ALBERT KWASI ZIGAR vs. NATIONAL DEMOCRATIC CONGRESS (NDC) AND FIIFI FIAVI KWETEY [HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6),
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION, COURT 6)
    ACCRA - A.D 2016
ALBERT KWASI ZIGAR
NATIONAL DEMOCRATIC CONGRESS (NDC) AND FIIFI FIAVI KWETEY

DATE:  7TH JULY, 2016
SUIT NO:  GJ/ 39/2016
JUDGES:  KWEKU T. ACKAAH-BOAFO JUSTICE OF THE HIGH COURT
LAWYERS:  JOHNSON NORMESINU ESQ FOR SAMUEL CUDJOE THE DEFENDANTS/ APPLICANTS EVANS DJIKUNU ESQ FOR THE PLAINTIFF/RESPONDENT
RULING

 

 

MOTION TO DISMISS SUIT FOR LACK OF CAPACITY & DISCLOSING NO REASONABLE CAUSE OF ACTION

Introduction:

[1] This is a most unfortunate and regrettable internal political dispute which has culminated in the issuance of a writ of summons and the argument of the instant application before this Court. A political family is being torn apart over alleged issues of discrimination and unfair treatment. The Defendants/Applicants herein are praying that the Plaintiffs’ pleadings be struck out and the Writ of Summons and Statement of Claim be set aside under the rules of Court and the inherent jurisdiction of the court on grounds of lack of capacity and in the alternative for disclosing no reasonable cause of action.

 

Background:

[2] It recalls that on the 13th day of January, 2016 the Plaintiff commenced this instant action by issuing a writ of summons against the Defendants herein endorsed with the reliefs set out here below:

a. A Declaration that his disqualification from contesting the parliamentary primaries of the Ketu South Constituency of the 1st Defendant party, was unlawful, null and void and of no effect whatsoever.

b. An order to set aside his said disqualification as being unlawful.

c. A further declaration that the holding of the said parliamentary primaries without the Plaintiff’s involvement, having been unlawfully disqualified, is equally unlawful, null and void.

d. An order of injunction to issue to restrain the 1st Defendant either by itself, its servants, agents, workmen howsoever or otherwise from proceeding to put up the candidate who won the unlawful parliamentary primaries in the Ketu South Constituency as its candidate to contest the 2016 general elections.

e. A further order that the Plaintiff’s said disqualification be wholly set aside and a re-run of the parliamentary primaries be conducted to include the Plaintiff as a contestant.

f. An order of perpetual injunction restraining the 2nd Defendant from holding himself out as the 1st Defendant’s Parliamentary Candidate for the Ketu South Constituency in the General Elections.

g. Any further or other orders as to this Honourable Court may seem fit.

 

[3] Accompanying the Writ was a 23-paragraph Statement of Claim. The Defendants entered Appearance on February 19, 2016 and filed a defence on March 18, 2016. The Plaintiff filed a 28 paragraph reply to the defence.

 

[4] At the close of the pleadings ten (10) issues where formulated by Counsel for the Plaintiff whereas Counsel for the Defendants raised four (4) additional issues for the consideration of the court. Among the issues raised by the Defendants were whether or not the Plaintiff is a member of the 1st Defendant party and whether or not the Plaintiff has capacity to institute the instant action. The Court set down the issues for trial on May 10, 2016 and ordered the parties to file their respective witness statements and attach documents they intend to rely on as exhibits. The Plaintiff has complied with the order and filed witness statements with attachments of about seven (7) individuals. Consequent to that, the Defendants filed the instant motion to dismiss Plaintiffs action on June 3, 2016 and served the Plaintiff/Respondent. The Plaintiff/Respondent has also filed an affidavit in opposition to the motion in which he has averred that the application is incompetent and unwarranted and urged the Court to dismiss it.

 

Arguments in Favour of Motion:

[5] The thrust of the application, as averred to in the accompanying affidavit of Emmanuel Zumakpeh of Community 13, Tema who is the Director of Communication of the 1st Defendant party and as submitted by Counsel for the Defendants/Applicants is that the Plaintiff was not a member of the NDC at the time he picked forms to contest the parliamentary primaries and therefore lacks the requisite legal capacity to institute the action and in the alternative, that the Statement of Claim discloses no reasonable cause of action. Further, learned Counsel for the Applicants has argued most strongly that the Plaintiff lacks capacity to sue the Defendants because the 1st Defendant’s constitution states that a person must be an active member of the party at the Constituency level for four (4) years immediately preceding the filing of the nomination. On the authority of SARKODEE I v. BOATENG II [1982-83] GLR 715-772 therefore learned Counsel postulated that the burden is on the Plaintiffs to prove his capacity to institute the action by cogent evidence.

 

[6] In the case of the Plaintiff, it is averred and submitted by Counsel that having contested as an independent candidate in the 2012 general elections, even if his membership was restored in 2013 as pleaded by him, he was not eligible to contest the primaries in November 2015 because of the 4-year eligibility criteria.

 

[7] Additionally, Counsel has submitted that the Plaintiff failed to avail himself of the internal dispute resolution mechanisms of the 1st Defendant party before resorting to litigation and therefore the suit is premature. Counsel relied on the unreported case of OPPONG KYEKYEKU VRS. NEW PATRIOTIC PARTY & 2 OTHERS Suit No. BMISC 11/2016 a decision of this court, the case of GHANA PRIVATE ROAD TRANSPORT UNION (GPRTU) TETTEH & OTHERS v ESSILFIE & OTHERS (2000-2001) SCGLR 786, and Article 44 of the NDC Constitution for the submission.

 

[8] Further, according to counsel the Plaintiff is estopped by his conduct of “standing by for the 2nd Defendant/Applicant to go through the rigorous, time consuming and expensive process of vetting, campaigning, and the eventual elections” which he won overwhelmingly to challenge his victory.

 

[9] He next referred to the Statement of Claim and opined that on the face of the pleadings, the Plaintiff was not a member who qualified to contest the primaries and therefore the suit discloses no reasonable cause of action against the 1st Defendant party as there is no existence of factual circumstances which may entitle the Plaintiff to any of the remedies he is seeking. Counsel relied on the case of OKOFOH ESTATES v MODERN SIGNS LIMITED [1996-97] SCGLR 224 for the submission.

 

[10] In his considered opinion, even if the facts as contained in the Statement of Claim are true and proven, same would not entitle the Plaintiff to the reliefs sought because between the time he was pardoned and his membership was restored same would not be four years to qualify him to contest as required under the NDC Constitution, he added.

 

[11]C oncluding, Counsel reiterated that the Plaintiff knows that he lacks capacity and also that his writ discloses no reasonable cause of action against the defendants but has only brought the present action, which is “an abuse of process of Court and instituted with malicious intention to sensationalize an ill-conceived case to embarrass the Defendants”. He therefore urged on the court to strike out the pleadings and to dismiss the suit accordingly.

 

Arguments against the Motion:

[12] Responding to the arguments of Counsel for the Defendants, learned Counsel for the Plaintiff called on the Court to dismiss the instant application as being misconceived. He argued that the Plaintiff’s suit is not frivolous and vexatious as alleged by the Defendants. According to Counsel, the gravamen of the Plaintiff’s case can be seen from the totality of reliefs endorsed on the writ. On the capacity argument, Counsel reiterated the averments in the affidavit in opposition and submitted that when the Plaintiff applied to rejoin the NDC in January 2013, the operative Constitution at the time was the 1992 NDC Constitution which was amended at the 7th Delegates Congress at Tamale on January 16, 2010 and the eligibility requirement under that Constitution was two years immediately preceding the date of filing of the nomination under Article 43 ((9) (b).

 

[13] Learned Counsel conceded that at the 8th Delegates Congress of the party in Kumasi in December 2014, the Constitution cited supra was amended and the eligibility changed. He further conceded that the 2015 parliamentary primaries were based on the new Amended Constitution attached by the Applicants as Exhibit NDC1. Nevertheless, it was submitted that the Plaintiff having joined the 1st Defendant party in January 2013, had an accrued vested right under the 2010 Constitution to contest the primaries. According to Counsel, at the time the Amended Constitution with its new eligibility criteria came into force in December 2014, he was already a member and same cannot and should not operate retrospectively.

 

[14] Further, learned Counsel submitted that the Applicants’ capacity and eligibility arguments are untenable. He reiterated the affidavit evidence and submitted that two individuals, Hon. Abdallah Abubakari and one Dr. Joseph Marboah-Rockson who were the PNC Parliamentary Candidate in the 2012 elections and General Secretary of the National Democratic Party (NDP) during the 2012 elections respectively were allowed to contest the 2015 primaries even though they both joined the 1st Defendant party in January 2013 and therefore posited that equity and fairness demand that he should not be discriminated against pursuant to Articles 5 and 7(1)(C) of the NDC Constitution, that is Exhibit NDC1. Counsel submitted that both provisions are in consonance with Article 17 of the 1992 National Constitution.

 

[15] Learned Counsel next referred to the non-compliance with internal mechanism argument and submitted that the Applicants’ submissions are unfounded. Counsel posited that in this case the operative law/procedure was not Article 44 of the NDC Constitution but the various Constitutional committees set up to deal with issues relating to the primary elections. He submitted that after the Plaintiff’s eligibility was raised at the vetting committee at Ho, he was advised to appeal to the Appeal Committee of the Vetting Committee because the issue bordered on legal and constitutional matters. Counsel further submitted that the Plaintiff obliged and appealed after which he was further referred to the Complaint and Conflict Resolution Committee headed by the Hon. Huudu Yahya. According to the Plaintiff’s counsel whilst waiting for the response to his complaint by the Huudu Yahya committee, the 1st Defendant party truncated the process and went ahead to organize the primary without recourse to him. He then submitted that having complained and filed processes before the Committees set up, not following the Constitutional procedure under Article 44 of the NDC Constitution should not matter because the 1st Defendant failed to be bound by its own internal grievance resolution procedure. Counsel cited and relied on the case of IN RE TIMBER AND TRANSPORT KUMASI-KRUSEVAC CO., LTD. ZASTAVA BONSU AND ANOTHER [1981] GLR 256-262, for the submission that the 1st Defendant party clearly showed by its conduct that it was not ready to follow and be bound by its own set up procedure.

 

[16] In further response to the capacity argument and the case law cited, learned Counsel for the Plaintiff stressed that it is not the law that if a party’s capacity is in issue his pleadings should be struck out and the writ set aside. Learned Counsel posited that establishing capacity involves proffering cogent evidence to convince the Court of one’s standing and not by affidavit evidence. Counsel referred to Exhibits A, B, C and D attached to his witness statement filed and submitted that the exhibits lay out the process that led to his pardon and re-joining the party. In effect according to learned counsel, that calls for oral evidence to be offered in support.

 

[17] In the nutshell, learned Counsel argued that there is sufficient pleading to support the contention that there is a reasonable cause of action and which must be inquired into and the matter determined on its merits by the court.

 

[18] In a quick reply to the Plaintiff’s counsel submission, learned Counsel for the Applicants, submitted that becoming a member of a political party does not guarantee one an accrued right. Counsel further opined that the Constitution was amended in December 2014, the nomination forms were sold in 2015 and therefore the Plaintiff’s alleged accrued rights argument would have been feasible if the Constitution had been amended after he bought the forms and not vice versa. Counsel therefore submitted and implored the Court to dismiss the argument and grant the application.

Analysis and Opinion of the Court:

[19] In principle, no question arises as to whether the High Court has inherent jurisdiction to control its proceedings and process before it. That power stems not from any particular statute or legislation but from its residual powers to control its proceedings and also meant to provide the court with the requisite agility and flexibility to do justice where there are no statutory or conventional alternatives. The Halsbury Laws of England 4th ed described it as follows:

“In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, just which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.” (Emphasis Mine)

 

[20] Further, it is worth stating that the High Court has wide discretionary power at any stage of the proceedings to strike out any matter in any endorsement or pleading which is: a) scandalous, frivolous or vexatious; b) if it discloses no reasonable cause of action or defence; c) if it may prejudice, embarrass, or delay the fair trial of the case; or d) if it is otherwise an abuse of the process of the court.

 

[21] The law on the practice and procedure of Order 11 r 18(1) of CI 47 is that:

i) the judge’s discretion to grant such applications ought to be exercised sparingly and only in obvious cases;

ii) the discretion should be exercised judiciously;

iii)  when the facts were in dispute and may call for extrinsic evidence to prove them the rule will not apply and the application should be refused; and

iv) that the application should not be granted if its determination involved serious investigations of questions of general importance.

 

[22] In OKOFOH ESTATES v MODERN SIGNS LIMITED SUPRA Holding 4,the Supreme Court stated the law as follows:

“The purpose of Order 25, r 4 of LN 140A was the prevention of claims which on the face of the pleadings disclosed no cause of action or which was shown to be frivolous or vexatious. However, under the inherent jurisdiction of the court, the purpose was to give the court summary means to prevent abuse of its process. Accordingly, under Order 25, r 4 of LN 140A only the pleadings might be considered by the court, but under the inherent jurisdiction the court might take into account affidavits and extrinsic evidence. Given the clear differences in the established practices and procedures of the two remedies they could not be considered to be interchangeable or simultaneous unless they were both specifically applied for…” Significantly, Order 25 r 4 of LN 140A is akin to the present rule, Order 11 r 18(1) of CI 47.

 

[23] The instant application is premised on Order 11 Rule 18 (a) and (d) and the inherent jurisdiction and three main arguments are canvassed. First, that the Plaintiff lacks capacity, the writ discloses no cause of action and the Plaintiff failed to comply with internal mechanisms for resolving disputes as laid out by the 1st Defendant party before issuing out the writ.

 

[24]I n LARTEY & LARTEY v BEANY (1987-88) 1GLR 590 the distinguished jurist, Cecilia Koranteng-Addow J (as she then was) had the opportunity to consider an application under Order 25 r 4 of the High Court (Civil Procedure) Rules, 1954 LN 140A to dismiss the action.

 

[25] Having reviewed the various authorities on the subject, the learned trial judge opined that an application to dismiss an action would not be granted if it involved serious investigations of questions of general importance. The same principle had previously been echoed in BANK OF WEST AFRICA LTD v HOLDBROOK (1966) GLR 164. To my mind, the rationale behind the Order is not difficult to fathom. It is meant to prevent suits which ought not be started at all.

 

[26] Further, the law is that although the court has wide discretionary power to strike out a pleading/claim or dismiss a suit because it does not disclose any reasonable cause of action as is being contended in the present case before me, on the authorities, the application ought to fail if it raises serious investigations as to questions of general importance. The question I therefore pose here is does this case raise a serious investigation as to questions of general importance? As a matter of law, the discretion is only exercised in obvious cases where it cannot be put to doubt that the action is frivolous, vexatious or unsustainable where it is apparent that even if the facts are proved, the Plaintiff is not entitled to the relief he seeks. Furthermore, where the application cannot be decided without calling extrinsic evidence besides the affidavit evidence the rule shall not apply.

 

[27] By well-established rule of practice which is now rule of law, Order 11 rule 18(1) (a) application is considered only on the basis of the pleadings filed by the parties. If an affidavit was filed the net effect is that the court is being called upon to embark upon investigations of matters of general importance and therefore the application fails. The issue is even put beyond per adventure by rule 18(2) of Order 11 which stipulates:

 

“(2) No evidence whatsoever shall be admissible on application under subrule (1)(a)”.

[28] The principle that an application to dismiss either a claim or a defence because it does not disclose any reasonable cause of action or defence does not admit any affidavit evidence has been reinforced in legion of cases. The Court of Appeal in TACKIE v BAROUDI (1977) 1 GLR 36, for example stated the rule that affidavit evidence was inadmissible on an application under Order 25 r 4 of LN 140A.

 

[29] Also, in HARLLEY v EJURA FARMS (1977) 2 GLR 179 the Full Bench of the Court of Appeal stated that under the rule the non-disclosure of cause of action had to appear on the face of the Plaintiff 's pleading that the action could not succeed or was objectionable for some other reason. No evidence could be filed.

 

[30] It is therefore interesting and, in fact revealing that the Defendants/Applicants filed evidence by way of an affidavit in support of the application. What this means is that the application ought to fail under Order 11 Rule 18 (a). However, based on the application paper and as reiterated by learned Counsel in Court and the above statement of law, I have considered the application under Order 11 Rule 18 (d) as well.

 

[31] In the light of the legal proposition and the issues raised by the Applicant, I intend to approach the problem in this instant application by posing these three fundamental questions, namely:

a) Does the Plaintiffs/Respondents have capacity to mount this action based on the claims endorsed on the writ;

b) Whether or not the Plaintiff exhausted the internal mechanism for resolving conflict before issuing the writ; and

c) Whether or not the writ discloses any cause of action based on the pleadings.

 

[32] I agree entirely with Counsel for the Applicants that the settled rule of law is that the capacity of a party to mount an action may be challenged at any time, and even on appeal. The cases, SARKODEE I v. BOATENG II SUPRA and YORKWA v DUAH (1992-93) GBR 278 C/A illustrate the principle that where a person’s capacity to initiate an action was in issue it is no answer to give him a hearing on its merits even if he had a cast-iron case. But is that the situation in the instant case based on the pleading? Is it clear on the face of the record without viva voce evidence that the Plaintiff does not have capacity?

 

[33] The law is that the party whose capacity was put in issue must establish it by cogent evidence. That to mind is an opportunity to be heard. I need to reiterate that I have scrutinized and internalized the cases learned Counsel for the Applicants referred me to. But I think that each case ought to be treated on its own merits because the facts in those cases cannot certainly be as the same as the present case before this court. First, based on the facts and the argument canvassed; in my respectful view the lack of capacity ought to be established on the face of the writ and the pleadings. As I understand Counsel’s argument, firstly, only members of the 1st Defendant party could avail themselves to be nominated by other members and be vetted and if found eligible, contest the primaries. In the case of the Plaintiff, it is averred at paragraphs 5 and 6 of the supporting affidavit that “at all material times he was not a member and could not have availed himself to be vetted”.

 

Therefore not being a member of the 1st Defendant party, he lacks the capacity to institute the present action.

 

[34] Secondly, according to the Applicants the Plaintiff lacks capacity because he only rejoined the party in January 2013 and therefore based on the Amended Constitution he was not eligible to contest the primaries as he was less than four (4) years in November 2015. With utmost respect and deference to learned Counsel, in the opinion of the court both arguments are sterile. On the membership, the Plaintiff has attached his NDC membership card which on the face of it prima facie confirms his membership of the party even if the Defendants deny same. Also, the alleged decision of the party to allow individuals of similar standing and status as the Plaintiff in the party to contest the primaries and be chosen as candidates whilst he is disqualified forms part and the thrust of the Plaintiffs’ present action based on the reliefs he is seeking. He is challenging the alleged discriminatory decision of the NDC which is contrary to its Constitution in this suit. It is plain therefore that the basis for the conclusion that the Plaintiff lacks capacity is one of the fundamental issues this court is being invited to address and to make a factual determination. I am simply unable to decide these issues in the absence of viva voce evidence and cross-examination of the witnesses. In my respectful view, the facts in dispute this Court is called upon to decide cannot be disposed off in this application in a summary fashion.

 

I now propose to address the next issue as to whether or not the Plaintiff exhausted the internal mechanism for resolving conflict before issuing the writ:

 

[35] Having reviewed the pleadings and submission of counsel, I am satisfied and find that the Applicants’ contention on the issue is again unfounded. The Plaintiff/Respondent averred and his counsel submitted that a special conflict resolution procedure was put in place by the 1st Defendant party for the parliamentary primary elections. The unimpeachable evidence before the court is that whilst the Plaintiff followed through with the process, the 1st Defendant party truncated the process and failed to follow through with same.

 

[36] In construing any internal mechanism resolution process, it is my considered opinion that the answer that falls for consideration depends principally: (a) on the nature of the dispute and (b) the dispute which the internal mechanism resolution clause covers. Each case however, ought to be considered on its peculiar facts. Thus where after carefully and critically considering the peculiar facts of each case and the nature of the dispute as a whole the Court took the position that a step a party has taken is reasonable and sensible it shall not be automatic that some other process ought to have been followed.

 

[37] As I have stated elsewhere in this ruling, the Plaintiff says he appealed and appeared before both the vetting appeal committee and the conflict resolution committee, a step which is akin to the procedure under Article 44 of the NDC Constitution but no final decision was made because the 1st Defendant chose to proceed with the primary election. The Defendants/Applicants have not rebutted the averment that the Plaintiff appeared before those committees and the fact that no decision was made either in favour or against him.

 

[38] The Applicants proffered no contrary evidence to impeach the clear averment but rather Counsel submitted that the Plaintiff should have complied with the Article 44 Special Complaint Procedure. The law is trite that when a person has made a material averment and the averment has not been denied, the party against whom the averment was made was presumed to have admitted that averment sub silentio and that the proponent needed not further prove that averment. See: HAMMOND v AMUAH (1991) 1 GLR 89. Also, the case of IBRAHIM v. ABUBAKARI [2001-2002] 1 GLR 540 illustrates the principle as follows:

“…if the respondent in his affidavit in opposition did not deny specifically a particular allegation of fact contained in a supporting affidavit or did not answer the point of substance in the supporting affidavit, he was deemed to have admitted the fact”.

 

[39] Based on the above, I find that it was reasonable for the Plaintiff to be apprehensive about the integrity of the process under Article 44 and the option of entrusting his political fate to another complaint procedure of a party that has previously denied him the basic courtesy of a decision after appearing before its committee. In my opinion, the Plaintiff is justified in the face of the uncontested averment above by instituting the present action. I therefore resolve the issue and conclude that the Plaintiff exhausted the internal conflict resolution mechanism before issuing the writ.

 

Now the next question - Whether or not the Plaintiff’s action discloses a reasonable cause of action?

 

[40] As stated above, although the court has the wide discretionary power to strike out a claim or dismiss a suit because it may not disclose any reasonable cause of action as it is being contended in the present case, on the authorities, the application ought to fail if it raises serious investigations as to questions of general importance. As a matter of law, the discretion is only exercised in obvious cases where it cannot be put to doubt that the action is either frivolous or vexatious.

 

[41] In the considered opinion of this court, this suit discloses a reasonable cause of action because there are serious questions of general importance generated by the instant suit which ought to be investigated and determined by the court. It has been pleaded or alleged by the Plaintiff that the 1st Defendant party is discriminating against him in clear violation of its own Constitution. That issue then raises the supplemental question as to whether or not the Plaintiff was eligible to contest the primary. There is also that fundamental issue of the membership of the Plaintiff as raised by the Defendants and his capacity to mount the instant suit. Undoubtedly, these are matters for evidence. The court cannot embark upon such enquiry except by taking extrinsic evidence. That then takes the case from the realm of cases contemplated by Order 11 r 18(1) of CI 47.

 

[42] Finally, It cannot be stated strongly enough that while it is true that the rationale behind Order 11 r 18(1) of CI 47 is to strike out a claim or dismiss a suit where it cannot be put to doubt that the action is either frivolous, vexatious or unsustainable because it does not disclose any reasonable cause of action, in my respectful opinion, the Order was not intended to be a blunt instrument of judicial intervention against a Plaintiff and/or a Party to a suit. The Order is only intended to apply to cases where it is clear on the face of the record and there is no substantial dispute as to the facts or the law. As was stated by Fletcher Moulton L.J. in Dyson v. Attorney-General [1911] 1 K.B. 410 at p. 419, C.A. “The court will not permit a Plaintiff to be 'driven from the judgment seat,' without considering his right to be heard, 'excepting in cases where the cause of action is obviously and almost incontestably bad” In my opinion, this is not one of those cause of actions.

 

 

[43] In the light of the above reasons, I cannot agree more with learned Counsel for the Plaintiff/Respondent that this instant application is misconceived and ought to be dismissed. The application therefore fails and it is so dismissed.

 

[44] I order that the Defendants comply with this Court Order of May 10, 2016 and file the Witness Statement(s) on or before July 18, 2016 to enable the Court determine the suit on its merits in an expeditious manner, as the urgency of it demands. Cost follows the event and so the Plaintiff/Respondent is entitled to cost. The Plaintiff is asking for Gh¢10,000 and the Defendants are offering Gh¢1,000. In the opinion of the Court Cost of Gh¢3,000 appropriate as the application was heard in two days.