court that any question of law arises which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, it may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court may deem expedient and such further proceedings as the decision of such question of law may render unnecessary can be stayed. As Lavery J. stated in McDonald v BordnagCon these two rules "cover the same ground". In his view the only relevant difference between them is that Order 34 rule 2 expressly provides that it should appear to the judge to be convenient to have the particular issue decided before any evidence is given or any question of fact tried, whereas Order 25, rule 2 is more general in its terms.”
In Richard Nyembo v The Refugee Appeal Tribunal and James Nicholson  IESC 25, the UK Supreme Court held that where there are disputed facts an application for hearing of a preliminary issue cannot succeed.
Also, in B.T.F. v. Director of Public Prosecutions  ILRM 367, the UK Supreme Court overturned a High Court decision to concede to an application by the respondent to try a preliminary issue. Hardiman J. stated:
"It is often a difficult and delicate decision as to whether to try a particular issue as a preliminary matter. In a case where a point is raised which in and of itself and without regard to anything else may terminate the whole proceedings, clearly a strong case can be made for its trial as a preliminary issue. The classic example is where the statute of limitations is pleaded. In other cases, however, the position may be much less clear."
After a careful study of the submissions and the pleadings, I have come to the conclusion that the facts giving rise to the point of law remain in dispute between the parties. From the pleadings, I am satisfied that it is impossible to determine the question of capacity of the plaintiff without some additional factual information presented as evidence in a trial. Indeed, determination of preliminary issue of law by purely legal argument in a preliminary hearing can only apply to questions of pure law where no evidence is needed and no further information is required. In the instant case, there is no agreement on the facts that gave rise to the question of capacity, it is therefore not appropriate or convenient to have the preliminary issue of law determined. In light of the defendants’ denial of the plaintiff’s capacity, it is important for the latter to give evidence on the issue. Our civil procedure rules give the court the liberty to interpret and apply the rules to ensure speedy trial and effective justice. Order 1 rule 1 (2) of CI 47 provides:
“These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense and ensure that all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.”
This provision is the basis for speedy disposal of cases through the determination of a point of law as a preliminary issue. It is also the basis for the departure from the status quo when a preliminary hearing cannot resolve a point of law such as capacity. The instant case is not one where the short cut approach can be deployed to terminate the suit. We need to determine all the issues in a full trial.
Consequently, I order that the issue of “whether or not the Plaintiff is a legal entity with the capacity to sue and be sued” be preserved to be tried together with the other issues set down for trial.