EAST DEDEKOTOPON DEVELOPMENT TRUST VRS LA TRADITIONAL COUNCIL & 12 OTHERS (H1/79/2021) [2021] GHACA 23 (16 December 2021)

IN THESUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL (CIVIL APPEAL) ACCRA – GHANA CORAM: SENYO DZAMEFE JA PRESIDING P. BRIGHT MENSAH JA JENNIFER DODOO JA SUIT NO. H1/79/2021 16TH DECEMBER 2021 BETWEEN: EAST DEDEKOTOPON DEVELOPMENT TRUST … PLAINTIFF/APPLT vs 1. LA TRADITIONAL COUNCIL 2. NII B K YEMOH 3. NII ADJEI KOOFEH IV 4. NII KPOBI TETTEY TSURU II 5. SAMUEL SOWAH OBVLEJUMA 6. JERRY ODDOYE 7. ISREAL GONTI ADJEI 8. ENOCH ADDO SOWAH 9. JOSEPH NII ODOI YEMOH 10. ANDREW NII ODOI YEMO 11. NII OBUOR FRED AFFUL 12. ROBERT OKPOTI MENSAH 13. LANDS COMMISSION BRIGHT MENSAH, JA: JUDGMENT DEFENDANTS/ RESPS I precede this judgment with the statement of law the Supreme Court handed down in Pobee,Tufuhene Elect of Apam v Yoyoo [2013-2014] 1 SCGLR 208 @ 211 that runs as follows: “……………. This appeal raises for our consideration, a point of law that is at the heart of our judicial system and the extent to which non-compliance with it, may have the effect of in- validating any decision rendered in a case where such a non- compliance did take place. The said point of law is this: Whether a tribunal that has jurisdiction to determine a subject matter may be pursuing a course of procedure that denies a party to the cause the right to be heard, might thereby act in excess or lack of jurisdiction ……………………………………” [emphasis underscored] My Lords, we are being called upon in the instant appeal to consider whether the course of procedure the lower court adopted in dismissing the suit was appropriate and or proper. As a matter of fact, this appeal is launched against the Ruling of the High Court, Accra delivered 31/07/2017, in which case the lower court held that the plaintiff lacks requisite capacity to institute the suit. In consequence, the plaintiff’s suit was summarily dismissed in its entirety. The court then awarded costs of Ghc5000. for the 1st, 4th – 8th and 11th – 12th defendants; Ghc5000. for 2nd, 9th and 10th defendants; and Ghc5000. also in favour of 3rd defendant that the plaintiff complains as being excessive. The ruling appears on pp 68- 71 of the record of appeal [roa]. Being dissatisfied with the decision, the plaintiff has appealed to this court on a number of grounds as contained in the notice of appeal filed 11/03/2017. Consequently, he prays for an order setting aside the ruling of the lower court and the costs it awarded. Additionally, the plaintiff prays for an order that the case be remitted to the High Court and be put before another judge for trial. The grounds of appeal as contained in the notice of appeal as follows: 1. In view of the documentary evidence on record that the Plaintiff Trust has been duly incorporated under Act 106 with perpetual succession and the right to sue and be sued in its corporate name the learned judge committed an elementary and funda- mental error of law by holding that the plaintiff has no capacity to bring the action. 2. The learned judge committed a grievous error of law when he bluntly refused to follow the decision of the Supreme Court on the capacity of the Trust to sue and be sued in its corporate name as determined in the case of the Republic v Court of Appeal Exparte East Dadekotopon Development Trust, the Director of Survey (Interested Party) – Suit No. J5/39/2015 (un- reported). 3. In the light of the serious and controversial issues raised by the parties in the pleadings and processes filed, the learned judge committed a fundamental error of law by dismissing the action in limine. 4. The learned judge erred in law by failing to allow the case to proceed to trial for evidence to be taken and tested before giving his judgment which error led him to deny the plaintiff fair trial. 5. The learned judge failed to properly and judiciously examine the application to dismiss the action which failure led him to uphold the application which did not satisfy basic judicial requirements for such applications. 6. The learned judge failed to handle the case in accordance with his judicial calling by failing to deliver a written and reasoned judgment/ruling based on the processes before him and there- after failing to release the short ruling read in open court to the plaintiff after demand and repeated follow ups. 7. In the light of the processes and evidence before the court the learned judge demonstrated a strong bias in favour of the defend- ants contrary to his judicial oath thereby dismissing in limine the serious case brought against the defendants. 8. The costs awarded by the learned judge is too excessive. 9. Additional grounds to be filed upon receipt of the record. See: pp 72-74 [roa]. An additional ground of appeal was filed on 24/06/2020 that stated that the judgment was against the weight of evidence. In this appeal, the plaintiff/appellant herein shall simply be referred to as appellant, whilst the defendants/respondents herein shall also be referred to, only as the respondents. The writ that initiated the action: Per the writ of summons issued in the registry of the lower court on 28/04/2017, the appellant had sued for: 1. A declaration that the La Traditional Council has no lawful authority to appoint the Trustees of the East Dadekotopon Development Trust. 2. A declaration that the purported appointment of the 5th to 12th defendants as Trustees of the East Dadekotopon Development Trust as published by the 1st defendant in the Daily Graphic of Thursday, April 20, 2017 is null and void and of no effect what- soever. 3. An order directed at the defendants from holding themselves out as Trustees or the lawful authority to deal with the East Da- dekotopon Development Trust lands situate behind the Ghana International Trade Fair in any way. 4. An order declaring void any contract, lease or title document executed by the defendants in respect of the said Trust lands. 5. An order directed that the Lands Commission/Land Registration Division restraining them, their agents, servants and privies from processing or registering any documents emanating from the defendants in respect of the said Trust lands. 6. Perpetual injunction restraining the 1st to 12th defendants, their agents, servants, privies and persons claiming through them from entering, alienating or in any way dealing with the said Trust lands. See: pp 1-2 [roa] It is worth noticing that upon being served with the writ, Lawyer Amarkai Amarteifio entered a joint entry of appearance on 05/05/2017 for the 1st, 4th – 12th defendants. See: pp 7-8 [roa]. The 3rd defendant rather entered conditional appearance as appearing on p.9 [roa] whilst the 2nd, 9th and 10th defendants are on record to have entered appearance per their lawyer, Samuel Tetteh-Quaye on 15/05/2017. See: pp 10-11 [roa]. The 13th defendant did also enter unconditional appearance on 07/06/2017 through their legal department. See: pp 12- 13 [roa]. We need to put it on record that the 3rd defendant did on 21/06/2017 file his statement of defence in response to the plaintiff’s claim, denying substantially all the claims of the plaintiff. The 3rd defendant pleaded in paragraph 9 of his statement of defence that the plaintiff lacks capacity to institute the present action. He contended that at the time the plaintiff filed the suit there were no legitimate trustees to the East Dadekotopon Development Trust. Motion to strike out pleadings and dismiss suit: The records of the lower court showed that Mr. Amarkai Amarteifio, the lawyer for the 1st, 4th – 12th defendants, on 08/06/2017 filed a “Motion on notice for an order striking out the pleadings contained in the plaintiff’s statement of claim and dismissing action”. Attached to the motion paper were the supporting affidavit and other annexures. See: pp 14-31 [roa]. The plaintiff resisted the motion by filing an affidavit in opposition, attaching same with some exhibits. See: pp 38-43 [roa]. It is pertinent to observe that the crux of the claim of the appellant and the basis for which it sued was that the appointment of 5th – 12th [defendants] respondents as Trustees of the East Dadekotopon Development Trust as published by the La Traditional Council [1st respondent] in the Thursday April 20, 2017 edition of the Daily Graphic was null and void. That triggered the application to dismiss the claim of the appellant, the respondents contending rather that the appointments were, to all intents and purpose, valid. For purpose of clarity, we set here below, the relevant paragraphs of the respondent’s affidavit in support of the application. They read: “6. By a Trust deed made on the 10th April 2002 and registered under the Trust Incorporation Act, 1962 (Act 106) the Settlors, the La Stool, the Lenshie Quartey and the Nmati Abonase Quarter of La agreed to create a Trust to take over and manage the land situate and lying behind the Ghana Inter- national Trade Fair Centre, La Accra (Attached is a copy of the Trust Deed marked as Exhibit NKT 1 7. I am advised by Counsel and verily believe same to be true that under Article 3 of the Trust Deed, the Settlors (that is the La Stool, the Lenshie Quarter and the Nmati Abonase Quarter), who are the appointing authority shall at any given time appoint Trustees to control, manage and deal with the Trust in the following manner: i. ii. iii. The La Stool/Traditional Council is to nominate four Trustees Two (2) Trustees are appointed by the Lenshie Quarter Two (2) Trustees appointed by the Nmati Abonase Quarter. 8. These appointments are made independent by the said Quarters. 9. I am advised by Counsel and verily believe same to be true that the publication in the Daily Graphic on Thursday the 20th of April 2017 by the La Traditional Council in conjunction with the Lenshie Quarter of La and the Nmati Abonase Quarter of La who are the Settlors and therefore the appointing authority of the East Dade- Kotopon Trust is valid and in line with the terms of the Trust Deed as the term of office of some, or all of the Trustees have expired. attached is a copy of the said Newspaper Publication on the 20th April 2017 is marked Exhibit NKT 2.” 10. It is the prayer of the 1st, 4th – 12th defendants/applicants herein that the pleadings contained in the plaintiff’s statement of claim be struck out as vexatious and an abuse of the court process and the suit be dismissed in further consideration of the court’s over- riding objective of avoiding unnecessary expense of time and resources. Where I swear to this affidavit in support of the motion for an order striking the pleadings contained in the plaintiff’s statement of claim and dismissing the action.” It must be emphasized that the application to strike out the appellant’s pleadings and to dismiss the suit, was anchored on Order 11 r 18(1) of the High Court [Civil Procedure] Rules, CI 47 that provided: “(1) The court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that (a). It discloses no reasonable cause of action or defence; or (b). It is scandalous, frivolous or vexatious; or (c). It may prejudice, embarrass, or delay the fair trial of the action; or (d) It is otherwise an abuse of the process of the court, and may order the action to be stayed or dismissed or judgment to be entered accordingly. (2) No evidence whatsoever shall be admissible on an application under subrule (1) (a).” It is peculiarly important to reiterate that similar provision was made under the old rules, that is to say, Order 25 r 4 of LN 140A. Significantly, Order 25 r 4 of LN 140A is in pari material with the current rule, Order 11 r 18(1) of CI 47. We do observe that although the wording has changed with some slight modifications, the substance running through both provisions remains unaltered. As a rule of construction, therefore, since both the old provision and the current provision are virtually the same, the same meaning should be given to both. See: Adam v Nuamah - Civ. App. No. J4/68/2019 SC (unreported) delivered 05/02/2020. The rule of procedure has received some pronouncements by the courts which we shall discuss extensively in a moment in this judgment. Before proceeding further we need to ask: what is the appropriate approach for a court of competent jurisdiction to adopt when an application for striking out pleadings and or to dismiss an action is placed before it? The Halsbury’s Laws of England Vol. 37 of the 4th ed at p. 318 provides some form of assistance to the court exercising such a judicial discretion to strike out pleadings or dismiss an action on grounds that it is either frivolous or vexatious or discloses no reasonable cause of action or it is otherwise an abuse of the legal process. The learned authors have provided in para. 430 @ p.318 of the Halsbury’s Laws as follows: “……………………. the powers are permissive, not mandatory, and they confer a jurisdiction which the court will exercise in the light of all circumstances concerning the offending pleading. The discretion is exercised by applying two fundamental, although complimentary principles. The first principle is that the parties will not lightly ‘be driven from the seat of judgment’, and for this reason the court will exercise its discretionary power with the greatest care and circumspection and only in the clearest of cases. The second principle is that a stay or even dismissal of proceedings may ‘often be required by the very essence of justice to be done’ so as to prevent parties being harassed and put to expense by frivolous, vexatious or hopeless litigation.” [emphasis ours] In Morrison & anr v Victory Bible Church [2015-2016] 2 SCGLR 1628 the High Court on 10/03/2010, summarily dismissed the plaintiffs’ claim as being frivolous and an abuse of the process of the court in an application brought under Order 11 r 18(1) of CI 47. The plaintiffs appealed to the Court of Appeal and the 1st appellate court reversed the decision of the trial High Court. It allowed the appeal and ordered the full retrial of the case. However, the 1st defendant appealed to the Supreme Court against the judgment of the Court of Appeal. The Supreme Court in a 4-1 majority decision dismissing the appeal, held that the court has power to strike out pleadings under Order 11 r 18(1) of CI 47 or under its inherent jurisdiction. It is instructive, the Supreme Court in coming to the conclusion it did, adopted with approval, the statement of law the Court of Appeal expounded at pp 1633-1634 of the Law Report that is worthy of reproduction here: “………………..[W]hat is the proper approach? The trial judge dismissed the suit because he was of the view that the action was frivolous and constitutes an abuse of the court’s process. Indeed, under Order 11 r 18 of CI 47, which has been invoked, the trial judge in the exercise of his discretionary power is permitted to dismiss summarily an action which he considers frivolous or which constitutes an abuse of the court’s process. But before coming to this conclusion, the trial judge as enjoined to consider whether the case before him is one fit and proper to be so decided summarily. The issue to be decided in this appeal therefore is whether or not on the available evidence, the trial judge, procedurally is justified in deciding the case summarily…….” In Lartey & Lartey v Beany [1987-88] 1 GLR 590 the most respected and distinguished jurist, Cecilia Koranteng-Addow J had the opportunity to consider an application under Order 25 r 4 of the High Court [Civil Procedure] Rules, 1954 LN I40A. Having reviewed the various authorities on the subject, the learned judge postulated that an application to dismiss an action would not be granted if it involved serious investigations of questions of general importance. The same principle has earlier on been echoed in Bank of West Africa Ltd v Holdbrook [1966] GLR 164. So, the rule applies only in obvious cases and not where the application calls for extrinsic evidence before the court can come to a conclusion or the other. In the English case of Attorney-General of the Duchy of Lancaster v London & North Western Rly Co. [1892] 3 Ch. 274 @ 277 C/A Lindley L. J posited: “……….[I]t appears to me that the object of the rule [Order 25 r 4] is to stop cases which ought to be launched ------- cases which are obviously frivolous or vexatious, or obviously unsustainable…………………………………………………….” The Attorney-General of Duchy case (supra) turned on an application to dismiss the suit for not disclosing any reasonable cause of action. The principle applies with equal force to a defence that did not disclose a reasonable or triable defence. We need to make it clear that an application premised on Order 11 r 18(1)(a) of CI 47 does not admit any affidavit evidence. The application is considered purely on basis of the pleadings filed in the case. The principle has been reinforced in a legion of cases. See: Okai v Okoe [2003-04] SCGLR 393. The Court of Appeal in Tackie v Baroiudi [1977] 1 GLR 36 has equally stated the law that affidavit evidence was inadmissible on an application under Order 25 r 4 of LN 140A. Similarly, in Harley v Ejura Farms [1977] 2 GLR 179 the Court reiterated the rule once again graphically thus: “…… [I]f by reference only to the pleadings it is not possible to say it discloses no cause of action but an application must elaborate excursions into extrinsic material before he can invite the court to so hold, the rule does not apply.” The court held further in Harley v Ejura Farms (supra) that recourse to Order 25 r 4 of LN 140A [now Order 11 4 18(1)] ought not to be made in cases involving serious and intricate questions of law. Practice & Procedure of Order 11 r 18: Now, having regard to the principles extensively considered and discussed supra, the law on the practice and procedure of Order 11 r 18(1) of the High Court [Civil Procedure] Rules, CI 47 may be summarized as follows: i) That the judge’s discretion to grant such application ought to be exercised sparingly and only in obvious cases; ii) the discretion should be exercised judicially; iii) when the facts were in dispute and may call for extrinsic evidence to prove them the rule will not apply and the application should be refused; iv) the application should not be granted if its determination involved serious investigations of questions of general importance; and v) therefore, the jurisdiction of the court must be exercised with extreme caution. This court [Coram: Azu Crabbe CJ, Sowah and Anin JJA] held in Ghana Muslims Representative Council v Salifu [1975] 2 GLR 246 that it was a matter within the judicial discretion of a judge whether or not, to strike out pleadings on the ground that the pleadings disclosed no reasonable cause of action or defence or that the action had no reasonable chance of success. Nevertheless, the court further stated: “The jurisdiction of the court must, however, be exercised with extreme caution. A pleading would only be struck out where it was apparent that even if the facts were proved the plaintiff was not entitled to the relief he sought………………………….” [emphasis added] The chief question the instant appeal raises: The chief question we are called upon to answer in the instant appeal is whether the learned trial judge adopted the proper approach in dismissing summarily, the case of the appellant. In answering the question, we have decided to combine the 1st – 6th grounds of appeal and address them simultaneously since they appear to speak to the same issue. It is to say, whether the learned trial judge committed an error of law when he suo motu raised the capacity of the appellant instead of addressing himself mainly on the application that was put before him. It has been submitted on behalf of the appellant that the writ of summons raised very serious issues bordering on misrepresentation, fraud and deceit of the general public by the respondents that the lower court ought to have delved into. Learned Counsel argued that the application was invitation specific. That is, the application was brought under Order 11 r 18(b)&(d) of CI 47. Thus, the lower court could not have come to the conclusion that the claims of the appellant were frivolous and vexatious and abuse of the judicial process by suo motu raising the issue of capacity, Counsel maintained. In his further submission on what was an abuse of legal process, Counsel referred this court to the dictum of Dotse JSC in NOAS Holding Inc. v Ghana Commercial Bank Ltd [2011] 1 SCGLR 492 and stated that the application brought to strike out the pleadings was incompetent and if the learned judge had critically examined it and applied the law as expounded by the Supreme Court to it, he would not have dismissed the suit. Counsel next argued that the appellant had pleaded in paragraph 1 of the statement of claim that the Trust was a body corporate registered under the Trustees (Incorporation) Act, 1962 (Act 106) which averment was admitted by the respondents in paragraph 5 of their affidavit in support. Upon incorporation of an entity under Act 106, it becomes a legal person different from the persons who incorporated it or its officers, with the right to sue and be sued in its corporate name, he added. Counsel therefore invited the court to allow the appeal and set aside the ruling of the lower court and for a further order that the matter be put before a different judge for trial to avoid bias committed against the appellant. In a sharp rebuttal, however, learned Counsel for the respondents whilst conceding that a cause of action or defence that disclosed an action cannot be determined summarily, he nonetheless submitted that the settled test for the validity of the institution of an action so far as it related to capacity was whether the party exists. In support, Counsel referred us to Edusei v Diners Club Suiesse SA [1982-83] 2 GLR 809. But isn’t that a question of fact to be established at the trial? We shall revisit the issue. Counsel next propounded, and rightly so in our view, that capacity when challenged must be determined before the action proceeds to trial on merit. In support, he relied on such cases as Asante-Appiah v Amponsah @ Mansa [2009] SCGLR 90; Mozama Disco Christo Church v Jehu Appiah [2010] 27 MLRG 56 @ 71&76. Counsel further submitted that under Order 11 r 18 the court had the power to strike out pleading or averment at any stage of the proceedings and may order the action either to be stayed or dismissed and or the court may enter judgment. In his view, the appellant was suing in a representative capacity. Thus, it carried the burden to establish its status. In support, Counsel relied on Akoto II & ors v Kavege & ors [1984-86] 2 GLR 365. Furthermore, Counsel took the position that the lower court was right in relying on rulings from the High Court notably, Atto Mill Graves J in Suit No. SOL 27/2013 and Merley Wood J and Daniel Mensah J to come to the conclusion that the appellant herein lacked the legal capacity to mount the instant action. Counsel next referred to the case, R v Court of Appeal; Exparte East Dadekotopon Development Trust, the Director of Survey |(Interested Party) Suit No. J5/39/2015 as well as R v High Court (Probate Division) Accra, Exparte Registered Trustees of East Dadekotopon Development Trust etc – Civ. Motion No. J5/67/2019 (unreported) to argue that though the East Dadekotopon Development Trust can sue and be sued by reason of its incorporation, it can only do so through its appointed Trustees who during their tenure of office are its mind and brain. According to Counsel, the Trustees’ tenure of office are defined by the Trust Deed and until renewed or extended by the Settlors, the tenure lapses and they cannot therefore from that point hold themselves out as Trustees neither can they act on behalf of the corporate body as its mind and brain. Answering the chief question: Now, coming back to the fundamental question raised supra, needless to emphasize, we have critically evaluated the affidavit evidence on record, the ruling of the lower court vis-à-vis the written submissions filed in the appeal by both lawyers on each side. Our conclusion is that the learned trial judge certainly did not adopt the best practice or the appropriate approach when it dealt with the application. In consequence, he fell into a serious error of law when the trial judge summarily dismissed the claim of the appellant. To begin with, instead of the learned trial judge adopting the well-established principles as stated supra, he regrettably chose to raise the issue of capacity of the plaintiff suo motu, and summarily dismissed the claim when the application placed before him was anchored on Order 11 r 18(1) of CI 47. In other words, the learned trial judge pursued a course of procedure that denied a party to the cause the right to be heard. See: Pobee, Tufuhene Elect of Apam v Yoyoo [supra]. We need to add that the process by which an issue of capacity of a party may be raised for consideration and determination is quite different from the process and the perimeters set out in Order 11 r 18(1) of CI 47. The lower court pursuing a course of procedure the parties never anticipated, the effect was that it did not give the appellant the opportunity to be heard on the issue of its capacity to sue. Without giving hearing to the appellant before summarily dismissing the claim, the lower court was in serious breach of the rules of natural justice, the audi alteram partem rule. On the authority of R v Bolgatanga High Court; Exparte Hawa Yakubu [2001-2002] SCGLR 53 the decision of the lower court that has culminated in the instant appeal is a nullity and a fertile ground to be upset on appeal. Next, the lower court brazenly refused to apply the well-established principle of stare decisis to the case. The main fulcrum around which the lower court based its decision to dismiss the suit was that the East Dadekotopon Development Trust has to be incorporated every four [4] years or that its mandate has to be renewed every four years to enable it continue in existence or sue and be sued. However, this is not borne out of the record. In any event, the issue whether or not the East Dadekotopon Development Trust can sue and be sued had earlier in time been settled by the Supreme Court in a ruling in the case, The Republic v Court of Appeal; Exparte East Dadekotopon Development Trust, [Civ. App. No. J5/39/2015 delivered 30/07/2015 (unreported). Being a question of law, the High Court was bound to follow it and apply it to the instant case. For, per Article 129(3) of the 1992 Constitution, the decision of the Supreme Court was binding on the High Court. Insofar the case turned on interpretation on Ss.1 and 4 of the Trustees (Incorporation) Act, 1962 [Act 106] the decision of the Supreme Court handed down in The Republic v Court of Appeal; Exparte East Dadekotopon Development Trust [supra] was a question of law that the lower court had no discretion in the matter but to apply it. It was therefore palpably wrong for the lower court to have refused to apply it to the facts of the case before it. Regrettably, it rather decided to follow the decisions of the High Court, a court of co-ordinate jurisdiction which was only of a persuasive nature, to hold that the appellant has no capacity to sue. That was indeed a serious foundational error the lower court committed. Granted that in every 4 years the Trustees of the Trust have to be changed and that the current Trust as constituted, did not have the legitimate Trustees to have mounted the action, these facts were in dispute and called for extrinsic evidence to prove them. Thus, the rule under Order 11 r 18(1) of CI 47 did not apply and the lower court ought to have refused the application. Put differently, whether the Trust currently has legitimate Trustees that constitute it, was a matter for evidence to be led on the issue by the parties to the suit and not for the court to deduce it. Having regard to serious issues raised in the pleadings that could be resolved only by viva voca evidence, we uphold the submissions that the learned judge committed a fundamental error of law when it granted the application and dismissed the case in limine. See: Lartey & Lartey v Beany [1987-88] 1 GLR 590. Although we take cognizance of the fact that the 3rd defendant [respondent] pleaded in paragraph 9 of his statement of defence that there were no legitimate trustees to the Trust at the time the appellant sued and for that matter it lacked the capacity to bring the action, we nevertheless maintain that the lower court ought to have legitimately set the issue down for hearing and should have given all the parties the right to be heard. Admittedly, capacity may be raised at any time, even on second or third appeal and this is trite learning. 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 proceedings, even on a second or third appeal………...” [emphasis added] Indeed, this court in Kwabena Acheampong & 2 ors v Seth Welbeck, Civ. App. No. H1/106/2021 dated 16/12/2021 (unreported) C/A has stated the rule that as a matter of law, capacity relates to the legal personality of a party to proceedings and where the capacity of the party 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. Challenge to capacity to mount or initiate an action, goes to the root of the case therefore, the parties whose has been challenged carries the burden to prove capacity. 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 Yokwa 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 worth repeating that this avowed principle notwithstanding, the proper procedure for the learned trial judge was to have set down the issue for hearing before trial or to have invited legal argument from the lawyers on both sides if he considered that, that would dispose of the case at the preliminary stage of the proceedings. We do recognize the Common Law rule that the court is endowed with jurisdiction to raise suo motu, any point of law for its consideration that is capable of disposing of the case one way or the other and or to assisting it in the determination of the suit. That power is residual and inherent in the courts and to all intents and purposes, it is to do substantially justice in a matter. Nonetheless, the power is not exercised in a vacuum or its exercise meant to spring a surprise. It is properly and judicially exercised when the court gives proper notice to the parties in the matter to address it on the issue. The lower court in our instant case was therefore enjoined to consider the application to either grant or refuse it only within the four (4) corners or perimeters of the motion paper together with the supporting affidavit and the annexures as well as the affidavit in opposition. The lower court having gone beyond the set perimeters of the application and rather suo motu raised the capacity of the appellant to sue, exceeded its jurisdiction. In any event, we think that the issue of capacity was not central to the determination of the application under Order 11 r 18 of CI 47. Thus, on the authority of the decision of the Supreme Court in John Kwadwo Bobie v 21st Century Construction Ltd & 7 ors – Civ. App. No. J4/5/2015 delivered 09/03/2016 (unreported) the learned trial judge grievously erred when he proprio motu raised it. In any event, on the authorities, a preliminary issue that may be raised at an early stage of proceedings that could dispose of the matter does not include matters like capacity of the plaintiff which would actually call for pleadings and evidence to establish at the trial itself. Put differently, the issue of capacity does not come into category of cases that can be raised at the preliminary stage to dispose of a case without evidence being led on it at the trial. See: Anim-Addo & ors v Addae-Mensah & ors [1995-96] 1 GLR 15. Overall, we are the considered opinion the appellant has made sufficient case invoking our jurisdiction to interfere with the exercise of judicial discretion the lower court in the instant appeal. The appeal succeeds. Consequently, we allow the appeal, set aside the ruling of the High Court [Land Court], Accra and all its consequential orders delivered in this case. Justice, they say, must not only be done but must be seen to be done. Given the circumstances under which the application was handled and the costs the lower court awarded, we think to do substantial justice in the matter we recommend to the Honourable Chief Justice to exercise his prerogative powers to cause the case to be transferred from that particular court and put it before another court, which we hereby do. Appellant’s costs assessed at Gh¢10,000. Sgd P. BRIGHT MENSAH (JUSTICE OF APPEAL) Sgd SENYO DZAMEFE (JUSTICE OF APPEAL) Sgd JENNIFER DODOO (MRS.) (JUSTICE OF APPEAL) I AGREE I ALSO AGREE COUNSEL Ezra Alabi Borquaye for the plaintiff/appellant Samuel Tetteh Quaye with Joshua Nanaba Attobra for the defendant/respondent 22