Edward Mensah Tawiah & Anor v. The Attorney General & ORS
2015
COURT OF APPEAL
GHANA
CORAM
- Owusu M., (Presiding)
- Ofoe, J.A.
- Dordzie, J.A.
Areas of Law
- Civil Procedure
- Family Law
2015
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The court addressed a preliminary objection to an application requesting to set aside an Order of Substitution for a deceased plaintiff/respondent. The application was brought by someone not a party to the original suit. The court upheld the objection, citing lack of capacity to apply without proper legal standing or joinder to the suit. The lead judgment was supported by concurring opinions which reinforced strict procedural compliance for matters of legal standing and jurisdiction in civil procedure and family law cases.
MARIAMA OWUSU, J.A:
At the court’s sitting on the 24th of February, 2015 and in the course of moving an application to set aside the Order of Substitution granted by this court differently constituted, counsel for the 2nd defendant/appellant/respondent raised a preliminary legal objection to the application to set aside the Order of Substitution.
The ground for the objection was that, the applicant who is seeking to invoke the court’s jurisdiction to set aside the Order of Substitution dated 3-6-2013 is not a party to this suit.
That is, he court to set aside any Order made by this court.
This is trite law according to counsel for the 2nd defendant/appellant/respondent.
He continued that, if the applicant wants, he may apply to join the suit and if the court grants him that permission to join, then he can raise any issue he desires.
Counsel referred us to Rule 30 of the Court of Appeal Rules 1997 (As amended) C. I.19.
Based on the foregoing, counsel for the 2nd defendant/appellant/respondent submitted the application before this court seeking to set aside the Order of Substitution is incompetent and same ought to be refused.
In response to the legal objection raised, counsel for the applicant submitted that, the applicant has the requisite capacity to apply to set aside the Order of Substitution.
This is because, the person who was substituted is not a member of the family and therefore on the authority of Adjetey Agbosu [2003-2004] SCGLR, where a family’s interest is threatened, any member of the family can bring an action to remedy the situation.
Consequently, counsel submitted, the Order made substituting the 2nd plaintiff/respondent/respondent is wrong as he is not a member of the family.
Counsel cited the case of Mosi vrs. Bagyina and submitted that, where an Order made by a court is wrong, it can be set aside.
Secondly, at the time the Order of Substitution was made, this court was not seized with jurisdiction as the record of appeal has been remitted to the High Court for rectification.
Counsel also referred this court to Order 42 Rule 2 of C. I. 47 on review.
He therefore invited us to overrule the preliminary legal objection as The plaintiffs/respondents in this case sued in a representative capacity as representing Ataa Tawia Tsinaiatse and Numo Ofori Kwashie families.
The 2nd plaintiff/respondent died and needed to be substituted before the action could continue.
On 3-6-2013, this court differently constituted, substituted one