KENNEDY SAFORO-BAAH vs NDK FINANCIAL SERVICES LTD

On 23rd October, 2018, the Plaintiff instituted the instant action against the Defendant for the following reliefs:

a. An order to go into account to determine actual amount owed by the Plaintiff.

b. A declaration that the conduct of the Defendant vis-à-vis that of its Attorney amounts to bad faith.

c. An ample time to pay back the loan facility secured from the Defendant.

d. Injunction on the Defendant, its privies, assigns and agents from interfering with the property used as collateral for the loan until the determination of the matter.

e. Costs.

Upon service of the writ of summons and statement of claim on the Defendant, the Defendant entered appearance and proceeded to file a statement of defence on 31st October, 2018 and 13th November, 2018, respectively.

In the events that have happened in this suit, certain issues have been set down for trial.

Significantly, the Defendant is inviting the Court, in the issues put before the Court, for the Plaintiff’s capacity to be determined first and foremost. I also ordered the parties to file written submissions in respect of same.

The Defendant filed its written submissions on 11th April, 2019. The Plaintiff also filed his written submissions on 17th April, 2019. It has been urged upon me by the Defendant in its written submissions that the trite position of the law is that the capacity in which a person sues or is sued is pivotal, in that the reliefs claimed by such a person or against such a person must derive from the capacity of the person.

A further urging on me also is that where a person’s capacity to initiate proceedings is challenged, the Court must refuse to hear the person on the merits of the action, even where such a person has a case cast in iron, until the question of capacity is determined.

That once it is determined that such a person lacks capacity the case must be struck out.

The third urging on me by the Defendant is that a limited liability company has a separate legal personality from the persons who are behind it or who control it and as a result can sue and be sued.

Therefore the Plaintiff cannot sue on behalf of a limited liability company, according to the Defendant.

In his response to the issue of capacity, the Plaintiff, in essence, states that he is the bona fide owner of the property of the company used to secure the loan facility, for which reason he has capacity to mount an action in respect of that property.

In a very large measure, the urgings on me by the Defend