Nwabu-Ike Industries Ltd v Attorney General and Another (H1/107/2023) [2023] GHACA 239 (20 July 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL KUMASI – GHANA AD - 2023 CORAM: G.S SUURBAAREH J. A. (PRESIDING). BAAH J.A. AMALEBOBA (MRS) J.A. CIVIL APPEAL NO: H1/107/2023 20TH JULY 2023. NWABU-IKE INDUSTRIES LTD - PLAINTIFF/APPELLANT VRS 1. ATTORNEY GENERAL & MINISTRY OF JUSTICE } 2. MINISTRY OF TRADE & INDUSTRY , KUMASI. } 3. GHANA REVENUE AUTHORITY, KUMASI. } DEFS/ 4. GHANA IMMIGRATION SERVICE. KUMASI. } RESPS. 5. GHANA POLICE SERVICE, KUMASI. 6. GHANA UNION TRADERS ASSOCIATION. 1 JUDGMENT AMALEBOBA (MRS), J.A. This is an Appeal by the Plaintiff/Appellant (hereinafter referred to the Plaintiff), from the Ruling of the High Court, Kumasi dated 13th December, 2021. The said Ruling granted the Application filed on behalf of the 1st , 2nd , 4th and 5th Defendants/Respondents (hereinafter referred to as Defendants), to non – suit the said Defendants on the grounds that they had no legal capacity to sue or be sued. In granting the said Application, the High Court non – suited the 2nd, 3rd , 4th and 5th Defendants and accordingly struck out their names as parties to the suit. The propriety of non -suiting the 3rd Defendant who was not a party to the Application, while making no orders regarding the 1st Defendant, will be determined in this Judgment. By this Appeal, the Plaintiff prays that the entire Ruling of the High Court, be set aside. The brief facts of this case are that the Plaintiff, which asserts that it is an entity registered under the laws of the Republic of Ghana, commenced an action in the High Court, against the six (6) Defendants named in the suit. The gravamen of the Plaintiff’s case was that each of these six (6) Defendants played various roles in illegally shutting down two of its shops at Suame Magazine and Achamfuor Shopping Centre, Kejetia, thereby bringing its business in the two shops to a halt. According to the Plaintiff, this illegal action was premised on the wrong assumption that the said businesses were Nigerian owned. The Plaintiff asserts that in fact, the principal owner of the said businesses is a Ghanaian and only assisted by her husband who is a Nigerian citizen, but permanently resident in Ghana. 2 By the Plaintiff’s Writ of Summons, it sought among other reliefs, a declaration that it is not a business owned by a foreigner, particularly a Nigerian and to that extent, the forcible closure of two ( 2) of its four (4) branches by the Defendants , acting in tandem and in concert is wrong and unlawful, illegal and an infraction of the common law and constitutional rights of the Plaintiff. After pleadings were closed, the 1st, 2nd , 4th and 5th Defendants, filed a Motion on Notice, praying the High Court for an order to non – suit them, by striking out their names as Defendants to the suit. The Plaintiff filed an Affidavit in opposition to the said Application. Upon consideration of Written Submissions filed by the parties, the High Court in granting the Application, struck out the names of 2nd, 3rd , 4th and 5th Defendants from the suit. It is this Ruling dated 13th December 2021, against which this Appeal has been lodged. By the Notice of Appeal dated 22nd December 2021, which is at page 264 of the Record of Appeal ( ROA) , the grounds of appeal filed by the Plaintiff are as follows: GROUNDS OF APPEAL a. The ruling of the Honourable Court cannot be supported in law. b. The ruling of the Honourable Court disregarded the mandatory procedural prerequisites of the Court itself in relation to filing an application to dismiss the suit. c. The Honourable Court side – stepped the fundamental legal point raised, that the Application before it was a nullity thus occasioning a substantial miscarriage of Justice to the Plaintiff/Appellant. 3 d. The ruling of the Honourable Court in refusing to adjudicate the well - founded plaint of the Plaintiff/Appellant against the 2nd, 3rd, 4th and 5th Defendants/ Respondents has occasioned a miscarriage of Justice to the Plaintiff/Appellant. e. The placing of the burden of proof on the Plaintiff/Appellant when the allegation was being made by the Defendants/Respondents cannot be supported in law and a further conclusion that the legal personality Defendants/Respondents had been able to prove that they do not have legal personality shows that the Honourable Court completely misconceived the scope of the application before it. f. The ruling of the Honourable Court is against the weight of affidavit evidence. g. Additional grounds will be filed upon receipt of a certified true copy of the Ruling. NON - COMPLIANCE WITH THE COURT OF APPEAL RULES, 1997 (C.I 19). This Court is compelled to make a determination on the non – compliance by the Plaintiff, in formulating some grounds of appeal contained in the Notice of Appeal. The Supreme Court and this Court have on numerous occasions had cause to caution Counsel, on the repercussions of formulating grounds of appeal that are not in compliance with the rules governing the appeal. An appeal being a creature of Statute, a party who seeks to invoke the jurisdiction of this Court, must comply with conditions set out in the enabling statute. The filing of grounds of appeal which are not compliant with the rules governing the appeal, may be fatal to 4 an appeal, as the said offending grounds of appeal are liable to be struck out. This position of the law, has been reiterated in several decisions by the Supreme Court. Cases such as NYE V. NYE [1967] GLR 76 @ 82 – 83 C.A Full Bench; ZAMBRAMA V. SEGBEDZI [1991] 2 GLR 221@ 225 – 226, per KPEGAH J.A; SANDEMA – NAB VS. ASANGALISA & ORS [1996- 1997] SCGLR 302DAHABIEH V. SA TURQUI & BROTHERS [2001- 2002] SCGLR 498, have settled the law on the effect of such non- compliance. The Rules of Court for practice and procedure in the Court of Appeal is the Court of Appeal Rules,1997 (C.I9), as amended. Rule 8 of CI 19 provides as follows: “8. Notice and grounds of appeal (1) Any appeal to the Court shall be by way of re-hearing and shall be brought by a notice referred to in these Rules as "the notice of appeal". (2) The notice of appeal shall be filed in the Registry of the court below and shall- (a) set out the grounds of appeal; (b) state whether the whole or part only of the decision of the court below is complained of and in the latter case specify the part; (c) state the nature of the relief sought; and (d) state the names and addresses of all parties directly affected by the appeal. 5 (3) The notice of appeal shall be as in Form I provided in Part I of the Schedule to these Rules and shall be accompanied with sufficient number of copies for service on all parties. (4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated. (5) The grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal without any argument or narrative and shall be numbered consecutively. (6) No ground which is vague or general in terms or which: discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the Court of its own motion, or on application by the respondent. (7) The appellant shall not, without the leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal upon such terms as the Court may think just. (8) Notwithstanding sub rules (4) to (7) of this rule, the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on any ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground”. Upon the foregoing this Court, has had cause to strike out offending grounds of appeal on various occasions. Ground (a) and (b) of the Appeal state as follows: a. The ruling of the Honourable Court cannot be supported in law. 6 b. The ruling of the Honourable Court disregarded the mandatory procedural prerequisites of the Court itself in relation to filing an application to dismiss the suit. By these grounds of appeal, the Plaintiff clearly alleges the High Court Judge was wrong in law, without stating the particulars of the said error of law or misdirection (which the appellate court ought to remedy), contrary to Rule 8(4) of CI 19. Due to this failure to state the said particulars, the said grounds are also rendered vague and contrary to Rule 8 (6) of C19, as the said grounds do not disclose the nature of the mandatory procedural pre – requisites, disregarded by the High Court. Ground (e) of the Appeal is stated in the following language: e. The placing of the burden of proof on the Plaintiff/Appellant when the allegation was being made by the Defendants/Respondents cannot be supported in law and a further conclusion that the Defendants/Respondents had been able to prove that they do not have legal personality shows that the Honourable Court completely misconceived the scope of the application before it. This ground is clearly a narrative contrary to Rule 8(5) of CI 19, as same is neither concise nor distinct. The import of this ground of appeal, or error complained of by the said ground is unclear, due to its narrative nature. In the case of, INTERNATIONAL ROM LIMITED V. VODAFONE GHANA LIMITED, CIVIL APPEAL NO. J4/2/2016; DATED 6TH JUNE 2016, having struck out all eight (8) grounds of appeal as being narrative, the Supreme Court substituted same with the omnibus ground that the Judgment is against the weight of evidence. The substitution 7 according to the Supreme Court, was to ensure that the appeal was not defeated on technical grounds. Though the Defendants have not raised an objection to grounds (a) (b) and (e) on the basis of non -compliance, this Court to entitled, pursuant to Rule 8 of CI 19, to strike out grounds of appeal for non – compliance on its own motion. This Appeal will not be defeated, as other grounds of appeal remain for determination by this Court. Accordingly, grounds (a) (b) and (e) contained in the Notice of Appeal will be struck out for non- -compliance with CI 19 and same are accordingly struck out. The Plaintiff’s ground (f) contained in the Notice of the Appeal states thus: f. The ruling of the Honourable Court is against the weight of affidavit evidence. The Supreme Court has settled the matter on formulating such a ground of appeal as above, in interlocutory matters. In the case of FENU & ORS V. ATTORNEY GENERAL, CIVIL APPEAL NO. J4/40/2018, the Supreme Court per YEBOAH JSC (as he then was), stated thus: “ The omnibus ground is usually common in cases in which evidence was led and the trial court was enjoined to evaluate the evidence on record and make its findings of facts in appropriate cases. In cases in which no evidence was led but the order which has been appealed against is interlocutory, such ground of appeal are not canvased at all. This has been settled long ago by this court in three notable cases; ASAMOAH v MARFO [2011] 2 SCGLR 832, REPUBLIC v CONDUAH; EX PARTE AABA substituted by ASMAH [2013 – 2014] SSCLR 1032 and RE SUHYEN STOOL; WIREDU & OBENEWAA v AGYEI & ORS [2005 – 2006] SCGLR.” 8 Upon the foregoing, we find the ground (f) contained in the Notice of the Appeal to be misconceived. Our position does not change, simply because Counsel for Plaintiff has qualified the nature of evidence he alleges, as being on the Affidavits upon which the Application was argued in the High Court. Ground (f) contained in the Notice of Appeal is accordingly struck out. There being no additional ground of appeal filed, notwithstanding ground (g) stating that same will be filed, this Court will determine this Appeal on Grounds (c) and (d) as stated in the Notice of Appeal. GROUNDS C AND D OF THE NOTICE OF APPEAL. These two grounds of appeal will determine this Appeal. For ease of reference grounds (c) and (d ) contained in the Notice of Appeal are reproduced below as follows: c. The Honourable Court side – stepped the fundamental legal point raised that the Application before it was a nullity thus occasioning a substantial miscarriage of Justice to the Plaintiff/Appellant. d. The ruling of the Honourable Court in refusing to adjudicate the well-founded plaint of the Plaintiff/Appellant against the 2nd, 3rd, 4th and 5th Defendants/ Respondents has occasioned a miscarriage of Justice to the Plaintiff/Appellant. SUBMISSIONS ON GROUNDS C AND D. On ground C, Counsel for Plaintiff argued that when the Application to strike out the 1st , 2nd and 4th and 5th Defendants came before the High Court for hearing, he raised two preliminary objections, which the High Court wrongfully failed to determine or rule on. 9 One of these objections according to Counsel for the Plaintiff, is the assertion that Affidavit in support of the Application filed by the 1st , 2nd, 4th and 5th Defendants, had not been properly sworn to. According to Counsel for the Plaintiff, the Affidavit filed by the said Defendants ought to have been sworn before a Judge, Registrar, Magistrate or Officer empowered by the High Court Civil Procedure Rules 2004 (C.I 47), and in accordance with Orders 19 r 4 and Order 20 r 2 , 4 and 6, thereof. Counsel for Plaintiff submitted further, that the said Defendants had not properly invoked the jurisdiction of the High Court, when they filed an application supported by an Affidavit. According to Counsel for Plaintiff, this procedure was fundamentally flawed, as same sinned against Order 11 r 18 (2) of CI 47. It was again urged on this Court by Counsel for Plaintiff, that these procedural errors amounted to non – compliance of a fundamental nature, which could not be cured by Order 81 of CI 47. Counsel for Plaintiff submitted that due to the said non – compliance, the High Court’s jurisdiction was not properly invoked. That therefore, the High Court acted without jurisdiction in proceeding to hear and determine the Application, thereby rendering its orders upon the Application void. The failure by the High Court to rule on these preliminary objections, according to Counsel for the Plaintiff, resulted in a miscarriage of Justice. In support of these submissions, Counsel for Plaintiff’s cited a plethora of authorities, including: NETWORK COMPUTER SYSTEM LTD V. INTELSTAT GLOBAL SOLUTIONS [2012] I GLR 218 at 221 H3; REPUBLIC V. HIGH COURT, ACCRA EX - PARTE SALLOUM & ORS [2011] 1 SCGLR 574 @ 577 and OPPONG V. ATTORNEY GENERAL [2000] SCGLR 275 @280. Counsel for the 1st , 2nd , 4th and 5th Defendants who were the Applicants in the Court below, contended that the Affidavit in support of the Application before the High Court 10 was duly commissioned. On 30th May 2023, when the Appeal was heard, Counsel for 1st , 2nd , 4th and 5th Defendants, referred this Court to Order 19 and 20 of CI 47, contending that the Application before the Court was also properly filed. Counsel for the said Defendants, also submitted that a Court has the discretion to determine the mode of hearing of an Application, contending that the Application was properly heard and determined. He referred to the case of THE REPUBLIC V. COURT OF APPEAL: EX PARTE EASTERN ALLOY CO LTD [ 2007 -2008] 1 SCGLR. On ground (d) of the Notice of Appeal, Counsel for Plaintiff submitted that the High Court erred in granting the Application of the 1st , 2nd , 4th and 5th Defendants, by striking out 2nd, 3rd, 4th and 5th Defendants as parties to the suit. Counsel for Plaintiff contended further, that by its Ruling, the High Court deprived the Plaintiff the right to fair trial and to have the suit determined on its merits. The authorities cited by Counsel to support this position include: OJIKUTU V.ODEI [1954] 14 WACA 640; NSIAH V.OSEI [ 1975] 1 GLR 257 and MENSAH V. REPUBLIC [1976] 1 GLR 230. In response to the submissions of Counsel for Plaintiff, Counsel for 1st , 2nd , 4th and 5th Defendants argued that a civil action could be taken by, or against only a natural person or a juristic person created by statute. According to Counsel for the Plaintiff, where the legal capacity of the 1st , 2nd , 4th and 5th Defendants to be sued had been raised by the said Defendants, it was the obligation of the Plaintiff who commenced the action, to establish their capacity. Counsel referred to the case of NII KPOBI TETTEH TSURU III & 2 ORS V. AGRIC CATTLE & 4 ORS [2020 ] 158 GMJ 1 @7 and NAOS HOLDINGS INC. V. GHANA COMMERCIAL BANK [2005 – 2006] SCGLR 407. According to Counsel for the 1st , 2nd , 4th and 5th Defendants, by Article 88 (1) and 88 (5) of the 1992 Constitution of Ghana, the Attorney - General is responsible for the conduct of all civil cases on behalf of the state; and all civil proceedings against the State, shall be brought against the Attorney – General as Defendant. Counsel for 1st , 2nd , 4th and 5th 11 Defendants argued that the Attorney – General cannot be sued together with the Ministry of Justices as 1st Defendant, nor can the Ministry of Trade be sued as 2nd Defendant. According to Counsel for 1st , 2nd and 4th and 5th Defendants, these ministries are a creation of the Executive, which have not been clothed with legal capacity by any statute, to sue or be sued. In respect of the 4th Defendant, Counsel for 1st , 2nd , 4th and 5th Defendants argued, that the Immigration Act 2000, Act 573, did not create it as a corporate body to sue and be sued. For this reason, Counsel for the said Defendants submitted that the Comptroller General should have been the principal party to be sued jointly with the Attorney – General who should be the nominal Defendant. Counsel for 1st , 2nd , 4th and 5th Defendants, argued further, that Articles 190 and 200 of the 1992 Constitution, which establish the Ghana Police Service and the Police Service Act 1970, Act 350, do not clothe the Ghana Police Service with legal authority to sue or be sued. That as a result of its lack of capacity, the action against the 5th Defendant should have been brought against the Inspector General of Police who is the head of the Ghana Police Service, as provided for by Article 202 (2) of the 1992 Constitution of Ghana, jointly with the Attorney General as nominal Defendant. When the Appeal was heard on 30th May 2023, Counsel for 1st , 2nd , 4th and 5th Defendants, referred this Court to the case of AMPRATWUM CO LTD V. DIVERSTITURE IMPLEMENTATION COMMITTEE [2009] SCGLR 692, in support of his arguments made above. DETERMINATION OF THE APPEAL. Since an Appeal is by way of rehearing as provided for by Order 8 r (1) of CI 19, it is incumbent on this Court to examine the record, and consider the facts and applicable law, 12 to enable it make a determination as to whether or not, the Court below came to the right conclusions. The arguments of Counsel for Plaintiff on ground (c) of the Appeal are assertions of procedural errors, which in the view of Counsel for Plaintiff, amount to a lack of jurisdiction of the Court. The first of these arguments is that the 1st , 2nd , 4th and 5th Defendants failed to have their Affidavit in Support of the Application to non -suit them, sworn before a Judge, Registrar, Magistrate or Officer empowered by the High Court Civil Procedure Rules 2004 (C.I 47), specifically Orders 19 r 4 and Order 20 r 2, 4 and 6 thereof. Counsel for 1st , 2nd , 4th and 5th Defendants contended that the said Affidavit was properly sworn as the Record will show. Order 19 which governs filing of Applications in the High Court, provides by its Rule 4 as follows: “Affidavit in support of motion 4. Every application shall be supported by affidavit deposed to by the applicant or some person duly authorised by the applicant and stating the facts on which the applicant relies, unless any of these Rules provides that an affidavit shall not be used, or unless the application is grounded entirely on matters of law or procedure which shall be stated in the motion paper”. Order 20 of CI 47, which governs filing of Affidavits in the High Court, provides by its Rules 2, 4 and 6 follows: “Use of affidavits 13 Persons who may take affidavits 2. Affidavits shall be sworn before a Judge, Magistrate, Registrar, Commissioner for Oaths, any officer empowered by these Rules or by any other enactment to administer oaths. Form of affidavit 4. (1) Every affidavit shall be printed, written or typed and shall be numbered consecutively. (2) Every affidavit shall be expressed in the first person and shall state the place of residence of the deponent and the occupation of the deponent or, if the deponent has none, the description of the deponent and whether the deponent is, or is not employed by a party to the cause or matter in which the affidavit is sworn. (3) Every affidavit shall be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct portion of the subject. (4) Dates, sums and other numbers may be expressed in an affidavit in figures or in words or both. (5) Subject to rule 6 an affidavit shall be signed by the deponent and the jurat shall be completed and signed by the person before whom it is sworn. (6) The jurat shall state the full address of the place where the affidavit was sworn, the date when it was sworn and the name and title of the person before whom it was sworn. Affidavit by illiterate or blind person 14 6. (1) Where it appears to the person administering the oath that the deponent is illiterate or blind, the person administering the oath shall certify in the jurat that (a) the affidavit was read to the deponent in the presence of the person administering the oath; (b) the deponent seemed perfectly to understand it: and (c) the deponent signed or mark the affidavit in his presence of the person administering the oath. (2) An affidavit sworn by a deponent to whom subrule (1) applies shall not be used in evidence without the certificate referred to in the subrule unless the Court is otherwise satisfied that it was read to and appeared to be perfectly understood and approved by the deponent”. We have considered the provisions referred to above and examined the Affidavit filed by 1st, 2nd. 4th and 5th Defendants in support of their Motion to non -suit them. The said Affidavit which is at page 206 of the ROA was sworn before the Registrar of the High Court, Kumasi Ashanti on the 12th day of May, 2021. The said Affidavit bears the signature and official stamp of the Registrar. The State Attorney who deposed to the Affidavit is clearly neither illiterate, nor blind. Though there was no determination on this preliminary objection, the said objection has no merit whatsoever and is overruled on this Appeal. In the circumstances, the failure of the Court below to rule on this objection, did not occasion a miscarriage of justice to the Plaintiff. The second preliminary objection which Counsel for Plaintiff argues was not determined by the Court below, was in respect of Order 11 r 18 (2) of CI 47. Counsel for Plaintiff 15 submitted that the 1st , 2nd, 4th and 5th Defendants had not properly invoked the jurisdiction of the High Court, when they filed a Motion supported by an Affidavit. According to Counsel for Plaintiff, this procedure was fundamentally flawed as no evidence whatsoever, is admissible under Order 11 r 18 (2) of CI 47. To this submission , there was no response from Counsel for 1st , 2nd, 4th and 5th Defendants. It is necessary for a determination by this Court, to reproduce Order 11 r 18 of CI 47 in full. Order 11 r 18 of CI 47, provides as follows: “Striking out pleadings 18. (1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that (a) it discloses no reasonable cause of action or defence; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass, or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly. (2) No evidence whatsoever shall be admissible on an application under subrule (1) (a)”. Order 11 of CI 47 governs pleadings. Order 82 of CI 47 which is the Interpretation section of the High Court Civil Procedure Rules 2004, CI 47, defines pleadings as “the formal 16 allegations by the parties to a law suit of their respective claims and defences, with the intended purpose of providing notice of what is to be expected at the trial.” The Application filed by the 1st, 2nd , 4th and 5th Defendants which is at page 203 of the ROA, is headed, “MOTION ON NOTICE PRAYING THIS HONOURABLE COURT FOR AN ORDER TO STRIKE OUT THE NAMES OF THE 1ST, 2ND , 4TH AND 5TH DEFENDANTS, FROM THE WRIT OF SUMMONS AND STATEMENT OF CLAIM”. The said Application was not brought under Order 11 r (18) of CI 47. The 1st , 2nd , 4th and 5th Defendants who filed the Application, did not pray the High Court to strike out pleadings. They sought to strike out the said Defendants, as parties to the suit. The order made by the High Court, upon granting the Application read in part as follows: “In view of the above, the Application is granted and the 2nd, 3rd , 4th and 5th Defendants/Applicants are non -suited . Their names are struck out as Defendants in this suit and the records must reflect same.” The High Court did not strike out any part of the Plaintiff’s pleadings. The submission by Counsel for the Plaintiff therefore, that by attaching an Affidavit to their Application, the 1st, 2nd, 4th and 5th Defendants acted contrary to Order 11 r 8 (2) of CI 47 is misconceived. Similarly misconceived, is the submission that by this alleged procedural error or non – compliance, the High Court’s jurisdiction was not properly invoked, resulting in its order non – suiting the 1st , 2nd, 4th and 5th Defendants, being void. The Plaintiff’s preliminary objection grounded on Order 11 r 8 (2) of CI 47 has no merit, it is overruled. Therefore, the failure of the Court below to rule on this objection did not occasion a miscarriage of Justice to the Plaintiff. Consequently ground (c) of the Appeal fails and is dismissed. 17 On ground (d) of the Appeal, Counsel for Plaintiff argued, that by non -suiting the 2nd, 3rd, 4th and 5th Defendants, the Plaintiff has been denied its right to have their complaints against these Defendants adjudicated, thereby occasioning a miscarriage of Justice to the Plaintiff. Counsel for 1st, 2nd 4th and 5th Defendants response has been adequately captured in this Judgment. The gravamen of the 1st, 2nd, 4th and 5th Defendants case before the Court on the Application to non- suit them, was that they are not clothed with legal capacity to sue or be sued. In the case of NII KPOBI TETTEH TSURU III & 2 ORS V. AGRIC CATTLE & 4 ORS [2020]158 GMJ 1 @ 7, the Supreme Court per MARFUL SAU JSC, in upholding a preliminary objection on the capacity of the La Traditional Council to commence a suit, stated thus: “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.” The Court further opined as follows: “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 18 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…” In the said case, the Supreme Court also held that where there was an issue of capacity, same ought to be determined expeditiously, as a lack of capacity to sue or be sued rendered the proceedings void. The Court in the above case referred to NAOS HOLDINGS INC. V. GHANA COMMERCIAL BANK [2005 – 2006] SCGLR 407, wherein the Supreme Court per Sophia Akuffo JSC ( as she then was ) stated 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.’’ Upon the forgoing therefore, the law is settled that where there is an issue of capacity to sue or be sued, same ought to be determined at the earliest opportunity. Following the said determination, where the lack of capacity is established, one party cannot argue that it ought to have been heard on the merits of the case, simply because it had an iron cast case. Similarly, in such circumstances where a lack of capacity is established, a party cannot insist that it must be heard because it has a right to fair trial. 19 In the case of AMPRATWUM MANUFACTURING CO. LTD V. DIVERSTITURE IMPLEMENTATION COMMITTEE [2009] SCGLR 692, cited by Counsel for 1st, 2nd, 4th and 5th Defendants, the Plaintiff sued the Defendant for recovery of a sum of money being costs of extension made to the landlord company’s property, among other reliefs. The Divestiture Implementation Committee (D.I.C), being the Defendant in the said suit had at a very early stage in the suit contended that was the wrong party to be sued, as it was a mere advisory executive agent of Government. Judgment entered for the Plaintiff by the trial Court was set aside by the Court of Appeal, on the basis that the DIC was the wrong party to be sued. The Supreme Court on appeal opined, that the Court of Appeal ought to have suo motu substituted the Attorney -General for the D.I.C, in order not to defeat the suit. The Court suo moto ordered that the Attorney -General be joined to the suit. On the legal capacity of the DIC, the Court per Baffoe – Bonnie JSC, at pages 698-701, stated extensively thus: “…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. Diplock L.J. in Letang v. Cooper [1965] 1 Q.B. 232, C.A said, "A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person." It is worthy of note that the respondent has from the onset contested the propriety of being made parties in this case. The Respondent is an agency of the government set up by DIVESTITURE OF STATE INTERESTS (IMPLEMENTATION) LAW, 1993 (PNDCL 326). The Object and functions of the Respondent as found in Section 3(1) 20 “……is to implement and execute all Government policies in respect of divestiture programmes.” There is nowhere in the law that states that the Respondent is in “the business of taking over distressed companies belonging to the government” as pleaded in paragraph 2 of the Appellant Statement of Claim.. Section 4(1) states: “All recommendations of the Committee in respect of any divestiture under this Law shall be submitted to the PNDC for approval” The Respondent’s role in the divestiture process is therefore purely advisory. This was exactly the role of the Respondent in the Divestiture of the Landlord Company acting through its consultants Price Water House Coopers. In the case of Paul Nuako and 133 Others v. DIC Suit No. E.3/9/2004, Duose J (as he then was), sitting at Sekondi High Court on 21st June 2004 stated the legal position correctly thus, “As a matter of law, fact and practice therefore, the D.I.C. is a mere advisory executive agent of the Government of Ghana without authority to take decisions of a finite nature .It is to do the pick axe and shovel work for government…. it has no capacity to sue and to be sued in its own right….…As such agent of the State, civil proceedings against it must be instituted against the Attorney General as Defendant.” Section 10 (2) of the State Proceedings Act (Act 51) provides: "(2) Civil proceedings against the Republic may be instituted against the Attorney- General, or any officer authorised in that behalf by him, or any officer specified in that behalf under any law for the time being in force." In The Republic v High Court, Accra Ex parte 'Attorney-General(Delta Foods Ltd, interested party) [1999-2000] I GLR 255 @ 271 Acquah JSC.(as he then was) said, 21 “Section 10(2) of Act 51 uses the phrase "may be instituted" which shows that a plaintiff has an option to go either against the Attorney General or the authorized office of the particular State body. But then article 88(5) of the Constitution, 1992 categorically directs that the Attorney-General, and no one else, should be named the defendant in all civil proceedings against the State. In the face of article 88(5) of the Constitution, 1992 it cannot be doubted that suit No C495/98, being an action against the State, the Attorney-General and not the minister ought to have been made the defendant.” In his usual flowery language Archer JA (as he then was) said in the case of Buobuh v Minister of Interior [1973] 2 GLR 304, CA at page 311. … the plaintiff has made it clear that his action is against the State, he can sue only one representative of the State…There is no provision for plurality of defendants…”: In its judgment The Court of Appeal per Apaloo JA noted; “It became also clear that the owner of the Company was Ghana Government and in our view this was an appropriate notice to the Plaintiff as the initiator of the suit to join the Attorney General as Co-Defendants for and on behalf of Government as owners.” We are of the opinion that clothed with specific legal authority to divest companies in which the government of Ghana had interest the DIC was not the proper person to be defendant in this case. Accordingly, we allow the appeal and set aside the judgment of the lower court.” From this quotation it is obvious that the Court of Appeal did not go into the merits of the appeal. Much as we agree that the wrong party has been brought to court, we believe that the Court of Appeal should have gone further in view of Order 4 Rule 5 of CI 47 which reads; (1) No proceedings shall be defeated by reason of mis-joinder 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 to the proceedings. 22 As an appeal is by way of rehearing the Court of Appeal, in our respectful view, was wrong to have given a judgment that sought to defeat the entire proceedings by reason of a misjoinder. It should have gone ahead to exercise its power granted under Order 4 Rule 5(2) when it realized that the Attorney-General was the proper party to have been sued. The said Order 4 Rule 5(2) reads: (2) At any stage of 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 or who for any reason is no longer a party or a necessary 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 would therefore order that Attorney General be substituted for the respondent and the case decided on its merits”. In the Appeal before us, the 1st Defendant was sued as Attorney – General and Ministry of Justice. As rightly submitted by Counsel for 1st, 2nd, 4th and 5th Defendants, the Ministry of Justice cannot be joined as a 1st Defendant, together with the Attorney – General, who is also the Minister for Justice. He argued that the Plaintiff ought to have sued the Attorney – General, as mandated by the 1992 Constitution of Ghana. Article 88 (1) and (5) of the 1992 Constitution provide as follows: “(1) There shall be an Attorney-General of Ghana who shall be a Minister of State and the principal legal adviser to the Government. 23 (5) The Attorney-General shall be responsible for the institution and conduct of all civil cases on behalf of the State; and all civil proceedings against the State shall be instituted against the Attorney-General as defendant.” From the above constitutional provisions, the party to be sued as 1st Defendant, should have been the Attorney – General , simpliciter. The Plaintiff was therefore in error, when it sued the Ministry of Justice which has not been clothed with legal capacity by Statute, together with the Attorney -General, as 1st Defendant. In the Ruling of the High Court dated 13th December 2021 however, the Court was silent on the position of the 1st Defendant as endorsed on the Writ of Summons. Counsel for 1st, 2nd, 4th and 5th Defendants, had argued in the High Court, that 1st Defendant be non - suited as not being a proper party. The fact that the High Court made no determination of the 1st Defendant’s legal capacity as endorsed on the Writ of Summons, was however not raised by either Counsel on this Appeal. This Court has however determined that the Attorney -General is a proper party to this suit. Therefore, in order that the real issues in controversy, will not be defeated, this Court will exercise its powers of amendment suo motu, to grant an amendment of the name of 1st Defendant as endorsed on the Writ of Summons. Accordingly, the name of the 1st Defendant is to be amended by substituting Attorney – General for the Attorney – General and Ministry of Justice. The Ministry of Trade and Industry by its own showing on its Official Website, https://moti.gov.gh, is “the lead policy advisor to the Government [of Ghana] on trade, industrial and private sector development, with responsibility for formulation and implementation of policies for the promotion, growth and development of domestic and International Trade and industry.” From its description, it is an advisory body of the government. It has not been 24 clothed with legal capacity by any Statute, to sue and be sued. Therefore, all suits against it, must be commenced against the Attorney – General. The 4th Defendant is the Ghana Immigration Service. This institution was established by the Ghana Immigration Service Act, 2016 (Act 908), which re- enacted the Immigration Service Act 1989 (PNDCL 226) and provided for further matters. The Immigration Act 2000 (Act 573), as cited by Counsel for 1st , 2nd , 4th and 5th Defendants, does not establish the Service, but rather provides rules for admission of foreign nationals, residence permits and related matters. In no part of Act 908, which established the Ghana Immigration Service, is it clothed with legal capacity to sue and be sued. Similarly, in respect of the 5th Defendant , the Ghana Police Service, neither the 1992 constitution by its articles 200 – 204, which govern the Police Service, nor the Police Service Act 1970 (Act 350) which created the Service, clothe it with legal capacity to be sue or be sued. In this case, the gravamen of the 1st , 2nd , 4th and 5th Defendants before the High Court, was not about the capacity of the Plaintiff to sue. Their case was that the Plaintiff could not sue them as Defendants, since they were not clothed with legal capacity. From the foregoing, it is clear that the 1st , 2nd, 4th and 5th Defendants were able to make out their case upon the Application, to non -suit them. They established upon the Affidavits and by cogent legal arguments by their Written Submissions filed in the High Court, that they were not proper parties to the suit, as they had no legal capacity to sue or be sued. The onus then shifted to the Plaintiff which had commenced the action, to produce evidence in rebuttal, on the Affidavits and legal arguments to establish, that the said Defendants were proper parties to the suit and had capacity to be sued. We are of the view that the Plaintiff failed to discharge this burden. The High Court was therefore right 25 in its decision to non -suit 2nd , 4th and 5th Defendants, on grounds of lack of legal capacity to be sued. For some inexplicable reason, the High Court also proceeded to non -suit the 3rd Defendant, the Ghana Revenue Authority (GRA). This may have been inadvertent, as no reason was given for this order. The Record will show at pages 130 and 131 of the ROA, that the 3rd Defendant entered appearance to the Writ of Summons through Counsel at the Legal Department of the GRA. The Application brought by Counsel for 1st, 2nd, 4th and 5th Defendants, to non -suit them as parties, made no mention of the GRA as 3rd Defendant. The 3rd Defendant was not a party to the Application and should not have been non -suited for lack of legal capacity to be sued, without giving reasons for same. More particularly so, when the GRA has been clothed with legal capacity to sue and be sued, by Section 1(2) of the Ghana Revenue Act 2009 (Act 791). In his submission before the High Court, Counsel for 1st , 2nd , 4th and 5th Defendants did in fact draw the attention of the Court to the fact that, unlike the Defendants praying to be non -suited, the GRA had legal capacity to sue and be sued. On this Appeal however, neither Counsel argued this point, when by Ruling of the High Court dated 13th December 2021, which is the subject of this Appeal, the 3rd Defendant was non – suited in error. Since an Appeal is by way of rehearing, the order non -suiting the 3rd Defendant was made in error and same is hereby reversed. By this decision, the 3rd Defendant will remain a party to the suit. By ground (d) of the Appeal, the Plaintiff contends that the High Court’s order in refusing to adjudicate the issues between the Plaintiffs and 2nd , 3rd, 4th and 5th Defendant 26 occasioned a miscarriage of Justice. On this ground, the Appeal succeeds in respect of 3rd Defendant only. All other grounds of Appeal are dismissed. Consequently , the Appeal succeeds in part only. Save for the order reversing the non – suiting the 3rd Defendant, the Ruling of the High Court, Kumasi dated 13th December 2021, is hereby affirmed. HAFISATA AMALEBOBA (MRS) J.A. (JUSTICE OF APPEAL). I agree. G.S SUURBAAREH J.A. (JUSTICE OF APPEAL). I also agree. ERIC BAAH J.A. (JUSTICE OF APPEAL). , 27 COUNSEL: KWASI AFRIFA ESQ. FOR THE PLAINTIFF/APPELLANT. KWAKU BOAKYE – BOATENG ESQ. STATE ATTORNEY, FOR THE 1ST, 2ND , 4TH AND 5TH DEFENDANTS/RESPONDENTS. 28