CHRISTOPHER DADZIE VS KWESI ITU

INTRODUCTION

On 14th February 2022, the District Court Cape Coast dismissed the suit for want of capacity on the part of the plaintiff-appellant, hereinafter called the appellant, depicted on page 100 of the Record of Appeal in the following terms; "The challenge to the plaintiff's capacity to sue the defendant was made by counsel for the defendant during his cross-examination of the plaintiff.

Both lawyers for the parties raised the point as a legal issue in their written addresses and canvassed arguments for and against the issue.

Having examined the evidence on Record and the applicable law, I am inclined to agree with counsel for the defendant that the plaintiff has no authority to commence the action against the defendant.

In the case of Stephens v Apoh [2010] MLRG 12 at 26 SC Anin Yeboah JSC as he then was held as follows; "It is the law that if an action succeeds on a plea of statute of limitation, lack of jurisdiction or lack of locus standi, the trial court and for that matter an appellate court should not proceed to determine the merits of the case irrespective of the evidence. "Since the plaintiff has no legal right to be in court to litigate over his family’s property, I am unable to proceed further to determine the merits of the case.

Accordingly, I hereby dismiss the plaintiff’s action for want of capacity.

I award GHC1000 as costs in favour of the defendant”. Dissatisfied with the judgment of the court, on 21st February 2022, the appellant filed a Notice of Appeal and complained about the entire judgment and crafted the grounds of appeal as depicted on pages 103 to 104 as follows; a) The judgment is against the weight of evidence on Record.

b) The learned Magistrate fell into error of law and fact when he held that the plaintiff lacks capacity to institute the action.

He particularised the errors as follows; i) The learned Magistrate failed to appreciate that the beneficial use, enjoyment and control of the disputed land vests in the Essie Effiniba Branch of the Adwenadze family of Brofoyedur and not the wider family, thus entitling the plaintiff as branch head to sue.

ii) The learned Magistrate misdirected himself when he held that the plaintiff failed to prove any of the exceptions in the case of Kwan vs Nyeni [1959]GLR 67-74 to clothe him with capacity to sue.

iii) The learned Magistrate misdirected himself by misapplying the ratio in the case of Nyamekye v Ansah [1989-90] 2GLR 152 to dismiss the suit for lack of capacity.