GHANA NATIONAL GAS CO. LTD VS GENSER ENERGY GHANA LTD

By the present application which is vehemently opposed by the Plaintiff/ Respondent (Plaintiff), the Defendant/Applicant (Defendant) seeks to have the Plaintiff’s action dismissed for want of capacity, arising from the failure to fulfill a Condition Precedent.

The Defendant’s case in sum is that the Gas Sales Agreement (Exhibit PM 3) based on which the Plaintiff mounts the present action, required the Plaintiff to procure certain Board Resolutions before the same became effective and enforceable. Defendant contends that the Plaintiff, having failed to secure the said resolutions lacks legal capacity to institute the present suit.

I have carefully examined the respective affidavits and the written submissions filed by both sides in support of and against the present motion and my opinion is as follows:

1. I accept the correctness of Defendant’s 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 party’s capacity to sue is not dependent on the success or merits of the case. Once it is established that a Plaintiff lack’s capacity to institute an action, it becomes unnecessary to consider whether or not he has a genuine case. A Plaintiff whose capacity is put in issue therefore bears the burden of establishing that he has the right to appear and to be heard on the issue 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 in light of the circumstances of the particular case.

4. In the instant case, the Defendant as already noted, challenges the capacity of the Plaintiff to institute the present action on the basis of the Plaintiff’s failure to fulfill a Condition Precedent.

5. A Condition Precedent is defined by the Black’s Law Dictionary [8th Edition] as “An act or event, other than lapse of time that must exist or occur before a duty to perform something arises.”

6. The learned author S. Kwami Tetteh at page 259 of his Black Book on Civil Procedure also explains that a Condition Precedent is not essential in the formulation of a cause of action, but a requirement imposed under a contract or statute, to be fulfilled before a cause of a