REPUBLIC v. DSP. ASARE (THE COMMANDER)

J U D G M EN T

AVRIL LOVELACE-JOHNSON JSC:

The designation of the parties at the trial court will be maintained in this appeal.

On 31st December 2018 the Applicant, by motion sought an order from the trial court committing and sentencing the Respondent for contempt of court and further restraining him from interfering with the peaceful possession of a certain piece of land described in an attachment described as exhibit C.

In paragraph 2 of the affidavit in support of the application, the Applicant described himself as follows

2. That I am the lawful attorney for the Okpong We family of Teshie with the powers to manage all Okpong We family lands, portion of which is in dispute in this case

He attached a copy of the said power of attorney as exhibit A. By a supplementary affidavit in opposition, the Respondent per his paragraphs 7 to 15 made certain averments and concluded in paragraph 16 that

That the applicant lacks the requisite capacity to bring this application

The trial judge on 20th June 2019 per his judgment found that the Applicant had failed to establish his capacity and dismissed the matter. It is the Applicant’s dissatisfaction with this dismissal that has led to the present appeal on the following grounds:

a. The trial judge erred in law and in fact in his judgment that the applicant/appellant lacks the capacity to prosecute the case

b. The judgment is against the weight of evidence

c. Additional grounds of appeal shall be filed upon receipt of the records of appeal

For the record, no such additional grounds were filed.

The Applicant seeks from this court the setting aside of the portion of the judgment stating that he had no capacity to bring the application in question and a further order granting the relief sought therein.

A finding on ground (b), the omnibus ground will also resolve the complaint raised in ground (a) alleging an error of law on the part of the trial judge, it now having been established by case law that a consideration of a complaint that a judgment is against the weight of evidence permits a consideration not just of issues relating to facts but also issues relating to errors of law. See

Djin v Musa Baako [2007-2008] SCGLR 891 among a host of other authorities on the issue.

The question then is whether the trial judge’s finding that the Applicant had no capacity to bring the application in question has any basis in law.

From the written submissions of counsel for the Applicant, it is submitted that it h