STELLA MAUREEN SAFOA MGADI VRS YUNUS BASHIRUDEEN KORAY & ANOR. (LD/0586/2022) [2024] GHAHC 199 (8 May 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE GHANA (LAND COURT 7) HELD IN ACCRA ON THE WEDNESDAY THE 8TH DAY OF MAY, 2024 BEFORE HIS LORDSHIP ALEXANDER OSEI TUTU (J.) SUIT NO. LD/0586/2022 :: PLAINTIFF/RESPONDENT

STELLA MAUREEN SAFOA MQADI 2 ONGLEY COURT, IVEL ROAD, SANDY BEDFORDSHIRE, SG 19 1AB, UK (SUING PER HER LAWFUL ATTORNEY)

ANDREWS KWAME ANOKYE H/NO. 113/17, KOTEI ADOTEY STREET, DANSOMAN – ACCRA VRS.

YUNUS BASHIRUDEEN KORAY H/NO. 3, KANAA ESTATE, KANDA – ACCRA

AMMA ASOR ATTAH AIKINS H/NO. 3, KANDA ESTATE, KANDA – ACCRA :: DEFTS/APPLICANTS =================================================== PARTIES: PLAINTIFF’S LAWFUL ATTORNEY PRESENT

DEFENDANTS ABSENT COUNSEL: KWAME OWUSU ESQ. FOR PLAINTIFF/RESPONDENT PRESENT KOBINA ENYAN DADSON H/B FOR AMANKWAH FOR DEFENDANTS/APPLICANTS PRESENT =================================================== JUDE OSAFO YAW ADU- RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 1

R U L I N G In this application, the Defendants are seeking an Order to strike out the pleadings and to dismiss the suit pursuant to Order 11 Rule 18(1) of C.I. 47 and the inherent jurisdiction of the Court. The Motion was grounded principally on the Plaintiff’s Lack of Capacity to donate a Power of Attorney to a donee to initiate the action and the fact that the action is frivolous and vexatious. The Application was opposed by the Plaintiff. For ease of reference, I will reproduce some relevant paragraphs of the affidavit in opposition deposed to by the Plaintiff’s Attorney, Andrew Kwame Anokye here for the full effect. “4. That I am advised by Counsel, and verily believe same to be true that per the motion paper, the reliefs being sought by the Applicants are not fit and proper for orders to be made under Order 11 Rule 18(1). The capacity of a party is proved by evidence. The Applicants, however, have not filed any pleadings raising a challenge to the Respondent’s capacity.

5. That I am advised by Counsel, and verily believe same to be true that grounds 2 and 3 contained in the motion paper are part of a defence the Applicants are putting up in answer to allegations contained in the Statement of Claim. These ought to be in their Statement of Defence.

6. That I am advised by Counsel, and believe same to be true that paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 are all evidence that do not relate to or support any of the grounds stated under Order 11 Rule 18(1).

7. That I am advised and believe same to be true that paragraphs 34, 36, and 37 are all argumentative which are not fit and proper for Applications such as this. Affidavits are meant to depose to facts that support the reliefs being sought.

8. That I am advised by Counsel, and believe same to be true that the Applicants have failed to make reference to any offensive paragraphs or facts contained in the Statement of Claim which could be described RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 2 as frivolous or as an embarrassment or as an abuse of the Court process.

9. Consequently, the Application ought to fail because it does not meet any of the threshold set under the Rules …” After carefully considering the parties’ respective affidavits and their submissions thereon, I have decided to examine the underneath issues. Plaintiff’s Action being Frivolous and Vexatious On the Motion Paper, the Defendant attacked the Plaintiff’s action as being frivolous and vexatious on two grounds: a. That the action is frivolous and vexatious because the property was originally in the name of Esther Adwoa Serwaa Mqadi when she had duly transferred the property in her lifetime and had never raised any challenge to the current owner up to her death, b. That the Plaintiff/Respondent seeking to challenge the ownership of the property by the late GRACE LOVE

ADWOA ASOMANTIWAA PREKO by the suit because the name of ESTHER ADWOA SERWAA MQADI nee PREKO is still on the electricity bills of the property when the property has been transferred and registered both at State Housing Company Limited and the Lands Commission in the name of GRACE

LOVE

ADWOA ASOMANIWAA PREKO. In response to these, the Plaintiff’s Attorney at paragraphs 5 and 8 of his affidavit in opposition contended that the two grounds bordering on the action being frivolous and vexatious are actually defences that should have been pleaded. I perfectly agree with the Plaintiff that these grounds are facts demonstrating their defences that should have been raised in a Statement of Defence and nothing more. I have struggled in vain to ascertain how the facts deposed to by the Applicants make the Plaintiff’s case frivolous and vexatious, as judged RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 3 by the standards of the law espoused by Mabel Agyemang J.A. JACOB LAMPTEY VRS. GIFTY LAMPTEY & 9 OTHERS [2017] 112 G.M.J. 151, where she espoused at page 164 thus: “A suit is said to be frivolous where among other things, it is said to lack legal basis or have legal merits; a vexatious one, is one that is instituted with mala fides, that is maliciously, and without good cause, see Black’s Law Dictionary 8th Edition”. Limitation of the Plaintiff’s Action I also observed that the Defendant’s Counsel in his written submission argued that the Plaintiff’s action is statute-barred. Similarly, this should have been raised in a Statement of Defence, clearly setting out the facts of the limitation, to enable

the Plaintiff to adequately respond to it. In any event, limitation of the action was not raised in the motion as the reason or ground for bringing the application. It was therefore unacceptable for Counsel for the Defendants to raise and argue it in his written submission. (See IN RE WEREKO) DEC’D0; WEREKO VRS ARMAR AND OTHERD [1978] GLR 849. The law has consistently been that the defence of limitation of an action must be expressly raised. In the case of DOLPHYNE (NO.3) VRS. SPEEDLINE STEVEDOORING CO. LTD. (1996–97) SCGLR 514, the Supreme Court held at holding (2) as follows: "The Limitation Decree 1972 (NRCD 54), was essentially a special plea which must be pleaded as required by the High Court Rules, LN140 A. If not pleaded, it could not be adverted to in submissions to the court; …". See also ARMAH VRS. HYDRAFOAM ESTATE (GH.) LTD. [2013–2014] 2 SCGLR 1551 & BOGOSO GOLD LTD VRS. NTRAKWA (2010) 33 MLRG 57 SC. The Mode of Bringing This Application On the motion paper, the Defendants brought their application to strike out the pleadings and for an order to dismiss the suit pursuant to Order 11 Rule 18(1) of C.I 47 and the inherent jurisdiction of the Court. Under Order 11 Rule 18(1) of C.I 47, pleadings can be struck out under four circumstances. a. Where it discloses no cause of action or defence, or RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO.

0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 4 b. where it is scandalous, frivolous or vexatious, or c. where it may prejudice, embarrass or delay the fair trial of the action or d. where it is otherwise an abuse of the Court process. The Plaintiff submitted that each of the grounds has its distinct procedure and requirement, and lumping them together falls short of the Rules. In Counsel’s view, the provisions of Rules 18(1) are disjunctive and not conjunctive as they provide the various degrees of defectiveness pleadings may suffer from for same to be struck out. I am aware of the law that the failure of an applicant to bring his application under the correct rule should not by itself lead to the refusal of the remedy sought. (See BOATENG VRS NEW PATRIOTIC PARTY [2010–2012] 2 GLR 115, C.A. & KUMA VRS. BART-PLANGE [1989–90] 1 GLR 119). However, in the case of an application under Order 11 Rule 18(1), I believe some level of specificity is desired, because as Counsel for the Plaintiff surmised, the procedure and requirements for the four grounds are not uniformed. For instance, while ground (a) demands no evidence or a supporting affidavit the same cannot be said for the other grounds (See TACKIE VRS BAROUDI [1977] 1 GLR 36). While it is not mandatory that the specific order and the rule under which the application is brought is stated, it has been held that the relief sought

must be clear and apparent on the face of the application (See ASAMOAH VRS MARFO [2011] 2 SCGLR 832). I am thus inclined to side with the Plaintiff that the failure of the Defendants to state the specific ground out of the four grounds under Order 11 Rule 18(1) is legally untenable and the Court cannot help the applicants in interrogating a course which they have literally shown no clarity and precision. On the issue of the Defendants bringing the Application both under the Rules and the inherent jurisdiction of the Court, that is a settled practice both under the English law and Ghanaian law. Paragraph 436 of the HALSBURY’S LAWS OF ENGLAND (4TH ED.), VOL 37 provides: RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 5 “The application may be made, and frequently is made, both under these grounds and under the inherent jurisdiction of the Court and a properly drawn application should invoke both powers”. The principle was applied in Ghana by the Full Bench of the Court of Appeal in the case of HARLLEY V. EJURA FARMS (GHANA) LTD (1977) 2 GLR 179, thus: “The Respondents' Application to strike out the Applicant's pleadings, was made, as I have already said, under Order 25, r. 4 of the High Court (Civil Procedure) Rules, 1954, and under the inherent jurisdiction of the court. The practice under that rule and under

the inherent jurisdiction of the court is well-established”. See also OKOFO ESTATES LTD VRS MODERN SIGNS LTD. [1995–96] 1 GLR 310 at 328. On the vexed issue of whether an application can be brought to dismiss the Plaintiff’s suit before the filing of a statement of defence, was answered affirmatively by the Apex Court in ANGLOGOLD ASHANTI LTD VRS DANKWA & OTHERS, CIVIL APP. NO. J4/22/2018, 14TH FEBRUARY 2019, S.C. (UNREPORTED) AND NAOS HOLDING INC. VRS GHANA COMMERCIAL BANK [2005 – 2006] SCGLR 407 Capacity The Defendants have raised serious issues with the capacity in which the action was instituted. Learned Counsel stated in his written submission thus: “It is trite that when the legal question of capacity is raised before a Court, same must be determined preliminarily before any further steps can be taken by the Court”. In response to this, learned Counsel for the Plaintiff contended that capacity is not an issue that can be raised in such a manner. It ought to be pleaded in the Statement of Defence. He could not be far from right. Capacity should be properly raised in the pleading. In any event, the Defendant did not state the specific ground and sub rule under Order 11 Rule 18 of C.I 47 in respect of which the point of capacity was raised. Nevertheless, since the Defendants have further invoked the inherent powers of the Court to examine the issue of capacity, I am unable

to disregard it. I am mindful of the law that apart from the fact that capacity can be raised RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 6 at any stage of the proceedings, it being a point of law can also be raised suo motu. The Apex Court held at holding 6 of the case of FOSUAH & ADU POKU VRS ADU POKU MENSAH (2009) SCGLR 310 that: “Capacity to sue was a matter of law and could be raised by a party at any stage of the proceedings, even on appeal. It could also be raised by the Court suo motu.” Similarly, in TINDANA (NO 2) VRS CDS & ORS (2011) 2 SC GLR 732, it was decided: “It is trite learning that a court adjudicating any matter may raise a point of law on its own motion.” (See the cases of EMPIRE BUILDERS LTD. VRS TOP KING ENTERPRISE LTD. & 4 OTHERS [2015] 84 GMJ 33 & KWAME VRS SERWAA & ORS. [1993 –94] 1 GLR 429 @ 438-439, S.C.) Therefore, if the Defendants had not even prayed the Court to consider the point of capacity, it is within the Court’s power to raise it. In the circumstance of this case, I consider the point of capacity deserving of determination at this stage. In this case, the Plaintiff is suing per an Attorney. It is her case that the property belongs to her late mother. ESTHER ADWOA SEIWAA MQADI. She has no Letters of Administration, Probate or Vesting Assent, but claims the property is

for herself and her siblings. She did not expressly state who these siblings are, neither did she sue as the executor or administratrix of the mother’s estate. The law requires that actions brought in a representative capacity are clearly endorsed with the capacity on the Writ and all subsequent processes (See NKUA VRS. KONADU & BOATENG (2009) SCGLR 134 @ 138; [2008–2009] 2 GLR 562, SC, GHANA MUSLIMS REPRESENTATIVE COUNCIL VRS SALIFU (1975) 2 GLR 246 CA & MADINA SHOPPING MALL ASSOCIATION VRS ROSEHILL GH. LTD. [2012] 39 M.L.R.G. 81, S.C. In this case, that was not done. Counsel for the Plaintiff submitted that the property belongs to the mother of the Plaintiff and after her death it automatically passed on to the Plaintiff and her siblings. Counsel thus sought refuge under the cases of ADISA BOYA VRS ZENABU MOHAMMED SUBSTITUTED BY ADAMA MOHAMMED & ANOR. (2018) GHASC 7 (14TH FEBRUARY 2018) AND GHANA PORTS AND HARBOUR AUTHORITY VRS. ISSOUFOU (1993–94) 1 GLR 24. RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 7 THE CASE OF ADISA BOYA VRS. MOHAMMED In the ADISA BOYA case, the Supreme Court held that the Defendants who were the children of the estate of the deceased person and had not obtained Letters of Administration nor a Vesting Assent had capacity to contest the action. The decision has since been understood

by lawyers as conferring capacity to children or beneficiaries of an estate who had not obtained Letters of Administration. In the view of this Court, that is a misconception as the principle was not laid as a general rule but peculiarly within the context in which it was decided. In that case, the children were living in the house and their possession was not in dispute. Further, the case had travelled all the way to the Supreme Court with the Plaintiffs not being perturbed about the capacity of the Defendants so their Lordships believed that justice would plainly be defeated if the proceedings at that stage were to be nullified for the Defendants to go for Letters of Administration before beginning a fresh legal contest. His Lordship Gbadegbe JSC underscored: “… in the instant case, the defendants who were peacefully on their property were sued by the Plaintiff who sought to have title declared in his favour against them and as by the nature of the controversy title was necessarily put in issue by either party, it is important that the question as to which party owned the disputed property be put to rest once and for all in order that the matter may not be relitigated in the future. Accordingly, no injustice was occasioned to the parties by the determination of the question of title to the land by the Court of Appeal. Indeed, we are enjoined as judges to avoid multiplicity of

actions by the very clear words of ORDER 1 RULE 2 OF THE HIGH COURT (CIVIL PROCEDURE) RULES 2004, C.I. 47 which are as follows: “These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expenses and ensure that as far as possible, all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided”. The legislative wisdom contained in the above provision which is the overriding principle in civil procedure rules in the High Court cannot be overriding by slavish adherence to mere technicality, our primary concern as judges being to do substantive justice. Then there is the provision of non- RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 8 compliance provided in Order 81 of C.I. 47 by which for such defaults to invalidate proceedings the party who raises such a point should not have taken a fresh step in the matter after knowledge of such an irregularity. See Order 81 Rule 2(2). The Plaintiff who has urged this point before us took part in the proceedings before the trial court without raising a finger and we are firmly of the opinion that it is too late in the day for him to do that which would have the effect of escaping through the back door

after much time in the action herein. The matter having been fought to this stage, the parties are entitled to have the issues determined finally between them.” Are the facts in the instant case similar or the same as the Adisa Boye case? I think not! While in the Adisa Boye case, the children of the estate were the ones in possession, which was peaceful and undisturbed; in this case, it is rather the opposite. The Defendants are the ones in possession of the property. Again, in the ADISA BOYA case, one consideration by the Apex Court for allowing the children of the estate to litigate without Letters of Administration was the fact that the action had travelled far and the Plaintiff had not objected to the defect in the capacity of the children of the estate who had no Letters of Administration. In this case, the matter had barely started and the Defendants have in no way compromised by participating in the trial. It could be deduced from the ADISA BOYA case that the context in which Order 81 Rule 2(2) of C.I. 47 was cited attests to the fact that their Lordships expected the Plaintiffs to have raised the lack of capacity of the children of the estate at the trial Court, without participating in the proceedings. On the contrary, the Defendants herein have taken the course contemplated by their Lordships. They are challenging the capacity of the Plaintiff at an early stage of

the suit. ADISA BOYA does not stand in isolation. It was adopted by the Apex Court in SUSAN BANDOH VRS DR. MRS. MAXWELL APEAGYEI–GYAMFI AND ALEX GYIMAH (2019) DLSC 6502 (CIVIL APP. NO. J4/16/2016, 6TH JUNE 2019). His Lordship Marful-Sau JSC speaking for the Court said: “The learned Counsel for Respondents argued that Appellant should have disclosed the capacity in which she commenced the action, since her pleadings showed that the land in dispute was acquired by her deceased mother. According to Counsel, Appellant issued the Writ RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 9 in her own right, though she was only a beneficiary. The argument of Counsel is that being a beneficiary the Appellant could only have sued if she had Letters of Administration or Probate and same indorsed on the Writ. Counsel seemed to be arguing that the Appellant had no Letters of Administration or Probate, so lacked the capacity to sue as a beneficiary under the Administration of Estate Act. I have examined Appellant’s Writ of Summons and Statement of Claim and I hold the view that the issues raised on Appellant’s capacity is far-fetched and an afterthought. It is clear that no such endorsement as to capacity appears on the Writ of Summons. However, at paragraph 1 of the Statement of Claim, Appellant pleaded as

follows: “1. Plaintiff is the personal representative of Dr. Evelyn Vanderpuye (deceased) beneficiary owner of the land the subject matter of the suit and brings this action on her own behalf and on behalf of the children of the said Dr. Evelyn Vanderpuye”. From the above pleading, Appellant made it clear that she was bringing the action in her capacity as the personal representative of the deceased mother, …the capacity of the Appellant was thus clear from the Statement of Claim.” It is significant at this point to consider the meaning of a personal representative under the ADMINISTRATION OF ESTATES ACT, 1961 (ACT 63). Section 1 of the Act provides: “(1) The movable and immovable property of a deceased person shall devolve on his personal representatives with effect from his death”. It is also provided under Section 2 of the Act as follows: “(1) The personal representatives shall be the representative of the deceased with regard to his movable and immovables property. (2) The personal representatives for the time being of a deceased person are deemed in law his heirs and assigns……. Therefore, the Appellant in the BANDOH VRS. APEAGYEI-GYAMFI case, by describing herself as the personal representative of her late mother had RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 10 squarely placed herself under the

provisions of the law as the heirs of the deceased person, therefore providing ample basis to litigate in respect of her late mother’s estate. It was thus appropriate for the Supreme Court to rely on the Adisa Boya case to recognise her capacity even in the absence of a probate or Letters of Administration. In this case however, the Plaintiff never presented herself to the Court as the personal representative of her late mother and neither did she sue in a representative capacity. Her whole action is contradictory. In her relief (a) she wants a declaration that the subject matter property belongs to Esther Seiwa Mqadi, but in relief (b) she wants a declaration that the same property belonged to her and her siblings. It is unclear whether her action is for the estate of her late mother or the property is not part of her mother’s estate, but had already devolved or passed unto her and her siblings even in the absence of a Probate or Letters of Administration. I noticed that while the Writ was not endorsed in a representative capacity, the Plaintiff wants a declaration for herself and her other siblings whose names she failed to mention. It was also not stated in her claim that she has the authority of her other siblings to issue the Writ of Summons on their behalf. If the property is for the Plaintiff and her siblings, why is it that it was only the Plaintiff and not with the

other siblings who allegedly gave Andrews Kwame Anokye a Power of Attorney to prosecute the suit? Order 2 Rule 4 of C.I. 47 provides: “Indorsement as to capacity 4. (1) Before a writ is filed it shall be indorsed (a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which the plaintiff sues …” It needs stressing the point that the provisions on capacity under Order 2 of C.I. 47 have generally been held to be mandatory and fundamental that they cannot be cured under Order 81 of C.I.

47. RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 11 The Supreme Court speaking through Benin JSC said in NATIONAL

INVESTMENT BANK LTD VRS STANDARD BANK OFFSHORE TRUST COMPANY LTD [2017] 113 GMJ 174 that the provisions of Order 2 Rule 4 (2) of C.I. 47 was obligatory and was not one of the provisions which the Court is allowed to waive for non-compliance under Order 81 of C.I.

47. The Court held that a writ that does not meet the requirement of capacity is null and void and that the issue could be raised at any point in the course of the proceedings. The Court of Appeal also held in the case of CHINA SHANDON INTERNATIONAL LTD. VRS. MRS. VIVIAN ACHEAMPONG AND NANA SERWAA ACHEAMPONG [2018] DLCA 6176, that: “Under Order 2 rule 4 of C.I. 47, a Plaintiff must endorse his writ with the capacity in which he is suing otherwise the writ is defective….so even if the appellant did not challenge the Respondents’ capacity, the trial court could raise the issue of capacity suo motu since it was a legal point”.(See also REPUBLIC VRS HIGH COURT TEMA, EX PARTE OWNERS OF MV ESSCO SPIRIT (DARYA, SHIPPING SA INTERESTED PARTY) [2003–2005] 2 SCGLR 689 & SAVIOUR CHURCH OF GHANA VRS ABRAHAM KWAKU ADUSEI & OTHERS, SUIT NO. H3/526/2019, DATED 23RD JANUARY 2020). The Writ in its current form is brought in a personal capacity and not a representative capacity. From the Plaintiff’s own pleadings, her siblings are also beneficiaries (See paragraph 24 of the Statement of Claim). As it stands now, the donee of the attorney is authorised by only the Plaintiff to institute this action and it is she alone the attorney is suing for, with no authorization from the other siblings. In KASSEKE AKOTO DUGBARTEY SAPPOR & 2 OTHERS (SUBSTITUTED BY ATTEH SAPPOR) VRS VERY REV. SOLOMON DUGBATEY

SAPPOR (SUBSTITUTED BY EBENEZER TEKPETEY AKWETEY SAPPOR) & OTHERS, CIVIL APPEAL NO. J4/46/2020, DATED 13TH JANUARY 2021, the Supreme Court reiterated that the issue of capacity is a threshold and foundation of issue which can be raised at any time and even by the Court suo motu. Her Ladyship Mensa Bonsu (Mrs) JSC noted: “All the authorities are emphatic that capacity remains a live issue throughout the life of a case and once a RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 12 party does not meet the threshold requirement of capacity, there is no need to go beyond that point …” Emboldened by this, I am compelled to end this matter at this stage for the Want of Capacity by the Attorney of the Plaintiff to initiate the suit. I know however that the Applicant would expect me to dismiss the suit, but I will not. I will only strike it out. I take that course upon the inspiration from the case of RTEAN VRS. NURTW [1992] 2 NWLR 381 at Page 391, where it was held; “When a Court holds that a Plaintiff has no locus standi in respect of a claim, the consequential order to be made is striking out of such claim and not a dismissal of the claim. The rationale is that holding that a plaintiff has no locus standi goes to the jurisdiction of the court before which such an action is brought. When the question that a plaintiff

has no locus standi to institute an action arises, all that is being said is that the court before which an action is brought cannot entertain the adjudication of such an action. The Court cannot dismiss a claim, the merit of which it is not competent to inquire into. A dismissal presumes that the court has looked into the claim and found it wanting in merits. But it can only so look into the claim if that claim falls within the Court’s jurisdiction. A dismissal postulates that the action was properly constituted”. Accordingly, the Writ of Summons filed by the Plaintiff on 31st August, 2022 is hereby struck out as a nullity. (SGD.) H/L ALEXANDER OSEI TUTU

JUSTICE OF THE HIGH COURT REFERENCES: CASES: 1. JACOB LAMPTEY VRS. GIFTY LAMPTEY & 9 OTHERS [2017] 112 G.M.J. 151 2. DOLPHYNE (NO.3) VRS. SPEEDLINE STEVEDOORING CO. LTD. (1996–97) SCGLR 514 RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 13 3. ARMAH VRS. HYDRAFOAM ESTATE (GH.) LTD. [2013–2014] 2 SCGLR 1551 & BOGOSO GOLD LTD VRS. NTRAKWA (2010) 33 MLRG 57 SC 4. 5. 6. 7.

8. BOATENG VRS NEW PATRIOTIC PARTY [2010–2012] 2 GLR KUMA VRS. BART-PLANGE [1989–90] 1 GLR 119 TACKIE VRS BAROUDI [1977] 1 GLR 36. ASAMOAH VRS MARFO [2011] 2 SCGLR 832 SUSAN BANDOH VRS DR. MRS. MAXWELL APEAGYEI–GYAMFI AND ALEX GYIMAH (2019) DLSC 6502 (CIVIL APP. NO. J4/16/2016, 6TH JUNE 2019 9. BANDOH VRS. APEAGYEI-GYAMFI 10. NATIONAL INVESTMENT BANK LTD VRS STANDARD BANK OFFSHORE RUST COMPANY LTD [2017] 113 GMJ 174 11. CHINA SHANDON INTERNATIONAL LTD. VRS. MRS. VIVIAN ACHEAMPONG AND NANA SERWAA ACHEAMPONG [2018] DLCA 6176 12. REPUBLIC VRS HIGH COURT TEMA, EX PARTE OWNERS OF MV ESSCO SPIRIT (DARYA, SHIPPING SA INTERESTED PARTY) [2003– 2005] 2 SCGLR 689 & SAVIOUR CHURCH OF 13. GHANA VRS ABRAHAM KWAKU ADUSEI & OTHERS, SUIT NO. H3/526/2019, DATED 23RD JANUARY 2020 14. KASSEKE AKOTO DUGBARTEY SAPPOR & 2 OTHERS (SUBSTITUTED BY ATTEH SAPPOR) VRS VERY REV. SOLOMON DUGBATEY SAPPOR (SUBSTITUTED BY EBENEZER TEKPETEY AKWETEY SAPPOR) & OTHERS, CIVIL APPEAL NO. J4/46/2020, DATED 13TH JANUARY 2021 15. RTEAN VRS. NURTW [1992] 2 NWLR 381 16. ADISA BOYA VRS ZENABU MOHAMMED SUBSTITUTED BY ADAMA MOHAMMED & ANOR. (2018) GHASC 7 (14TH FEBRUARY 2018) AND GHANA PORTS AND HARBOUR RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 14 17. AUTHORITY VRS. ISSOUFOU (1993–94) 1 GLR 24 18. NKUA VRS. KONADU & BOATENG (2009) SCGLR 134 @ 138;

[2008– 2009] 2 GLR 562, SC 19. GHANA MUSLIMS REPRESENTATIVE COUNCIL VRS SALIFU (1975) 2 GLR 246 CA 20. MADINA SHOPPING MALL ASSOCIATION VRS ROSEHILL GH. LTD. [2012] 39 M.L.R.G. 81, S.C 21. IN RE WEREKO) DEC’D0; WEREKO VRS ARMAR AND OTHERD [1978] GLR 849 22. NAOS HOLDING INC. VRS GHANA COMMERCIAL BANK [2005 – 2006] SCGLR 407 ENACTMENTS: 1. ORDER 1 RULE 2 OF THE HIGH COURT (CIVIL PROCEDURE) RULES 2004, C.I. 47 2. ADMINISTRATION OF ESTATES ACT, 1961 (ACT 63

BOOK 1. HALSBURY’S LAWS OF ENGLAND (4TH ED.), VOL 37 RULING DELIVERED BY ALEXANDER OSEI TUTU J. AT LAND COURT ‘7’ IN SUIT NO. 0586/2022 ON THE 8TH DAY OF MAY, 2024 Page | 15