BAHAMUS LTD, BENJAMIN KOFI ANNAN V. COMFORT OKONKOR , THE REGISTERED TRUSTEES OF PRESBYTERIAN CHURCH GHANA

INTRODUCTION

[1] This is an interlocutory appeal by the 2nd Defendant/Appellant, challenging the ruling of the High Court delivered on 5th September 2019, which granted the Plaintiffs/Respondents leave to amend their writ of summons and statement of claim to endorse the 2nd Plaintiff’s capacity as

Head of the Odonkor Family.

[2] The High Court’s Ruling was premised on Order 16 Rule 5(4) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), which allows an amendment to alter the capacity in which a party sues if that capacity existed at the commencement of the proceedings or has since been acquired. The 2nd Defendant/Appellant contends that the writ was void ab initio because the 2nd Plaintiff had no capacity and that the defect could not be cured by amendment.

FACTS AND BACKGROUND

[3] The Plaintiffs commenced the action on 28th September 2018 claiming the following principal reliefs:

“1. A declaration of title to all that 0.75 acre of land situate in Apenkwa, Accra and lying on the East side of the road leading from Accra to Nsawam…

2. An order for the cancellation of the land title certificate of the

Defendant being Certificate No. GA 45777, Vol. 1, Folio 447; 3. A perpetual injunction restraining the Defendant, his assigns, servants, workmen and privies from dealing with or having anything to do with the land in dispute; and costs including solicitor’s fees.”

[4] At paragraph 2 of the Statement of Claim, the 2nd Plaintiff pleaded her authority and family connection in explicit terms as follows:

“The 2nd Plaintiff has been authorized (per Power of Attorney) by the head of the Odonkor Family to initiate this action as 2nd Plaintiff is customary successor and beneficiary of the Estate of Mrs. Martha Akweley Ohene Nyarko (Nee Martha Akweley Odonkor), who was lessee of the disputed land until her demise in 2003 and who had no children of her own.”

[5] The Defendants denied the claim and challenged the 2nd Plaintiff’s capacity. Paragraphs 2 and 3 of the 2nd Defendant’s Statement of Defence are illustrative:

“The 2nd Defendant vehemently denies paragraph 1 of the Amended Statement of Claim. The 1st Plaintiff is not the owner of the reversionary interest in the 0.75 acre land. The reversionary interest is in the 1st Defendant and thereafter the Onamrokor Adain Family.

*The 2nd Defendant denies paragraph 2 of the Plaintiffs’ Amended St