Lititia Asante & 7 Ors Vrs The Administrators Of The Estate Of The Late Lawrence Eward Kissi-ampadu [2022] GHACC 111 (14 November 2022)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON MONDAY, THE 14TH DAY OF NOVEMBER, 2022, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE SUIT NO. C11/25/22 LITITIA ASANTE & 7 ORS ---- PLAINTIFFS/RESPONDENTS (The Beneficiaries of the Late William Abera Wiafe (acting by their true and Lawful Attorney Godfred Wiafe) VRS. THE ADMINISTRATORS OF THE ESTATE OF THE LATE LAWRENCE EDWARD KISSI-AMPADU ---- DEFENDANTS /APPLICANTS DEFENDANTS/APPLICANTS ABSENT PLAINTIFFS/RESPONDENTS REPRESENTED BY THEIR LAWFUL ATTORNEY PRESENT ANDREW DANIELS, ESQ. FOR PLAINTIFFS/RESPONDENTS PRESENT KOFI BOSOMPEM, ESQ. FOR DEFENDANTS/APPLICANTS PRESENT FACTS RULING This is a ruling on a motion on notice filed by Counsel for the Defendants/Applicants (hereinafter referred to as “the Applicants), praying this court for an order to strike out the suit for want of capacity of the Plaintiffs/Respondents’(hereinafter called “the Respondents”) Lawful Attorney. The background to this application is that on 15th October 2021, the eight (8) plaintiffs in this case, claiming to be the beneficiaries of the estate of the Late William Abera Wiafe, acting through their lawful Attorney, one Godfred Wiafe caused a writ of summons and Statement of Claim to issue against the Defendant for the following reliefs; 1. A declaration of title that the plaintiffs are the beneficiary owners of the property situated at House No. C1/F-5, Tema that the Defendants are now in possession. 2. Recovery of possession of the property situated at House No. C1/F-5, Tema, the subject matter of dispute from the Defendants to the Plaintiffs. 3. Perpetual Injunction restraining the Defendants, their agents, representatives or assigns from occupying or dealing in the property situated at House No. C1/F-5, Tema. 4. Costs. The defendant entered appearance and filed a defence and counterclaimed against the plaintiffs. At the case management stage, when the Respondents’ Attorney filed their Witness Statement and Pre-trial Checklist based on the orders of the court, Counsel for the applicant filed the instant application challenging the capacity of the Lawful Attorney of the Respondents. In the affidavit in support of the application, Counsel for the applicants deposed that in the witness statement filed by the lawful attorney of the plaintiffs, he failed to speak to his capacity to commence the suit on behalf of the plaintiffs and also failed to exhibit any Power of Attorney executed by the Plaintiffs in his favour that clothed him with capacity to institute the instant action on their behalf. Counsel further deposed that the plaintiffs never executed any power of attorney either individually or collectively mandating him to institute the action on their behalf and as such he lacked the requisite capacity to have instituted the action on their behalf. The motion paper with the supporting affidavit was duly served on the respondents but they failed to file an affidavit in Opposition and Counsel at the hearing of the application responded on points of law. ANALYSIS I have determined this application based on the motion paper, supporting affidavits, oral arguments by both counsel for the plaintiffs and that of the defendant, and all processes so far filed in the suit. Under Order 2 rule 4 of the High Court (Civil Procedure) Rules, 2004(C. I.47), where a plaintiff sues in a representative capacity, the plaintiff must endorse the capacity in which he sues. In the case of Madina Shopping Mall Association v. Rosehill Gh. Ltd & 2 Ors. [2012] 39 M. R. G. 81 at 106 Per Owusu JSC., SC. The Supreme Court held that: “The person who sues in a representative capacity must endorse such representative capacity on the writ and go ahead to prove that he is clothed with such capacity either before or at the time the writ is issued. A power of Attorney is not under the circumstances a sine qua non. If his capacity is challenged then he must lead sufficient evidence that he has the requisite capacity.” In the case of the Republic v. High Court, Accra; Ex-Parte Aryeetey [2003- 2005] 1 GLR at page 545, the court held that: “whether a person who sued in a representative capacity indeed has the capacity he claims to have or not, is a question of fact and if challenged he had to prove same to avoid his suit being dismissed since it is analogous, in our view, to taking an action against a non-existent defendant. But if the representative capacity he claims is not challenged, naturally a plaintiff assumes no such burden.” In the instant case, the person who caused the writ of summons to issue claims to be the lawful attorney of the 8 plaintiffs. It is trite learning that a person cannot purport to act as the attorney of another person unless that person hold a power of attorney duly executed in accordance with the Powers of Attorney Act, 1998(Act 546). Also, for a power of attorney to be admissible in court, it should be registered and Stamped in accordance with the Stamp Duty Act, 2005(Act 689) and section 170 of the Land Act 2020(Act 1036). In the case of Standard Bank Offshore Trust Company Ltd. (Substituted by Dominion Corporate Trustees Limited) v. National Insurance Bank and Anor, (Unreported) Civil Appeal No. J4/63/2016 the court said through Benin JSC, that: “Let us take another instance where on appeal it comes to light that a person who sued as an attorney for the plaintiff did not in fact hold a power of attorney as at the date he issued the writ. He secured the power of attorney in the course of the trial. The issue of the attorney’s capacity to sue could be raised on appeal and the writ will be declared a nullity because it is fundamental to the authority to sue and this clothes the plaintiff with capacity to mount the action and this must be present before the writ is issued.” From the authorities cited above, where the capacity of a person purporting to be the lawful attorney of the plaintiffs is challenged, his case cannot be heard on the merit unless he satisfactorily proves to the court that he has the requisite capacity. In the instant case, the respondent whose capacity has been challenged failed to produce a duly executed and stamped power of attorney signed by all the plaintiffs on whose behalf he commenced the suit as evidence that he is clothed with the requisite capacity. Learned Counsel for the respondent opposed the application on points of law and orally submitted that the plaintiffs having been described in paragraph 1 of the statement of claim as beneficiaries of the estate, they are clothed with the capacity to institute the action. In support, counsel cites the Supreme Court decision in the case of Susan Bandoh v. Dr. Mrs. Maxwell Apeagyei- Gyamfi [Civil Appeal No. J4/16/2016 delivered on 6th June, 2019, in which the Supreme Court cited with approval the case of Adisa Boya v. Zenabu Mohammed (Subsituted by Adama Mohammed) and Mujeeb, unreported Civil Appeal No. J4/44/2017, delivered on 31st January, 2018 where the Supreme Court stated that; “From the above pleading, the appellant made it clear that she was bringing the action in her capacity as the personal representative of the deceased mother and also on her won behalf and that if the children of the deceased mother. The capacity of the Appellant was thus clear from the Statement of Claim, the defect on the writ of summons is thus cured.” Counsel therefore contends that the plaintiffs who have been described as the beneficiaries of the estate of the Late William Abera Wiafe can commence the action against the defendant who is an administrator of the estate. With much deference to Counsel for the respondents, the principles enunciated in the two erudite decisions of the Supreme Court are distinguishable from the instant case. The applicant herein is not challenging the capacity of beneficiaries of an estate to sue even in the absence of a formal letters of administration granted by a court of competent jurisdiction. The contention as I understand it and as gleaned from the motion paper and the Supporting affidavit is the capacity of Godfred Wiafe who instituted the action in his capacity as the lawful attorney for and on behalf of the beneficiaries or the plaintiffs in this case. From the pleadings before the court and the witness statement filed by Godfred Wiafe, there is no indication that he is acting on behalf of the 8 plaintiffs in the case apart from the endorsement of his capacity on the writ of summons. The lawful attorney having failed to establish his capacity when the validity of the writ is put in issue, the writ of summons is a nullity and same is struck out. The issue is what becomes of the counterclaim of the defendant when the writ is struck out as a nullity. In the case of Fosuhene v. Atta Wusu [2011] SCGLR 273, 275, holding (3) where their Lordships held as follows: "… It was settled that a counterclaim was in law a separate and independent action tried together with the original claim of the plaintiff. Consequently, where in the course of an action in which there was a counterclaim, the plaintiff's claim was struck out, dismissed, discontinued or stayed, the defendant could proceed to prosecute his counterclaim as it was independent of the original claim even though a counterclaim has no separate suit number different from the original suit…" However, in the Supreme Court in the case of Huseini v. Moro [2013-2014] SCGLR 363 at page 373, had the occasion to analyze a similar case with the case at bar on an appeal from a judgment of the Court of Appeal. In that case, the issue of capacity was raised for the first time at the Court of Appeal. The Court of Appeal, after striking out the plaintiff’s case for want of capacity and expunging the plaintiff’s evidence on record, proceeded to determine a counterclaim based on the suit which had been struck out and evidence expunged from the record. The Supreme Court per Baffoe Bonnie J. S. C. stated: “It is true that a counterclaim is a separate action from the claim. But in the peculiar circumstances of this case the bottom of the matter had been knocked off for want of capacity. If there was no capacity to sue because of the defective Power of Attorney, then there was no capacity to defend the action, any pleadings served on the Attorney would be deemed not to have been properly served on the principal. To the extent that service of defendant’s counterclaim on the deficient attorney is deemed as no service, evidence given in proof of the counterclaim cannot be allowed to stand.” The Supreme Court therefore held that: “even though a counterclaim is a separate action from a claim, in the peculiar circumstances of this case, with the plaintiff struck off for want of capacity, there was no defendant to the counterclaim and therefore the counterclaim could not have been prosecuted.” Based on the forgoing, the counterclaim of the defendants is accordingly dismissed. Cost of GH₵3,000 is awarded against the respondents in favour of the applicants. (SGD) H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 7