MULTI CONCEPT LIMITED VRS LA NKWANTANANG MADINA & 2 OTHERS (H1/173/2021) [2022] GHACA 112 (16 June 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL DIVISION) ACCRA – GHANA CORAM: SENYO DZAMEFE JA PRESIDING P. BRIGHT MENSAH JA GEORGE KOOMSON JA BETWEEN: MULTI CONCEPT LIMITED SUIT NO. H1/173/2021 16TH JUNE 2022 … PLAINTIFF/RESPONDENT vs 1. LA NKWANTANANG MADINA MUNICIPAL ASSEMBLY … 1ST DEFENDANT/APPELANT 2. BUILD FORM LIMITED … 2ND DEFENDANT 3. CHARLES OWUSU … 3RD DEFENDANT ======================================================================= JUDGMENT BRIGHT MENSAH JA: The 1st defendant/appellant herein being dissatisfied with the decision of the High Court Adenta-Accra delivered 26/11/2020 has launched the instant appeal on the grounds of appeal listed here below, challenging the rightness of the ruling of the lower court, that: 1. The trial court erred in law when it overruled the 1st defendant/ appellant’s preliminary legal objection on the capacity of the plaintiff/respondent to sue despite sufficient evidence of lack of capacity in the plaintiff. 2. The trial judge erred in law when she adjourned the matter sine die and ordered the plaintiff to regularize its documentations in order to comply with the mandatory relevant statutory requirements before proceeding with the case. 3. Further grounds of appeal would be filed upon receipt of the Ruling. See: pp 281-282 of the records of appeal [roa] No additional ground of appeal was filed. We shall therefore limit our discourse to only the 2 grounds of appeal mentioned supra. As we go along, the status of the parties as plaintiff and defendants respectively, shall be maintained. The events leading to the Ruling by the lower court were that the plaintiff had on 14/07/2020, filed an application for an interlocutory injunction restraining the defendants, their officers, agents, etc from interfering with and/or carrying out activities on the plaintiff’s land upon the grounds contained in the supporting affidavit. Pursuant to being served with the process, the La Nkwatanang-Madina Municipal Assembly (1st defendant herein) filed a 31 – paragraph Affidavit In Opposition to the application and raised it in the said affidavit, the issue that the plaintiff is holding some fictitious documents allegedly executed by a dead man and that that cannot be a basis for ownership of the disputed land. Following the filing of the affidavit in opposition, was the 1st defendant’s statement of defence filed 07/10/2020 in which it was also pleaded in paragraphs 28 and 29 thereof that the plaintiff has no cause of action and also that the plaintiff lacks the requisite legal capacity to sue the 1st defendant. In response to the 1st defendant’s assertion that the plaintiff lacks the legal capacity to sue, the plaintiff filed a supplementary affidavit in opposition, exhibiting certificate of incorporation and certificate to commence business, marked “MCL 11” and “MCL 12” respectively, to buttress the existence of the plaintiff company and its legal capacity to sue, as it were. It is instructive that when the application for interlocutory application came off for hearing on 23/10/2020 the issue of the capacity of the plaintiff to sue took the centre stage of the arguments of the lawyers for the parties. As a way forward, the learned trial judge directed both lawyers to file written address to assist her in making a determination whether the legal capacity issue raised was sustainable. In compliance with the directive, the lawyer for the 1st defendant filed his written submissions on 02/11/2020. See: pp 246- 253 [roa]. The written submissions of the lawyer for the plaintiff appears on pp 259-272 [roa]. The lower court subsequently set down 26/11/2020 to deliver its ruling that appears on pp 273-279 [roa]. As stated supra, the learned trial judge dismissed the 1st defendant’s application and additionally made some other orders. It is against this ruling that the instant appeal has been launched. Arguments of Counsel for the 1st defendant: 1st Ground of appeal: To start with, learned Counsel referred us to Order 2 rr 4 & 5 of the High Court [Civil Procedure] Rules, 2004, CI 47 as well as S. 18 and S.14 of the Companies Act, 2019 (Act 992) and with much emphasis on sub-section 2 of S. 14 of Act 992, argued that the plaintiff in the instant case lacked the legal capacity to sue. Counsel next referred to a plethora of cases including Naos Holdings Inc v Ghana Commercial Bank [2005-2006] SCGLR 407 @ 408 in which case the Supreme Court speaking through Sophia Akufo JSC (as she then was) has stated the law, inter alia, that once the plaintiff company’s legal status was challenged and its corporate capacity was placed in issue, it was incumbent upon it to produce more cogent evidence of its existence such as its registered office address, copies of its certificate of incorporation, to satisfy the court that it had requisite legal capacity to sue. It is the case of the 1st defendant that the plaintiff failed or neglected to produce any credible and/or sufficient evidence of its existence as an incorporated limited liability company. Counsel took issue with plaintiff’s certificate of incorporation and certificate to commence business, Exhibits MCL 11 & MCL 12, contending that per a search conducted at the Registrar-General’s Department contained in Exhibits 3 & 3A the Registrar denied the existence of the plaintiff company. Counsel next referred us to S. 27(1) of the Companies Act, 1963 (Act 179) as amended by S. 26 of the Companies Act, 2019 (Act 992) and contended further that the plaintiff’s certificate of incorporation, Exhibit MCL 11 ought to have been accompanied by regulation or constitution of the company [Form 3] containing the relevant information about its registered title including but not limited to the registered office address, objects of the company, type of business it undertakes, names of shareholders, names of directors, and Tin No. [Tax Identification Number], among others. The plaintiff having failed to exhibit those information, Counsel for the 1st defendant insisted, the court below erred when it accepted Exhibits MCL 11 & MCL 12, the only documents the plaintiff tendered as evidence of its capacity to sue and existence as a limited liability company. Being inadmissible, Counsel maintained, this court has the power to reject them in this appeal. In support, Counsel referred us to Amoah v Arthur [1987-88] 2 GLR and Tormekpey v Ahiable [1975] 2 GLR 432. 2nd ground of appeal: On ground 2, Counsel did submit that the learned trial judge erred in law when she adjourned the matter sine die and ordered the plaintiff to regularize its documentations in order to comply with the mandatory relevant statutory requirements before proceeding further with the case. It is Counsel’s contention that the lower court lacked the jurisdiction to adjourn the suit sine die and to order the plaintiff to go and engage the Registrar of Companies before coming back to continue with the hearing of the case. Relying on the authority of R v High Court (Fast Track Division|) Accra; Exparte National Lottery Authority (Ghana Lotto Operators Association & Ors – Interested Parties) [2009] SCGLR 390, Counsel argued further that the court has no power to grant the plaintiff a waiver for non-compliance with mandatory provisions of a statute. In conclusion, Counsel prayed this court to allow the appeal, set aside the ruling of the lower court and in its place, dismiss the suit for plaintiff’s lack of capacity to mount the suit. Arguments of Counsel for the plaintiff: 1st ground of appeal: In response, learned Counsel unassailing the correctness of the ruling of the lower court submitted that the dismissal of the preliminary objection by the learned trial judge was right and did not amount to an error of law and the ruling was supported by the evidence on record. It was his case that a company after being incorporated and a certificate of incorporation evidencing the incorporation was sufficient proof of its corporate personality until it was wound up in accordance with law. In support, he relied on the locus classicus, Salomon v Salomon & Co. Ltd [1897] AC 22 and the Ghanaian case, Owusu v R. N Thorme Ltd & anr [1966] GLR 90. Counsel premising his argument on S. 15 of the Companies Act, 2019 (Act 992) emphasized that the certificate of incorporation of the plaintiff company [Exhibit MCL 11] as appearing on p. 183 [roa] was sufficient evidence in proof of the plaintiff’s corporate personality when its capacity was challenged. Counsel submitted therefore that the 1st defendant’s Exhibits 3 & 3A cannot be preferred to the certificate of incorporation of the plaintiff, Exhibit MCL 11. In any event, the search report, Exhibit 3 was conducted in respect of a company called “Multi Concept Company Limited” which is not the same as the plaintiff company herein, Counsel reiterated. Counsel further referred us to the dictum of Sophia Akufo JSC (as she then was) in Naos Holdings Inc v Ghana Commercial Bank [supra] and contended that the case rather supports the legal status position of the plaintiff company since it was able to satisfy the requirement of producing its certificate of incorporation which proved its legal existence. Having regard to the production of the plaintiff’s certificate of incorporation, the burden of producing evidence shifted unto the 1st defendant. In support, he referred us to Sumaila Bielbiel v Adam Daramani & Attorney General (No.3) [2012] 1 SCGLR 370. On the issue that the plaintiff not having TIN thereby affecting its capacity to sue, Counsel submitted that its absence did not affect the legal status of the plaintiff. He submitted that the Supreme Court in Centre for Juvenile J1/61/2018 dated 30/07/2019 has put the matter to rest when it struck out as unconstitutional, the provisions in the Revenue Administration Act 2016, [Act 915] requiring an individual person or entity to have a TIN before it can sue or be sued in court. Learned Counsel in his written submissions pp 2-3 filed 25/01/2022 drew the court’s attention to another case, Chief Supt Wisdom Kwasi Zoiku v La Nkwantanang-Madina Municipal Assembly, Suit No. GJ/988/2018 in which case the Municipal Assembly per its officer in his witness statement filed 06/10/2020 has acknowledged the existence of Multi Concept Ltd, the plaintiff in the instant case. He claims that the current lawyer representing the 1st defendant herein was the same lawyer that represented the La Nkwantanang-Madina Municipal Assembly in the earlier case. Counsel therefore argues that it is highly unethical for the lawyer to deny the existence of the plaintiff in the instant suit. If indeed, the plaintiff herein does not exist, Counsel argues, then the Assembly’s defence in the earlier suit mentioned supra, is questionable intended to mislead the High Court handling the matter, he maintained. Counsel has therefore invited us to dismiss the appeal as lacking any merit. 2nd ground of appeal: Learned Counsel on this leg of appeal submitted that once the capacity of the plaintiff was determined to exist, the learned trial judge ought to have directed the case to take its normal cause rather than making the order that the matter be adjourned sine die for the plaintiff company to regularize its compliance requirements with the relevant institutions including the Registrar-General’s Department. Submitting further, Counsel insisted that the question of the plaintiff’s compliance with various statutory requirements was not before the lower court for determination. For the lower court to have made that order it did, the plaintiff was not given the opportunity to lead any evidence in that respect. In any event, the statutes have penal regimes for default of compliance, he argued further. He relied on the oft-quoted case of Boyefio v NTHC Properties Ltd [1996-97] SCGLR 531 to support the legal proposition that where a statute creates a remedy or right and prescribes a procedure for accessing that remedy or right, only that procedure may be followed. Counsel so submitted that that part of the ruling was not properly made and should be vacated. Preliminary legal objection by plaintiff: Before proceeding to deal with the appeal, it is imperative to consider the preliminary legal the plaintiff has raised. It is that the Civil Form 2 issued by the Registrar of the lower court was never served on the plaintiff to be able to participate in the settlement of record, amounting to the breach of the audi alteram partem rule. In consequence, the plaintiff has contended, the jurisdiction of this court has not been properly invoked so as to deal with the hearing of the appeal. Traditionally, Civil Form 2 is issued by the registrar when an appeal has been launched by the party adversely affected, against a judgment, a ruling, an order of the court or in simple terms, any decision by a court of competent jurisdiction. The administrative step the Registrar takes is ordinarily called “settlement of record”. The basic purpose of Civil Form 2 is enable the Registrar is to impose some conditions on the appellant to ensure that the records of appeal was prepared and transmitted to the appellate/higher court for hearing. At the settlement of records, the parties are offered the opportunity to show the Registrar the processes and or the documents they would want to form part of the record of appeal to the higher court. In the case where a full trial was held the processes and or documents that usually form part of the record of appeal include the writ of summons initiating the action, the pleadings, exhibits tendered at the trial, the testimonies of the parties and their witnesses at the trial, the judgment and all orders, if any, made in the course of the trial. Where the order or a ruling appealed against is an interlocutory, as it is in the instance because the case has not travelled far and no evidence taken in the matter, what normally form part of the record of appeal are the writ of summons, both the statement of claim and the statement of defence, [if a defence has been filed], the motion and its supporting affidavit and annexures, if any, as well as the affidavit in opposition and annexures, if any. It also includes the arguments of lawyers for the parties whether oral or written submissions and finally, the ruling/order of the lower court complained of. The Registrar then imposes some conditions on the appellant to fulfil for the record of appeal to be prepared. The Registrar, for eg., may ask the appellant to pay certain sum of money to purchase sheets of paper for the typing of the ruling/orders and photocopying of the relevant processes that ought to form part of the record. The appellant is then required to fulfill any condition(s) imposed within the time frame. When the conditions are fulfilled within record time, it is the mandatory duty of the Registrar to ensure that the records of appeal are prepared and transmitted to the Registrar of the appellate/higher court who then fixes a date for hearing of the appeal and issues hearing notices and causes same to be served on the parties and their lawyers. Where the appellant does not comply with the conditions of the appeal, the Registrar issues the Registrar’s Summons [Civil Form 11] and transmits same to the appellate/higher court for the appeal to be struck out for non-compliance of the conditions imposed on the appellant. Now, we have critically scrutinized the record of appeal in the instant appeal. From the record as appearing on p. 282, pp 284-285 [roa] it is obvious that the Registrar although issued the Civil Form 2, it was only the 1st defendant [appellant] that was served. It follows, therefore, that it was only the appellant that participated in the settlement of records. It is instructive, the Registrar of the court below gave the reason for the non- participation of the plaintiff [respondent] in the settlement of record as being that it did not affect the plaintiff [respondent]. See: p. 284 [roa]. Much as the records undoubtedly show that the plaintiff was never served with Civil Form 2 to participate in the settlement of record, we nevertheless think the non- participation of the plaintiff in the settlement of record does not go to the root of the appeal making the record of appeal null and void. On the face of record, all the processes that were required to make the record of appeal complete are present. That is to say that the record of appeal contains the writ of summons, the plaintiff’s statement of claim, the 1st defendant’s statement of defence, reply to the defendant’s statement of defence, motion on notice for interlocutory injunction together with supporting affidavit and its annexures, the 1st defendant’s affidavit in opposition, supplementary affidavit in support and further supplementary affidavit the plaintiff subsequently filed. The record further showed the filing of supplementary affidavit in opposition with its annexures filed by the 1st defendant, the written submissions of both lawyers as the court ordered and court’s notes of the proceedings of the application. In the light of the above, although we agree with learned Counsel that the Registrar of the lower court failed in his duty to serve Civil Form 2 on the plaintiff to participate in the settlement of record, once all the processes legitimately required to form the records of appeal to make it complete for the hearing of the appeal are present in the instant appeal, we think the preliminary legal objection raised is inconsequential. In the result, we invoke rule 63 of CI 19 and hold that the appeal is properly laid before this court. Now that the preliminary objection legal hurdle is overcome, we proceed to deal with the main appeal. Resolution of the appeal: To begin with, the instant appeal is an invitation to this court to interfere in a judicial discretion exercised by the lower court by which the 1st defendant’s contention that the plaintiff lacked the legal capacity to institute the action was dismissed. As a general rule, an appellate court cannot or would not ordinarily substitute its own discretion for the court exercising a discretion. However, there may be exceptional circumstances justifying questioning the exercise of the judicial discretion. The principles governing exercising judicial discretion and the power of an appellate court to interfere in the exercise of a court’s discretion were considered extensively in Sappor v Wigatap (2007-2008) SCGLR 676 in which case the Supreme Court set the perimeters of the rules as follows: “………………. [A]n appellate court would [only] interfere with the exercise of a court’s discretion where the court below applied wrong principles or the conclusions reached would work manifest injustice or that the discretion was exercised on wrong inadequate material. Arbitrary, capricious and uninformed conclusions stand in danger of being reversed on appeal.” It is worth noticing that Crabbe JSC in R v Registrar of High Court; Exparte Attorney General (1982-83) GLR 407 @ 420 has reiterated that the grounds upon which the exercise of judicial discretion may be impeached include: i) where it can be demonstrated that the judge or judicial officer violated the duty to be fair and candid; ii) where the discretion was exercised capriciously or arbitrary; iii) that the judge or judicial officer was biased either by resentment or prejudices; iv) the trial judge did not act in accordance with due process of law. It bears emphasizing that there are no binding precedents in exercise of judicial discretion as each case is decided on its own merit provided the judge or judicial officer took into consideration, all the necessary facts and circumstances of the case; the judge or the judicial officer was not biased or capricious or that he did not take into account, extraneous matters. See: Agyeman v Ghana Rly & Ports Auth. (1969) CC 60 C/A. In summary, therefore, there are no hard and fixed rules as to how the judge or judicial officer must exercise his discretion in an application put before him except that the conclusion reached was not perverse or occasioned any miscarriage of justice. If the conclusion was supported by the [affidavit] evidence on record, the exercise is said to be right and judicially exercised. Consequently, the appellate court will not interfere with the exercise of the court’s discretion save in exceptional circumstances. See: Nartey Tokoli v Valco No. 3 (1989- 1990) 2 GLR 530. The fundamental question to address in our present case is whether the lower court did not exercise its judicial discretion in accordance with due process of law. Put differently, whether the court below did not exercise its discretion judicially. We shall revisit the issue. It bears reiterating that challenge to capacity to mount or initiate an action goes to the root of the case. Therefore, the party whose capacity has been challenged carries the burden to prove it. Capacity relates to the legal personality of a party to proceedings and where his capacity is put into question, he cannot be heard to say that he must be given a hearing on the account that he has a cast-iron case. See: Kwabena Acheampong & 2 ors v Seth Welbeck, Civ. App. No. H1/106/2021 dated 16/12/2021 (unreported) C/A. Capacity being so fundamental and goes to the root of the case, the general rule is that even if the parties did not raise it, the court has the power to consider it to ensure a proper outcome. In Yorkwa v Duah [1992-93] 1 GBR 278 the Court of Appeal propounded the law as follows: “Where a person’s capacity to initiate proceedings was in issue, it was no answer to give that person a hearing on the merits even if he had a cast-iron case. Even though the point of respondent’s capacity was not raised at the trial, it involved a serious point of law that the trial judge ought to have considered.” [emphasis ours] It is equally a true statement of law to say that capacity may be raised at any time, even on second or third appeal. In Standard Bank Offshore Trust Co. Ltd (subst’d by Dominion Corporate Trustees Ltd) v National Investment Bank Ltd & 2 ors [2018] the Supreme Court speaking through Benin JSC ruled: “A writ that does not meet the requirement of capacity is null and void. Nullity may be raised at any time in the course of the pro- ceedings, even on a second or third appeal……..…” [emphasis added] It is now a settled rule of practice and the law, that insofar as capacity goes to the root of the case, it is a preliminary issue the trial court has to resolve before proceeding to consider the merit or otherwise of the case. The court cannot proceed with the trial on the merits until and unless it resolved the fundamental issue of capacity. In his insightful book, Civil Procedure; A Practical Approach @ p. 184 the distinguished author puts it: “………….the capacity in which a party sues or is sued is crucial because the reliefs claimed in the writ of summons must derive from the capacity in which the party sues or is sued. Capacity is thus a preliminary issue in the sense that the action cannot proceed for determination on the merits if the plaintiff or defendant lacks capacity to sue or defend the action. …………………………………………………. The defendant’s denial of the plaintiff’s capacity or the capacity in which the defendant is sued would throw the burden of proof unto the plaintiff. The issue of capacity so arising may be determined before or at the trial, and in any case before the merits.” [emphasis highlighted] Re-echoing the avowed principle, the Supreme Court speaking through Anin Yeboah JSC (as he then was) postulated in Alfa Musah v Francis Appeagyei [2019-2020] 1 SCGLR 606 @ 612-613 as follows: “We think the law is that, when a party lacks the capacity to pro- secute an action the merits of the case should not be considered. …………………………………………………………………………… If a suitor lacks capacity it should be construed that the proper parties are not before the court for their rights to be determined. ………………………………………………………………………For, proceeding to discuss the merits when the proper parties are not before the court is not permitted in law. In this appeal, regardless of the other issues raised, the High Court and the Court of Appeal for that matter, erred in determining the other issues raised.” Now, we have carefully evaluated the records of appeal in terms of the affidavit evidence put before the lower court, the pleadings the parties filed, the respective arguments of Counsel as contained in their written submissions and hold the respectful view the appeal lacks any merit. From the available evidence on record, we roundly agree with the submissions of learned Counsel for the plaintiff that the certificate of incorporation and certificate to commence business, Exhibits MCL 11 & MCL 12 was prima facie, sufficient evidence of the existence of the plaintiff company and its corporate personality and therefore capable of suing and being sued. For, the law provides in S. 15 of the Companies Act, 2019 (Act 992) that the certificate of incorporation or a copy of that certificate, certified as correct by the Registrar, is conclusive evidence that the company has been duly incorporated under this Act and proceedings shall not be brought in a court to cancel or annul the incorporation. That shifted the burden unto the 1st defendant to prove the contrary in terms of S. 11(1)&(4) of the Evidence Act, 1975 (NRCD 323). Amazingly, the 1st defendant rather exhibited search reports from the Registrar-General’s Department showing that “Multi Concept Co. Ltd” never existed. See: p. 240 [roa]. For purpose of clarity, we set out here below, the search report Exhibit 3: “Registrar-General’s Department Ministry of Justice P O Box 118 Accra-Ghana. 24th April 2017 PRUDENTIAL LAW OFFICES P O BOX GP 1448 ACCRA RE-REQUEST FOR MULTI CONCEPT COMPANY LIMITED Reference your letter dated April 2017 in response to the above named company. Search conducted on record did not show any trace of the said company. However, if there is any convincing evidence of registration, kindly submit a copy to our outfit for authentication and necessary action would be taken. (Sgd) ? ? ? VICTORIA AYITSCO AYESU (Mrs) (HEAD OF RECORDS) For: REGISTRAR OF COMPANIES.” To state the obvious, it is quite clear that “Multi Concept Company Ltd” is different from Multi Concept Ltd, the plaintiff company in this case. In law, Multi Concept Company Ltd is not, and cannot be the same as Multi Concept Ltd. In the light of this fact we dismiss as untenable, the overstretched arguments of Counsel for the 1st defendant that the plaintiff company never existed and by extension, therefore lacking the legal capacity to sue. It is also our considered opinion that once the plaintiff’s certificate of incorporation was issued to it in 1995 under the Companies Act, 1963 [Act 179] it acquired a corporate personality by which it can sue and be sued. There is no law that cancels or revokes certificate of incorporation under Act 179 without due process of law. Neither did the coming into force of the new Companies Act, [Act 992] revoke the licences of companies regularly and lawfully registered under Act 179 and or required a new registration before attaining any recognition or corporate personality. Put differently, there is no provision under the current Companies Act, [Act 992] that declares as invalid, certificates of incorporation issued under the old regime. Equally, we hold the candid view that there is no law in Ghana that states that a company which has not filed annual returns ceases to be a company with a corporate personality that can sue and be sued. In any event, in another case, Chief Supt Wisdom Kwasi Zoiku v La Nkwantanang- Madina Municipal Assembly, Suit No. GJ/988/2018 the Municipal Assembly per its officer in his witness statement filed 06/10/2020 has acknowledged the existence of Multi Concept Ltd, the plaintiff in the instant case. Significantly, the 1st defendant per its Counsel’s Reply [filed 18/02/2022] to the plaintiff’s written submission never denied this fact. It was therefore unethical and disingenuous for the Counsel for the 1st defendant to insist that Multi Concept Ltd never existed. In written submissions he used such unpalatable words as “goro boys” when he has not pleaded them in his statement of defence. Neither did he lead evidence on it when the application came off for hearing. It was therefore palpably wrong for lawyer for the 1st defendant to address us on it. For, the law is that it is improper for a lawyer to address on matters on which no evidence had been led. See: Hammond v Amuah [1991] 1 GLR 89. Having regard to the pleadings the La Nkwatanang-Madina Municipal Assembly and a witness statement of its office filed in the earlier suit acknowledging the existence of the plaintiff company we take judicial notice of that fact in terms of S. 9(2) of the Evidence Act, 1975 [NRCD 323] and hold that the 1st defendant cannot approbate and reprobate at the same time. The learned trial judge therefore correctly exercised her discretion judicially and creditably when she dismissed the arguments of the 1st defendant that the plaintiff lacked the legal capacity to mount the instant action. On the affidavit evidence, we hold that the plaintiff is clothed with that legal capacity to sue. This ground of appeal therefore fails and is hereby dismissed. That leads us to discussing the 2nd ground of appeal. We reiterate the point that if the court upheld the submissions that the plaintiff lacked the legal capacity to sue, that would have ended of the matter without proceeding to discuss this other ground of appeal. See: Alfa Musah v Francis Appeagyei [supra]. On the contrary, since we have held the plaintiff to be clothed with the legal capacity to sue and be sued, it is needful for the court to deal and determine the 2nd ground of appeal. Now, the impugned part of the ruling that both lawyers complained of, is reproduced here for purpose of clarity. It reads in part: “The courts, being enforcers of the law must therefore be seen to promote compliance with laws passed by the legislature and not to assist legal entities to take advantage of legal lacunae………. ………………………………………………………………………….. In the circumstances, the preliminary objection to dismiss applicant’s case on grounds of capacity is hereby dismissed. The case is how- ever adjourned sine die for Multi Concept Limited, the applicant company herein to regularize its company compliance requirements with the relevant institutions such as the Registrar General’s Depart- ment, the Ghana Revenue Authority, the Municipal Assembly to mention a few, before the [sic] continuing with this case. The order should not be difficult for the applicant to comply with as it has insisted it is an active company. No award as to cost is made.” We roundly uphold the arguments of Counsel that, that part of the ruling of the lower court whereby the case was adjourned sine die with the order that the plaintiff company engaged some statutory bodies to regularize its statutory compliance was, with due respect, was made without jurisdiction. The lower court by making that order unfortunately descended into the litigation itself. Absolutely, the courts are enforcers of the laws of Ghana but the courts only do so when their jurisdiction or powers are invoked. Until and unless those powers are invoked, the courts cannot behave like school headmasters holding canes and who without any justification, would apply the cane on student/pupil that crosses their path. The issue before the lower court was an application for an interlocutory injunction the plaintiff filed against the defendants. The fallout of the application was the issue of capacity of the plaintiff company to sue that took the centre stage. Capacity being fundamental and goes to the root of the case, the lower court rightly directed the parties to file written submissions for its consideration so as to determine whether the plaintiff was clothed with the legal capacity to sue or not. Having considered the arguments of both lawyers and came to the conclusion the plaintiff did, it was incumbent for the lower court to have adjourned the matter for the hearing of the application for the interlocutory injunction or to adjourn the matter sine die for the case to take its normal cause. The lower court having made those orders in that part of the ruling without offering the parties to address it, was in a serious breach of the audi alteram partem rule. See: R v Bolgatanga High Court; Exparte Hawa Yakubu [2001-2002] SCGLR 53. On the authority of R v Bolgatanga High Court; Exparte Hawa Yakubu [supra] the decision of the lower court is a nullity and a fertile ground to be upset on appeal. To the extent that the lower court took into consideration, extra judicial matters which it lacked jurisdiction to do so, we hold that that part of the ruling was not judicially exercised and we do hereby set it aside. Beyond that the instant appeal is hopelessly unmeritorious and it is hereby dismissed No order as to cost. SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD SENYO DZAMEFE (JUSTICE OF APPEAL) SGD GEORGE KOOMSON (JUSTICE OF APPEAL) I agree I also agree COUNSEL MOHAMMED AWAL-ALHASSAN FOR 1ST DEFENDANT/APPELLANT NANA Y. NTRAKWAH FOR PLAINTIFF/RESPONDENT 20