[2026] SLR (SC) 74Supreme Court - Ghana2026 SC - GHANA

G. BRANDS IMPEX LIMITED vs. BANK OF GHANA

3 June 2026 · ASIEDU JSC · ≈ 49 min read

Cite as[2026] SLR (SC) 74

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OSCOLAG. BRANDS IMPEX LIMITED v BANK OF GHANA [2026] SLR (SC) 74

APAG. BRANDS IMPEX LIMITED v BANK OF GHANA, [2026] SLR (SC) 74 (Ghana).

BluebookG. BRANDS IMPEX LIMITED v BANK OF GHANA, [2026] SLR (SC) 74 (Ghana Sup. Ct. 2026).

Linkhttps://superlawgh.com/slr/2026/sc/74/

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

ACCRA – A.D. 2026

CORAM: PWAMANG JSC (PRESIDING)

AMADU JSC

ASIEDU JSC

GAEWU JSC

AMALEBOBA JSC

CIVIL APPEAL

NO. J4/49/2024

3RD JUNE, 2026

G. BRANDS IMPEX LIMITED …………. PLAINTIFF/APPELLANT/

(SUING FOR ITSELF AND AS LAWFUL RESPONDENT

ATTORNEY FOR G. BRANDS LIMITED)

VRS

BANK OF GHANA …………. DEFENDANT/RESPONDENT/APPELLANT

JUDGMENT

ASIEDU, JSC:

[1.0]. INTRODUCTION

My lords, this is an appeal from the judgment of the Court of Appeal dated the 2nd February, 2023. In the said judgment, the Court of Appeal, by majority, reversed the ruling of the High Court in which the High Court dismissed the Respondent’s action against the Appellant, for want of capacity.

The Plaintiff/Appellant/Respondent shall hereinafter be referred to as the Respondent, and the Defendant/Respondent/Appellant shall be referred to as the Appellant.

[2.0]. FACTS

By a writ and amended statement of claim sued out of the Registry of the High Court, Accra, the Respondent claimed against the Appellant the following reliefs:

Recovery of the amount of US$1.4 million wrongfully deducted by Defendants [Appellant herein] from payment due to the Plaintiff [Respondent] or its cedi equivalent at the US dollar forex bureau buying rate on the day of payment.

Interest on the cedi equivalent of the US$1.4 million at the prevailing commercial banks’ lending rate from October, 1996 to the date of payment of the principal sum or in the alternative anticipated profits.

Costs of the action including counsel’s costs.

[2.1]. The Respondent averred in their amended statement of claim that the Respondent is a Ghanaian registered company involved in the importation and export of various commodities.

[2.2]. In paragraph 1 of the amended statement of claim, the Respondent pleaded to have commenced the action for itself and as lawful attorney for G. Brands Limited, also a company incorporated under the laws of Ghana.

[2.3]. The Respondent averred that some years earlier, the Government of Ghana and the Libyan Government (Arab Jamahiriya) entered into a series of bilateral trade agreements known as Agreed Minutes, by which certain commodities were to be exchanged or sold between the two countries. That these trade agreements were renewable from time to time, and that under the trade agreement, the Government of Ghana designated the Horticulturists Association of Ghana (HAG) to be responsible for the export of some food items, including fruit juices and canned tuna to the Agricultural Marketing Company of Libya (Agrimark). That members of the HAG shipped various items to Agrimark under the name of the HAG, and payment for the goods and items were made to exporters through the designated Central Banks of Ghana and Libya: the Bank of Ghana, Appellant herein, and the Bank of Libya respectively. The arrangement was such that whenever an exporter or company in Ghana exported items to Agrimark in Libya under the name of HAG, HAG submitted the shipping documents to the Appellant, who effected payment to the exporter in Ghana through HAG, and the Appellant was subsequently reimbursed through the Central Bank of Libya.

[2.4]. The Respondent further averred that the Respondent and G. Brands Limited made a number of exports to Agrimark under the name of HAG who, in turn, submitted the shipping documents to the Appellant herein and the Appellant effected payment to HAG for the benefit of G. Brands Limited. [See paragraph 8 of the amended statement of claim at page 102 vol. 1 of the record of appeal (ROA)]. That in or about January 1996, the Ministry of Trade in Ghana wrote a letter to stakeholders involved in the export of items to Libya to the effect that, following the passage of the Import and Export Act 1995 (Act 503), companies or exporters who hitherto exported their items to Agrimark in Libya under the HAG, could now do so directly, that is, without acting through the HAG. That subsequently, G Brands Limited exported to Agrimark of Libya a consignment of canned tuna and, at the request of Agrimark, sent the original shipping documents to Agrimark which enabled Agrimark to clear the consignment in Libya. That the shipment of the said consignment was made on the 13th February, 1996, before the HAG received a message from Ghana’s embassy in Libya indicating that Agrimark had cancelled or terminated the trade agreement signed with the HAG, to take effect from 14th March, 1996.

[2.5]. It has been the Respondent’s case that G. Brands Limited, exporter of the items, executed a power of attorney in favour of the Respondent, G. Brands Impex Limited, to enable G. Brands Impex Limited to pursue the claim for recovery of the proceeds of the export to Agrimark. The Respondent averred that the instant action was, therefore, commenced against the Appellant following the Appellant’s failure and or refusal to pay certain sums of money to G. Brands Ltd, and for the unlawful deduction of the sum of $1.4 million by the Appellant from an amount due G. Brands Ltd from Agrimark. That due to the Appellant’s refusal to pay the outstanding balance due on the exported items, the Respondent could not pay Respondent’s supplier, as a result of which the Respondent’s supplier sued and obtained judgment against the Respondent. That the Appellant’s conduct caused financial loss to the Respondent and G. Brands Ltd.

My lords, it is noteworthy that G. Brands Ltd and G. Brands Impex Ltd, Respondent herein, are closely related companies and appear to have been incorporated and managed by the same individuals.

[2.6]. In the amended statement of defence filed by the Appellant, the Appellant denied the Respondent’s claims. The Appellant averred that the Respondent did not export the alleged items in accordance with the agreed framework of export, and that the Appellant did not know about any power of attorney made between the Respondent and G. Brands Ltd until the Respondent produced a supposed power of attorney purporting that the said power of attorney was executed in the Respondent’s favour by G. Brands Ltd. The Appellant averred, further that, the Appellant declined to pay for the alleged export by the Respondent to Agrimark because, the documents purporting to cover or relate to the said export did not come from the HAG. That the Appellant did not receive the sum of USD 1.4 million claimed by the Respondent against the Appellant, and further that any alleged export of items to Agrimark by the Respondent’s principal, G. Brands Ltd, was made outside the trade agreement between the HAG and Agrimark, and is therefore unknown to the Appellant.

[2.7]. At the application for directions stage before the trial Court, the Appellant filed additional issues for determination by the Court, and challenged the capacity of the Respondent, raising as an issue whether or not the Respondent was clothed with capacity to institute the action. The Appellant, consequently, prayed the Court to dismiss the Respondent’s action in limine.

In the written submissions of the Appellant on the question of the Respondent’s capacity to institute the action, the Appellant argued that it was G. Brands Limited, and not G. Brands Impex Ltd, Respondent herein, who shipped the items in respect of which the claim is made. That the Respondent, who is a separate and distinct legal person from G. Brands Limited, had no interest in or sufficient connection to the transaction so as to clothe Respondent with “capacity” to sue. The other limbs of the Appellant’s objection were that the institution of the present action was outside the scope of the power of attorney wielded by the Respondent as having been executed in Respondent’s favour by G. Brands Limited, and that the Respondent, as attorney, could not properly commence the action in the Respondent’s own name.

For instance, in paragraphs 36 and 37 at pages 446 and 447 of volume 2 of the Record of Appeal, the Appellant argued in their submission before the trial Court as follows:

“Perusing the Amended Writ and Statement of Claim placed before the honourable court in these proceedings, nowhere has the Principal, G. Brands Limited been indorsed as a Party in this suit. The Plaintiff is rather the agent or the attorney. Thus, it is the Attorney who is suing in its name instead of the Principal. Thus, if the action was mounted on a power of attorney same cannot be commenced by the Attorney as a party. In this regard the Attorney has no capacity to commence an action in its own name and not in the name of G. Brands Limited, the Principal.

b. The Plaintiff cannot commence an action by itself against the Defendant.

37. The action could have been saved if the attorney based on the pleadings and witness statement had a cause of action against the Defendant. In this regard, this Honourable Court ought not be deceived by the endorsement that the Plaintiff, G BRANDS IMPEX LIMITED is (SUING FOR ITSELF …). This is because the substance of the Plaintiff’s pleadings and witness statement clearly shows that the Plaintiff has commenced this action to recover monies alleged to be owed by the Defendant to G. Brands Limited and not to the Plaintiff [Respondent herein].”

[3.0]. RULING OF THE HIGH COURT

The learned trial High Court Judge dealt with the question of the Respondent’s capacity as a preliminary issue, and in the ruling of the Court dated the 21st February, 2019, dismissed the Respondent’s action for lack of capacity. The Court reasoned that G. Brands Impex Ltd, Respondent herein, did not make out a personal interest in the transaction that culminated in the suit and therefore, could not properly mount an independent action on the said transaction.

[3.1]. In arriving at this determination, the Court observed (at pages 462 – 463 of volume 2 of the Record of Appeal as follows:

“From the arguments of both parties, the main thing that appears to be confusing the issues is the apparent linkage between G. Brands Impex Ltd. and G. Brands Ltd. as sister companies. Counsel for the plaintiff [Respondent herein] has rightly identified that both companies are two distinct companies which is a fact that cannot be overlooked. As two distinct companies therefore, can it be said that the acts of one of the companies is synonymous with the acts of the other company? I do not think so.

There is no doubt that G. Brands Impex Ltd. bought the said consignment of tuna on credit from Pioneer Food Cannery Ltd. and their inability to pay for them has resulted in them being held legally responsible by the court. Per the affidavit evidence, G. Brands Impex Ltd. was not the company that exported the canned tuna to Libya. The records show and both parties agree that the canned tuna was exported to Libya by G. Brands Ltd. Thus, G. Brands Impex Ltd handed over the tuna to G. Brands Ltd for export. I do not know the nature of the arrangement between the two but one can infer that G. Brands Impex Ltd. was expecting to be paid by G. Brands Ltd. after the Libyans had duly paid for the consignment.”

At page 464 of volume 2 of the ROA, the Court observed further that:

“G. Brands Ltd. as the exporter of the goods is the company entitled to payment from Agrimark Libya and not G. Brands Impex Ltd. This is because the records show that it is G. Brands Ltd. that dealt with Agrimark in Libya and not G. Brands Impex Ltd. and any payment or proceeds from the said export was due to be paid to G. Brands Ltd. and not G. Brands Impex Ltd.”

The Court then concluded (at page 465 of volume 2 of the ROA) in the following terms:

“From the analysis made so far, it follows that G. Brands Impex Ltd. is not privy to the contract for the export of the canned tuna to Agrimark in Libya. It therefore cannot maintain any action in its own name against the defendant to recover the said outstanding amount from the defendant.”

The Respondent’s action was, consequently, dismissed on this leg of the Appellant’s argument before the High Court.

[3.2]. The Court also acceded to the Appellant’s submission that the Respondent [Plaintiff at the trial Court], as attorney, could not sue out the writ in the Respondent’s own name.

The learned trial Judge expressed himself (at pages 469 to 470), on the back of some referenced authorities, as follows:

“These authorities are therefore clear that neither an attorney nor an agent can maintain an action in his own name. They can only sue in the name of their principal. Per these authorities, even when the agent was the one who entered into the contract on behalf of the principal, the authorities say the agent can only sue in the name of the principal let alone the situation where the agent had nothing to do with the contract which is the basis of the suit as in this case.

G. Brands Impex Ltd. is the attorney or agent of G. Brands Ltd. The present action was purportedly instituted by G. Brands Impex Ltd. for itself and on behalf of G. Brands Ltd. It has already been established that G. Brands Impex Ltd. is not a party to the relevant transaction and as such it cannot sue on its own behalf. This action is only maintainable on the ground that G. Brands Impex Ltd. is suing as an attorney of G. Brands Ltd.

In this action, per the amended writ of summons, the principal G. Brands Ltd. was named but it was named not as the main party but as a party who the plaintiff was suing on behalf of though in the plaintiff’s own name. It must be noted that at the time the plaintiff commenced this action on 14th April 2000, G. Brands Ltd. had earlier on 2nd October 1996 appointed the plaintiff as its attorney to institute the action on its behalf. The plaintiff however failed to institute the action in accordance with the requirements of the law and its attempt to amend the writ of summons by adding the words “suing for itself and on behalf of G. Brands Limited” was still not sufficient to enable it scale the legal hurdle.” (Emphasis)

My lords, the Court held the view that the transaction in question involved a consignment which was exported by G. Brands Ltd to Agrimark. That nowhere in the transaction involving the said consignment was G. Brands Impex Ltd mentioned. The Respondent, therefore, could not sue in respect of a shipment or transaction to which Respondent was not a party. On the other breadth, the Court reasoned that the Respondent, as an attorney, could not intitule the writ in the Respondent’s own name.

[3.3]. Dissatisfied with the ruling of the High Court, the Respondent appealed to the Court of Appeal, and prayed the Court of Appeal to reverse the ruling of the trial High Court on the preliminary issue challenging the Respondent’s capacity.

[4.0]. JUDGMENT OF THE COURT OF APPEAL

In the Judgment delivered by the Court of Appeal on the 2nd February, 2023, the Court, by majority, overturned the ruling of the trial High Court. While the majority of the Court of Appeal affirmed the trial Court’s conclusion that the Respondent had not established a sufficiently independent interest in the transaction culminating in the action so as to be able to maintain an action against the Appellant in the Respondent’s own right, the learned Justices in the majority reasoned that the learned trial High Court Judge erred in the application of the legal principles relating to indorsement and amendment as to capacity of a party in a civil cause.

Even though the learned Justices of the Court of Appeal found grounds (ii) and (iii) of the Respondent’s grounds of Appeal to the Court of Appeal to be argumentative and narrative, contrary to the Rules of the Court of Appeal, the Court nevertheless saved the said grounds in determining the appeal before the Court.

The majority observed (at pages 148 – 149 of volume 3 of the ROA) as follows:

“Indeed, an examination of the pleadings as done by the trial court would vindicate the findings of the trial Judge on this point that plaintiff did not show enough interest or cause of action to imbue him with the right to mount the action. For instance, beginning with paragraph 9 of the amended writ as found in page 101 of the record of appeal plaintiff refers to his principal G. Brands Ltd having shipped a number of consignments of tuna to Libya in 1994 and 1995 through defendant. In paragraph 13 the plaintiff further states that G. Brands exported canned tuna which was procured by plaintiff on credit from Pioneer Food Cannery. From plaintiff’s own pleadings any dealings regarding the canned tuna in question was solely between G. Brands Ltd and the defendant.”

On the issue of G. Brands Impex Limited, an attorney, suing in its own name and not in the name of their principal, G. Brands Limited, the majority of the Court reasoned that an amendment of the writ of summons could cure the defect raised by the Appellant. Accordingly, leave was granted the Respondent to effect an amendment to reflect, essentially, that the principal was suing through the agent, and not the agent suing for and on behalf of the principal.

The majority expressed themselves on the point (at page 151 of volume 3 of the ROA) that:

“Having therefore proceeded under the mistaken assumption that plaintiff could have pursued the action in its own name until the lower court correctly ruled that it cannot be done; it is my humble view that to allow such an action to be defeated not because plaintiff did not have a power of attorney or that the principal is non-existent but on a purely fastidious technical point that the name on the writ should have read “G. Brands Ltd (suing per its lawful attorney G. Brands Impex) but not as the plaintiff stated it being; G. Brands Impex Ltd (suing for itself and as lawful attorney for G. Brands Ltd. I think the over reliance on Kimon Compania case without close attention to the peculiar circumstances giving rise to that dictum has not been helpful and that misled the learned trial Judge. And as stated even in that case the court allowed an amendment to be effected.”

Aggrieved by the judgment of the majority of the Court of Appeal, the Appellant lodged the instant appeal to the Supreme Court.

[5.0]. GROUNDS OF APPEAL

By a notice of appeal filed on the 19th July, 2023, the Appellant formulated the following grounds of appeal:

The Judgment is against the weight of the affidavit evidence placed before the Court of Appeal.

The decision by the Court of Appeal to allow an amendment of the Writ of Summons by the Plaintiff/Appellant/Respondent amounted to an unwarranted interference with the exercise of discretion by the Trial High Court.

The decision of the Court of Appeal to allow an amendment of the Writ of Summons by the Plaintiff/Appellant/Respondent from G Brands Impex Limited to G Brands Ltd, an entirely separate legal entity, was prejudicial to and overreached a genuine objection raised by the Defendant/Respondent/Appellant.

The majority of the Court of Appeal erred in law when upon finding that the Plaintiff/Appellant/Respondent failed to show enough interest in the transaction the subject-matter of the suit thereby lacking locus standi in the matter, it nevertheless went ahead [and] allowed the Appeal.

The majority of the Court of Appeal erred when it failed to consider the submission made before the trial court and on appeal, namely, that the scope of the Power of Attorney granted by G. Brands Limited to the Plaintiff/Appellant/Respondent did not cover the transaction the subject-matter of the suit, which argument goes to the root of the Plaintiff/Appellant/Respondent’s capacity to institute and/or maintain the instant action.

The majority of the Court of Appeal erred and thereby misapplied the ratio decidendi in the decided cases of KIMON COMPANIA NAVIERA SAP & OTHERS VRS. VOLTA LTD (CONSOLIDATED) [1973] 1 GLR; GHANA RUBBER PRODUCTS LTD VRS. CRITERION CO. LTD [1984-86] 2 GLR 56 and BANDA VRS. AYISI [2013-2014] 2 SCGLR 1259.

The Court of Appeal erred when upon finding that grounds (ii) and (iii) of the Notice of Appeal sinned against Rule 8(5) and (6) of the Court of Appeal Rules, 1997, (CI.19) it, nevertheless, went ahead to hear same on merit.

Additional Grounds to be filed upon receipt of the Records of Appeal.

[5.1]. No additional grounds of appeal were filed by the Appellant. As such, the instant appeal would be determined on the above stated grounds of appeal.

[6.0]. APPELLANT’S ARGUMENT BEFORE THE SUPREME COURT

In their statement of case filed on the 24th July 2024, Counsel for the Appellant argued in support of ground (e) of the grounds of appeal, that the majority of the Court of Appeal failed to consider the submission by Appellant that the power of attorney relied upon by the Respondent did not cover the transaction, the subject matter of the suit. The Appellant argued that although it did canvass the point that the Respondent could not have sued upon the Power of Attorney dated 02/10/1996 and stamped as LVB 3671/97 since the said power of attorney was restricted to exports made by G Brands Limited under the umbrella of the Horticultural Association of Ghana (HAG), the majority in the Court of Appeal, failed to consider that argument in their judgment.

The Appellant, therefore, submitted that the Respondent did not have the power to commence and/or maintain the suit on behalf of G Brands Limited, the exporter of the goods in question, since the scope of the power of attorney presented by the Respondent did not cover exports made by G Brands Ltd directly to Libya, which was the case of the transaction leading to the instant suit.

The Appellant submitted (at pages 13 – 14 of the statement of case) as follows:

“My Lords, in the light of the foregoing submission we find it necessary to rehash the argument made by the Appellant before both the High Court and the Court of Appeal. From the Power of Attorney under reference (p. 139 of vol. 1 of the ROA) and the bill of laden (sic) (p. 162 of vol. 1 of the ROA) it is clearly discernible that Respondent herein was only granted power to sue in respect of goods shipped to Libya by G Brands Ltd under HAG. All shipments not made under the umbrella of HAG were thereby excluded. The logical conclusion therefore is that any suit commenced by the Respondent herein under the said Power of Attorney can only be maintained by it if the goods were shipped to Libya through HAG. Indeed, if the donor intended to include within the purview of the power granted shipments not made under HAG, same would have been expressly mentioned. Thus, in Kofi Oduro Vs. Cynthia Okyere [2014] 69 GMJ 105, the Court of Appeal after considering the content of a Power of Attorney given by the Defendant concluded that the power was a special one as the donor limited it in scope as the donee was only to act for the donor in his absence.”

Counsel concluded that since the Power of Attorney relied upon by the Respondent to maintain the action did not authorize it to sue in respect of the transaction the subject-matter of the instant suit, the Respondent lacked capacity to sue, and that the failure by the Court of Appeal to consider this submission made before it namely, that the scope of the power of attorney granted by G Brands Ltd to the Respondent did not cover the transaction the subject-matter of the suit, was a fundamental omission on the part of the Court of Appeal, thereby undermining the case of the Appellant before the Court.

[6.1]. Counsel argued in furtherance of grounds (b), (c) and (d) that the majority of the Court of Appeal erred when the learned Justices treated the failure by G. Brands Impex Limited, qua attorney, to commence the action in the name of G Brands Ltd, the principal, as a mere procedural slip. That the Court of Appeal erred in the exercise of its discretion to grant leave for an amendment to be effected thereby changing the Plaintiff in the Suit from the name of the attorney to that of the principal.

That in the face of the objection raised by the Appellant to the Respondent’s capacity, it was wrong for the Court of Appeal to allow an amendment of the writ of summons to overreach the objection taken by the Appellant.

[6.2]. In support of grounds (a) and (f), Counsel argued that the Judgment of the majority of the Court of Appeal is against the weight of affidavit evidence, and that the learned Justices misapplied the ratio decidendi in the cases of Kimon Compania Naviera S.A.R.P. and Others v. Volta Lines Ltd. (consolidated) [1973] 1 GLR 140; Ghana Rubber Products Ltd v Criterion Co Ltd. [1984-86] 2 GLR 56 and Banda v Ayisi [2013-2014] 2 SCGLR 1259.

Counsel took a further dimension and argued that since neither G Brands Limited nor G Brands Impex Limited were known under the Agreement (Agreed Minutes) between the two Governments, G Brands Ltd was not vested with the cause of action which G Brands Impex Limited seeks to pursue. According to the Appellant, the juristic person known under the Agreement was the HAG who could have donated the power of attorney to G Brands Impex Limited to pursue any cause of action. That G Brands Ltd itself, being bereft of a cause of action under the Agreement and thus unable to sue, had no power to give G Brands Impex Limited to sue on its behalf.

[6.3]. In furtherance of ground (g), it has been submitted by Counsel that the learned Justices of the Court of Appeal erred when they failed to strike out grounds (II) and (III) of the Respondent’s Notice of Appeal to the Court of Appeal when the said grounds offended the Court of Appeal Rules, 1997 (C.I. 19).

Counsel concluded that the Appellant has demonstrated that the Respondent herein had no capacity to maintain the instant suit. That a cause of action, if at all existent, was vested exclusively in HAG, and the Respondent or G Brands Ltd cannot purport to assert same in the circumstances of this case.

[7.0]. ARGUMENT OF RESPONDENT

In the Respondent’s statement of case filed on the 12th December 2025, Counsel argued that the significance of the amendment effected on the writ of summons was that the Respondent, G. Brands Impex Limited, for the first time described itself in both the title and the body of the writ and statement of claim as “suing for itself and as lawful attorney for G. Brands Limited.”

Counsel further submitted that contrary to the argument advanced by the Appellant, the Respondent was entitled to institute the action in Respondent’s own name as the Respondent had a direct proprietary interest in the matter. In support of this claim, the Respondent argued that the goods (i.e. tuna flakes and chunks) were purchased from the producers, Pioneer Cannery Limited, by the Respondent herein, G. Brands Impex Limited. The said goods were handed over to G. Brands Limited, the Respondent’s sister company, which proceeded to export them to Libya. That both G. Brands Impex Limited and G. Brands Limited were at all material times wholly owned by the same proprietor, Nana Aboagye Brekumadaw II (now Nana Baa Abu Okai IV).

[7.1]. That it is crucial to note that the Appellant themselves recognised the Respondent’s proprietary interest in the goods and or the proceeds thereof when the Appellant made some payment to Respondent and not to the actual exporter, G. Brands Limited. That the said part-payment to the Respondent, is the Appellant’s recognition or acknowledgement of Respondent’s proprietary interest in the goods exported and or the value thereof. This conduct, the Respondent has argued, estops the Appellant from denying the Respondent’s proprietary interest in the goods, the export of which has culminated in the instant suit.

That given the facts herein, the relevant statute which clothes the Respondent with sufficient interest in the transaction to be able to sue or maintain the instant action, is Section 46 (1) and (4) of the Sale of Goods Act, 1962 (Act 137). That to the extent that the learned trial Court Judge did not pay heed to section 46 (1) & (4) of Act 137, the ruling of the High Court was delivered per incuriam the said statutory provision.

Counsel for the Respondent argued, therefore, that aside from the power of attorney which vested the Respondent with capacity to initiate the action to recover the proceeds of the sale of the goods, there was sufficient evidence on record of the Respondent’s proprietary interest in the exported goods by which the Respondent could maintain the suit in Respondent’s own right. That in view of the fact that the trial High Court made no reference whatsoever to Order 16 rule 5(4) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) in its ruling on the objection to the capacity of the Plaintiff/Appellant/Respondent, the ruling was made per incuriam and was rightly overturned by the majority of the Court of Appeal. Counsel argued that, “legislation in Ghana has revolutionized the Rules on amendments relating to capacity in [the] High Court (Civil Procedure) Rules, 2004 (C.I 47), specifically under Order 16 Rule 5(4) pertaining to the capacity in which a Plaintiff may sue.”

[8.0] DETERMINATION OF THE APPEAL

My lords, it is noteworthy that even though the objection culminating in the instant appeal has been stated as challenging the capacity of the Respondent to institute this action, the offshoot of the Appellant’s objection to the effect that the Respondent herein has no sufficient connection with the subject matter, and therefore could not maintain an action in respect thereof, relates more to the notion of locus standi. It is, therefore, my humble view that the majority of the Court of Appeal rightly pointed this out when their Lordships observed (at page 147 of volume 3 of the ROA) that:

“Locus standi is the right of a person to bring an action in a given forum. It is predicated on the right of a plaintiff showing that he is imbued with a cause of action that has accrued for him to institute an action. What it means is that a party may have the requisite juristic personality as a natural or artificial person to come to court which then would be capacity. But if that persona does not from the nature of the claim made in court disclose a reasonable cause of action or close connection with the matter for which he sues he would be termed as not clothed with sufficient locus standi to bring an action.”

See Florini Luca and Another vrs Mr. Samir and 2 Others. Civil Appeal No. J4/49/2020. Delivered on 21st April, 2021.

[8.1]. Addressing ground (G) of the grounds of appeal, Counsel for the Appellant argued that having found that grounds (II) and (III) of the Respondent’s grounds of appeal to the Court of Appeal were in contravention of the rules on formulating grounds of appeal, the learned Justices of the Court of Appeal erred when they failed to strike out the said grounds of appeal.

My lords, the Court of Appeal Rules, 1997 (C.I. 19) provides in Rule 8 as follows:

“(1) An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.

(2) The notice of appeal shall be filed in the registry of the Court below and,

(a) shall set out the grounds of appeal;

….

(4) Where the grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.

(5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the appellant intends to rely at the hearing of the appeal without an argument or a narrative and shall be numbered consecutively.

(6) A ground which is vague or general in terms or which does not disclose a reasonable ground of appeal is not permitted, except the general ground that the judgment is against the weight of the evidence.

(7) A ground of appeal or a part of the appeal which is not permitted under sub-rule (6) may be struck out by the Court of its own motion or on application by the respondent”.

Also, Rule 63 of C.I. 19 states that:

“63. Waiver of non-compliance rules

Where a party to the proceedings before the Court fails to comply with these Rules or with the terms of an order or the directions given or with a rule of practice or procedure directed or determined by the Court, the failure to comply is a bar to the further prosecution of proceedings unless the Court considers that the non-compliance should be waived”.

My lords, Rule 8(7) of CI.19 quoted above, is not couched in mandatory terms. Rule 8(7) appears to vest in the Court of Appeal a discretion in dealing with grounds of appeal which do not conform with the requirements under Rule 8 of C.I. I9. Similarly, Rule 63 generally allows the Court to waive irregularities resulting from non-compliance by a party with the Rules of Court. Indeed, the learned Justices of the Court of Appeal made the following observation in arriving at the conclusion to take into account the otherwise offending grounds of appeal in the resolution of the matters before the Court:

“On the examination of grounds (ii) and (iii) of the grounds of appeal contained in the notice of appeal clearly shows that the two grounds of appeal are narrative and argumentative in nature. However, a reading of the two grounds shows, to the average reader, the basis of complaint of the plaintiff. And the court is imbued with the discretion to waive such procedural slip. Carefully examining the nature of this appeal, I am also of the considered view that this slip is not weightier enough to defeat those grounds of appeal as one can discern the pith of the complaint of the plaintiff [Respondent herein]. I accordingly waive the irregularity and prefer to determine the grounds of appeal on its merits.” (majority decision at pages 144 – 145 of volume 3 of the ROA).

In a similar vein, the minority observed (at pages 163 – 164 of volume 3 of the ROA) that:

“In the instant case, although the grounds of appeal [grounds (ii) and (iii)] have not been elegantly drafted, it cannot be said that the court, or for that matter counsel for the Respondent, does not know what the Appellant is complaining about. In any case, learned counsel responded appropriately to these grounds of appeal in his written submissions….

From the above and for the reason given, we are therefore of the view that although the grounds of appeal complained about were inelegantly drafted, once the issue(s) being raised in them are discernible from the narration, the interest of justice will better be served by maintaining them, and having the appeal heard on the merits, instead of striking them out.”

My lords, from the foregoing, it is my humble view that the learned Justices of the Court of Appeal properly exercised their discretion in saving the impugned grounds of appeal before the Court. No cause has been shown by the Appellant herein to warrant an interference by this Court with the exercise of that discretion. Ground (g) of the grounds of appeal, is accordingly dismissed.

[8.2]. The Appellant has argued in support of ground (e) of the grounds of appeal, that the majority of the Court of Appeal erred when they failed to consider the submission made by the Appellant that the scope of the power of attorney granted by G. Brands Limited to the Respondent did not cover the transaction the subject-matter of the suit. Indeed, it was one of the arguments advanced by the Appellant before the trial Court. A reading of the trial High Court’s ruling, as well as the judgment of the Court of Appeal, does not seem to disclose an express pronouncement on the said submission, even though it is clear that the Courts below rejected the said argument. Be that as it may, it is my humble view that the contention about the scope of the power of attorney upon which the Respondent sued out the writ, in the circumstances of this case, is resolvable by reference to the contents of the power of attorney in question.

A copy of the power of attorney, executed in October 1996, can be found at page 417 of volume 2 of the ROA, and reads in part as follows:

“This POWER OF ATTORNEY G. BRANDS LIMITED of Accra hereby appoints G. BRANDS IMPEX LIMITED also of Accra as its lawful attorney to do, perform and or undertake the acts and or things following:

To assume full responsibility for the goods, namely, canned tuna flakes sold on credit terms to G. Brands Impex Limited under an agreement entered into between Pioneer Cannery Limited on the one hand and G. Brands Impex Limited on the other hand dated the 20th day of December, 1995 but which goods were exported to Libya by G. Brands Limited under the umbrella of the Horticulturists Association of Ghana.

To take whatsoever action may be necessary to recover the proceeds of the export to Libya.

Out of the monies so recovered to settle all debts owing to Pioneer Food Cannery Limited and all other debts arising from the said export to Libya….”

My lords, the power of attorney above, mandates the attorney to, on behalf of the principal, “take whatever action [that] may be necessary to recover the proceeds of the export to Libya” [ See clause (ii of the Power of Attorney)], and more particularly in clause (i) “to assume full responsibility for the goods, namely, canned tuna flakes sold on credit terms to G. Brands Impex Limited … but which goods were exported to Libya by G. Brands Limited under the umbrella of the Horticulturists Association of Ghana” (HAG). In the light of these provisions in the power of attorney, it is my humble view that the argument by the Appellant that the power of attorney does not authorise the Respondent to recover proceeds of goods exported to Libya, otherwise than strictly under the umbrella of the HAG, is a bit stretched. In the circumstances, the interpretation placed on the power of attorney by the Appellant in order to deprive the Respondent of the authority to act for and on behalf of their principal, G. Brands Limited, is rejected.

[8.3]. Having dealt with the matters above, I am of the humble view that grounds (a), (b), (c), (d) and (e) of the grounds of appeal, could be put together in resolving the germane questions whether or not the Respondent is clothed with capacity to maintain the instant action, and whether the majority of the Court of Appeal erred in granting the Respondent leave to amend the writ of summons on appeal.

[8.4]. Capacity has been held to be critical in an endeavour by a person to sue or maintain an action in Court. Consequently, the court is enjoined to deal with an issue of capacity as a preliminary one, with the effect that where the court finds that capacity, particularly of a plaintiff as raised in the instant case, is lacking, the writ of summons becomes a nullity and stands dismissed with no need for the court to interrogate the merit or substance of the case. Where, therefore, a person’s capacity in an action is challenged, it is the duty of the person to adduce cogent evidence to prove the existence of that capacity. Alfa Musah v. Francis Appeagyei [2019-2020] 1 SCLRG 606; Sarkodee I v Boateng II [1982-83] GLR 715.

Capacity, including representative capacity must be shown to exist either before or at the time the action was commenced. Where no capacity is established to have existed before or at the time of the issuance of the writ, a subsequent amendment of the writ would not suffice to bestow capacity on a party. See National Investment Bank & Others (No.1) v Standard Bank Offshore Trust Co. Ltd (No.1) [2017-2020] 2 SCGLR 28.

In the National Investment Bank (supra), this Honourable Court held (in holding 2) as follows:

“A person’s capacity to sue, whether under a statute or rule of practice, should be found to be present and valid before the issuance of a writ of summons, else the writ was a nullity. Thus, the capacity to sue must be present before a writ was issued and such authority should appear in the indorsement and/or statement of claim accompanying the writ.”

This, therefore, dovetails into the meaning and effect of Order 16 Rule 5(4) of the High Court (Civil Procedure) Rules, 2004, C.I. 47 (as amended), cited by the Respondent herein, which provides that:

“An amendment to alter the capacity in which a party sues may be allowed under sub-rule (2) if the new capacity is one which that party had at the date of the commencement of the proceedings or has since acquired.”

While the provision in Order 16 Rule 5(4) appears to be quite clear that an amendment may be allowed to alter the capacity in which a party sues in order to reflect a new capacity even where the new capacity was acquired after the commencement of the action or proceedings, it is my humble view that the provision does not say that a party who had no capacity whatsoever at the time of commencement of an action, can, by an amendment, introduce or rely on capacity acquired subsequent to the commencement of the action.

[8.5]. My lords, this brings me to consider an online article titled: “Is Akrong vrs Bulley Still Good Law?” attributed to Justice Osei Tutu (currently a Justice of the Court of Appeal) published on the 29th day of May 2020 on ghanalawhub.com. In the said article the learned Justice and writer stated as part of his conclusion that:

“In view of the fact that the Courts, particularly the Supreme Court in the NIB case in applying Akrong v. Bulley did not make reference to the provisions of C.I. 47, it may be argued that the decision was made per incuriam. However, I am not sure I have what it takes to champion that cause. Since C.I. 47 has been in existence for over a decade and half, it is my hope and prayer that the Apex Court will begin to recognize the new rules on capacity discussed in this write up by exorcising and sending the ghost of Akrong v. Bulley back to hades once and for all so that we can live happily ever after under the shelter of C.I. 47, Order 16 rule 5 (4) …. Until the day comes for the Supreme Court to consign Akrong v. Bulley to its rightful place among abolished laws, the question on the lips of many a practitioner of the law is; whether Akrong v. Bulley is still good law?”

The learned author, in the said article quoted the provision in Order 16 rule 5(4) of the rules of the High Court and then observed that:

“The above rule appears to have issued a death blow to the principle adopted in Akrong v. Bulley supra making it possible for a person who was in want of capacity at the commencement of the action to apply to amend the capacity he later obtained in the course of the proceedings”.

The author drew inspiration from an observation made by the late Samuel Marful Sau, then a Justice of this Court, in his book: A Practical Guide to Civil Procedure in Ghana, where at page 77 thereof, the learned Justice had stated that:

“Under Order 16 r 5 (4), the court may allow an amendment to alter the capacity in which a party sues if the new capacity is one which that party had at the date of the commencement of the proceedings or has since acquired. It must be pointed out that that rule has changed the position of the law in Akrong v. Bulley [1965] GLR 469, which held that a writ issued by a person who lacked capacity to sue was a nullity”.

Commenting on the decision of this Court in Standard Bank Offshore Trust Company Limited v. National Investment Bank Housing Limited and Others (supra), the learned author stated that:

“It must be reiterated that the Supreme Court in applying the Akrong vs. Bulley principle did not make any reference to the provision of Order 16 rule 5 (4) of C.I. 47. It is not known whether the Court’s position on Akrong v. Bulley would have been the same had it done so”.

[8.6]. In Akrong vs Bulley, the Plaintiff originally sued as “successor and next-of-kin”. In the course of the proceedings she amended her writ by prefixing to the words “successor and next-of-kin” the words “personal representative.” It is stated that “no application was made to amend the endorsement on the writ in a similar manner”. The court ruled that “as the plaintiff was suing in a representative capacity, she was obliged by the mandatory provisions of Order 3, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954 to show in the endorsement to the writ in what capacity she brought the action”. It must be stated that the provisions in Order 3 rule 4 of LN140A is repeated in the current rules of the High Court where it is provided in rule 4 of Order 2 of CI.47 that:

“4. Indorsement as to capacity

(1) Before a writ is filed it shall be indorsed

(a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which the plaintiff sues; or

(b) where a defendant is sued in a representative capacity, with a statement of the capacity in which the defendant is sued.

(2) Before a writ is filed by a plaintiff who acts by an order or on behalf of a person resident outside Ghana, the writ shall be indorsed with a statement of that fact and with the address of the person so resident”.

The implication of the provisions quoted above is that any suit initiated by a Plaintiff shall be presumed to be initiated in the personal capacity of the Plaintiff unless the Plaintiff indorses a statement on the writ to show that he sues in a representative capacity. Therefore, if a Plaintiff files an action without indorsing a statement to the effect that he sued in a representative capacity and it turns out at the trial that he had no personal interest in the cause of action, the suit will be declared a nullity. This is because the Plaintiff lacks capacity to initiate that action in his personal capacity. In Akrong vs Bulley, the Supreme Court recognised that: “whether or not the endorsement on the writ discloses a valid capacity to sue depends solely on the provisions of the Fatal Accidents Acts and such interpretation as is put on those Acts by judicial decisions. The only persons statutorily clothed with capacity to sue under those Acts are executors and administrators and latterly [sic], in certain circumstances, the dependants”.

The position of the law is stated to the effect that where a statute creates a right and provides the procedure by which the rights created may be prosecuted or enjoyed it is only by the procedure provided under the statute that the rights may be ventilated. See Tularley vs. Abaidoo [1962] 1 GLR 411, Boyefio vs NTHC Properties Ltd. [1997-98] 1 GLR 768. As pointed out by this court in the Akrong vs Bulley case, the only persons who could sue under the Fatal Accidents Acts (then in effect) which created the right to sue under those Acts were the Executors, Administrators and under certain circumstances the Dependants. The Court therefore ruled that:

“At the date when the plaintiff issued her writ, she was neither an executrix nor administratrix. No cause of action was therefore vested in her and she could not and did not commence a competent action”.

[8.7]. The Supreme Court noted that the High Court granted leave to the Plaintiff in that case to amend the title of the case to ‘include a claim by her as a personal representative’. However, the indorsement on her writ was not equally amended. The court therefore concluded that:

“But if the writ was void ab initio for want of capacity, then the purported amendment amounts to naught. But granted that on 15 November 1962, the plaintiff set on foot a proper representative action, she cannot have disclosed a valid capacity as a personal representative because letters of administration were not issued in her favour until 20 December 1962. It is only then that the plaintiff can properly commence an action as a personal representative within the meaning of the Fatal Accidents Acts. But on that date, the period of limitation of twelve calendar months prescribed by section 3 of the Fatal Accidents Acts had run out and no valid action could have been prosecuted under the Acts. It follows that the plaintiff never at any time prosecuted a competent action as a personal representative under the Fatal Accidents Acts.”

The court observed at page 474 to 475 that there was no amendment to show that the Plaintiff also sued as a dependent of the deceased and that the trial Judge could also not point to any such amendment notwithstanding the eagerness of the trial Judge to sustain the action mounted by the Plaintiff therein. The court therefore dismissed the action on the ground that the Plaintiff had no capacity to sue.

[8.8]. My lords, certain distinct principles on capacity stand out from the decision in Akrong v. Bulley: These are that:

(a), a Plaintiff must have capacity to sue at the time he files his writ of summons and the statement of claim.

(b), a Plaintiff who has no capacity to sue cannot by amendment acquire capacity to sustain the action.

(c), capacity acquired during the pendency of an action cannot be substituted, by way of amendment, in place of the capacity in which the action was initiated in order to sustain the action, and finally,

(d), capacity acquired pendente lite cannot be substituted by the process of amendment in place of the capacity in which the action was commenced if at the date of the amendment or substitution, the cause of action has been caught by the statute of limitation or the action is statute barred.

My lords, the above stated principles represent the position of the Ghana common law on capacity before the enactment of the High Court (Civil) Procedure Rules, 2004, CI. 47. The new rules of court, certainly, made in-roads into the position of the common law as it existed before the passage of CI.47 with the aim of meeting the policy objectives set out in Order 1 rule 1 (2) of CI. 47 to the effect that:

“(2) These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided”.

One of such in-roads is the provision in Order 16 rule 5(2) which states that:

“(2) Where an application to the Court for leave to make the amendment mentioned in sub-rule (3), (4) or (5) is made after any relevant period of limitation has expired, the Court may nevertheless grant the leave in the circumstances mentioned in that application if it considers it just to do so”.

The provision in Order 16 rule 5(2) cures the ills of the fourth principle teased out of the Akrong vs Bulley case where the court held that if at the time the new capacity was obtained and sought to be substituted by the process of amendment, the cause of action had been caught by the statute of limitation, then the amendment as to capacity cannot be allowed in order to sustain the suit. Thus, in order for the meaning and effect of the provisions in Order 16 rule 5 sub-rules (3), (4) and (5) of CI. 47 to be clear, one should read these provisions in conjunction with the provision in Order 16 rule 5 sub-rule 2. Thus, by the provision in Order 16 rule 5(2) the major factor which the court should consider in granting an amendment is whether it is just to grant an application for amendment.

[8.9]. The court’s power to grant leave to amend is not limited or abridged by the expiration of any relevant period of limitation at the date of the making of the application. An application for leave to amend may be granted if the court considers it just so to do under Order 16 rule 5(2). The power of the court to grant leave to amend under Order 16 rule 5 (3)(4) and (5) does not in any way compromise or prejudice the substantive right of any party under the Limitation Act (NRCD 54.)

The policy reason behind Order 16 rule 5(2) is that if at the date of the issuance of the writ, the suit or a claim was not caught by the Statute of Limitation then the fact that a mistake was made by the non-indorsement of a particular claim at the date of the filing of the writ shall not prevent that claim from being made in the proceedings notwithstanding that at the date of the filing of the application for leave to amend, the Limitation period has kicked-in. It is thus, considered, that if the correct name of the party or the new capacity or the new claim or relief, sought to be introduced under Order 16 rule 5 (3)(4) and (5) had been added at the date of the issuance of the writ, the defence of Limitation would not have been available to the opposing party. Pontin v Wood [1962] 1 QB 594 @ 609; [1962] 1 All ER 294 @ 298.

Another policy reason behind rule 5(2) of Order 16 is that an amendment is thought to relate back to the date of the filing of the original process in which the amendment was effected. Hence, any amendment cures the defects ab initio. Rodriguez vs Parker [1967] 1QB 116, [1966] 2 All ER 349.

Rule 5(2) of Order 16 does not mean that the Court will grant leave for an amendment to be made if at the date of the filing of the writ, a cause of action is statute barred.

An accrued right in a defendant of a limitation period will not be compromised by the court through amendment or by a new legislation. Yew Bon Tew vs Kendernan Bas Mara [1982] 3 All ER 833 PC.

Thus, the consideration is not so much about whether at the date of the application to amend, the cause of action has been caught by the statute of limitation; the consideration now, as shown by Order 16 rule 5(2), is whether it is just to grant the application inspite of the fact that at the date of the application to amend, the period of limitation had kicked-in.

In Akrong vs Bulley, the Court reasoned that even if the Plaintiff therein had obtained Letters of Administration which made her an Administrator of the estate of her deceased son, the amendment as to her capacity could not be granted because “the period of limitation of twelve calendar months prescribed by section 3 of the Fatal Accidents Acts had run out and no valid action could have been prosecuted under the Acts”. This does not mean that an action may still be properly and lawfully instituted in respect of a cause of action caught by the Limitation Act. Order 16 rule 5(2) is intended to save causes of action sought to be introduced by an application for amendment which is made at the time that the limitation period has kicked-in. And, as stated, this is one of the ways that CI. 47 sought to improve upon the position of the common law in order to “ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings avoided.”

[8.10]. My lords, another in-road made into the common law position on capacity by the provisions in Order 16 rule 5 is that capacity acquired during the pendency of an action or which existed at the time of the issuance of a writ is now allowed to be introduced by way of amendment. In Akrong vs Bulley, capacity acquired pendente lite was ruled as impermissible to be introduced during the pendency of the suit.

The provision in Order 16 rule 5(4) does not grant a licence to sue where the plaintiff has no capacity to sue. The rule only permits the capacity in which an action has been initiated to be altered if the capacity sought to be introduced existed at the date of the filing of the writ or has since been acquired. Thus, for a party to properly amend to alter his capacity where the new capacity has since been acquired (i.e. during the pendency of proceedings or where the new capacity was in existence at the commencement of the action), some other valid capacity must have existed before or at the time of the commencement of the action. To state otherwise would mean to suggest that a person who lacks capacity at the time of commencing an action, can properly initiate the action in anticipation of acquiring capacity. For example, a customary successor has capacity to sue in respect of the estate of the deceased. See Dotwaah and Another vs. Afriyie [1965] GLR 257. In the course of the proceedings, if the customary successor obtains Letters of Administration, he may apply under rule 5(4) of Order 16 of CI.47 to have the Court amend and so alter his capacity from customary successor to that of Administrator. What this implies is that a Plaintiff must have capacity to institute an action before he can subsequently pray for the amendment of that capacity.

Indeed, the use of the phrase “amendment to alter the capacity in which a party sues”, as appear in Order 16 rule 5(4), is a clear indication that a valid capacity is a necessary condition to the initiation of an action. It is only when a Plaintiff has capacity to initiate an action that one can reasonably talk about amending or altering it during the pendency of the suit. Capacity must be present at the time of the commencement of the suit before one can conceive of altering or amending same. Thus, in National Investment Bank & Others (No.1) v Standard Bank Offshore Trust Co. Ltd (No.1) (supra), the Court expressed the position in holding (4) that:

“Capacity to sue could not be acquired whilst a case was pending and an amendment could not also be sought to introduce it for the first time. Consequently, a writ that did not meet the requirement of capacity was null and void and that issue of nullity might be raised at any time in the course of the proceedings, even on a second or third appeal. Accordingly, as long as a matter was still pending before a court in proceedings which were valid according to law and rules of practice, the issue of nullity could be raised at any stage of the proceedings.”

It is therefore incorrect to say that the provision in Order 16 rule 5(4) “appears to have issued a death blow to the principle adopted in Akrong v. Bulley (supra) making it possible for a person who was in want of capacity at the commencement of the action to apply to amend the capacity he later obtained in the course of the proceedings”.

It is crucial, in the present case, to ascertain whether at the time the Court of Appeal allowed the Respondent to amend their writ, the Respondent already had capacity to sue or that the said amendment purported to clothe the Respondent with capacity for the first time in the action.

[8.11]. The power of attorney given the Respondent herein by G. Brands Limited was executed in October 1996. The instant suit was commenced by the Respondent in April 2000. In fact, the legal personality of the Respondent’s principal, G. Brands Limited, is not in dispute in this suit. At page 365 of volume 2 of the ROA is a copy of a certificate indicating that G. Brands Ltd was incorporated in 1987 as a company under the then Companies Code. The validity of the power of attorney, is also not in question before this Honourable Court.

[9.0]. Indorsement and Amendment of the Writ of Summons

Where a person sues or is being sued in a representative capacity, it is required by the Rules of Court that the writ be indorsed with the representative capacity in which the person sues or in which the defendant has been sued. It is, thus, provided in Order 2 rule 4(1) of the High Court (Civil Procedure) Rules 2004 (C.I. 47) as follows:

“Indorsement as to capacity

4. (1) Before a writ is filed it shall be indorsed

where the plaintiff sues in a representative capacity, with a statement of the capacity in which the plaintiff sues; or

where a defendant is sued in a representative capacity, with a statement of the capacity in which the defendant is sued.”

Therefore, the Respondent who instituted the instant action as an attorney of G. Brands Limited, was enjoined to indorse the capacity in which the Respondent sued out the writ.

It is evident from the record that the Plaintiff/Respondent sued as “G. Brands Impex Limited” and subsequently amended the writ, with leave of the Court, to indicate the Respondent (Plaintiff) in the title of the case as “G. Brands Impex Limited (Suing for Itself and as lawful Attorney for G. Brands Limited)”.

The Appellant’s argument, as rightly put, in my humble view, by the majority of the Court of Appeal, is that the Respondent issued out the writ in the Respondent’s name, as an agent, instead of issuing out the writ in the name of the Respondent’s principal. The majority of the Court of Appeal observed (at page 151 volume 3 of the ROA) as follows:

“Again, it must be understood that plaintiff [Respondent herein] had thought that it had locus standi all along to pursue this claim until the court below held otherwise. And it was for that thought harboured by the plaintiff that actuated him [sic] to mount the action instituled “G. Brands Impex Ltd (suing for itself and as lawful attorney for G. Brands Ltd)”. Having therefore proceeded under that mistaken assumption that plaintiff could have pursued the action in its own name until the lower court correctly ruled that it cannot be done; it is my humble view that to allow such an action to be defeated not because plaintiff did not have a power of attorney or that the principal is non-existent but on a purely fastidious technical point that the name on the writ should have read “G. Brands Ltd (suing per its lawful attorney G. Brands Impex) but not as the plaintiff stated it being G. Brands Impex Ltd (suing for itself and as lawful attorney for G. Brands Ltd. I think the over reliance on Kimon Compania case without close attention to the peculiar circumstances giving rise to that dictum has not been helpful and that misled the learned trial Judge. And as stated even in that case the court allowed an amendment to be effected.”

Indeed, a person who sues as a lawful attorney, as in the instant case, bears the duty to prove that their principal exists as a legal person, and that they have a valid power of attorney from the principal, at the time of commencement of the action. See Asante-Appiah v Amponsa Alias Mansah [2009] SCGLR 90.

In Kimon Compania Naviera S.A.R.P and Others v. Volta Lines Ltd (Consolidated) (supra), relied upon by the Appellant herein, the High Court stated, at page 143 of the Report, that:

“A person suing by a lawful attorney can only sue in the name of the principal and not in his own name. If the principal has no legal personality, he cannot acquire one by using as an attorney. The law specifically authorizes an infant to sue by his next friend but the law does not authorize a body which is properly incorporated to evade the requirements of incorporation or registration by suing by an attorney.”

My lords, the tenor of the above dictum, in my humble view, is that a principal who lacks legal personality or existence cannot obviate the legal implications thereof by merely instituting an action by an attorney. It is not, per se, to say that the name of an attorney through whom the principal sues must be transposed in a particular manner in the indorsement of the writ of summons.

Considering that the principal, G. Brands Limited, as indicated above, was legally existent and had executed a valid power of attorney for the Respondent herein, G. Brands Impex Ltd, to act on their behalf, it is my humble view that the majority of the Court of Appeal is justified in dismissing the Appellant’s contention.

[9.1]. The Appellant has also argued in their statement of case that the cause of action in the instant suit, if at all existent, was vested exclusively in HAG, and the Respondent or G Brands Ltd cannot purport to assert same in the circumstances of this case. In other words, the Appellant’s argument is that neither the Respondent nor the Respondent’s principal, G. Brands Ltd, could properly pursue a claim against the Appellant in respect of the exports of the goods, the subject matter of this suit.

My lords, it is my humble view that this argument is not only belatedly made and creates the impression of an afterthought on the part of the Appellant, it makes the Appellant’s argument self-contradictory, and lacks support by the evidence on record. First, the Appellant had argued that the exporter of the goods, the subject matter of this suit, was G. Brands Ltd, and that it was G. Brands Ltd, not G. Brands Impex Ltd, who could sue out the instant action. Second, there is ample evidence on record of direct correspondence between G. Brands Limited and the Appellant in respect of the transactions culminating in the instant action. In some of the instances, in fact, the Appellant’s correspondences were with and/or addressed to G. Brands Impex Ltd. One of those correspondences is Exhibit BB at page 192 volume 1 of the ROA.

In the circumstances, the Appellant could not treat the Respondent, who has authority to act on behalf of the Appellant’s touted exporter, G. Brands Ltd, as a stranger.

[10.0]. CONCLUSION

In the light of all the above, the instant appeal fails and is hereby dismissed. The judgment delivered by the majority of the Court of Appeal on the 2nd day of February 2023, is hereby affirmed. Let the amendment ordered by the Court of Appeal be effected accordingly. The case is remitted to the High Court to be heard on the merits.

(SGD.) S. K. A. ASIEDU