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RULING
On 10/10/2019, Expressway Microfinance, the Applicant herein, commenced this action by filing an originating motion/application for Judicial Review.
The process was amended on 5/12/19 making Bank of Ghana the only Respondent.
The reliefs indorsed are:
1. Certiorari directed to the Respondent to move into this Honorable Court for quashing the purported decision of the Respondent to revoke the license of applicant.
2. An order of Interlocutory Injunction retraining the Respondent, their agents, assigns privies etc from interfering with the operations of Expressway Microfinance Limited.
3. Damages This ruling is about a preliminary legal objection raised about the capacity of the applicant to commence this action.
Therefore, this court has to determine whether or not, applicant (Expressway Microfinance) is a legal person with full capacity and authority to institute this action.
It is common knowledge that, capacity is a fundamental legal principle in commencement of any legal suit, the lack of which strips a plaintiff/applicant his locus.
In AKRONG VRS. BULLEY (1965) GLR469SC and several decisions on the subject, the principle has been upheld as very important.
The capacity in which an action is commenced be it personal, representative etc.
must exist from the beginning of the suit and it is immaterial that, during the pendency of the action the plaintiff/applicant acquired the requisite capacity.
In the case: MUHAMMED S. BELLO VRS. JOSEPH A. NYARKO, [2011]36. G. M. J. 86 at 99-100 It was held by the court of Appeal that, the law is that, when a plaintiff sues in a representative capacity [as in the case before the court] as at the base of issue of the writ, he was not clothed with such capacity.
The writ of summons and the statement of claim were declared null and void and incurably bad and that it was immaterial that later during the course of the trial, the capacity was acquired.
In the decision of the Supreme Court in the case: ASSEMBLIES OF GOD CHURCH VRS. OBENG 2011 32 GMT. 133 2010 SCGLR. 300, is relevant to the issue of capacity under consideration.
The court held “And since the courts existed to do substantial justice, it would be manifestly unjust to non-suit the plaintiff church because they have added the word ‘Executive Presbytery’ to their name on the writ of summons…”The High Court Civil Procedure Rules, 2004 C. I. 47 in Order 16 Rule 5(2)provides that, an amendment may be granted to a plaintiff or a party to amend the wri