EBUSUAPAYIN KOBINA ISSAKA v. EGYARE KOTOMPO
2018
COURT OF APPEAL
GHANA
CORAM
- IRENE CHARITY LARBI (MRS), J.A. (PRESIDING)
- L. L. MENSAH, J.A.
- ANGELINA M. DOMAKYAAREH (MRS), J.A
Areas of Law
- Civil Procedure
- Evidence Law
2018
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Court of Appeal, per Irene Charity Larbi, J.A., disposed of two interlocutory appeals arising from a dispute between Ebusuapayin Kobina Issaka (a.k.a. Ishaque Shaibu), acting as Head of the Royal Ebiradze Family of Abura, and Nana Agyare Kotompo III, who claims to head the Brempong Kodwo Ebiradze Royal Family of Abura, with co-plaintiff Egyare Kotompo. The first appeal challenged the High Court’s refusal to decide the plaintiff’s capacity based solely on affidavits and pleadings; the appellate court agreed that oral evidence was necessary and affirmed the ruling. The second appeal targeted the High Court’s refusal to strike out the writ and statement of claim as incompetent. Emphasizing that only natural persons may practice law and sign court processes, the Court of Appeal held the statement of claim signed by “P.P. Tackie Otoo & Co.” was incurably defective and further found the writ of summons unsigned, a fundamental non-compliance under C.I. 47 that cannot be waived. It therefore struck out both the statement of claim and the writ, dismissing the first appeal and allowing the second.
IRENE CHARITY LARBI (MRS) J.A.
(1) These are two (2) interlocutory appeals from the rulings of the High Court, Cape Coast which were argued together.
(2) The first ruling was delivered on 8th July, 2016. The High Court refused to grant the Defendant/Appellant’s (Defendant) application challenging the capacity of the Plaintiff/ Respondent (Plaintiff) to prosecute the motion for interlocutory injunction on the ground that the family on whose behalf the Plaintiff had sued i.e. The Royal Ebiradze Family of Abura does not exist for the Plaintiff to be the Head of Family.
(3) The High Court in refusing the application reasoned that from the affidavits of both parties as well as their pleadings, the parties were strictly denying each other’s averments in their affidavits and pleadings as to the existence of the said family and by so doing have joined issues on the capacity of the Plaintiff. The High Court further held that with only the affidavit evidence and pleadings in hand, the court could not adequately address itself and determine the issue of capacity without taking evidence.
(4) The Defendant, dissatisfied with the said ruling, on 22nd July 2016, filed an interlocutory appeal on the ground that:-
“The ruling of the court was not supported by the affidavit evidence and pleadings appearing on the record”.
The Defendant sought by way of relief to have the decision reversed and an order to be made for the issues of capacity to be determined.
(5) The second interlocutory appeal is against the ruling of the same court dated 17th July, 2017 which dismissed the application by the Defendant seeking for “an order under the inherent jurisdiction of the court to dismiss/strike out the writ of summons as being legally incompetent and non-competent with legal statute .i.e. Sections 2 and 3 of the Legal Profession Act, 1960 [Act 32] and a further order(s) discharging/vacating any process, order, rulings etc. Made and/or founded upon the defective writ”.
On 3rd August, 2017, the Defendant filed a Notice of Interlocutory Appeal against the said ruling on the ground of Error of Law and particularized the alleged Errors of Law.
(6) In respect of the first interlocutory appeal, the Plaintiff endorsed the writ with the following title:-
EBUSUAPAYIN KOBINA ISSAKA A.K.A. ISHAQUE SHAIBU
ACTING AS HEAD OF THE ROYAL EBIRADZE FAMILY
OF ABURA, CAPE COAST.
And
EGYARE KOTOMPO
PENSIONER HOUSE NO.AB 104 ABURA,
CAPE COAST.
The writ was accompanied by a statement of cla