Seth Aryee & Anor. Vrs Sarah Nyenejah Nimeby [2022] GHADC 295 (21 October 2022)

IN THE TDC DISTRICT COURT HELD AT TEMA ON FRIDAY, THE 21ST DAY OF OCTOBER 2022 BEFORE HER HONOUR AKOSUA ANOKYEWAA ADJEPONG (MRS), CIRCUIT COURT JUDGE, SITTING AS AN ADDITIONAL MAGISTRATE SUIT NO. A9/17/22 1. SETH ARYE 2. MARY ARYE ---------- PLAINTIFFS/RESPONDENTS 3. FREDERICK ARHIN VRS SARAH NYENEJAH NIMELY ---------- DEFENDANT/APPLICANT PARTIES: ABSENT COUNSEL: ANTHONY ADU-NKETIA, ESQ. FOR DEFENDANT/APPLICANT PRESENT JOHN NDEBUGRE AWUNI, ESQ. FOR THE PLAINTIFFS/RESPONDENTS PRESENT RULING ON MOTION ON NOTICE TO SET ASIDE JUDGMENT The recommendations of the Rent Manager from the Rent Office, Tema was filed in the registry of this Court, for enforcement by this Court on the 31st December 2021 for the following reliefs: i. Enforce Respondent to settle 25,800.00 to complainant with immediate effect being accumulated rent in arrears. Page 1 of 7 ii. Eject Respondent from the property forthwith, for complainant’s use. iii. Make such order as to cost or in connection with proceedings. From the record of proceedings, the Defendant herein was personally served with the rent referral and a hearing notice. The Defendant on 21st April 2022 did not attend Court and another hearing notice was ordered to be served on her. On the next adjourned date on 9th May 2022, the Defendant had filed notice of intention to appeal to Rent Magistrate on 6th May 2022 however this Court gave its reasons relying on the relevant provisions under the Rent Act, 1963 (Act 220) and the Rent Regulations, 1964 (LI 369) and struck out the said notice of intention to appeal to Rent Magistrate as it was filed out of time and no application for special leave to appeal out of time had been made to the Court. The Court considering that there was no appeal against the decision of the Rent Manager before it, enforced the recommendations of the Rent Manager and entered judgment for the Plaintiffs as follows: 1. The Defendant is ordered to pay the amount of GH¢25,800.00 to the Plaintiffs with immediate effect being accumulated rent in arrears. 2. The Defendant is ordered to vacate from the said property in dispute forthwith for Plaintiff’s use. 3. A cost of GH¢2,000.00 is awarded against the Defendant for the Plaintiffs. On 3rd June 2022, the instant application was filed by Counsel for the Defendant/Applicant. In her affidavit in support and supplementary affidavit in Page 2 of 7 support filed on 11th August 2022, the Applicant, stated among others that the subject matter house belongs to the 2nd Respondent who has appointed the 1st Respondent as her agent with full powers to deal with the said house. That the 3rd Respondent is a busybody unknown to her in this tenancy matter and has not demonstrated with any evidence his capacity to institute this action. That without a valid legal authority of attorney from the 1st and 2nd Respondents, the 3rd Respondent cannot file any process in respect of the said house. That the judgment entered in favour of the Respondents is void for want of capacity and same ought to be set aside. She prayed her application is granted and a heavy cost awarded against the 3rd Respondent. Counsel for the Applicant in his submission relied on the affidavit in support, the exhibits and the supplementary affidavit; and contended that the 3rd Respondent is a mere busy body and did not have capacity when he went to the Rent Control. That the affidavit in opposition is thumb printed but there is no jurat on it. He prayed the Court to set aside the judgment for lack of capacity. In the affidavit in opposition, the 2nd Plaintiff/Respondent stated that she resides in the United Kingdom and that the property in dispute is her bona fide property to which she appointed the 1st Plaintiff/Respondent who is her biological brother to care of and manage same as a caretaker would in her absence. That the 3rd Respondent at all times material to the instant action had the tacit consent, authority and instructions of 1st Respondent and herself to institute the action at the rent control office. That the 1st Respondent thumb printed his assent to 3rd Respondent to prosecute the instant action by a power of attorney attached as exhibit ‘1’. That even in the absence of the power of attorney, the Applicant is not entitled to set aside the judgment of the Court for want of capacity, primarily on Page 3 of 7 the basis that the 3rd Respondent did not bring the action in a representative capacity. That with the 1st and 2nd Respondent being parties to the instant suit, the 3rd Respondent did not require any proof of authority from them. That the instant application has been brought in bad faith as a means of depriving Respondent of the fruits of their hard–won judgment which was validly given in accordance with rules of law and procedure by this honourable Court. That the instant application is unmeritorious and extremely incompetent as it has no legs to stand on in law and ought to be dismissed entirely. Counsel for the Respondent argued that they are opposed to the application and relied on the affidavit in opposition and the exhibits attached. That assuming without admitting that the 1st and 3rd Respondent did not have capacity, it does not invalidate the action because the 2nd Respondent who is the real owner is a natural person and alive. That there is no law that a literate person cannot thumb print so the issue of jurat is irrelevant. That the Applicant has not shown any good cause for which the judgment should be set aside. It is trite law that capacity goes to the root of every suit however in the case of Republic vrs High Court Accra Ex Parte Aryeetey, (Annan; Interested Party) [2003-2004] SCGLR 405, Kpegah JSC alluded to the fact that even though capacity goes to the root of the matter a Court must exercise that discretion not capriciously or arbitrarily. The Court therefore in determining the issue of capacity must consider all issues at stake to arrive at a fair determination. In the instant case the Rent Manager heard the Plaintiffs’ case through the third Plaintiff after the Defendant failed to appear before the Rent Manager although duly served. Page 4 of 7 In the case of Republic v. Court of Appeal, Accra Ex Parte East Dadekotopon Development Trust, Civil Motion No J5/39/2015, dated 30- 07-15, SC Unreported, it was held that: ‚There could not be a breach of the rules of the audi alteram partem rule, when it is clear from the facts that sufficient opportunity was given to a party and was abused by him”. The Defendant ought to have attended the hearing before the Rent Manager to raise her issue of capacity but she did not. Thereafter, the Defendant ought to have filed the appeal against the Rent Manager’s decision within the time stipulated under the relevant laws when she realized she was aggrieved by the Rent Manager’s decision but she failed to do that as well. This Court having entered judgment for the Plaintiffs in accordance with the relevant provisions of the Rent Act and Rent Regulations, is functus officio and cannot reopen the case to determine the issue of capacity as raised by the Defendant/Applicant. It has been held that where a Court delivers judgment or makes an order which its jurisdiction has been invoked to make, that Court becomes functus officio in that, it cannot vary, alter or reopen the case with a view to determining any issue which could have been determined at the trial. So in the case of Bedzra v. Agbadze [1961] 1 GLR 257 where a native Court purported to transfer a case in which it had entered judgment to another Court as a suit pending, the Supreme Court held that as soon as the Native Court had delivered judgment, it became functus officio in respect of the suit and therefore no suit or writ of summons remained which could be transferred. In the case of In re Ntrakwa (Decd); Bogoso Gold Ltd v Ntrakwa & Another [2007/2008] 1 SCGLR 389, where after delivering it’s judgment, the High Court purported to assess damages subsequently, the Supreme Court held allowing an Page 5 of 7 appeal brought by the aggrieved party, that since the judgment of the trial High Court was final and not interlocutory, the Court was functus officio once the judgment was delivered. Consequently, the assessment of damages... was an act done in futility as the Court had no jurisdiction in the matter any longer. This Court cannot treat the instant application as a rehearing to take evidence to determine whether or not Plaintiffs had capacity. It is not after judgment has been entered that the Applicant is in Court to challenge the capacity of the Plaintiffs/Respondents. That ought to have been done at the hearing when she was given the opportunity to appear before the Rent Manager or it can be done on an appeal. At this stage the Court is functus officio after it entered judgment in accordance with the Rent Act and Rent Regulations. The Applicant is inviting this Court which is functus officio in the instant case, to determine the issue of capacity but that cannot be done by the instant application because there must be evidence to disprove the capacity being challenged and also to prove the particulars of fraud; the affidavit evidence is not sufficient. The Court being functus officio, cannot go into the merits of the case and determine the issue of capacity. There is an appropriate legal remedy for the Applicant to pursue if she is of the opinion that the Respondents did not have capacity to take an action against her, as the judgment in question is a regular judgment which cannot be set aside for the reasons stated by the Applicant. I have read the affidavits in support and affidavit in opposition as well as the annexures to this motion and have also listened to the submission by both Page 6 of 7 Counsel for the parties; I am not convinced that this is a right stage to determine the issue of capacity as raised by the Applicant, since this Court is functus officio. Considering the above, I am minded not to grant the instant application. From the foregoing reasons the instant application is hereby dismissed with a cost of GH¢1,500.00 awarded against the Applicant in favour of the Respondents. [SGD.] H/H AKOSUA A. ADJEPONG (MRS) CIRCUIT COURT JUDGE 21ST OCTOBER 2022 Page 7 of 7