BENJECOBS ENGINEERING WORKS VRS. SEKYERE EAST DISTRICT ASSEMBLY (OCC/5/2021) [2024] GHAHC 511 (29 October 2024)

IN THE HIGH COURT OF JUSTICE COMMERCIAL DIVISION KUMASI HELD ON TUESDAY THE 29TH DAY OF OCTOBER, 2024 BEFORE HIS LORDSHIP, JUSTICE CHARLES KWESI BENTUM - HIGH COURT JUDGE ------------------------------------------------------------------------------------------------------- SUIT NO. OCC/5/2021 BENJECOBS ENGINEERING WORKS - PLAINTIFF H/No. Plot 10 Block AB, West Patasi – Kumasi. VRS. THE SEKYERE EAST DISTRICT ASSEMBLY - DEFENDANT Central Administration, Effiduasi – Ashanti. ------------------------------------------------------------------------------------------------------- TIME: 09:48AM. JUDGMENT: It is trite legal knowledge that, a law suit is, in essence, an invitation to the Court, by parties before it, to determine their legal rights and obligations in a giving situation. Therefore, a party who can appear before Court, for the vindication of his or her right, must either be a natural person, that is a human being or a juristic person, that is, a body corporate. 1 In Benyarko v Mensah [1992] 2 GLR, 404, it was held that, a person can sue or be sued only, if he is either a natural person or a juristic person. This legal position shall have an impact on this case. On 20th July, 2020, the Plaintiff in this suit commenced, the instant action, by the name, on the face of the Writ and also the Statement of Claim as “BENJECOBS ENGINEERING WORKS”. The Plaintiff further went on to aver at paragraph 1 of its Statement of Claim as follows: “The Plaintiff is a Registered Company engaged in construction and other sanitation activities including evacuation of refuse dumps.” In its Amended Statement of Defence, filed on 24th June, 2021, the Defendant averred that, it is unable to admit the said paragraph 1 of the Statement of Claim and further that, the Plaintiff shall have to prove same in accordance with law. In the case of Asante-Appiah v Amponsa alias Mansah [2009] SCGLR, 90 @ 92 holding 2, the Supreme Court held as follows: “Where the capacity of a person to sue is challenged, he has to establish it before his case can be considered on it merits. In the instant case, the defendant challenged the capacity of the plaintiff right from the inception of the trial. The challenge was explicit in the first paragraph of the statement of defence and in the cross-examination of the person who gave evidence on his behalf as holder of a power of attorney which has been declared invalid and inadmissible. The plaintiff had to establish his capacity before he could expect the trial court to have considered his case on its merits. He woefully failed to establish the capacity in which he sued by his reliance on the invalid power of attorney.” 2 From this authority cited, it is not the Defendant herein who has to proof that, the Plaintiff has capacity to bring the instant action. It is rather, the Plaintiff, whose capacity is being challenged, who must establish same in order for the merits of its case to be considered. The Plaintiff has an obligation under Section 10(1) of the Evidence Act, NRCD 323 to establish the requisite degree of belief, concerning the existence of its capacity, in the mind of this Court. Under Section 11(1) of the Act, the Plaintiff has to introduce sufficient evidence, to avoid this Court, ruling against it for want of the capacity challenge against it. The Plaintiff, set to proof, its case against the Defendant, filed a Witness Statement through one Rev Stephen Kwaku Fokuo. On 22nd June, 2023, the said Witness Statement of the Plaintiff, together with the attached Exhibits were adopted by the Court, as the Evidence-In-Chief of the Plaintiff. In the Witness Statement filed on 14th April, 2023, the said Rev Stephen Kwaku Fokuo, who at all material time of the proceedings in this case, held himself to the Court, as a Representative of the Plaintiff and its Managing Director, testified at paragraph 3 of the Witness Statement as follows: “That I am the Managing Director of the Plaintiff Company with a valid Works and Housing Certificate and I have their authority and consent to provide this Witness Statement on my behalf and on behalf of the Plaintiff…” The Plaintiff’s Representative, was cross-examined on the above testimony on 22nd June, 2023, by Learned Counsel for Defendant inter alia: “Q: Can you tell the Honourable Court when the Plaintiff's alleged Company was incorporated? A: June, 2017. 3 Q: When was the Plaintiff's alleged Company issued with the Certificate of Incorporation? A: 17th June, 2017. Q: And can you also tell the Honourable Court when this alleged Company was issued with Certificate to commence business? A: On/or about 30th June, 2017. Q: Can you tell the Honourable Court the persons who are Shareholders of this alleged Company? A: There are no Shareholders. It is a Sole Proprietorship. Q: I am putting it to you that, the Plaintiff is not a Company. A: My Lord, it is not a Limited Liability Company. It is a Sole Proprietorship. Q: So then, your statement at paragraph 3 of your Witness Statement that, you are the Managing Director of the Plaintiff Company is not true? A: It is true, the use of Company in this instance is general and acceptable. Q: The statement that you just made that, the use of Company in this instance is general and acceptable is false? A: It is not false. Q: I am putting it to you that, you cannot be a Managing Director of the alleged Sole Proprietorship. A: I can be.” The Plaintiff, from its own showing presented itself to this Court, as a person cognisable at law as a Registered Company. Under Cross-Examination, its Representative, stuck to the testimony of the Plaintiff, as a juristic person, by claiming that, same was incorporated in June of 2017 and issued with a Certificate of Incorporation. 4 According to the Representative, Rev Stephen Kwaku Fokuo, the Plaintiff was issued with a Certificate to Commence Business on 30th June, 2017. The Court observes that, when the purported Plaintiff, testifying through its alleged Representative, found the Cross-Examination “too hot” to bear, the testimony turned round 360 degrees by a claim that, there are no shareholders of this alleged Plaintiff because, it is Sole Proprietorship. That, it is not a Limited Liability Company. Presently, in the humble view of the Court, this must be the end of the road for the Plaintiff. In law therefore, the evidence is clear that, the Plaintiff does not exist to be able to be heard in this suit on the merit of its case. The Law, as held in the Asante-Appiah v Amponsa case, is trite that, where the capacity of a person to sue is challenged, he has to establish it before his case can be considered on its merits. The Plaintiff has woefully failed to establish that, it is a juristic person at law, capable of suing the Defendant, as in this case. The Court observes that, its time has been severely wasted from the year 2020, when the Writ was filed, by a non-juristic person to today, the date of Judgment in the year 2024. Indeed, the Court sees no reason, why Plaintiff’s capacity was not the subject of a preliminary determination, at the instance of the Defendant, to avoid this long judicial journey, that has ended tragically for the purported Plaintiff. Again, the non-existent Plaintiff, testified, per its alleged Representative, that it is a Sole Proprietorship. That means that, the name “Benjecobs Engineering Works” must be proved to be registered under the Registration of Business Names Act. 5 The purported Plaintiff cannot assume a juristic personality by claiming to be a Sole Proprietorship or a Business Names. In Barclays Bank of Ghana Ltd v Lartey [1978] GLR 282, the High Court per Wiredu J held: “Unlike Act 179, the Registration of Business Names Act, 1962 (Act 151) was not intended to confer any distinct legal personality on any business name registered under it. The provision of the Act are a clear pointer to this. Whilst the provisions of Act 179 refer to the company, those of Act 151, refer to the individuals registering their business names. The fact that, registration under Act 151 does not confer perpetual succession on business names registered under it is borne out by Section 10(1) of the Act. Act 151 protects the exclusive use and right of the person registering the business name. It is also clear from the provisions of Act 151 that, the registrar deals solely with the person registering the business name and this is understandable because it is only the business name which is registered and someone must be responsible for such registration. I therefore hold in my ruling that, Scarts as registered under Act 151 did not acquire any legal personality distinct from the person of Emmanuel Kotoku Lartey who carried on business under that name. I also reject as untenable the submission that Scarts enjoy a perpetual succession under Act 151.” The Plaintiff cannot be held, to have capacity to sue, because it is alleged, to be a Sole Proprietorship. A Sole Proprietor, under the Business Names Act, cannot be equated with a juristic person. 6 The point must be made emphatically that, the alleged Sole Proprietorship, as testified to, by the Witness, was not proved. It would have been proved, had the Witness Statement as adopted, as the Evidence-In-Chief of the Plaintiff, exhibited, a registration of a Business Name Certificate in the name of “Benjecobs Engineering Works.” Even that, this suit would have to be brought, in the personal name of the Sole Proprietor with the description, “Doing business under the name and style of Benjecobs Engineering Works” or suing the Defendant as such. There is nothing like this before the Court and/or the title of this suit. The Plaintiff, came to this Court, without evidence of a Certificate of Incorporation to show its juristic personality. The Plaintiff came to Court without a Business Name Certificate to show that, behind, the Business Name, “Benjecobs Engineering Works”, is a certain natural person, who is the Sole Proprietor. The Plaintiff has failed to establish its capacity and in accordance with law, the merits of its case cannot be determined. It is important to establish that, this is not a case, where the Plaintiff exist, as a juristic person in law but did not have locus standi to sue. This is not also the case, where the Plaintiff exist, but has no capacity to sue, by reason of it failing to bring the instant action in a representative capacity. What we have in this suit, crystal clear, is that, the Plaintiff does not exist at all. So, the issue of locus standi and capacity eludes it. 7 For all the above views, expressed by this Court, it declines to pronounce on the merits of this case. The Court cannot determine the merit of the case brought by a purported Plaintiff, who does not exist in the eyes of the law. This is so sad, that a Plaintiff’s case, has to end this way. However, so be it, because that is the law and the law must be upheld without any fear or favour, ill-will or affection. The Plaintiff’s action having not been determined on its merits, same is not hereby dismissed but struck out. There will be no Order as to costs. (SGD.) CHARLES KWESI BENTUM (JUSTICE OF THE HIGH COURT) LEGAL REPRESENTATION: Anthony Osei-Poku with Julius Adde for the Plaintiff. Dr. Dickson Osei-Asibey led by Kwame Asiedu-Basoah for the Defendant. 8