THE DIVINE HEALER’S CHURCH VS KOBLA SENAKEY
2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP K. A. GYIMAH
Areas of Law
- Civil Procedure
- Property and Real Estate Law
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
The plaintiff sought several reliefs against the defendant regarding land ownership and usage, but the defendant filed multiple motions to dismiss for lack of capacity. The court struck out the initial defense and allowed the defense to be relisted. The core issue was whether the plaintiff Divine Healer’s Church, Ashaiman No. 1 Assembly had legal capacity, given it was not the registered entity, but rather a branch. The court concluded that only the registered entity has capacity to sue, and the suit was dismissed.
RULING ON MOTION TO DISMISS SUIT FOR LACK OF CAPACITY
Introduction and Procedural History By a writ of summons issued on 21st March 2017, the plaintiff claimed the following reliefs against the defendant: i. Declaration of title to all that piece or parcel of land particularly described in the statement of claim.
Recovery of possession.
An order for demolition of all unauthorized structures on the land.
Perpetual injunction restraining the defendant, his agents, assigns, privies and whosoever that claims through him from entering, developing or having anything to do with the said land.
v. General damages for trespass.
Cost. On 30th October 2018, the defendant filed a motion to dismiss the present suit for lack of capacity.
This is the third of similar applications brought by the defendant to dismiss the suit.
The first was a motion to set aside writ of summons and its service on the defendant on grounds of estoppel but the said application suffered a ‘technical knockout’ because the defendant’s lawyer at that time was not licensed to practice.
The defendant engaged a new lawyer who also filed another motion to strike out the statement of claim under order 11 rule 18 and to dismiss the action.
This application was also not successful.
Directions were taken on 23rd November 2017 and the parties were directed to file their respective witness statements for trial to proceed.
The plaintiff complied with the order of the court but the defendant did not comply as his lawyer failed to come to court on a number of occasions because he was apparently not interested in the matter, although he failed to file the necessary processes before the court.
The court proceeded to conduct case management and after the defendant had been given further opportunities to file his processes, which opportunities were not utilised, the court struck out the defence of the defendant on 18th June 2018. Trial commenced on the same day where the plaintiff’s representative Pastor Isaac Agbasi gave evidence in chief and the matter was adjourned to allow the defendant cross-examine the plaintiff’s representative.
On the date fixed for the said cross-examination, the defendant had procured the services of a new lawyer who had filed a motion to relist the defendant’s statement of defence and for extension of time to file the defendant’s witness statement.
The said motion was granted and the defendant was given time within which to file his witness statement for trial to continue