Land –
Ownership - Declaration of title
– Recovery of possession -
Capacity to sue - Injunction and
damages for trespass. - Whether
or not La Traditional Council,
had no legal personality and for
that matter had no cause of
action against the defendants -
Whether or not the 1st
and 5th defendants
also did not exist as juristic
entities so they could not have
been parties in the action for
judgment to be awarded them -
Whether or not the writ La
Traditional Council took null
and void -
HEADNOTES
La
Traditional Council claimed
against the named defendants,
declaration of title and
recovery
of possession of all that
piece and parcel of land lying
and situate at La Tsui Anaa,
which belongs to the La Stool,
injunction and damages for
trespass. In the statement
of claim the plaintiff pleaded
at paragraph 1, thus ‘’ The
Plaintiff is the La Traditional
Council which is the allodial
owner of the land in dispute The
trial High Court after an
elaborate trial in its judgment
declared title to a parcel of
land
measuring 2,911.53 acres for the
1st and 5th
defendants and also
declared
title in the 1st
Plaintiff, La Stool for the
remaining disputed land
measuring 46,509 acres. The 1st
and 5th defendants’
lodged an appeal against the
decision of the trial High Court
in the Court of Appeal, which in
a judgment dated 28th
March 2018 reversed the decision
of the trial High Court. The 1st,
2nd and 3rd
Plaintiffs dissatisfied with the
decision of the Court of Appeal
separately appealed to this
Court urging us to set aside the
said decision. Several grounds
of appeal were filed by the
three appellants.
HELD
In
conclusion, we are of the
considered opinion that the two
preliminary legal points raised
are well found and very
fundamental for which this court
cannot gloss over. Accordingly,
for the reasons expressed in
this judgment, the writ issued
by the La Traditional Council on
16th May 2008, is hereby set
aside as being a nullity. Our
further opinion is that the 1st
and 5th defendants
were non-existent and as such
were not parties in the action.
The action taken against them as
defendants was a nullity. The
consequences of declaring the
writ a nullity is that all the
proceedings founded on it
including all the judgments are
hereby set aside as being null
and void. We do not find it
necessary to consider the merits
of the appeal, in view of the
nullities described in this
judgment.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules, 2004,
CI 47.
CASES
REFERRED TO IN JUDGMENT
Naos Holdings
Inc. vrs. Ghana Commercial Bank
(2005-2006) SGLR 407
Sarkodie I
vrs. Boateng II (1982-1983) 1
GLR 715
Manu vrs.
Nsiah (2005-2006) SCGLR 25.
Oppong vrs.
Attorney-General & Others (2000)
SCGLR 275
Republic vrs.
High Court, Accra; Exparte
Aryeetey (Ankrah Interested
Party) (2003-2004) SCGLR 398
Letang v.
Cooper [1965] 1 Q.B. 232, C.A.
Ampratwum
Manufacturing Co. Ltd v. D.I.C.
[2009] SCGLR 692
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
MARFUL-SAU,
JSC
COUNSEL
AMARKAI
AMARTEIFIO FOR THE 1ST
PLAINTIFF/RESPONDENT/APPELLANT.
PRISCILLA
AKYEAMPONG FOR THE 2ND
AND 3RD
PLAINTIFFS/RESPONDENTS/
APPELLANTS.
DICK ANYADI
FOR THE 1ST AND 5TH
DEFENDANTS/APPELLANTS/RESPONDENTS.
SAHNOON
MOHAMMED FOR THE 4TH
DEFENDANT/APPELLANT/RESPONDENT
MARFUL-SAU,
JSC:
-
The action
that has culminated into this
appeal before us was originally
initiated with a writ filed on
16th May 2008.
The writ
was filed by the La Traditional
Council as the Plaintiff suing
per its lawful Attorney Joseph
Annang Mensah. The original
defendants endorsed on the writ
were named as Japan Motors,
Agric Cattle, Katamanso (Nii
Otoo Laryea) and Santeo (Atta
Quarshie). On the 21st
January 2009, an amended writ
was filed replacing the original
Plaintiff, La Traditional
Council with La Divisional
Council, as the new Plaintiff.
The record of appeal showed that
the writ and pleadings in the
case suffered several amendments
till it was further amended by
making Nii Tetteh Kpobi Tsuru
III, the Plaintiff for and on
behalf of the La Stool.
Now, as a
result of the several
amendments, discontinuance and
joinders in the suit, at the end
of the trial the parties in the
suit were as follows:-
‘’1. Nii
Kpobi Tetteh Tsuru III
(Deceased)- Subtituted by Nii
Obodai Odai IV, La Mankralo.
2. SFA Ltd.
3. Fodas
Estates Ltd.
Vrs.
1.Agric
Cattle
2.
Santeo Mantse (Atta Quarshie)
3.
Katamanso Mantse (Nii Otoo
Laryea)
4. Nii
Odaifio Welentsi III (Nungua
Mantse)
5.
Lakeside Estate Ltd.’’
The trial
High Court after an elaborate
trial in its judgment declared
title to a parcel of land
measuring 2,911.53 acres for the
1st and 5th
defendants and also declared
title in the 1st
Plaintiff, La Stool for the
remaining disputed land
measuring 46,509 acres. The 1st
and 5th defendants’
lodged an appeal against the
decision of the trial High Court
in the Court of Appeal, which in
a judgment dated 28th
March 2018 reversed the decision
of the trial High Court. The 1st,
2nd and 3rd
Plaintiffs dissatisfied with the
decision of the Court of Appeal
separately appealed to this
Court urging us to set aside the
said decision. Several grounds
of appeal were filed by the
three appellants. For purposes
of easy reference the parties in
this appeal will retain their
respective descriptions at the
trial.
In their
respective statements of case
filed in this appeal, Counsel
for the 1st
Plaintiff, who is the 1st
Appellant and Counsel for the 1st
and 5th defendants,
who are Respondents have both
raised preliminary points of law
that we need to address, since
the issues raised are very
fundamental. Counsel for the 1st
and 5th defendants
has argued in his Statement of
Case that the Plaintiff who
issued the original writ,
La
Traditional Council, had no
legal personality and for that
matter had no cause of action
against the defendants, at
the time it issued the writ on
the 16th May 2008. On
his part, Counsel for the 1st
Plaintiff had submitted that
the 1st
and 5th defendants
also did not exist as juristic
entities so they could not have
been parties in the action for
judgment to be awarded them.
We shall
address the preliminary issues
raised by Counsel for 1st
and 5th defendants
first. Counsel has seriously
argued that the Plaintiff who
issued the original writ, La
Traditional Council did not
exist as a legal entity and for
that matter had no
capacity
to sue as it did on the 16th
of May 2008. Counsel further
argued that La Traditional
Council had no cause of action
against the defendants, thus
rendering
the writ it took null and void.
What does the record reveal?
As we have
observed already, on the 16th
of May 2008, La Traditional
Council took out the writ of
summons as Plaintiff against
four defendants in suit number
AL 164/2008. At the close of
pleadings, Application for
Directions was filed by the
Plaintiff on 1st
August 2008. The 1st and 2nd
defendants filed Additional
Issues on the 12th
August 2008. This was followed
by the filing of Further
Directions on the 27th
August 2008 by the 3rd
defendant.
The 1st
and 2nd defendants in
their Additional Issues gave
notice that they will apply that
“Plaintiff’s entire action be
struck out or dismissed as
disclosing no proper cause of
action and as constituting an
abuse of the Honourable court
process.’’
The 3rd
defendant on the other hand
raised in its Application for
Further Directions, the issue
whether or not the Plaintiff, La
Traditional Council is a legal
entity known to the law? The 3rd
defendant prayed that the
further issue above be set down
for legal argument.
Now, as the
record of appeal revealed, the
Plaintiff filed an amended writ
on 21st January 2009,
in which La Traditional Council
was replaced with La Divisional
Council as the Plaintiff.
The record
further revealed that the
Application for Directions was
adopted and all the issues set
down for trial by the High Court
on the 7th of
December 2009. We observed
however, that the issue
challenging the legal status of
La Traditional Council, the
original Plaintiff who initiated
this action was not addressed by
the trial court as well as the
Court of Appeal. We are thus
being called upon to determine
the issue for the first time in
this appeal.
Indeed, we
welcome the invitation to
address the legal issues raised
at the Application for
Directions stage because they
are very fundamental which must
be addressed in order not for it
to be said that this Court gave
tacit judicial blessings to the
procedural flaws, revealed in
the record of appeal. What then
is the law on this matter?
The law is
trite that capacity is a
fundamental and crucial matter
that affects the very root of a
suit and for that matter, it can
be raised at any time even after
judgment on appeal. The issue is
so fundamental that when it is
raised at an early stage of the
proceedings a court mindful of
doing justice ought to determine
that issue before further
proceedings are taken to
determine the merits of the
case. Thus, a Plaintiff whose
capacity is challenged need to
adduce credible evidence at the
earliest opportunity to satisfy
the court that it had the
requisite capacity to invoke the
jurisdiction of the court. If
this is not done, the entire
proceedings founded on an action
by a Plaintiff without capacity
would be nullified should the
fact of non-capacity be proved.
In
Naos
Holdings Inc. vrs. Ghana
Commercial Bank (2005-2006) SGLR
407, this Court speaking
through Sophia Akuffo, JSC (as
she then was) delivered herself
at page 412 as follows:-
“Once its
legal status was challenged and
its corporate capacity was
placed in issue, it was
incumbent upon the appellant to
produce more cogent evidence of
its existence (such as its
registered office address or a
copy of its certificate of
incorporation,) to satisfy the
trial court that it has the
requisite legal capacity to sue.
Since it failed to do so, the
trial court was justified in
arriving at the conclusion that
the appellant did not exist.
Furthermore, having dismally
failed to satisfy the trial
court in regard to such a
fundamental issue as capacity to
sue, it would have been
pointless for the trial court to
order the matter to proceed to
trial.’’
This court in
an earlier case
Sarkodie I vrs. Boateng II
(1982-1983) 1 GLR 715,
at page 724, stated the
principle on capacity as
follows:-
‘’ It is
elementary that a plaintiff or
petitioner whose capacity is put
in issue must establish it by
cogent evidence…………..But it is
no answer for a party against
whom a serious issue of locus
standi is raised, to plead that
he should be given a hearing on
the merits because he has a cast
iron case against his
opponent.’’
See also
Manu vrs.
Nsiah (2005-2006) SCGLR 25.
The issues we
need to determine as raised by
Counsel for the 1st
and 5th defendants,
are whether the La Traditional
Council, was a legal entity and
thus clothed with capacity to
sue? And if so, did it have a
cause of action against the
defendant? Indeed, whether or
not we have to address the
merits of this appeal depends
largely on our determination of
the preliminary issues raised by
Counsel for the 1st
and 5th defendants.
Indeed,
by the
writ and statement of claim that
originated this action, La
Traditional Council claimed
against the named defendants,
declaration of title and
recovery of possession of all
that piece and parcel of land
lying and situate at La Tsui
Anaa, which belongs to the La
Stool, injunction and damages
for trespass. In the statement
of claim the plaintiff pleaded
at paragraph 1, thus ‘’ The
Plaintiff is the La Traditional
Council which is the allodial
owner of the land in dispute.’’
The law is
trite that a civil action can
only be taken by a natural
person or a juristic entity
created and recognized by
statute. If not, a writ issued
in the name of a non-existent
Plaintiff is a nullity and same
void. The law also is that when
the legal status of a Plaintiff
is challenged and made an issue,
as in this case, it was
incumbent on the Plaintiff to
adduce cogent evidence to
satisfy the court that it had
the requisite legal capacity to
sue and be sued.
See Naos
Holding Inc. vrs. Ghana
Commercial Bank, supra.
In the
case of
Oppong vrs. Attorney-General &
Others (2000) SCGLR 275,
this court speaking through
Atuguba, JSC at page 280
delivered as follows:-
‘’……….where
the step by a party to
proceedings before this court is
fundamentally wrong, such error
is not within the purview of the
rule and cannot be waived. One
cannot waive a nullity.’’
We observed
from the record of appeal that
when the issue of the legal
status and capacity of La
Traditional Council was raised
by the 3rd defendant
who applied that the issue be
taken by legal argument, La
Traditional Council avoided the
challenge and decided to do the
forbidden. What the plaintiff
did was to amend the writ and
replaced itself with La
Divisional Council. In effect
what the original Plaintiff did
was to disqualify itself and
then substitute the La
Divisional Council as the new
Plaintiff. The question we ask,
is why did La Traditional
Council disqualify itself as a
Plaintiff? The answer can only
be that it realized that it had
no legal status to issue the
writ as it did. The facts from
the pleadings clearly
demonstrated that the La
Traditional Council was not a
legal entity and as such had no
capacity to sue as it did in
this case.
The law as we
have known it to be is that a
non- existent person or entity
cannot sue as a Plaintiff
neither can a non-existent
person or entity be sued as a
defendant. Parties initiating
any civil proceeding must be
either natural persons who are
alive or personal
representatives of such persons
and juristic entities recognized
by statute. As revealed by the
facts on record and by the
conduct of the La Traditional
Council itself, we are satisfied
that the preliminary objection
raised by Counsel for the 1st
and 5th defendants is
very legitimate and fundamental
and we endorse same.
As the facts
clearly showed, the original
writ was a nullity since the
Plaintiff, La Traditional
Council had no capacity to sue.
Now since the original writ was
a nullity, all the subsequent
amendments taken on the writ
were also a nullity. In fact the
nullity of the original writ
operated like a virus that
nullified all the several
amended writs. The writ was the
foundation upon which the entire
action was build, thus when it
is nullified, the
super-structure of the action,
which are the proceedings and
the judgments founded on the
invalid writ must totally
collapse.
In
Republic
vrs. High Court, Accra; Exparte
Aryeetey (Ankrah Interested
Party) (2003-2004) SCGLR 398,
this Court held at holding (2)
as follows:-
‘’The
requirement that a party
endorses on the writ the
capacity in which he sues, is to
ensure that a person suing in a
representative capacity is
actually invested with that
capacity and therefore has the
right to sue. Whether a person
who has sued in a representative
capacity, indeed, has the
capacity he claims to have or
not, is a question of fact; and
if challenged, he must prove
same to avoid his suit being
dismissed since it is analogous
to taking an action against a
non-existent defendant……………….
This is because if a party
brings an action in a capacity
he does not have, the writ is a
nullity and so are the
proceedings and the judgment
founded on it. Any challenge to
capacity puts the validity of
the writ in issue.’’ –emphasis
supplied.
Besides, the
issue regarding the legal status
of La Traditional Council, is
the related issue whether it had
a cause of action in the matter
it took to court, assuming it
had the capacity. As noted, in
the original writ and statement
of claim, La Traditional Council
claimed that it was the allodial
owner of the land in dispute.
However, by its relief 2
endorsed on the writ, the same
La Traditional Council claimed
that the land belongs to the La
Stool. We are at a loss and we
ask the question, when did
Traditional Councils became
owners of Stool land? The
pleadings filed by the
Plaintiff, La Traditional
Council, clearly showed that it
had no cause of action to bring
the action against the
defendants as it sought to do.
The La Traditional Council never
pleaded that it was bringing the
action on behalf of the La Stool
or that the La Stool had
authorized it to take the
action. The pleadings thus
showed that, La Traditional
Council had no cause of action
to sue as it did, even if it had
the legal status.
In the
English case of
Letang
v. Cooper [1965] 1 Q.B. 232,
C.A. Diplock L.J.
(as he then was) defined cause
of action at pp. 242-243 as
"simply a factual situation the
existence of which entitles one
person to obtain from the court
a remedy against another
person."
Also, in the
case of
Ampratwum Manufacturing Co.
Ltd v. D.I.C. [2009] SCGLR 692,
it was held by Baffoe- Bonnie
JSC as follows:
“It is
fundamental in litigation that
parties must commence action
against relevant parties to the
suit. To institute an action
against a party, one must have a
cause of action against the
defendant.”
Now, having
showed that La Traditional
Council had no legal status and
as such had no capacity to sue,
what is its effect on the writ
it issued and all proceedings
founded on the said writ. The
law is long settled that
capacity is a preliminary issue,
in that an action cannot proceed
to be determined on the merits
if the Plaintiff or defendant
had no capacity to sue or defend
the action. Indeed, a plaintiff
who had no capacity cannot
invoke the jurisdiction of a
court for anything, since the
writ and the reliefs claimed
thereon must be derived from the
capacity of the Plaintiff.
It therefore
follows that a challenge to
capacity puts the validity of a
writ in issue, so when the
challenge is not displaced, the
writ becomes a nullity together
with the proceedings and the
judgment founded on it. In this
case having established that La
Traditional Council had no
capacity to sue, the writ that
was issued to commence this
action was invalid and a
nullity. We will therefore set
aside the writ as a nullity and
by that all the proceedings
including the judgments founded
on it are also declared void.
See Republic
vs. High Court, Accra: Ex-parte
Aryeetey (Ankrah Interested
Party), supra.
We now
address the preliminary issue
raised by Counsel for the 1st
Plaintiff. Counsel had argued
that the 1st and 5th
defendants were non-existent
entities and were not parties in
law. From the record of appeal,
it is clear that the 1st
defendant was made a party by
the Plaintiff. The 1st
defendant was sued as Agric
Cattle, even though its
corporate name was Agric Cattle
Ltd. The 5th
defendant however applied to
join the suit. It applied in the
name of Lakeside Estate Ltd. The
evidence on record is that on
the 13th June 2005,
Agric Cattle Ltd changed its
name to Agric Cattle Lakeside
Estates Ltd. The change in name
was registered in the registrar
of companies at the Registrar
General’s Department. What this
meant was that as at 16th
May 2008, when the original writ
was issued, there was no entity
as Agric Cattle Ltd. However,
when the writ was served, Agric
Cattle entered Appearance and
filed a defence to contest the
action. Then in the course of
the proceedings the 5th
defendant also applied to be
joined to the suit. It also
erroneously joined the suit as
Lakeside Estates Ltd.
The record of
this appeal revealed that
throughout the trial both the 1st
and 5th defendants
were represented in court by the
same person Dr. Noble Prince
Joseph Ayiku. His evidence at
page 526 to 535 of Volume 1 of
the record of appeal, revealed
that the 1st and 5th
defendants were one and the same
entity. Dr. Ayiku testified that
on 13th June 2005
Agric Cattle changed its name to
Agric Cattle Lakeside Estate
Ltd. From his evidence
therefore, it is clear that in
2008 when the writ was issued
and when the 5th
defendant also applied later to
join the suit, they were not
legal entities, as Agric Cattle
Ltd and Lakeside Estates Ltd
were not in existence with the
capacity to sue or be sued.
Notwithstanding their
non-existence as legal entities
and even though the 1st
and 5th defendants
were one and same entity, they
both filed separate pleadings
and were represented by separate
Lawyers throughout the trial.
The record also showed that even
in the Court of Appeal they
filed separate written
submissions.
Clearly, from
the facts demonstrated above,
the 1st and 5th
defendants were non- existent
entities and as such could not
have been sued, neither could
they maintain an action since
they lacked the requisite
capacities to sue. The
counterclaim of the 5th
defendant therefore ought to
suffer the same fate as the writ
issued by the Plaintiff. The law
is that a counterclaim is a
cross-action and the defendant-
counter claimant was deemed a
Plaintiff. Such a defendant must
exist as a legal entity before
it could be clothed with
capacity to sue. The 5th
defendant counterclaim was a
nullity since it did not exist
in law, and as such had no
capacity to maintain the
counterclaim. In this appeal,
once the evidence is clear that
the 1st and 5th
defendants were one and same and
lacked the corporate capacity,
they ceased to be parties
properly so called in law and
they could not derive any
benefit from the action for the
simple reason that they never
existed in law and as such could
not litigate.
Counsel for
the 1st and 5th
defendants has urged this court
to exercise its inherent
jurisdiction to amend the title
of the suit by treating the 1st
and 5th defendants as
one and same entity under the
name’’ Agric Cattle Lakeside
Estate Limited.’’ Counsel
further refers this court to
apply Order 4 Rule 5 of the
High
Court (Civil Procedure) Rules,
2004, CI 47. The said rule
states as follows:-
‘’5 (1) No
proceedings shall be defeated by
reason of the misjoinder or non-joinder
of any party; and the Court may
in any proceeding determine the
issues or questions in dispute
so far as they affect the rights
and interests of the persons who
are parties of the proceedings.
(2) At any
stage of the 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 or unnecessarily made
a party to cease to be a party;
b. Order any
person who ought to have been
joined as a party or whose
presence before the Court is
necessary to ensure that all
matters in dispute in the
proceedings are effectively and
completely determined and
adjudicated upon to
be added as a party.’’
We are of the
considered opinion that Order 4
Rule 5 cannot aide the 1st
and 5th defendants.
Firstly, the said defendants as
demonstrated did not exist as
legal entities and for that
matter they are not qualified to
be parties as envisaged under
Order 4 Rule 5 of CI 47. The
rule is about parties who are
either misjoined or not joined
to an action. Order 4 generally
deals with parties who can sue
and be sued. It deals with
natural persons or juristic
entities that exist and are
recognized by law and for that
matter who are clothed with
capacity to sue and be sued. The
rule empowers the court to
non-suit such persons with legal
status who are wrongly sued or
join such persons with legal
status to an action and ensure
that all matters in dispute are
completely adjudicated upon. The
rule was never intended to
replace non-existent parties
with persons or entities with
legal status. The reason is that
a writ against a non- existent
defendant is equally a nullity,
just like a writ issued by a
person without capacity. Simply
put a non-existent person cannot
litigate.
Now, assuming
even if the rule enabled this
court to join Agric Cattle
Lakeside Estate Ltd, to replace
the 1st and 5th
defendants as argued by Counsel,
the counterclaim would still be
struck out since the Plaintiff’s
writ is a nullity for lack of
capacity. A counterclaim cannot
be maintained when the writ
which commenced the action is
declared a nullity.
In
conclusion, we are of the
considered opinion that the two
preliminary legal points raised
are well found and very
fundamental for which this court
cannot gloss over. Accordingly,
for the reasons expressed in
this judgment, the writ issued
by the La Traditional Council on
16th May 2008, is hereby set
aside as being a nullity. Our
further opinion is that the 1st
and 5th defendants
were non-existent and as such
were not parties in the action.
The action taken against them as
defendants was a nullity. The
consequences of declaring the
writ a nullity is that all the
proceedings founded on it
including all the judgments are
hereby set aside as being null
and void. We do not find it
necessary to consider the merits
of the appeal, in view of the
nullities described in this
judgment.
S. K. MARFUL-SAU
(JUSTICE OF
THE SUPREME COURT)
V.
J. M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
Y. APPAU
(JUSTICE OF
THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF
THE SUPREME COURT)
PROF.
N. A. KOTEY
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
AMARKAI
AMARTEIFIO FOR THE 1ST
PLAINTIFF/RESPONDENT/APPELLANT.
PRISCILLA
AKYEAMPONG FOR THE 2ND
AND 3RD
PLAINTIFFS/RESPONDENTS/
APPELLANTS.
DICK ANYADI
FOR THE 1ST AND 5TH
DEFENDANTS/APPELLANTS/RESPONDENTS.
SAHNOON
MOHAMMED FOR THE 4TH
DEFENDANT/APPELLANT/RESPONDENT |