Republic v. High Court, Accra; Ex Parte Aryeetey [2003-2005] 1 GLR 537

Material Facts:

The father of the respondent leased land to the applicant. Upon his death, the respondent sued in 1966 in the Community Tribunal, Kaneshie, in his capacity as customary successor and beneficiary of his father’s estate, to recover the land. The applicant submitted to judgement and was given one year by the Community Tribunal to vacate the land.

After the expiration of the one year, the respondent instituted proceedings to execute the judgement given by the Community Tribunal. In response, the applicant brought an application for stay of execution and an order setting aside the judgement of the Community Tribunal on the following grounds:

1. That the father of the respondent died testate, and although the will had been read, probate had not been taken.
2. That the above fact, which the respondent wilfully concealed from the court, would have undermined the respondent’s capacity as customary successor to sue in the Community Tribunal.

This application by the applicant was dismissed by the trial tribunal. He then appealed to the High Court to set aside the judgement of the Community Tribunal on grounds of lack of capacity and locus standi of the respondent. The appeal was dismissed by the High Court in 2001. The applicant then appealed to the Court of Appeal, which also dismissed the appeal.

The applicant, through a writ, again instituted an action in the High Court in 2003 for an order setting aside the judgement of the Community Tribunal. In response to this writ, the respondent entered a conditional appearance and moved the court to have the writ of summons and statement of claim struck out for being vexatious, abuse of the process, and not disclosing any reasonable cause of action. The respondent also argued that the applicant was estopped per rem dudicatam. The High Court, through Dordzie J., dismissed the applicants writ. The applicant again filed an appeal against this High Court decision, and while the appeal was pending, initiated the present proceeding for an order of certiorari to quash the decision of Dordzie J.

Relevant Holdings and Ratio:

Their lordships first noted that the present case is replete with several procedural errors, which the Supreme Court will correct to prevent it being said that it gave tacit judicial blessing to those errors. Their lordships made the following important clarifications.

1. Reason for the Requirement that a Person Suing in a Representative Capacity Indorses on the Writ the Capacity in which he sues.

The requirement that a party indorses 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 legal right to sue. This includes the submission that the requirement also enables a defendant, if he is so minded, to challenge the capacity the plaintiff claims he has, and such a challenge may be taken as a preliminary issue. 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 judgment founded on it. Any challenge to capacity therefore puts the validity of the writ in issue. It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with merits so that if the axe falls, then a defendant who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist upon his rights: see the case of Akrong v Bulley [1965] GLR 469, SC.

A party who sues in a representative capacity has the burden of proving his capacity if it is challenged. However, he has no such burden if it is not challenged. However, no such burden exists if capacity is not challenged. In the present case, the applicant submitted to the judgement of Community Tribunal and did not challenge the respondent’s capacity and was accordingly estopped from subsequently denying the respondent’s capacity.

2. On the Circumstances Under Which a Defendant can Enter a Conditional Appearance and have the Right to Set Aside a Writ:

A conditional appearance is to enable the defendant who intends to object to the issue or service of the writ or notice of the writ on him, or to object to the jurisdiction of the court, to apply to the court to set aside the writ, or notice of the writ or the service thereof on him. Such an application may encompass any irregularity or defect in the issue or service of the writ, or notice of the writ. For example any defect in the writ or order to amend or renew the writ, or for substituted service or service out of the jurisdiction. It is not permissible for a defendant who has entered a conditional appearance to move the court to have the writ set aside because he has a legal defence, even if unimpeachable, to the action; certainly such an application is not available to a defendant who seeks to rely on a plea of res judicata since this plea, to be successful, must satisfy certain requirements which can only be revealed through evidence. A defendant who enters a conditional appearance therefore has no right to apply to set the writ aside because he has a good defence to the action.

Such a defendant cannot also apply, after entry of conditional appearance, to have the writ set aside on grounds that the action is either frivolous, vexatious or an abuse of the process of the court. However, the court has power under Order 25, r 4 of LN 140A to summarily stay proceedings before it on these grounds. This power, however, is governed by certain principles; for example, only the pleadings must be looked at and affidavit evidence is inadmissible.

The discretion of the court will also be exercised under this rule only in plain and obvious cases; that is where it can be clearly seen that a claim or answer is, on the face of it, certainly unsustainable.

Summary of Principles:

1. If a person commences an action in a capacity he does not have, the writ is a nullity, and so are proceedings and judgement founded upon it.
2. Where the capacity of a person who sues in a representative capacity is challenged, he has the burden of proving his capacity.
3. A person who sues in a representative capacity has no burden to prove his capacity if his capacity is not challenged.
4. A conditional appearance is to enable the defendant who intends to object to the issue or service of the writ or notice of the writ on him, or to object to the jurisdiction of the court, to apply to the court to set aside the writ, or notice of the writ or the service thereof on him.
5. Merely having a defence to an action, however, unimpeachable the defence, is not grounds for entering conditional appearance.
6. After entering conditional appearance, a person cannot apply to have the writ set aside on grounds that the action is either frivolous, vexatious, or an abuse of the process of the court.