ATTORNEY GENERAL AND THE GOVERNOR vs. SAM OKUDZETO [2010]DLCA5145

Date	2010-01-21
Suit No.	SUIT NO. AHR 49/2009
Citation No.	[2010]DLCA5145

J.B.AKAMBA PRESIDING

YAW APPAU JUSTICE OF APPEAL

E.K.AYEBI JUSTICE OF APPEAL

[2010]DLCA5145
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													<main id="main" class="content" style="min-height: 60rem" >ATTORNEY GENERAL AND THE GOVERNOR<o:p></o:p>(1ST
AND 2ND DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>SAM OKUDZETO<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. AHR 49/2009&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; 21ST JANUARY 2010<o:p></o:p>

</div>CORAM: <o:p></o:p>J.B.AKAMBA
PRESIDING, YAW APPAU JUSTICE OF APPEAL, E.K.AYEBI JUSTICE OF APPEAL<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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</div>AKAMBA J.A.:<o:p></o:p>This
is an interlocutory appeal against the ruling on 20th July 2009 by
the High Court Accra presided over by Aduama Osei, J.A, sitting as an
additional judge of the High Court.<o:p></o:p>The 1st
Defendant/ Appellant (simply referred as the Appellant) filed the following
grounds of appeal:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
“The
learned judge erred when he refused to hear the motion to set aside the writ of
summons and statement of claim under its inherent jurisdiction and which
concerns the capacity of plaintiff as Director of the Bank of Ghana to
commence.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
learned judge erred when he held that the parties should file legal arguments
for the determination of the suit in that the issue whether plaintiff was
properly appointed is a factual matter and cannot be determined by legal
argument.<o:p></o:p>3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
The
learned judge erred when he gave directions in the case without first hearing the
motion to set aside the writ of summons in that issue of capacity of plaintiff
as a Director under the Bank of Ghana Act, Act 612 which is fundamental and has
to be established by Plaintiff to enable him proceed with the suit.”<o:p></o:p>These grounds of appeal
will be dealt together. Looking closely at the record of proceedings, it is
obvious that the issue of capacity was not contemplated when the appellant entered
appearance under order 9 of CI 47. If that were considered it would have
reflected in the nature of the appearance filed. Also when the appellant filed
his statement of defence no issue of capacity was raised (See pages 20 to23 of ROA).
Under order 9 the appellant as defendant could either enter a conditional or
unconditional appearance to the writ served on him. Where a defendant enters a
conditional appearance he has fourteen (14) days within which to bring an
application to challenge the propriety of the writ of summons. Should the defendant
resort to the other option by filing an unconditional appearance as was chosen
by the appellant, then he has to raise any issue of capacity that he has in his
statement of defence as part of his pleadings because capacity has to be
pleaded. He may then pray the court to set down that issue for determination 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 the
judgment founded on it. Any challenge to capacity puts the validity of the writ
in issue. (See Okai vs Okoe. 2003-2004 SCGLR 393 @ 394 holden 2) Where
capacity borders on factual issues it may be determined in the course of the
trial since evidence would be led to resolve same. Where the issue can be
resolved by legal argument, it is for the court to also so determine. Given
this back ground, the trial court did not err when it directed that the parties
should file their legal arguments on the issues set out in the applications for
direction filed on 19/06/09 as well as the issue of the plaintiff’s capacity to
sue within fourteen days from the 20/07/2009. Each party was also at liberty to
respond to the argument of the other within seven days of being served with
same. The case was then adjourned to 23rd October 2009 for the
Court’s ruling. It is a fact that the court’s attention was drawn to the motion
filed on 24/06/09 to set aside the writ under its inherent jurisdiction at the
stage that the trial court made this ruling, as reflected in the court’s notes
for the day. (See page 139 of ROA). It was therefore within the competence of
the judge as specifically provided under order 1 rule 2 of CI 47 to exercise
proper, effective and efficient case management by seeking to deal with the
issues within the context that he directed albeit for the quick disposal of the
case. Atuguba, J.S.C in Republic vs Court of Appeal: Ex Parte Eastern Alloy
Co Ltd, SC (2007-2008) SCGLR 371 @ 373 clearly summarized the position
thus: “Every judge, subject to particular
rules, has the right to control proceedings of his court. Therefore how a
motion should be dealt with is within the judge’s discretion, whether a party
be present or absent.”<o:p></o:p>The appellant filed his
motion on notice to amend his statement of defence under order 16 of CI 47 on
19/08/2009. This motion seeks to include in the statement of defence averments
to the effect that the plaintiff was not properly appointed to the Board and as
such lacked the capacity to sue. Meanwhile the respondent in compliance with
the orders of the court filed their legal arguments on 13/08/2009 in which they
(the respondents) challenged the propriety of the appellant’s motion to set
aside the writ for lack of capacity.<o:p></o:p>It is important to state
that the learned trial judge did not refuse to hear the motion but directed
that in the peculiar circumstances of this case, and in order to deal with a</main>