REPUBLIC VRS. THE DISTRICT COMMANDER AND OTHERS, EX PARTE: SAWLANI (CR/0358/2024) [2024] GHAHC 444 (5 September 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, CRIMINAL COURT 4, HELD IN ACCRA ON THURSDAY, THE 5TH DAY OF SEPTEMBER, 2024 BEFORE HER LADYSHIP JUSTICE COMFORT KWASIWOR TASIAME, JUSTICE OF THE HIGH COURT. CASE NO.: CR/0358/2024 THE REPUBLIC VRS. 1. THE DISTRICT COMMANDER - RESPONDENTS 2. INSPECTOR RASHEED 3. PROPHET DANIEL NKANSAH 4. DANIEL NKANSAH JUNIOR EX PARTE: DANNY THAKURDAS SAWLANI - APPLICANT PARTIES: 3RD RESPONDENT – PRESENT 1ST, 2ND AND 4TH RESPONDENTS APPLICANT – PRESENT ONLINE COUNSEL: ABDUL GAFARU ALI FOR THE APPLICANT – PRESENT CHIEF INSP. ANGEL LOLO FOR 1ST AND 2ND RESPONDENTS- ABSENT 1 | P age CHRISTIAN AKWESI BUAME FOR 3RD AND 4TH RESPONDENTS- ABSENT RULING Applicant filed this application on notice for committal of the Respondents to prison for contempt of court under Article 126 of the 1992 Constitution and Order 50 of C.I. 47. Respondents filed affidavits in opposition to the motion. Further to the affidavits in opposition, learned counsel for the 3rd and 4th Respondents filed supplementary affidavits in opposition to the application. At paragraph 16 and 17 of the 3rd Respondents supplementary affidavit in opposition, he stated “Paragraphs 16. That I am advised by my counsel and verily believe same to be true that the purported applicant not being an existing person has no capacity to institute this very contempt application against me. 17. That I am again advised by my counsel and verily believe same to be true that the purported applicant not being an existing person has no capacity to institute this very contempt application against me.” Based on the issue of alleged lack of capacity of the Applicant raised in the supplementary affidavit, when the matter came on for hearing on 7th August, 2024, learned counsel for the 3rd and 4th Respondents raised the issue of lack of capacity of the Applicant to institute the contempt application. This court ordered the parties to address the court on the issue of capacity. This case was adjourned to today for ruling. As of today, learned counsel for the 3rd and 4th Respondents failed to file his written submissions and documents he intended to rely upon to prove that the Applicant has no capacity. Legal luminaries are of the view that, where capacity is challenged, it must be determined before the action proceeds. In the case of ASANTE-APPIAH V. AMPONSAH ALIAS MANSA [2009] SCGLR 90 AT 95 BROBBEY JSC HELD “The relevant rule applicable to 2 | P age the instant case, is 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.” And in the case of Mosama Disco Christo Church v Jehu Appiah [2010] 27 MLRG 56 at 71 & 73 Kusi-Appiah JA held “It is trite law that the issue of capacity or locus standi is a point of law which can be raised at any time or stage of the trial and even after judgement. Please see also the case of Fosua & Adu-Poku v. Dufie (Deceased) & Adu Poku-Mensah [2009] SCGLR 310 at 336, Where it was held that capacity can be raised at any stage even on appeal-capacity can also be raised by the court suo motu. Exhibit DN1 is a search conducted by the learned counsel for 3rd and & 4th Respondents. The search results show that Plaintiff/Applicant had not attended court since the writ was filed. My question is, is that enough to prove that the Applicant has no capacity? I do not think that is enough evidence. Learned counsel for the Applicant submitted that, the Applicant is outside the Jurisdiction and has been represented in court by another person. The learned S.A Brobbey states at page 31 of his book ESSENTIALS OF THE GHANA LAW OF EVIDENCE thus; “The proof lies upon him who affirms, not on him who denies, since by the nature of things, he who denies a fact cannot produce proof.” Respondent alleged that the applicant lacks capacity which the applicant denied. The onus then shifts unto the Respondent to produce further proof of the facts that the Applicant lacks capacity to institute this action. Regarding the burden of proof, the dictum of the Supreme Court in the case of KLAH v. PHOENIX INSURANCE CO. LTD [2012] SCGLR 1139, is relevant. In that case, it was held that; 3 | P age “Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the court can satisfy itself that what he avers is true. Respondent has not been able to produce any document to prove that the Applicant does not exist and for that matter lacks capacity. Applicant has proved through submissions that one Abdul Sadiq Abubakar represented Applicant before the trial Court. It is my ruling that the objection is misconceived, same is hereby overruled. The learned counsel for the Applicant in his submissions before the court, stated that this court lacks jurisdiction to determine the issue of the Applicant’s capacity because same must be determined before the trial court. As stated in Halbury laws of England, Vol 9,(3rd ed) at pp. 350-351 Jurisdiction in its accepted connotation is often defined as the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision. The limits of this authority are imposed by statute, charter, or commission under which the court is constituted, and may be extended or restricted by a like means.” In the case of FRIMPONG AND ANOTHER V. ROME [2013] 58 GMJ 131 it was held that “The law is that where the issue of the court’s jurisdiction is raised, it is an issue touching on the competence of the court, rather than the rights’ of the parties in the subject matter of litigation. Therefore, an objection to the jurisdiction of a court touches on the rights of the parties to approach the court to decide the matter before it.” According to Article 140 of the 1992 Constitution and Section 15 of the Courts Act, 1993 the High Court has original jurisdiction in all matters. This objection on grounds of capacity arose out of the contempt application. This court has jurisdiction in contempt applications. 4 | P age In addition, the issue of capacity can be raised anytime even on a second appeal. In the case of Mosama Disco Christo Church v. Jehu Appiah [2010] 27 MLRG 56 it was held that the issue of capacity can be raised at any time or stage of the trial and even after Judgement; See also the case of Kwame v. Seriwaa & Ors [1993-94] 1 GLR 241 at 250. In view of that, I think the court has jurisdiction to deal with the objection on basis of capacity at this point of the case. After all, the Courts exists to do substantial justice and since this court has jurisdiction to hear the contempt application, I think it has the jurisdiction to hear the objection against the contempt application. In conclusion, the objection by the learned counsel for the 3rd and 4th Respondents is overruled. Cost of GH¢5,000.00 against 3rd Respondent. (SGD) COMFORT KWASIWOR TASIAME (JUSTICE OF THE HIGH COURT) 5 | P age