SEWORDE BONIFACE YAW VRS ISAAC LARBI & ANOR. (C1/38/2022) [2024] GHAHC 395 (30 October 2024)

IN THE HIGH COURT OF JUSTICE HELD AT NSAWAM IN THE EASTERN REGION ON MONDAY, THE 30TH DAY OF OCTOBER, 2024 BEFORE HER LADYSHIP JUSTICE RUBY NAA ADJELEY QUAISON THE HIGH COURT JUDGE, COURT II SUIT NO: C1/38/2022 SEWORDE BONIFACE YAW : PLAINTIFF C/O ERIC AGYEI H/NO. AE/58 ASHWERASI NEAR ABURI VRS. 1. ISAAC LARBI : DEFENDANTS 2. CYNTHIA LARBI =========================================================== Parties: Plaintiff present 1st Defendant present and representing 2nd defendant Counsel: Abraham Boadu holding brief for A.G Boadu for Plaintiff/respondent absent. Justina Tete – Donkor holding brief for Samuel Toprah for Defendants/ Applicants present. =========================================================== RULING =========================================================== Counsel for Defendant/Applicant has filed this application on notice praying for an order for the dismissal of the Plaintiff’s instant suit for lack of capacity. The grounds upon which this application to dismiss the instant suit is made are stated in the affidavit in support filed on 2nd July 2024 and supplementary affidavit filed on 17th 1 July 2024 together with written submission and attached annexures marked Exhibit 1, 1A to Exhibit 6 by defendants/applicants. The plaintiff/respondent is vehemently opposed to this application and has filed an Affidavit in opposition to same on the 9th July 2024 together with written submission and attached annexures marked Exhibit A to Exhibit C. In moving the court for the grant of this application for the dismissal of the instant suit, the learned counsel for the applicants argued that the parties’ case has been adjudicated on in different forums, i.e the District Court Mampong in suit no. A1/114/18 and the Koforidua high court suit no. C12/58/18 on this same matter. Also subsequently in a judgment dated 11/03/2024 with suit no. C1/96/16 at the Koforidua high court. The counsel for Defendants/Applicants in his written submission stated that the Plaintiff’s grantors not satisfied with the judgment of the Mampong District Court in Suit No. A1/114/18 in respect of the same subject matter land before this honourable court filed a writ (Suit No. C12/58/18) at the Koforidua, High Court on 5th April, 2018.The records at the Koforidua High Court showed that the Plaintiff herein applied to be joined to the suit as his grantors title was being challenged and this was granted. Since the Plaintiff grantors have lost the case at the Koforidua High Court, the Plaintiff who derives his title from them is also affected by the judgment and therefore has no capacity to initiate this suit. That in Suit No. C1/96/2016 which the Plaintiff/Respondent’s grantors filed before the Koforidua High Court and was presided over by the same judge, His Lordship Nana Yaw Gyamfi Frimpong J. made some conclusive statement on the capacity of Nana Korankye Bediatuo II at page 23 – 24 of the judgment as exhibited as Exhibit 6. The Respondent was therefore abusing the court process by initiating this action. The Plaintiff/Respondent’s suit should be dismissed and punitive cost ordered against him. 2 The Counsel for Plaintiff/Respondent on behalf of the plaintiff/Respondent has vehemently opposed the application contending that the present action before the Honourable High Court is entirely different from the action that went before the District Court Mampong. Plaintiff did not know of a pending case at the Koforidua High Court. The Plaintiff joining the case at the Koforidua High Court was the decision of the lawyer. When Plaintiff understood the implications of the lawyer’s decision he engaged the services of his present counsel who issued the instant writ for him. The Plaintiff has capacity as he has the right to be heard and he is the purchaser of the land in dispute. So the question of capacity does not arise. This motion is a waste of court’s time and ought to be dismissed as all the issues canvassed in an affidavit in support has already been dealt with and dismissed by Nsawam High Court in a ruling dated 8th day of June, 2023 to an application to dismiss this suit earlier on in the trial. BY COURT: Capacity to sue is a matter of law and can be raised by any party at any stage of the proceedings. The question of capacity is a fundamental matter, it is so fundamental, it goes to the root of the case. The Court is enjoined to determine the issue of Capacity when raised. In the case of SARKODIE I VRS BOATENG [1982 – 83] GLR 715 SC the Court held that “ ...It is elementary that plaintiff or petitioner whose capacity was put in issue must establish it by congent evidence. A challenge to capacity puts the validity of the writ in Issue. Whoever institutes an action in a representative capacity must prove that he/she is clothed with capacity so to do…”. See BANDA V AYISI [2015] 82 GMJ 1 @ 8 – 9 3 The plaintiff/Respondent in the written submission drew the courts attention that the application to struck out suit by defendants was thoroughly considered and dismissed by Nsawam High Court I in the ruling dated 8th day of June, 2023. The suit in Koforidua was struck out for want of prosecution and not on merits. The respondent joined by way of Application to the Court because the land subject matter in this suit forms part of the land subject matter in the case before Koforidua High Court. Subsequently the respondent then filed a notice of Discontinuance which was granted. The motion to dismiss suit for lack of capacity is virtually the same issues which has already been dealt with and dismissed in the previous ruling dated 8th day of June, 2023 of the Nsawam High Court differently constituted. It is trite that a matter which is the subject matter of litigation between parties in a court of competent jurisdiction, must bring their whole case before the court so that all aspects of it may be finally decided upon. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have raised for the decision of the trial court on the first occasion to have considered but failed to raise. An abuse of court process is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do. The courts frown on cases being presented in piecemeal. The party cannot whilst a suit is pending bring a subsequent suit, as bringing a fresh action amount to abuse of judicial process. Suffice to state that, the plaintiff having his suit not heard on merits as well as his grantor suit not heard on merits cannot be said to be forum shopping. Again, doctrine of Abuse of Court Process would be rightly invoked against a party, where the following elements are established: - 4 1. That the party against whom the principle is invoked must have been actively engaged in the previous suit or used to be a person who fronted for them. 2. The subject matter must be the same. 3. The capacity in which they were sued or be sued be the same. These elements were succinctly established in a Supreme Court case of Board Of Governors, Achimota School Vrs Nii Ako NOrtei Sued as “Mankralo or Acting Chief Of Osu or Division Of Ga State, Platinum Equities and Lands Commission (J4/09/2019) [2020] Unreported SC 20 (20 May 2020). The Supreme Court speaking through DOTSE JSC stated as follows that:- “It stands to reason therefore that in ascertaining whether the plaintiffs herein have been caught by the operation of these twin principles of abuse of process and res judicata as pronounced in the cases referred to supra by the 1st Defendant herein, these principles cannot operate against the plaintiffs because they were systematically and skillfully kept out of coverage area during the proceedings in those case and beyond. It must therefore be clearly noted that for these principles to operate against a party, it must be established without any shadow of doubt that the party against whom the principle is invoked must have actively engaged in the previous suits or used to be persons who fronted for them, the subject matter must be the same and the capacity in which they were sued or sued be the same”. Consequently, this application fails and same is dismissed. No order as to costs. 5 H/L RUBY N.A. QUAISON (MRS) (JUSTICE OF THE HIGH COURT) 6