KOWUS MOTORS vs. CHECK POINT GH. LTD. 7 ORS

The Plaintiff/Appellant, Kowus Motors, initiated legal action against Check Point Ghana Ltd. and others. However, the Defendants/Respondents raised a fundamental legal issue regarding the locus standi of the Plaintiff, contending that Kowus Motors had ceased to exist by operation of law due to a merger under the Transfer of Shares and Merger Kowus Motors, Kaasbohrer Ghana Limited and Ghana Assembly Plant Decree, 1979 (AFRCD 60). The merger resulted in the creation of a new company, Automotive and Technical Services Limited (ATS), into which Kowus Motors and other companies were merged, thereby extinguishing their separate legal identities. The Defendants argued that since Kowus Motors was defunct at the time the action was commenced, it lacked legal capacity to sue, rendering the entire action a nullity.

ATUGUBA, J.S.C: On the 1st day of April 2008 the Defendants / Respondents herein filed an Addendum to their Statement of Case in the following terms, as far as relevant; “We seek to raise a fundamental point of law concerning the locus standi of the Plaintiff / Appellant. We submit that this legal question is substantial and could be disposed off without the need for any evidence. In raising this point for the first time, we are mindful of this Court’s holding in A – G v. FAROE ATLANTIC CO. LTD. [2005 – 2006] SCGLR 271 at 279 (see holding 8). “(8) Generally, where a point of law had not been raised in the trial court and in the intermediate Court of Appeal it might not be raised in the Supreme Court as the final Appellate Court. However, there are exceptions to the general rule, namely: …(iii) where the legal question sought to be raised for the first time was substantial and could be disposed off without the need for further evidence …” It is our respectful submi...