2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arose after the Circuit Court in Kumasi dismissed preliminary legal objections to a land suit brought by Christian Future Hope Ministry against the Defendant. The Defendant challenged the Plaintiffs capacity to sue as an incorporated church, the propriety of suing him in a name other than his own ( Wango ), and argued the ruling was against the weight of affidavit evidence, citing non-joinder of other occupants of the land. The Court of Appeal held that while unconditional appearance does not bar raising propriety objections, the identity dispute is factual and cannot be resolved by preliminary legal objection on written submissions, requiring viva voce evidence at trial. The Court further held non-joinder is not fatal under CI 47 Order 4 and confirmed the Plaintiffs corporate capacity to sue under Act 992; omission of LBG in pleadings is amendable. All grounds failed and the appeal was dismissed, with no order as to costs.
ASIEDU, JA.
This is an interlocutory appeal against a ruling delivered by the trial Circuit Court, Kumasi on the 5th day of June 2020. Christian Future Hope Ministry, the Plaintiff/Respondent in this matter, on the 6th day of November 2019, caused a writ of summons to issue against the Defendant/Appellant herein, claiming against the Appellant:
a. Declaration of title and recovery of possession of Plot 6 Block XIV New Tafo, Kumasi
b. Perpetual injunction restraining the Defendants, their agents, servants, workmen, assigns, representatives and/or any person(s) claiming through them or on behalf of them (sic) or in any way dealing with and/or having anything to do with the land, the subject matter of the dispute.
c. Damages and costs including legal fees.
d. Any other order(s) as the justice of the case would require in terms of the rules of the Honourable court.
The writ was accompanied by a statement of claim. After entering appearance thereto, the Defendant/Appellant, filed a statement of defence; after which a Reply was also filed by the Plaintiff/Respondent. At the Application for Directions stage, issues and additional issues were filed by the parties and adopted by the trial court for determination as shown on pages 11 to 15 of the Record of Appeal. On the 28th day of February 2020, following an oral application by counsel for the Defendant/Appellant, the court made an order setting out issues (a), (b) and (c) of the additional issues to be heard “as preliminary legal objection.” It is important at this stage to state the three additional issues which the court set down for determination as preliminary legal objection. These are:
a. Whether the Plaintiff has capacity to sue.
b. Whether the writ is a nullity for want of a proper defendant.
c. Whether the lawful occupation of the supposed defendant for 21 years has a definite legal effect.
As a consequence, the court also made an order for “counsel to file their submissions on the legal objection raised by the Defendant”. The matter was adjourned to the 3rd April 2020 for ruling by the learned trial Judge. Page 47 of the ROA attests to these facts. The lawyers in obedience to the order of the court, accordingly, filed their submissions and on the 5th day of June 2020, the trial Judge delivered a ruling in which she dismissed the “preliminary legal objection.” Aggrieved by the ruling, the Defendant, on the 5th day of June 2020, filed the instant Notice of Appeal in which he seeks from this cour