It is pertinent to recognize that though capacity and locus standi are closely related and in many instances arise together in cases in court they are separate legal concepts. Capacity properly so called relates to the juristic persona and competence to sue in a court of law and it becomes an issue where an individual sues not in her own personal right but states a certain capacity on account of which she is proceeding in court. But locus standing relates to the legal interest that a party claims in the subject matter of a suit in court. This may be dependent on the provisions of the statute that confers the right to sue, such as the Fatal Accidents Acts in Akrong v Bulley. Otherwise, generally locus standing depends on whether the party has a legal or equitable right that she seeks to enforce or protect by suing in court.
It has been held by this Honourable Court that, a person must have capacity to sustain an action in court, and where a person commences an action in a representative capacity, that capacity must be indorsed on the writ of summons. Capacity must, therefore, exist at the time the writ is issued. Akrong v Bulley [1965] GLR 469.
The conclusions we have come to, upon careful consideration of the judgments in the two cases to which we have referred, and other judicial decisions on the native custom in this regard, are as follows: (1) as a general rule the head of a family, as representative of the family, is the proper person to institute suits for the recovery of family land; (2) to this general rule there are exceptions in certain special circumstances, such as: (i) where the family property is in danger of being lost to the family, and it is shown that the head (either out of personal interest, or otherwise) will not make a move to save or preserve it; or
(ii) where, owing to a division in the family, the head and some of the principal members will not take any step; or (iii) where the head and the principal members are deliberately disposing of the family property in their personal interest, to the detriment of the family as a whole. In any such special circumstances, the Court will entertain an action by any member of the family, either upon proof that he has been authorised by other members of the family to sue, or upon proof of necessity, provided that the Court is satisfied that the action is instituted in order to preserve the family character of the property.
Applying these principles to this case, we are of the opinion that the learned Judge of the Land Court misdirected himself on the native customary law in holding that the appellant was not competent to sue on behalf of the family. It was manifestly clear that the action was instituted solely to preserve the family character of the property; further, there was evidence on record that the appellant, though not head, was authorised by the family to institute the action.
Capacity to sue of the members of an unincorporated association
In my view, the clear intention of Act 106 is to give statutory force to this common law principle with respect to voluntary associations and bodies formed anywhere in Ghana. Under the Act, therefore, it is the trustees only who are constituted as a body corporate in which, under section 2 of the Act, the lands of the unincorporated association may be vested in trust for the members. It is clear in the Act that the trustees become incorporated only for the purpose of holding land for the benefit of the unincorporated association. Counsel for the defendants, Mr. Joe Reindorf, quite properly concedes that this is the true legal position. It follows, therefore, in my judgment, that the conclusion of the learned judge that the second plaintiffs lacked capacity to sue solely on the ground that the Ghana Muslims Representative Council, as originally constituted, had not been incorporated under Act 106 is, with all due respect, wrong.
Capacity to sue raised for the first time on appeal
the question of capacity can always be raised at any time by a party or by the Court on its own motion. Where the issue on capacity is raised on appeal however, such belated inquest would only be entertained when the Appellate court can, by exclusive recourse to the evidence already on record, conclusively resolve the issue relating to that other party's capacity.
Effect of non-service on a person who is not a party
There was, with respect, another error committed by the learned trial judge. It is this that the complaint was made against the chairman of the board of directors who was not made a party in the instant application. He was not served with any court process. The chairman was not given an opportunity of being heard on the complaint made against him in the application.
When it is pointed out that the chairman was not given an opportunity of being heard in his defence during the hearing of the application the injustice done to him becomes apparent. It is unfortunate to record that the chairman was condemned without being heard in his defence. The saving grace, however, was that the learned trial judge ignored and disregarded the relief claimed against the chairman. The trial judge gave no reason nor explanation for his failure and or omission to make any pronouncement in respect of that relief. The last word on this issue is that the relief sought against the chairman has clearly and plainly misconceived. The trial judge should have refused it and proceeded to give reasons for so doing.
Effect on a pending suit of a stool occupant ceasing to hold office
From the foregoing explanations it follows that when the duly recognised occupant of the stool for the time being is sued as representing the stool and he is served with the writ of summons and enters formal appearance or causes the same to be done for him so that, or whereby, the stool comes to be properly and legally before the court, if thereafter he (the stool occupant should cease to hold his office, the position which arises is that the recognised representative of the stool ceases to be before the court, but not that the legal entity, which is the stool, also ceases to be before the court.
Letters of administration as a condition for suing for a deceased’s property
The law on the devolution of property on the death of a person is a rule of substantive law and not that of procedure so it is determined by the domicile of the deceased foreigner at the time of her death. It appears that the defendants think the issue is procedural hence their contention that once the plaintiffs are suing in Ghana they require letters of administration but that is erroneous. Even under Ghana law, it is not in all instances involving the property of a deceased person that letters of administration or probate are required before a party can sue. For the reasons explained above, the challenge to the capacity of the plaintiffs for failing to obtain letters of administration before proceeding to sue is misconceived and same is rejected.
In my respectful view, the underlying policy rationale for this rule is the avoidance of a multiplicity of suits. It follows, therefore, that where the presence of a party to the suit would not in any way assist the Court in completely and effectually adjudicating upon the issues in controversy, or where the Court can conveniently and adequately determine the matter in the absence of such party, then that party is not a necessary party.
Further, in my considered opinion, the overriding theme running through Order 4 Rule 5(2) is that the presence of a necessary party is essential to ensure that all matters in dispute are effectively and completely determined and adjudicated upon by the Court. Additionally, such a party, if would be affected by the decision of the Court, is a necessary party. The true ambit of the phrase “matters in dispute,” in my view, encompasses both questions of fact and law to be determined by the Court.
Caveat in opposition to application for letters of administration, together with an affidavit of interest filed in consequence of warning served upon the caveator, amounts to a counter-claim that, as between the applicant for letters and the caveator, the latter has a better right to the grant of letters. The purpose of Order 16 rule 11 is to secure the determination of all disputes relating to the same subject matter without delay, and without expenses of separate actions.
Stage of the proceedings at which a party may be joined
Again, the jurisdiction of the Court to join a party under Order 16 rule 11 may be exercised by the Court at any stage of the proceedings, so long as anything remains to be done in an action (Ives v. Brown [1919] 2 Ch. 314). It can be exercised even after an admission of liability by one of two possible defendants, and even after judgment, though all that remains is assessment of damage (The Duke of Buccleuch) [1892] P. 201).
Stating the representative capacity on the writ and statement of claim
While it is true that the plaintiff was the chief of Saasabi and he had stated under cross-examination that he was acting for and on behalf of the stool, that in our view was not enough to cure the defect in the Writ of Summons and the Statement of claim in respect of the representative capacity of the plaintiff.
It is correct that Order 4 rule 9 of C.I. 47 provides that the occupant of a stool or skin may sue and be sued on behalf of or as representing the stool or skin, but in our view that does not mean that a chief who sues in respect of the stool or skin property is thereby precluded from stating on the Writ of summons and statement of claim that he is suing in a representative capacity ie. that he is suing for and on behalf of the stool. This is so because it is possible for a stool occupant to use his stool name to sue in respect of a private property or to institute a private action.
In a representative action, it is necessary, both in the Writ and in all subsequent pleadings to state clearly that the parties are suing, or are being sued in their representative capacity, on behalf of the members of a defined class: see Order 3 of LN 140 A of 1954. In this case, this has been done only in the statement of claim. The representative capacity should also be stated in the title of both the writ and the statement of claim, and not merely in the endorsement of the Writ or the body of the pleadings.
In a representative action it is necessary, both in the writ and in all subsequent pleadings, to state clearly that the parties are suing, or are being sued, in their representative capacity, on behalf of the members of a defined class: see Order 3, of L.N. 140A of 1954. In this case this has been done only in the statement of claim. The representative capacity should also be stated in the title of both the writ and the statement of claim, and not merely in the endorsement of the writ or the body of the pleading. This has not been done here. Where it appears at the trial in a representative action that the plaintiff has failed to state the representative capacity of the parties, the court will give leave to amend either the writ or subsequent pleadings by adding a statement that the plaintiff is suing on behalf of himself and all others of a defined class: see In re Tottenham; Tottenham v. Tottenham [1896] 1 Ch. 628 and Worraker v. Pryer (1876) 2 Ch.D. 109. Even at this late stage, I think that this court can order an amendment so that the writ and the pleadings may reflect the capacity in which the plaintiffs sued and the defendants were sued.
The unambiguous effect of these provisions, when read together with Section 42 of the Interpretation Act, 2009 (Act 792), is that the joinder of a named adulterer to a divorce petition is permissive and discretionary, rather than mandatory. Additionally, the exercise of judicial discretion to join a party to a suit is guided by Order 4 rule 5(2)(b) of C.I. 47, which empowers the Court to order the joinder of any person “who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon.” The operative test is therefore one of necessity.
My Lords, I respectfully recognize that, upon the true and proper interpretation of Order 4 rule 5(2) of C.I. 47, an application for joinder ought to be granted where the presence of the party is necessary to ensure that all matters incidental to the proceedings are effectually and completely determined.
To be valid, a power of attorney must be executed in conformity with section 1(2) of the Powers of Attorney Act, 1998 (Act 549). Section 1(2) of Act 549 provides that, “where the instrument is signed by the donor of the power one witness shall be present and shall attest the instrument.” Where the power of attorney is signed outside Ghana, a notary public before whom it is signed qualifies as the witness envisaged by section 1(2) of Act 549, and the power of attorney shall be valid.
In our understanding, the critical fact to look for when the validity of a power of attorney is questioned on ground that it has not been witnessed is for the court to satisfy itself that the donor signed the instrument in the presence of a witness and that that witness signed the instrument signifying that she was present at the execution of the instrument by the donor.
In the face of our interpretation of section 1(2) of Act 549 as explained above, the defendants' challenge to the validity of the power of attorney of Isaac Benjamin Clement is no longer tenable. The statutory declaration by which the power was given to him was signed by the plaintiffs on pain of penal sanctions under Italian law, in the presence of a Notary Public who has attested that the instrument was signed before her. The power of attorney satisfies section 1(2) of Act 549 and is valid.
In the case of an action commenced on behalf of a person resident outside Ghana, Order 2 Rule 4(2) of C.I. 47 requires that the fact of the said residence outside Ghana and the plaintiff’s residential address outside Ghana, must be indorsed on the writ of summons before the writ is filed. Failure to make these indorsements has been held to go to the very existence or capacity of the plaintiff to be able to institute the action. Accordingly, the Court has not hesitated to declare as non-existent a plaintiff whose residential address outside Ghana is not disclosed on the writ of summons but on whose behalf a writ has been issued in Ghana. The implication has, therefore, been that the writ issued on behalf of such undisclosed or non-existent persons is void for want of capacity to sue.
It is to be stressed that the provisions of Order 2, r 4 (2) of CI 47 are obligatory, and it is not one of those provisions which the court is permitted by Order 81 to waive for non-compliance. As decided in the Naos Holdings case, (supra), non- compliance with this provision renders the writ void. That which is void or a nullity cannot be waived by the court under Order 81 of CI 47. That rule is there to ensure that foreigners, humans as well as corporate, are in existence in fact and have an address at which they may be reached by the defendant and by the court, if need be. This ensures that the identity of the real plaintiff is known by the defendant and the court lest an impostor should secure judgment only for the real claimant to surface later and saddle the defendant with another suit. It also ensures that a judgment or order obtained against a foreigner could be executed against him in his country of residence, through the address supplied on the writ, if need be. Lack of authority to sue amounts to contempt of court by virtue of Order 1, r 4 of CI 47, therefore this provision affords the only avenue whereby the defendant may cross check with the real claimant whether or not he has authorised the plaintiff to sue. These are clear legal as well as policy considerations that justify the construction placed on this rule
Writ issued for a person resident outside Ghana: identity not in doubt
My Lords, it is, therefore, my humble view that, to declare a writ void for non-disclosure of the real plaintiff’s foreign address when the identity or existence of the plaintiff is not or could not reasonably be in doubt, either to the defendant or the court or both, would constitute a departure from the reasoning expressed in the Standard Bank Offshore Trust Co. Ltd case (supra) to underpin the provisions of Order 2 rule 4(2). It is my humble view that, to so declare would not promote the overriding objective of the High Court (Civil Procedure) Rules, 2004 (CI 47)
