BENYARKO AND OTHERS vs. CENTRAL GHANA CONFERENCE OF SEVENTH DAY ADVENTIST CHURCH [2001-2002] 2 GLR 473

CASE REFERRED TO

Kabo Airlines Ltd v The Sheriff, Court of Appeal, Gambia, 27 March 2002, unreported.

PRELIMINARY OBJECTION by the defendant-appellant-applicants to the capacity of the plaintiff-respondent-respondents at the hearing by the Court of Appeal of a motion by the applicants for an order staying execution of a judgment by the court pending the hearing of their appeal by the Supreme Court. The facts are sufficiently stated in the ruling of Lartey JA.

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Ntrakwa for the defendant-appellant-applicants.

Bediako for the plaintiff-respondent-respondents.

Lartey JA. This is a preliminary point raised by the defendants-appellants-applicants (hereinafter referred to as the applicants). On 21 February 2002 the applicants filed a motion for an order to stay execution of this court’s judgment delivered on 17 January 2002, pending the hearing and determination of an appeal to the Supreme Court.

The motion for stay came up for hearing on 3 October 2002 whereupon counsel for the applicants, Mr Ntrakwa, raised his preliminary point for the determination of the court. The preliminary point is premised on the issue of capacity of the plaintiffs-respondent-respondents (hereinafter referred to as the respondents). In the words of counsel, “there is no corporate body called the Central Ghana Conference of the Seventh Day Adventist Church” and that being the case, so the argument goes, there is no respondent before this court.

Not surprisingly, Mr Asare Bediako, counsel for the respondents, denied that they lacked capacity to sue as contended by the applicants. He stated that the respondents had been in existence for a very long time and that the issue of capacity was the subject of a ruling by the lower court which considered it unnecessary. If what Mr Bediako says was what transpired, one would have expected the lower court’s decision on the question of capacity to have been a subject for appeal. When the substantive appeal came before this court (differently constituted) there was no indication that the applicants raised this ground for consideration as a point of appeal. We sought to know why this issue of capacity should be raised before us when our simple task was to consider a motion for stay of execution filed by the applicants themselves. The response was that the question of capacity can be raised at any time in the course of litigation.

In any case, since this is a preliminary objection to the hearing of the applicants’ motion, the same must conform with the rules governing preliminary objections. Rule 16 of the Court of Appeal Rules, 1997 (CI 19) requires the filing of notice of preliminary objection to the hearing of an appeal. This rule is clearly not applicable in the case before us, which is the hearing of a motion. The practice relating to motions is that when the applicant attempts to move his motion, all that counsel needs to do is to raise his objection orally. There is thus no obligation to file a notice of preliminary objection in cases other than appeals.

On this point of preliminary objection we would like to cite with

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approval the Gambian case of Kabo Airlines Ltd v The Sheriff Court of Appeal, Gambia, on 27 March 2002 unreported for its persuasive effect. Stating the purpose of raising preliminary objections, Gelaga-King JA said as follows:

“Let me say at once that the purpose of a preliminary objection, as I understand it, is to prevent the application in the notice of motion before the court from being heard on its merits, either on the grounds of irregularity, or for non-compliance with some legal provision or for some other good and sufficient reason. The fundamental and crucial requirement, however, is that any alleged irregularity, defect or default must be apparent on the face of the notice of motion so that the objector does not have to condescend to the affidavits or other documents accompanying the motion to support his objection. In other words, counsel is not permitted at the stage to refer to the affidavits and exhibits. He may only do so, if at all, after the court had disposed of the preliminary objection. If the preliminary objection has no chance of being upheld without calling in aid those documents, then the correct course is for counsel to wait for the applicant to make his application and then oppose it, when he is called upon to reply and when he is at liberty to make use of all the documents.

It should be noted that procedurally the preliminary objection gives to the objector the right to begin and to have the last word, after the other side has replied. Tactically, it has the practical effect of depriving the applicant who is being prevented from moving his motion, of the important procedural right to begin first and have the last word, as he would if he was allowed to argue his motion unimpeded.”

(The emphasis is mine.) In the instant motion, the preliminary objection was taken by the applicants. This may be an unusual step coming from the party that filed or initiated the motion for stay and who would under the procedural rules have the right to begin to move his motion unimpeded.

Be that as it may and in conformity with the authority cited above, one is inclined to pose the question whether the issue of capacity or lack of it raised by the applicant is apparent on the face of the motion? It seems to us that there is no apparent wrong on the face of the motion as to the respondents’ capacity so as to bring the respondents under the scrutiny of the rule. To succeed in establishing a case of lack of capacity, counsel for the applicants would need to call in aid documents filed in support of the motion paper and other exhibits. It

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cannot be said at this stage that on the face of the notice of motion, it is apparent that there is an irregularity or defect concerning the respondents’ capacity to warrant any intervention by this court by way of preliminary objection.

We find no merit in the objection. It is hereby overruled.

Preliminary objection overruled.

D R K S