Try asking the following...
RULING
The present Application filed by the Defendants/Applicants (Defendants) seeks an Order of this Court striking out the Plaintiff/Respondent’s (Plaintiff) writ of summons and statement of claim for want of capacity. The Application is vehemently opposed.
I have carefully examined the affidavits as well as the written submissions filed by both sides and my view is as follows:
1. I accept the correctness of Defendants’ contention that a party without legal capacity or standing to sue, risks having his action dismissed. This is because want of capacity does not only strip a party of the right to be heard in a suit but deprives the Court of jurisdiction to adjudicate on same. This legal principle is so trite that I find no need to cite any authorities in support of same.
2. I also agree that a Plaintiff whose capacity is put in issue bears the burden of establishing that he has the right to appear and to be heard on the question before the Court.
3. It is however important to note that the issue of capacity being a matter of mixed fact and law, can only be determined based on the specific facts and circumstances of each case.
4. Thus even though it may be possible to determine the issue of capacity summarily under certain circumstances e.g. where records available clearly disclose that a person suing is an infant. In other cases, the issue may only be determined through a plenary trial.
5. In deciding the merits of the present application therefore, I am required to carefully examine the pleadings, the reliefs sought and the respective arguments canvassed by the parties.
6. In the instant case, the Defendants challenge the capacity of the Plaintiff to institute the present action on the basis that Plaintiff was not a party to the Two Sale and Purchase Agreement (SPAs) entered into between the 1st Defendant and Renault Trucks. The said SPAs have been attached to Defendants’ affidavit as Exhibits PA and PA 1.
7. Defendants state that the Exhibits PA and PA1 preclude the parties to same, from assigning or transferring their rights thereunder to a 3rd Party without the prior consent in writing of the other.
8. According to Defendants, 1st Defendant has not at any time transferred or consented to the transfer or assignment of its rights to Plaintiff or any other entity, for which reason there exists no privity of contract clothing the Plaintiff with capacity to sue on Exhibits PA and PA 1.
9. Upon a careful examination of the Plaintiff’s pleadings,