Charles K. Bio Vrs Emmanuel Q. Nartey [2022] GHACC 16 (9 November 2022)

IN THE CIRCUIT COURT HELD AT AMASAMAN – ACCRA ON WEDNESDAY THE 9TH DAY OF NOVEMBER, 2022 BEFORE HER HONOUR ENID MARFUL-SAU, CIRCUIT COURT JUDGE SUIT NO. C1/11/2017 CHARLES K. BIO 33 TYNSDULE ROAD HARLESDER NW 102 GB LONDON Suing per his lawful attorney YAW APPIAH KUBI … PLAINTIFF VS. EMMANUEL Q. NARTEY … DEFENDANT PARTIES: PLAINTIFF’S ATTORNEY PRESENT DEFENDANT PRESENT COUNSEL: JOHN AGBOTEY ESQ HOLDING BRIEF FOR FRANK KOMLA MENSAH ESQ. FOR PLAINTIFF ABSENT JESSE BOBE SARFO ESQ. FOR DEFENDANT PRESENT JUDGMENT By a Writ of Summons and a Statement of Claim filed on 14th October, 2016, Plaintiff suing per his lawful attorney claims against Defendant the following reliefs: a) “A Declaration of Title to all that piece or parcel of land as contained in schedule. b) Perpetual Injunction against the defendant whether by his agents, assigns, servants, etc from interfering with plaintiff's enjoyment of the said property. c) General Damages for trespass. d) Recovery of Possession e) Costs inclusive of litigation expenses” Plaintiff says that he is the legal and equitable owner of the land described as “ALL THAT PIECE OR PARCEL OF LAND situate lying and being at MEDIE in the GA WEST DISTRICT of Greater Accra Region aforesaid containing an approximate area 2.26 Acres or 0.92 Hectare and bounded on the North West by Assignor’s Land measuring 203.1 feet more or less on the North East by Proposed Road measuring 494.7 feet more or less on the South East by Assignor’s land measuring 198.1 feet more or less on the South West by Proposed Road measuring 496.3 feet more or less”. According to Plaintiff, he acquired the land in dispute from one Kofi Osei on 2nd June, 2005 and a Deed of Transfer was executed in his favour. Plaintiff says that after acquisition, he erected a single room structure on the land and put in a caretaker. He says that he was in uninterrupted occupation of the land for eleven years prior to the commencement of this action until the Defendant without his consent entered the land and is carrying out building activities on the land. According to him, the Defendant intends to repeat the acts complained of unless restrained by the court, hence this action. Defendant entered Appearance by his counsel on 18th October, 2016. Defendant by an Amended Statement of Defence and Counterclaim filed on 23rd March, 2020, contends that 10 plots of his family land were granted to one Kofi Osei by the then head of family. According to him, a deed of transfer was prepared by the family and given to the said Kofi Osei for the 10 plots but he never returned the family’s copy to them. He contends that the original lessor of the land being the Ofankor Nortey family’s consent was never sought before the said transfer was made to the Plaintiff. Defendant says that Plaintiff’s grantor was only granted 10 plots by his family but the Plaintiff together with his lessor have taken more than what was granted. He says that when the family noticed that Kofi Osei had allocated to himself more plots than he was given, the family contacted him to correct the error and asked him to return the deed of transfer covering the transaction, but he never did. According to Defendant, after several years of not hearing from Kofi Osei, the family went to take portions of the land which belonged to the family and left the 10 plots leased to him. Defendant contends that Plaintiff and his lessor have never paid the yearly rent as stipulated by the lease agreement with the family of Defendant. He therefore counterclaims as follows: a. “A declaration that the Defendant’s family -the Ofankor Nortey family of Medie are the original owners of all the piece or parcel of land stated in the schedule attached to plaintiff’s writ of summons. b. A declaration that the Plaintiff’s grantor acquired only ten (10) plots of land Defendant’s family and the plaintiff have or may have acquired same and nothing more. c. A declaration that the remaining plots outside of the 10 plots assigned by the Defendant’s family to plaintiff’s grantor belongs to the Defendant’s family as original owners. d. Recovery of yearly rent from the Plaintiff payable to the Defendant’s family concerning the land in dispute from the year 2000 till to date. e. Perpetual injunction against the plaintiff and his agents, assigns servants or privies from interfering with the Defendant’s family from enjoying of the land in dispute. f. Recovery of possession. g. Costs including legal costs” On 24th February, 2020, this court set down the following issues as the issues for trial: a. “Whether or not the family of defendant is the original owners of the land in dispute b. Whether or not the consent of the Nortey family was sought before the land was transferred to Plaintiff. c. Whether or not the Plaintiff’s grantor acquired 10 plots of land from the defendant’s family and has attempted to transfer same to the plaintiff. d. Whether or not the land in dispute falls within the land acquired by the plaintiff’s grantor from defendant’s family. e. Whether or not Plaintiff is entitled to its claim. f. Whether or not the Defendant is entitled to its counterclaim. Additional Issues g. Whether or not the land described in the schedule of the Statement of claim was transferred to Plaintiff by a deed of transfer. h. Whether or not the size of the land described in the schedule is 0.92 hectare.” I noted that though Defendant’s lawyer indicated Defendant’s correct name as being Nortey Tawiah in the Notice of Entry of Appearance filed and the court differently constituted further directing on 1st November, 2016 that the name of the Defendant is to be amended, this was never done. The name of Defendant thus remains Emmanuel Q. Nartey as indicated on the Writ of Summons and Statement of Claim. In compliance with Order 2 rule 4 of the High Court (Civil Procedure) Rules of 2004 (C. I. 47), Plaintiff indorsed his capacity as suing per his lawful Attorney on the Writ of Summons and Statement of Claim. During Case Management Conference on 17th August, 2020, Counsel for Defendant raised an objection to Exhibit A attached to Plaintiff Attorney’s Witness Statement which is a Power of Attorney. Counsel for Defendant argued that the Power of Attorney was given by someone outside the jurisdiction therefore it must have been notarized by a lawful Notary Public in that jurisdiction. Counsel for Plaintiff on the other hand contended that the Power of Attorney was issued in Ghana while Plaintiff was in Ghana. By a Ruling dated 28th October, 2020, this court ruled that though the Plaintiff is resident in the UK, once he was present and executed the Power of Attorney in Ghana, it did not have to be notarized to validate it as opposed to what would have been the case if the Power of Attorney was made in the UK. The objection was thus overruled, and the suit proceeded to be heard on the merits. On 10th January, 2022, when counsel for Defendant cross-examined Plaintiff’s Attorney, the issue of capacity resurfaced under cross-examination. The following is a reproduction of the record: “Q: Can you tell this honorable court that in fact and truly you have the authority of Plaintiff to sue the Defendant A: Yes Q: When was the last time you saw the Plaintiff A: About 6 years ago Q: And since then you have never had physical contact with him not so A: Yes Q: Has the Plaintiff visited Ghana for the past 6 years A: No Q: Can you tell the court the date that you were given authority by the Plaintiff to sue the Defendant A: 1st January, 2020 Q: You are telling the court that it was 1st January, 2020 that the Plaintiff gave you authority to sue the Defendant not so A: Yes Q: I suggest to you that before 1st January, 2020, you had no authority or power to institute this case from the Plaintiff. A: I have Q: I suggest to you that per your own Exhibit A, the effective date for you to have power to represent Plaintiff was 1st January, 2020 A:That is correct … Q: Can you tell the court how you received the power of attorney from the Plaintiff A: Yes he sent it through fax … Q: You are telling the court that the Plaintiff was not in Ghana when he prepared this and handed it to you, Exhibit A A: Yes Q: The Writ of Summons was filed on 14th October, 2016 not so A: That is correct Q: But at that time even though you allege plaintiff is your uncle you had no authority or power to sue Defendant A: At the time, I was not having a power of attorney” The issue of capacity is a matter of law which could be raised at any stage of proceedings, even on Appeal. Capacity could also be raised by the court suo motu. In FOSUA AND ADU POKU V DUFIE (DECEASED) AND ADU- POKU MENSAH (2009) SCGLR 310 it was held as follows: “On the facts of [the] instant case, the issue whether the plaintiffs had the requisite capacity to sue was made an issue for trial. However, the trial judge did not consider the issue of capacity anywhere in the entire judgment. In considering whether or not the properties in dispute were for the family, the trial judge should have gone forward to also consider, on the assumption that they were family properties, whether or not the plaintiffs had the requisite capacity to sue in respect thereof. That was irrespective of whether or not the parties had made that an issue for trial. Capacity to sue was a matter of law and could be raised by the court suo motu… ” It is an elementary principle of law that where the plaintiff’s capacity is being questioned the onus lies on the plaintiff to establish to the satisfaction of the court that he had been duly authorized. In the instant case, defendant challenged the capacity of Plaintiff’s Attorney during Case Management Conference and at the inception of the trial during cross-examination of Yaw Appiah Kubi (Plaintiff’s Attorney). In view of the evidence of Plaintiff’s Attorney under oath, I am compelled to revisit the issue of capacity raised by Defendant which in fact goes to the root of the action. As already indicated, this action was commenced on 14th October, 2016 by the Plaintiff per his lawful attorney. The Power of Attorney relied upon by the Attorney was tendered and admitted as Exhibit A. The date indicated on Exhibit A is 1st January, 2020. The Exhibit is endorsed by a Commissioner for Oaths in Ghana and witnessed by one Joel Nii Adokwei Addo also of Accra North. Contrary to counsel for Plaintiff’s argument when the issue of capacity was first raised during CMC that the Plaintiff came to Ghana and executed the Power of Attorney, it is apparent from the Attorney’s own evidence on oath that the said Plaintiff has not been to Ghana for the past six years and the said Exhibit A according to him was faxed by the Plaintiff. Clearly then, it cannot be the case that the Power of Attorney was executed in Ghana. In the case of HUSSEY V EDAH [1992-93] 4 GBR 1703, SC per Hayfron- Benjamin JSC it was held as follows: “A power of attorney was a formal document by which one person, usually called the principal or donor, divest to another, usually called the attorney or donee, authority to represent him or act in his stead on certain purposes spelt out in the document. If such a power was for use abroad it ought to be authenticated by a notary public. A power of attorney might be terminated as provided therein or upon the completion of its object or by death. The power of attorney made by the plaintiff’s siblings in the Republic of Togo required notarial authentication for its efficacy for use in Ghana.” From the Plaintiff Attorney’s admissions against his capacity which is reproduced above, Exhibit A therefore ought to have been notarized in the United Kingdom as same was not prepared in Ghana. The power of attorney is therefore invalid and same is inadmissible. Exhibit A is therefore rejected as invalid. Assuming even that Exhibit A was notarized in accordance with the law and was valid, it is obvious that the said document was prepared on 1st January, 2020 while this action was commenced on 14th October, 2016. The said Attorney therefore did not have the requisite capacity to sue at the time he took out the Writ of Summons. To the extent that the power of attorney was prepared almost four years after the action was instituted, assuming it was even valid, it could not have provided a legitimate basis on which Yaw Appiah Kubi could have prosecuted the case on behalf of Charles K. Bio. See EDMUND ASANTE APPIAH VRS MADAM KATE AMPONSAH ALIAS YAA MANSAH (2009) 7 GMJ 75. In THE REPUBLIC V HIGH COURT, ACCRA; EX PARTE ARYEETEY (ANKRAH, INTERESTED PARTY) (2003-2004) 1 SCGLR 398, it was held as follows: “The requirement that a party endorses on the writ the capacity in which he sues, is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has the right to sue. Whether a person who has sued in a representative capacity, indeed, has the capacity he claims to have or not, is a question of fact; and if challenged, he must prove same to avoid his suit being dismissed since it is analogous to taking an action against a non-existent defendant…This is because if a party brings an action in a capacity he does not have, the writ is a nullity and so are the proceedings and the judgment founded on it. Any challenge to capacity puts the validity of the writ in issue.” See also: ALHAJI MOHAMMED MORU PER HIS LAWFUL ATTORNEY MOHAMMED MORU VRS MOHAMMED HUSEINI CIVIL APPEAL No. J4 /17 / 2012 DATED 27TH FEBRUARY,2013; SC UNREPORTED The evidence conclusively points to a lack of capacity of the Plaintiff’s Attorney to institute this suit. When a party lacks the capacity to prosecute an action the merits of the case should not be considered. See: ALFA MUSAH VRS DR. FRANCIS ASANTE APPEAGYEI CIVIL APPEAL NO. J4/32/ 2017 DATED 2ND MAY, 2018; SC UNREPORTED. Having rejected Exhibit A on which Plaintiff’s Attorney relied upon to ground this action, it follows automatically that the foundation on which the action is based has collapsed for want of capacity and therefore no action can be based upon it. The action is therefore struck out for want of capacity. Costs of Five Thousand Ghana Cedis (GHȼ5,000.00) is awarded in favour of Defendant against Plaintiff. H/H ENID MARFUL-SAU CIRCUIT JUDGE AMASAMAN 10