ABUSUAPANIN OFORI ATTA v. KWAME ADU GYAMFI & ORS, 6TH DEFENDANT: OTHERS
2021
COURT OF APPEAL
GHANA
CORAM
- CECILIA H. SOWAH JA (PRESIDING)
- ANTHONY OPPONG JA
- ANGELINA MENSAH-HOMIAH JA
Areas of Law
- Civil Procedure
- Evidence Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Anthony Oppong JA authored the Court of Appeal’s judgment arising from an ejectment action by the head of the Agona Royal family of the Akim Kotoku Paramount Stool against multiple defendants. After the 6th defendant entered appearance, he moved to dismiss the suit on grounds that the claimant lacked capacity, and the Circuit Court dismissed the action on affidavit evidence. On appeal, Oppong JA emphasized that capacity is a factual question that must be pleaded and tried—if challenged—in a preliminary issue within a full evidentiary hearing, not via a pre-defence application determined on affidavits alone. Citing Ex parte Aryeetey, the Court underscored that challenges to capacity implicate the writ’s validity and, if capacity is absent, proceedings are null. The Court set aside the ruling for procedural error, declined to reach the res judicata ground, and remitted the case to a differently constituted trial court.
ANTHONY OPPONG, JA:
Plaintiff/Appellant (hereafter referred to as appellant) in his capacity as the head of Agona Royal family of the Akim Kotoku Paramount Stool sued defendants for an order for ejectment from appellant’s family land. The Writ of Summons was filed on 8th March 2020.
The 6th Defendant/Respondent (hereafter referred to as Respondent) entered appearance on 30th April 2020. Following the entry of appearance by the Respondent, the next process he filed was a motion on notice to dismiss the plaintiff’s suit. That application was filed on 13th May 2020. The gravamen of that application was as stated in paragraph 7 of the supporting affidavit found at page 26 of the Record of Appeal (ROA). It was couched as:
“7. That I say authoritatively that the Plaintiff is not the head of the Agona Royal family of the Akim Kotoku Paramount Stool and therefore lacks capacity to sue”.
In a Ruling of the trial court in respect of this application dated 30th June 2020 found at page 65 of the ROA, the learned trial judge held, on the affidavit evidence, that plaintiff lacks capacity and accordingly dismissed plaintiff’s case.
It is this ruling that has become the subject matter of the instant appeal. The ground of appeal found at page 72 of the ROA is that:
“His Honour the Circuit Court judge erred by failing to appreciate that the orders of the judicial committee of the National House of Chiefs, Kumasi and the Supreme Court in the chieftaincy matter which went before them recognizing the Plaintiff as the head of Agona Royal family of Kotoku Paramount stool amounted to decisions in rem on the status of the plaintiff as head of the family and amounted to res judicata which prevented the whole world from disputing his status as head of the family”
For reasons to be discussed hereunder, I find it unnecessary to delve into the merits of this ground, suffice to say for now that this appeal deserves success.
It is settled principle of law that if a party brings an action in a capacity he does not have, the writ with which he has initiated the action is a nullity. This position of the law underscores the significance and the requirement that a party endorses on the writ the capacity in which he sues so that the defendant can avail himself of the right to challenge that capacity, if he was minded to do so.
The position of the law could not have been better explained by Kpegah JSC in the case of REPUBLIC v. HIGH COURT, ACCRA; EX PARTE ARYEETEY (ANKRAH INTERESTED PA