KOWUS MOTORS v. CHECK POINT GH. LTD. & OTHERS

J U D G M E N T

ATUGUBA, J.S.C:

On the 1st day of April 2008 the Defendants / Respondents herein filed an Addendum to their Statement of Case in the following terms, as far as relevant; “We seek to raise a fundamental point of law concerning the locus standi of the Plaintiff / Appellant. We submit that this legal question is substantial and could be disposed off without the need for any evidence. In raising this point for the first time, we are mindful of this Court’s holding in A – G v. FAROE ATLANTIC CO. LTD. [2005 – 2006] SCGLR 271 at 279 (see holding 8).

“(8) Generally, where a point of law had not been raised in the trial court and in the intermediate Court of Appeal it might not be raised in the Supreme Court as the final Appellate Court. However, there are exceptions to the general rule, namely: …(iii) where the legal question sought to be raised for the first time was substantial and could be disposed off without the need for further evidence …”

It is our respectful submission that at all times material to the commencement of the action in the trial court, the Plaintiff / Appellant was defunct. It had ceased to exist by operation of law, pursuant to the provisions of the Transfer of Shares and merger (Kowus Motors, Kaasbohrer Ghana Limited and Ghana Assembly Plant) Decree, 1979 (AFRCD 60). The Plaintiff / Appellant, therefore, had no locus standi and the whole action was a nullity.

Section 4 of AFRCD 60 provided:

“Notwithstanding anything to the contrary all the three companies specified in Part 1 of the schedule to this decree and the company known as R. T. Briscoe (Ghana) Limited are hereby merged into one company to be known as the “Automotive and Technical Services Limited”

The three companies specified in part 1 of the schedule to the decree included the Plaintiff /Appellant-company. It is not in dispute that by AFRCD 60, Kowus Motors, Kaasbohrer Ghana Limited and Ghana Assembly Plant were merged into one company known as Automotive and Technical Services Limited (ATS). The three companies aforesaid lost their separate legal identities and ceased to exist, their place having been taken by ATS, the new company created by law.”

It is settled law that the test for the validity of the institution of an action as far as capacity of a party is concerned is whether the party is non existent. Thus in Edusei v. Diners Club Suisse S. A. (1982 – 83) GLR 809C.A at 814 – 815 Francois J.A. (as he then was) delivering the judgment of the court of A