Awuku Vrs Brempong [2022] GHADC 105 (25 October 2022)

IN THE DISTRICT MAGISTRATE COURT HELD AT NSAWAM N. A. M. A ON 25TH OCTOBER 2022 BEFORE HER WORSHIP SARAH NYARKOA NKANSAH MAGISTRATE SUIT NO. A2/47/20 ------- PLAINTIFF ------- DEFENDANT CHARLES AWUKU ON BEHALF OF THE CHILDREN OF THE LATE BENJAMIN ADU AKESE VRS SETH BREMPONG OF H/NO. EG-013-1674 OF NSAWAM PARTIES: PRESENT. NO LEGAL REPRESENTATION JUDGEMENT The Plaintiff claims against the defendant as follows: a. An order to eject the Defendant from a single room he is occupying in house number EG-013-16774 at Djankrom-Nsawam. PLAINTIFF’S CASE According to the Plaintiff, his late father asked him to release an uncompleted room to the Defendant to stay in and Plaintiff heeded to this request upon further plea by his sister (D W 1). Plaintiff continued that, a year after the demise of Plaintiff’s father, the Defendant begun to cause nuisance in the house by blocking access to the bathroom with his motorbike. Plaintiff added that, after several verbal notices and summons from the Rent Control Department, the Defendant has refused to vacate the room on a claim that the room was gifted to him by Plaintiff’s late father. The Plaintiff closed his case thereafter without calling any witness. Page 1 of 8 DEFENDANT’S CASE It is the Defendant’s case that, he used to help and serve Benjamin Adu Akese, the late father of the Plaintiff and that Plaintiff’s father asked him to come stay with him. Defendant continued that after a while, the Plaintiff’s father called a meeting consisting of his children, the Defendant’s brother, mother, uncle and Defendant himself. The Defendant averred that, at the meeting, the Plaintiff’s father announced his decision to gift a room in the house to the Defendant to live in without any bother from anyone including his children. The Defendant added that, Plaintiff and his siblings all consented to their father’s decision following which the Defendant and his father presented bottles of Schnapps and a Towel to Plaintiff’s father as “Aseda”. According to the Defendant, within a year after the demise of Plaintiff’s father, Plaintiff started harassing the Defendant to vacate the room to the extent that, the Plaintiff removed Defendant’s roof and ceiling and this was reported to the Police. Defendant concluded that, the Plaintiff has no capacity to institute this action against him and prays the Court to dismiss this action and award punitive cost of GH¢1,200.00 against the Plaintiff being cost of renovating the damaged roof and ceiling. Defendant called two (2) witnesses to testify for him. DW 1 DW 1, who is also the elder sister of Plaintiff, testified that, the Defendant was gifted a room by her father due to how selfless the Defendant served her father. DW 1 continued that, her father made this decision known in a meeting which was attended by her siblings and the Defendant’s family after which the Defendant and his family presented Schnapps and a towel as “Aseda”. DW 1 asserted that, after the demise of her father, the Plaintiff begun harassing the Defendant to vacate and even removed the roof of the Defendant’s room. DW 1 added that, even after the family warned the Page 2 of 8 Plaintiff to desist from harassing the Defendant, the Plaintiff took the matter to Rent Control. DW 1 maintained that, the Plaintiff has no capacity to initiate this action against the Defendant as he has no power to administer the estate of their late father. Again, DW 1 stated that, the children of the late Benjamin Adu Akese have not given the Plaintiff any power of attorney to represent them anywhere in any matter. DW 1 concluded that, the Plaintiff has no good reputation and has only brought this action against the Defendant out of malice therefore same should be dismissed and punitive costs awarded against the Plaintiff. DW 2 DW 2 identified himself as the senior brother of the Defendant and said he was present at the meeting convened by Benjamin Adu Akese where the latter announced his decision to give the Defendant a room to renovate and stay in till anytime Defendant wishes to move out. DW 2 mentioned that, Schnapps and a towel were presented to Benjamin Adu Akese as “Aseda” and the Plaintiff and his siblings were all happy knowing how helpful the Defendant has been to their father. DW 2 continued that, later after the death of Benjamin Adu Akese, the Plaintiff started harassing the Defendant to vacate the room and even damaged the Defendant’s roof just to frustrate the Defendant. DW 2 ended by saying that, the Plaintiff has no capacity to sue the Defendant because the Plaintiff’s father made the decision to give the room to the Defendant in the presence of competent witnesses. The Defendant closed his case thereafter. In setting down the issues for the trial, the Court shall first consider “Whether or not the Plaintiff has capacity to maintain this action.” Page 3 of 8 The capacity of the Plaintiff as endorsed on the Writ reads as follows; “Charles Awuku on Behalf of the Children of the late Benjamin Adu Akesse.” The endorsement of Plaintiff’s capacity on the Writ of Summons suggests that, Plaintiff was acting as the guardian ad litem for the children of Benjamin Adu Akesse as the action was brought by the Plaintiff on their behalf. Order 9 rule 14 of the District Court Rules, 2009 (C. I 59) prescribes the persons who may bring an action to Court by guardian ad litem or next friend. Per order 9 rule 14, these are mentally challenged persons and infants. Order 9 rule 14 of C. I 59 provides as follows; “An infant or a mentally challenged person may sue as plaintiff by that infant’s or mentally challenged person’s guardian ad litem or next friend, subject to terms that relate to the liabilities for costs of the guardian or next friend as the Court considers just.” Having sued as guardian ad litem, the onus was on Plaintiff to disclose to the Court as to the status of the persons for whom he initiated the Suit. That is: as to whether they are infants or mentally challenged. The Plaintiff however failed to do so. The Plaintiff cannot purport to initiate a suit on behalf of persons who otherwise have the capacity to initiate the Suit themselves. In the absence of the Plaintiff demonstrating to the Court that, he brings this action as next friend for an infant or a mentally challenged person or persons, the Plaintiff per Order 9 rule 14 of C. I 59 shall lack capacity to maintain the present Suit as guardian ad litem. I hold accordingly that; the Plaintiff lacks capacity to initiate and maintain the present action. The Court proceeds to take note of the fact that, one of the children of Benjamin Adu Akese for whom the Plaintiff purported to bring this action rather came to Court to Page 4 of 8 testify for Defendant as DW 1. According to DW 1, she never authorized the Plaintiff to bring this present action on her behalf. I have to add that, the said Florence Adu Akesse neither appeared to be an infant nor mentally challenged. In another development, the plaintiff tendered EXH “A” which is a Power of Attorney. The Donor of the said Exhibit “A” has described himself in Exhibit “A” as the first son of the late Benjamin Adu Akesse. The Donor states therein that he has the consent of his siblings FLORENCE ADU AKESSE (DW 1 herein) and Charles Kwabena Awuku (Plaintiff herein). For the purposes of this judgment same is reproduced below. “POWER OF ATTORNEY LET ALL MEN BY THESE PRESENT KNOW THAT I, ODOI ASARE the 1st son of the late BENJAMIN ADU AKESE, have the consent of my siblings, FLORENCE ADU AKESE and CHARLES KWABENA AWUKU of Nsawam, hereinafter referred as the DONOR which expression shall where the context so permits or allows be deemed to hereby appoint my junior brother CHARLES KWABENA AWUKU of Nsawam hereinafter as my ATTORNEY to do the following things in my name and on our behalf viz: 1. To represent me and be my lawful ATTORNEY to act for, pursuing all legal matters at the District Court, Nsawam and signs all document. 2. That my ATTORNEY shall be at liberty to do all other things that are incidental to this POWER OF ATTORNEY. 3. That I hereby promise to adopt and ratify all things that my ATTORNEY would do in respect of this POWER OF ATTORNEY. 4. That this POWER OF ATTORNEY would remain in force until revoked by me.” As reproduced above, the plaintiff was appointed by the said Odoi Asare to represent him in all legal matters at the District Court, Nsawam. Page 5 of 8 Although the Plaintiff tendered Exhibit “A” at the trial, Exhibit “A” could not cure Plaintiff’s defective capacity as it were. If the Plaintiff was to be bringing an action as the lawful Attorney of the Donor of the Power of Attorney, then the capacity endorsed on the Writ should have read “Odoi Asare suing per his lawful Attorney Charles Kwabena Awuku.” It is again clear on the face of the Power of Attorney that it was executed on the 21st February, 2020. The present action was commenced on 6th November, 2019. The Writ preceded the Power of Attorney. So even if the Power of Attorney in itself could confer capacity on the Plaintiff in some other instances and for other purposes, same could not have conferred capacity in this case as the Writ was issued before the Power of Attorney was given to plaintiff. In the circumstance, it cannot cure the obvious defect in Plaintiff’s capacity to institute the present action. Another interesting detail evident on the face of the Power of Attorney is the fact that, the Donor was purportedly giving this Power of Attorney with the consent of DW 1 who to the contrary stated in Court that, she never authorized the present action by the Plaintiff. Exhibit “A” also suggests that the Donor, who the Court has noted described himself as a son of the late Benjamin Adu Akesse, could not have given this Power of Attorney if he were an infant or mentally challenged. I have to say that, even if it was possible for Plaintiff to represent the children of Benjamin Adu Akesse as endorsed on his Writ, his representation would still have been put into question considering the testimony of DW 1 and the obviously questionable Exhibit “A”. Page 6 of 8 The position of the law is that, capacity can be raised at any stage of the proceedings and that it can even be raised by the Court suo motu. In the case of Madam Akosua Dufie & Ors Vs. Madam Amma Fosua & Ors [2009]DLSC2502 the Court held that: “It is unfortunate the trial judge did not consider the issue of capacity anywhere in his entire judgment. When he considered whether or not the properties in dispute were for the family he should have gone forward to also consider if they were family properties then whether or not the plaintiffs were clothed with the requisite capacity to sue in respect thereof. That was irrespective of whether or not the parties made that an issue for trial. Capacity to sue was a matter of law and could be raised at any stage of the proceedings even on appeal. It can be raised by the court suo motu. The Court in deciding to raise and determine the issue of Plaintiff’s capacity in its’s judgement is properly within the provisions of the law. Again, it is settled law that, capacity goes to the root of the matter. Where a Plaintiff fails to establish his capacity, the Court needs not go into the merit of the case. In Musama Disco Christo Church v. Jehu Appiah [2010] MLRG 56 C. A. @ 73, Kusi Appiah J. A. held that: “A plea of locus standi is by its very nature an objection in limine. It strikes at the very root of the writ of summons. It is like a plea as to jurisdiction. If it is sustained that must be the end of the matter. The plea connotes that the capacity of the plaintiff to bring this action is challenged. It is being said that they are not the proper persons to present this action. In such Page 7 of 8 situation, the plaintiff cannot succeed without proving that he had the relevant capacity to sue”. Also in Sarkodee I v. Boateng II [1982-83] GLR 715 the Supreme Court held that: “And it was no answer for a party whose capacity to initiate proceedings had been challenged by his adversary, to plead that he should be given a hearing on the merits because he had a cast- iron case against his opponent”. Upon taking into consideration the evidence adduced at the trial and in view of the foregoing, I hereby find that, Plaintiff’s capacity to sue was defective in limine. Having demanded Plaintiff’s lack of Locus Standi, I hold that, the Court needs not go into the merits of the case. I hereby dismiss the Suit for want of capacity. Cost of GH¢300.00 in favour of the Defendant against the plaintiff. ..………………………………………….. H/W SARAH NYARKOA NKANSAH MAGISTRATE 25/10/2022 Page 8 of 8