Ahialengah And Another Vrs Agbesi Awusu II (C2/01/2024) [2023] GHAHC 622 (2 November 2023)

IN THE HIGH COURT OF JUSTICE HELD IN SOGAKOPE ON THURSDAY THE 2ND DAY OF NOVEMBER, 2023 BEFORE HIS LORDSHIP JUSTICE DANIEL MENSAH, JUSTICE OF THE HIGH COURT ______________________________________________________________ SUIT NO: C2/01/2024 1. AHIALENGAR ALBERT ------- PLAINTIFFS 2. ATSU TETTEH -VRS- 1. AWADADA AGBESI AWUSU II 2. TORGBI ZEWU III 3. GAS LADZEKPO -------- DEFENDANTS 4. CILAS AIDAM 5. DAN ABODAKPI 6. AGBOTADUA KUMASAH PARTIES: 6TH DEFENDANT PRESENT. 1ST DEFENDANT REPRESENTED BY TOGBE AGOWADA II. 2ND DEFENDANT REPRESENTED BY SAMUEL EKPE. COUNSEL: MR. SAMUEL KISSIEDU ESQ., COUNSEL FOR PLAINTIFFS PRESENT MR. GERSHON GUNU ESQ., COUNSEL FOR DEFENDANTS PRESENT RULING The instant Application filed by the Defendants /Applicants (herein after referred to as the Applicants) is praying the Court to dismiss the entire Writ of Summons and Statement of Claim with the accompanying Interim Injunction Application upon the ground of lack of Capacity and on other legal grounds as stated in the accompanying Affidavit and any other order(s) this Court may deem fit to make. The Plaintiffs/ Respondents (herein after referred as the Respondents) after being served with the instant Application has filed an Affidavits in Opposition rejecting the basis of the Application. Per the processes filed by the Applicants, the following facts emerged: The Applicants say that it doubt the existence of the Anlo Progressive Youth for Accountability in the Anlo State. That the Respondents have not been registered under any institution or authorities mandated to register such organization or association in Ghana. That the Respondents is unknown to the Applicants and the status being claimed as a convener. That Applicants denies the Chairmanship position of the 2nd Plaintiff/Respondent. The Applicants further contend that the Respondents lacked capacity to sue them as the Youth Association is not registered with the Anlo Traditional Council as a youth group in Anlo land to enable the Traditional Council give it recognition and additionally doubts whether the group is registered with the Registrar General Department or Department of Social Welfare. The Applicants made a lot of averments touching on the role played by the Applicants in the Anlo scheme of things but same to my mind is not necessary for the determination of the Application which seeks to question the capacity of the Respondents to mount the present action. In their Affidavit in Opposition, the Respondents deny the claim by the Applicants and indicated that they are a group mainly of Anlo Youth whose number is little less than Hundred (100) members who is interested in the development of Anlo. The Respondents further contend that they have been denied accountability in the celebration of the Hogbetsotso Festival for the past ten (10) years without any success and thus prompting them to issue out the instant Writ and Statement of Claim. By their paragraph 10, the Respondents say that they have been advised and verily believe same that it is not a requirement of Law that they be registered before they can sue as they have sued in their personal names and on behalf of the group that they represent. There Respondents say they are clothed with capacity to institute the present action which seek to demand accountability of the proceeds obtained from the organization of their festival. In his submissions to this Court, Counsel for the Applicants told the Court that per the structure of the Anlo Traditional Council, it is only Torgbi Siri III the overlord of the Anlo State in consultation with the Traditional Council who organizes Horgbeza every year if the Council approves same and it was after the celebration of same that a statement of account is read to the Chiefs at General Meeting of the Assembly Hall of the Anlo District Assembly. That a subsequent congress of chiefs is afterwards held where accounts are read to the chiefs as well as citizens present at the congress of chiefs. According to counsel, every youth group that is associated with Anlo Traditional Council is known to the ATC as registered as well as an association. Counsel for the Applicants further submitted that it is the requirement of law that a party who endorses on his Writ the capacity in which he sue in a representative capacity upon being challenged ought to prove that he is actually invested with that capacity and therefore has the right to sue. This has to be done to avoid his suit being dismissed. Counsel referred to the case of NII KPOBI TETTEH TSURU & ORS. VRS. AGRIC CATTLE & ORS, CIVIL APPEAL NO. J4/15/2019. Counsel further referred to the case of SARKODIE I VRS BOATENG II (1982-1983) 1 GLR 715 @ 724 thus it is the position of the law that it is elementary that the Plaintiffs/ Petitioner whose capacity is put in issue must establish it by cogent evidence… but it is no answer for the 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 an iron cast case against his opponent”. In conclusion, Counsel urged the court to dismiss the suit for lack of capacity. In his response, Counsel for the Respondents referred to order 4 Rule 11(1) of CI 47 and submitted that the Respondent’s Suit was brought in a representative capacity which has been clearly stated in the Writ. Counsel went on to refer to the case of GHANA MUSLIMS REPRESENTATIVE COUNCIL AND ORS VRS. SALIFU AND ORS [1975] 2 GLR PAGE 246 @ PAGE 265. Counsel further submit that there is no law in Ghana or even under common law that requires voluntary association to be registered with a state institution or incorporated before it can be clothed or its members can be clothed with capacity to commence an action for and on behalf of the said association. Counsel referred to the case of GHANA MUSLIMS REPRESENTATIVE CASE CITED SUPRA and argued that there are three (3) requirements that ought to exist to pursue a grievance of an association namely a common interest, common grievance and then a common benefit to the members of the association. According to Counsel, whether or not the convener is the chairman or convener of the association is irrelevant as is not a requirement from Order 4 Rules 11 Sub Rule 1 of CI 47. Moreover it is also worthy to note according to Counsel however that the Applicants are not challenging the fact that the Respondents are Anlo citizens. Counsel says that there is no law that citizens of a stool should be registered before they can demand accountability from their leaders. In that regard Counsel referred to the case of OWUSU & ORS VRS. AGYEI & ORS 1991 2GLR 493 where the Supreme Court held and applied the principle that subjects or citizens of the stool have the legal right to bring an action to compel the occupants of a stool to account where the occupant fails or refuses to do so. Counsel further referred to KWAME TETTEH CIVIL PROCEDURE PRATICIAL APPROACH PAGE 142 that the claim of the Applicants that they are accountable only to selected citizens of Anlo as being arbitrary, capricious , unlawful and unfounded. It is in this light that Counsel for the Respondents invited the Court to dismiss the Application in limine as it lacks legal basis. In his brief reply, Counsel for the Applicants told the Court that there is no indication from the Court processes that the respondents are citizens of Anlo. Referring to the case of GHANA MUSLIMS REPRESENTATIVE (SUPRA) Counsel told the Court that it is to cure the mischief in the law that the Respondents are a voluntary association that the current case had been cited. It is in respect of the above submissions and processes filed by the parties that this application is being determined. The graverment of this Application as gleaned from the processes filed and the submissions urged upon this Court is whether or not the Respondents possess the requisite capacity to institute the instant action. The well-known proposition of law is that when the Suitor’s capacity is challenged he must prove it before he can succeed on the merits. - SEE SARKODIE I VRS BOATENG (1982-1983) I GLR 715 - APPIAH VRS AMPONSAH ALIAS MENSAH [2009] SCGLR 715 - SOKPUI II VRS TAY AGBOZO III [1951] 13 WACA 241. The law is that when a party lacks the capacity to prosecute an action the merits should not be considered. The same principle was applied by the Supreme Court in the case of AKRONG & ANO VRS BULLEY [1965] GLR 469. The above legal principle would have suffice for the determination of this Application but there is a procedure point which trial Courts usually ignore in the determination of cases of this nature in which capacity, statute of limitation, estoppel per rem judicata are raised. Order 11 Rule 11(1) of CI 47. The High Court (Civil Procedure) Rules, permits a party to raise any points of law in his pleadings. Order 33 Rule 3 permits a trial Court to depose of such issues raised in the pleadings. Order 33Rule 3 permits a trial Court to depose of such issues raised in the pleadings. It states thus: Order 33 Rule 3 provides: “The Court may order any question or issue arising in any cause or matter whether of fact or Law or partly of fact and partly of Law and raised by the pleadings to be tried before, at or after the trial of the cause or matter and may give directions into the manner in which the question or issue shall be tried’’. See MENSAH VRS APPIAGYEI J4 32 of 2017](2018) GHASC 24(02/05/2018 ) Per YEBOAH JSC as (he then was). In arguing the Application, Counsel for the Applicants did not tell me the Rule under which the present Application was being anchored. Be that as it may, the Application filed by the Applicants as I understood it was anchored on grounds of capacity. By the nature of the grounds stated by the Applicants same related to purely law. The said ground in my respectful opinion is cognizable under Order 33Rule 3 of CI 47 as stated in this Ruling. The said Rule is contingent on pleadings filed by the parties. Pleadings as understood by me is referable to the Statement of Claim, Defence and Reply to Defence when no Counter Claim has been filed. The present Suit as it exist presently covers the Writ and Statement of Claim filed by the Respondents and the Statement of Defence filed by the Applicants. The Statement of Defence filed by the Applicants was filed in this Court on the 6th September, 2023. It is on the same date that the present Application was filed by the Applicants to dismiss the Statement of Claim and Application for Interlocutory Injunction. The Respondents as of the filing of the instant application has not had the benefit to react to the Statement of Defence filed by the Applicants. In fact it is in the Statement of Defence that the Applicants firstly alleged that the Respondents had no capacity to bring the instant Suit against them. The Application filed by the Applicants clearly is my view seeks to invoke Order, 33 Rule 3 of C. I 47. To the extent that pleadings have not closed in this case, it would be too early for the Applicants to present the present Application. In my view an Application such as the present one can properly be made at the close of pleadings with the proper issues raised. It is at that point that the Court would be enjoined to determine the issue of capacity raised as a preliminary point. In that regard I would struck out the Application filed by the Applicants. I would order no Cost in this Application. (SGD.) H/L JUSTICE DANIEL MENSAH (JUSTICE OF THE HIGH COURT) 7