Kusi v Abass and Another (A1/10/2024) [2025] GHADC 242 (19 June 2025)

INTHE DISTRICT COURT SITTINGATWAMFIE ONTHE 19TH DAYOF JUNE,2025BEFORE HIS WORSHIP EUGENE OBENG-NTIM,ESQ. SUITNO.:A1/10/2024 KUSI JOHNSON ----- PLAINTIFF H/NO.: NB 21 Dormaa Akwamu VERSUS 1. ABASS ----- DEFENDANT 2. KENNEDY Mmomesobour JUDGMENT Parties present. Glenna-LoisBoakye-Yiadon for Barima Agyekum Hinneh forDefendants present. Plaintiff notrepresented. Page1of11 Introduction The Plaintiff is seeking the following reliefs: a) Plaintiff’s claim against defendants jointly and severally is for the declaration of title and recovery of possession of all that Plots Nos. 17 & 18 situate and lying at Mmomesobour near Asuotiano which shares common boundary with PlotsNos. 15,16,21and22which defendantsare making adverse claim. b) General damages for trespass and destruction of food crops and cashew plantation. c) Perpetual injunction restraining the Defendant, his agents, assigns, workmen, labourers and privies from having dealings with the said land as covered by itsboundaries. On 30th November, 2023, the defendants pleaded not liable to the claims of plaintiff and the court ordered pleadings to be filed which parties duly complied. Parties subsequently filed their witness statement and that of their witness after which the courtproceeded toconduct Case Management Conference (CMC)on26th July, 2024. Page2of11 The court, before deciding on the merits of the instant action, must ascertain whether defendantswere the properpersonstobe sued. The court, before it would have capacity to deal with an issue before it, must satisfy itself that it has jurisdiction over the subject matter and the parties. Jurisdiction over the subject matter is conferred by law. Thus, section 47 of the COURTS ACT 1993 (ACT 459) gives the District Court jurisdiction to adjudicate civil disputes, including actions relating to ownership, possession or occupation of land. The Jurisdiction over the parties must be declared by the parties at the institution of the action. Where the court lacks jurisdiction over the parties because plaintiff lacks capacity to bring an action ordefendant was wrongly sued, the absence ofsuch jurisdiction goes tothe rootofthe action. Capacity of a party can be raised at any time, even after judgment and on appeal. In the case of Nii Kpobi TettehTsuru III &2 Ors v. Agri-Cattle & 4 Ors Civil Appeal No.J4/15/2019delivered on18thMarch, 2020,The Supreme Courtheld asfollows: “the law is trite that capacity is a fundamental and crucial matter that affects the very root of a suit and for that matter itcan be raised atany time even after judgmenton appeal”. Whatdoes capacity inlawmean? In the case ofKasseke Akoto Dugbartey Sappor & 2 Ors Vrs [2021] GHASC 188 (13 January2021) theSupreme CourtperProfMensa-Bonsu JSC observed that: Page3of11 The Black’s Law Dictionary defines ‘capacity’ or ‘standing’ as “A party’s right to make a legal claim or seek judicial enforcement of a duty or right. Thus, one’s ability to appear in Court to make a claim, hinges on whether one is recognized in law as having sufficient interest in any matter to seek a hearing on any particular issue. The sufficient interest must remain throughout the life of the case, or one’s legal ability to stay connected with acase making its way through the Courts would be lost.” The Supreme Court stated in Standard Bank Offshore Trust Company Ltd Vrs National InvestmentBank Ltd and Others[2017] GHASC 26(21 June 2017) thus: “Capacity has been defined as the power to acquire and exercise legal rights. In the context of the capacity of parties to sue and be sued, to say that a party lacks such capacity is to acknowledge the existence of some procedural bar to that party’s participation in the proceedings-one that is personal to a party…..and imposed by law for one or more of various reasons of policy usually quite divorced from the substantive merits……It concerns the right to initiate or defend legal proceedingsgenerally.”[Emphasis mine] The cases referred supra make it abundantly clear that plaintiff must have the capacity to initiate an action and defendant must equally possess the capacity to defend the action. Page4of11 I now proceed to examine the processes filed by the parties to ascertain whether defendantsare clothed withthe requisite capacity todefend the action. First, 1st defendant pleaded not liable to the claim in his personal capacity and filed his defence dated 20th December 2023, denying the claims of plaintiff to Plot Nos. 15 and 16 Block “J”. He alleged at paragraphs 2 and 5 of his statement of defence that his mother Yaa Kyeremaa who currently domiciled in the United Kingdom, remitted money for the purchase of the plots in issue. In his witness statement, he repeated those allegations made in his defence and added that his mother appointed him as her agent. He, however, failed to tender any document authorising him to act as an agent for his mother. He rather tendered receipt from the Mmosesobour Stool Lands and Mmomesobour Plot Allocation Committee and Site Plan. Those documents bear thename ofYaaKyeremaa. A party claiming to act in a representative capacity must disclose it in his writ or pleadings. Thus the Supreme Court per the case of Naos Holdings PSC v. Ghana CommercialBank (2005-2006)SCGLR 407-413 at stated atp. 411that: “where an action is commenced by or on behalf of a person resident outside the jurisdiction that fact must be disclosed in the indorsement and the residential address of suchperson also mustbe disclosed”. Page5of11 It must be noted that, although the case referred supra dealt with indorsement of capacity of plaintiff, the case of Standard Bank Offshore Trust Company Ltd vrs National Investment Bank Ltd and Others referred to supra held that capacity concerns the right to initiate or defend legal proceedings generally. Therefore, the requirement ofcapacity todefend anaction isequally applicable to1stdefendant. The 1st defendant was sued in his personal capacity but alleged in his statement of defence that the land belongs to his mother. He also alleged in his witness statement that he is an agent for the mother. He therefore seeks to defend the action for and on behalf ofhis motherwho is domiciled in theUnited Kingdom. 1st Defendant was expected where he seeks to defend the action on behalf of a person resident outside the jurisdiction, to disclose that fact and the residential address of such person also must be disclosed. Unfortunately, 1st Defendant failed to meet this legal requirement. Consequently, the 1st defendant lacked capacity to defence the action at the time he filed his defence and witness statement. This omission is fatal to the defence ofthe actionby 1stdefendant. I would proceed to deal with the institution of the action by plaintiff against 2nd defendant. Plaintiff, in his statement of claim filed on 18th December, 2023, alleged that at paragraphs 10 and 11 that when he showed interest in the land to the Chief of Momesobour, Nana Kwaku Acquah, he made payment of GH¢ 3,500.00 to the Page6of11 Committee of which the 2nd Defendant’s father at the time by name Agya Mensa and Atta who is now deceased, acknowledged receipt of the amount paid. He confirmed the payment of GH¢ 3,500.00 to the Plot Allocation Committee at paragraph 14 and also that the 2nd Defendant who is the secretary to the committee, also acknowledged receipt. The Plaintiff did not tender the receipt issued. Rather, 2nd Defendant tendereda receipt for GH¢600.00bearing the name ofplaintiff. Based on the reference made to the statement of claim and witness statement of plaintiff in relation to 2nd defendant, plaintiff was aware that the proper person to consult if he had interest in land was the Chief of Momesobour, Nana Kwaku Acquah. Payment was made and allocation of plots were executed by the Mmomesobour Plot Allocation Committee. 2nd defendant, who was a Secretary to the Committee during the transaction, was at the time of the transaction acting for and on before of the committee. Therefore, where a cause of action arises from the actions of the Committee, the proper person to sue is the Chairman of the Mmomesobour Plot Allocation Committee in his representative capacity and not the secretary. Consequently, the institution of the action by plaintiff against 2nd defendant in his personal capacity is, therefore, wrong. 2nd defendant has been wronglysued. Page7of11 The Court, having dealt with capacity of defendants, will pose the question; can the court deal with the merits of the action? In answering the question posed, I will refer to the case of Alfa Musah v. Dr. Francis Asante [2018] DLSC 475, where the SupremeCourtonthatissue stated thus: “We think the law is that, when a party lacks capacity to prosecute an action the merits of the case should not be considered … If a suitor lacks capacity it should be construed that the proper parties are not before the court for their rights to be determined. A judgment, in law, seeks to establish the rights of parties and declarations of existingliabilitiesof parties”. The Supreme Court affirmed the position in Manford Gyansa Lutterodt v. Asam Concepts, Civil App. No. J4/62/2022, dated 20th March 2024, S.C. (unreported) as follows: “For the law is quite well settled that if any proceedings fail for want of jurisdiction, the trial court and for that matter an appellate court should not proceed to determine the merits of the case, nomatter how compelling the facts of the case are …That being the case, we consider ourselves fettered … from probing into the merits of any of the other ground raised inthis appeal …”. The court did consider the action on its merit by conducting a full hearing. The action was therefore reaped for judgment. Unfortunately, the court suo moto has Page8of11 raised the issue of capacity of defendants to defend the action and is of the view that they lack capacity. Should the action be struck out or dismissed in view of evidence havingbeen taken? To answer the question, reference is made to the case of Essilfie v. Anafo [1992] 2 GLR654where the courtheld: “…The concepts of ‘striking out’ and ‘dismissal’ were not the same. When an action or appeal was dismissed it meant that as between the parties it created a bar which would prevent any further proceedings unless permitted by the statute, whereas when an action or appeal was struck out it was always open to the party prejudiced to apply for its restoration”. Based on the decision referred to supra, the court would not dismiss but proceed to struck outthe suit. Conclusion Having examine the issue of capacity of defendants to defend the action, I shall conclude asfollows: In respect of 1st defendant, since a judgment, in law, seeks to establish the rights and declarations of existing liabilities of parties and 1st defendant has been found to lack Page9of11 capacity to defend the action, the proper parties are not before the court for their rights to be determined and obligations imposed. Consequently, the court would proceedtostrike outthe action against 1stdefendant ongroundsoflack ofcapacity. Regarding 2nd defendant, since he acted in a representative capacity as a secretary to the committee but was sued in his personal capacity, he was wrongly sued. The court, in line with Order 9 Rule 6 of District Court Rules, 2009, CI 59, which provides that the Court may at any stage of the proceedings, and on terms that appear to the Court to be just, order that the name of a party who has been improperly joined whether as a plaintiff or as a defendant be struck off, will strike offthe name of2nd Defendant. Orders i. The action against 1st defendant is struck out on grounds of lack of capacity to defend action. ii. 2nddefendant is non-suited and his name is herebystruck offthe suit. Eugene Obeng-Ntim (District Magistrate) Page10of11 Page11of11