SAMANTHA JAYEE PROSSER VS MR. TRIPATHI & ORS
2024
COURT OF APPEAL
GHANA
CORAM
- ANTHONY OPPONG JA, (PRESIDING)
- CYRA P. KORANTENG (MRS) JA
- DR. ERNEST OWUSU DAPAAH
Areas of Law
- Civil Procedure
2024
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Justice Anthony Oppong's concurring opinion emphasizes the critical importance of a party's capacity to bring a case before the court. He explains that lack of capacity can prevent the court from adjudicating a case on its merits, even if the case might have been decided in the party's favor. The opinion stresses that courts must prioritize determining issues of capacity, as a successful plea of want of capacity will stop the court from proceeding to the merits of the case. Justice Oppong concludes by highlighting that capacity issues are fundamental and should never be overlooked by the court.
CONCURRING OPINION
ANTHONY OPPONG, JA:
I have been privileged to read the opinion of His Lordship Dr. Owusu Dapaah and I agree with his reasoning and conclusion on the issue of lack of capacity of the plaintiff/respondent. However, I wish to express a thought on the need to access the court for reliefs on legally cognizable capacities.
The capacity with which a party approaches the court is crucial such that, the authorities have it that, where a party lacks the requisite capacity to access the court, he will be denied the right to have his case decided on the merits.
He will be thrown away before his case can be looked at and determined on the merits. This is because where a party goes to court without the requisite capacity, the proper party will not be before the court to warrant the exercise of the jurisdiction of the court to adjudicate on the rights of the parties in the particular case presented before the court.
It is sad commentary to observe a situation where a court of competent jurisdiction would have adjudicated a case in favour of a party on the merits such as can be said in this case but cannot do so because the party lacks capacity. In such a situation where there is want of capacity the court sadly is disabled from considering the case on the merits but may dismiss the case for the simple reason that the proper party is not before the court.
It bears emphasis therefore that whenever a point on capacity is raised or can be gleaned from the pleadings or the evidence, it is incumbent on the court to determine that point as a matter of priority and promptly for that determination will lead to whether the case will end without determining the merits or the case will have to be determined on the merits.
In other words, a successful plea of want of capacity will stop the court from proceeding to determine the case on the merits. Where a court finds want of capacity on the part of a party, it will be useless for that court to purport to proceed to look into the merits of the case. Indeed, there will be lack of jurisdiction to proceed to determine a case on merits where it is established that the proper parties are not before the court such as has sadly happened in this case.
It has indeed been held in the case of Republic vrs. High Court, Accra, Ex Parte Aryeetey (Ankra Interested Party) (2003-2004) SCGLR 398 that a challenge to capacity even puts the validity of a writ in issue. The point being emphasized is that an issue of capacity is s