Audio Visual Rights Society v. Fiesta Royale Hotel

Adjei-Frimpong, J. A: This suit raises an issue of some procedural law importance.

In the main, it turns on a claimant having capacity to sue but losing such capacity after the action has been commenced.

What should be the effect of such loss of capacity on the claim being pursued? It is axiomatic that capacity to sue or locus standi is always a crucial maꢁer in any civil suit when challenged.

For a suit to be competent for adjudication by a court, there must be at least a competent Plaintiff and a competent Defendant in the sense that both were juristic persons with locus standi to sue and be sued.

Where the existing Plaintiff or Defendant lacks competence, it renders the action incompetent regardless of the merits and the court is robbed of its requisite jurisdiction to determine the underlying claim.

That the Plaintiff/Respondent (herein ‘Plaintiff’) was clothed with capacity at the commencement of the instant action at the trial court became common ground.

The Defendant/Appellant (herein ‘Defendant’) launched the challenge on the basis that the Plaintiff lost its capacity after the commencement of the suit and was disabled from pursuing the action.

This contention did not find favour with the learned trial judge hence, this appeal.

The antecedent events unfolded this way.

The Plaintiff, at the material time a company limited by guarantee claimed to be a Collective Management Organization (CMO)mandated by law to collect on behalf of its members, royalties from commercial entities that publish, display and exhibit audiovisual works.

It alleged that the Defendant had published, displayed and exhibited audiovisual works within its hotel premises to enhance its business for which it was obliged to pay royalties in accordance with the Copyright Act, 2005 (Act 690). The default period was said to be from 2015—2021. The Plaintiff wrote to the Defendant in February 2021 to make a demand for payment.

Without success, it proceeded to the trial court where its claim was simply couched as follows: (a) A declaration that Defendant owes the Plaintiff an amount of GHC 60, 362. 00 in default payment of Royalties for the period 2017—2021.

b) An order directing the Defendant to pay immediately to Plaintiff an amount of GHC60, 362. 00.

c) Interest on (b) till date of final payment.

d) Costs of litigation.

The point of substance contained in the Defendant’s initial statement of defence was that it did not owe the royalties as claimed which position the Plaintiff resisted