Abstract
The decision of the Supreme Court in the case of Adisa Boya vs Zenabu Mohammed, among a few others, marks a seminal regime for children who commence proceedings in court to protect their interests in the properties of parents who have died intestate.
The decision appears also to herald an incision in the oft quoted proposition of law that an objection to capacity could be raised at any time in civil proceedings.
The purpose of this article is to highlight, against the decision, that there is a real likely shift in the attitude of the court toward objections to capacity, and that an objection to capacity may not always be permitted by the court at any time in civil proceedings. Considerations of justice and the Equity of a case may trump a party’s legal right to take an objection to capacity at any time.
Introduction
In civil litigation, a person who institutes an action in court in a certain capacity must show that they are indeed clothed with that capacity in order to sustain the action. For example, a person who institutes an action as administrator of the estate of a deceased person would suffer a dismissal of their case by the court if it comes to light that the person did not or has not obtained letters of Administration from a court of competent jurisdiction to administer the estate of the deceased person. Similarly, a person who sues as a member or shareholder of a company must satisfy the court of that membership or shareholding of the said company. Conversely, a person (Defendant) against whom an action is instituted in a certain capacity may deny or object to that capacity in which they are sued.
The question of capacity is soimportant that when a party’s capacity in an action is challenged, the court is enjoined to deal with that question first (as a preliminary issue) before considering the merits of the case, if capacity is established.
The traditional position of the law has been that an objection to capacity can be raised at any time in civil judicial proceedings. The Supreme Court, in the case under review, appears to have shifted from the traditional position by taking into account factors which may deny a party the advantage of taking their objection to capacity at any time in the proceedings.
This article highlights the decision of the Supreme Court and argues that the decision visualises a departure from a strict adherence to the law, and thereby makes room for equity and fairness.
When to object to capacity
Capacity is foundational to the prosecution or defence of any civil cause. The significance of capacity was stated by the Supreme Court, exercising its appellate jurisdiction, in the case of Alfa Musah v Dr. Francis Asante Appeagyei[1] in the following terms:
“Since the issue of capacity was raised against the appellant at the High Court and the Court of Appeal, the first ground of Appeal appears to be very fundamental to the determination of this appeal and every Civil Proceedings for that matter….With the evidence conclusively pointing to lack of capacity of the appellant to institute this suit the learned trial judge proceeded to state the well-known proposition of law that when the suitor’s capacity is challenged he must prove it before he can succeed on the merits….We think the law is that, when a party lacks the capacity to prosecute an action the merits of the case should not be considered…. Even though the court may resort to taking evidence on all the issues raised by the pleadings, the court must always consider the issue of capacity first.”[2]
The time-honoured principle is that an objection to capacity in an action could be raised at any time, including on appeal.
The supreme Court stated this position in the case of Evelyn Asiedu Offei v Yaw Asamoah[3] as follows:
“Whether or not a party has capacity to institute an action is a question of law that could be determined after a factual evaluation of the evidence on record. As a legal question, it could be raised at any time at all by any of the parties in litigation or even by the Court suo motu when the circumstances call for its invocation.”[4]
In the case of Standard Offshore Trust Company Ltd v National Investment Bank Ltd & Others[5], the Appellant raised the issue of capacity of the Respondent (Plaintiff at the trial court) for the first time in the Appellant’s Written Address at the Supreme Court. In response to this challenge, the Respondent argued, among others, that the Appellant, having failed to raise the issue earlier in the proceedings, had fully appreciated the capacity of the Respondent and thereby had effectively waived any objection the Appellant had.
The Court addressed the issue as follows:
“A writ that does not meet the requirement of capacity is null and void. Nullity may be raised at any time in the course of the proceedings, even on a second or third appeal. The charge of tardiness that was raised by the respondent against the appellant is thus a red herring and does not hold water.”[6]
In the case of Opanin Yaw Okyere v Opanin Appenteng & Anor[7], a deceased (testatrix) by her last will gave some properties to the 2nd Defendant. The plaintiff challenged the devises on the basis that the properties in question were family properties and therefore the testatrix could not properly make a disposition of the properties to the 2nd Defendant. The 2nd Defendant counterclaimed that the properties given to her by the testatrix were the self-acquired properties of the testatrix. No Vesting Assent had been executed in favour of the 2nd Defendant. The 1st Defendant who was the sole executor of the will, neither defended the action nor did he pursue a counterclaim against the Plaintiff.
The trial High Court entered judgment for the 2nd Defendant on her counterclaim (i.e. declaring that the properties in dispute were the testatrix’s self-acquired properties). On the Plaintiff’s appeal to the Court of Appeal, the Court of Appeal upheld the decision of the trial High Court.
The Plaintiff further appealed to the Supreme Court on grounds, among others, that;
“The Court of Appeal erred in law when it failed to address the locus standi of 2nd Defendant to Counter-claim in view of the fact that no Assent had been vested in her by 1st Defendant executor.”
The Plaintiff argued in the Supreme Court that the 2nd Defendant had no locus standi to defend a title suit against her (2nd Defendant) until a Vesting Assent had been executed in 2nd Defendant’s favour by the 1st Defendant.
The Court held that, in the absence of a vesting assent executed in favour of the 2nd Defendant, 2nd Defendant could neither sue nor be sued on her devise under the will of the deceased(testatrix). The Plaintiff/Appellant’s argument on appeal was, therefore, upheld. The Court went ahead to explain that the action against the 2nd Defendant was dismissed as 2nd Defendant lacked the capacity to be sued in relation to her devise. The 2nd Defendant’s counterclaim was, accordingly, dismissed on the basis that 2nd Defendant had no standing to pursue a counterclaim in relation to 2nd Defendant’s devise in the will of the deceased.
The decision in Opanin Yaw Okyere above resonates the relevance of capacity in civil proceedings and affirms that the question of capacity is one of law, almost of pure law. Otherwise, one would reasonably argue that once the 2nd Defendant herself had not objected to the suit, but had rather responded to the plaintiff’s case and counterclaimed against the Plaintiff, the Plaintiff should not be able to turn around to now say that she had no capacity to counterclaim which essentially means that the Plaintiff could not have even sued her in the first place. Being a matter of law however, these conjectures were immaterial. What mattered was whether or not she possessed capacity as prescribed under law.
Notwithstanding the legal essence of capacity in civil proceedings as observed above, this was a clear case in which the Plaintiff had occasion to approve and disapprove of the capacity of 2nd Defendant for Plaintiff’s benefit at different times in the same suit. If the Plaintiff had won against the 2nd Defendant at the trial High Court, Plaintiff most likely would not have appealed to raise questions regarding the capacity of the 2nd Defendant to be sued. The Plaintiff would have gone away with the joy and benefits of the judgment, unless the court’s attention was drawn to raise the question of capacity suo motu.
The Decision in Adisa Boya v Zenabu Mohammed (Substituted by Adama Mohammed) and Mujeeb[8]
Facts:
In an action for declaration of title to land, the Plaintiff argued that the land in dispute was granted to the Plaintiff by the Hia-Topre stool of Ayigya. The Defendant also claimed title through the same Hia-Topre stool of Ayigya. While the Plaintiff contended that Plaintiff obtained Plaintiff’s grant in the 1990s and perfected it with a deed of lease from the stool, the Defendants claimed through Defendant’s deceased father and alleged that Defendants’ father took his grant in or about January 1970 and followed the grant with an entry upon the land and the erection of a residential dwelling thereon. As expected, the Defendants counterclaimed for a declaration of title to the land.
The trial High Court judge declared title in favour of the Plaintiff. On appeal by the Defendants, the Court of Appeal overturned the decision of the trial High Court and declared title in favour of the Defendants. Dissatisfied with the decision of the Court of Appeal, the Plaintiff appealed to the Supreme Court.
At the Supreme Court, the Plaintiff argued, among others, that the Defendants had no capacity to make a counterclaim in respect of their deceased father’s property because the property had not been vested in the Defendants by an assent. The Plaintiff, therefore, submitted that the Court of Appeal erred in declaring title in favour of the Defendants on the Defendants’ counterclaim. The Plaintiffs cited and relied on the case of Okyere (Deceased) v Appenteng & Anor.[9]
The Court rejected the Plaintiff’s argument on capacity observing that while the Okyere case was decided in respect of property that was being claimed under a will, the present case related to properties in intestacy.
The Court went further to hold as follows:
“Further, in the instant case, the defendants who were peacefully on their property were sued by the plaintiff who sought to have title declared in his favour against them and as by the nature of the controversy, title was necessarily put in issue by either party, it is important that the question as to which party owned the disputed property be put to rest once and for all in order that the matter may not be litigated in the future. Accordingly, no injustice was occasioned to the parties by the determination of the question of title to the land by the Court of Appeal. Indeed, we are enjoined … to avoid multiplicity of actions by the very clear words of Order 1 rule 2 of the High Court (Civil Procedure) Rules, 2004, CL 47 which is as follows: [the Court reproduced the provision]….The legislative wisdom contained in the above provision which is the overriding principle in civil procedural rules in the High Court cannot be overridden by slavish adherence to mere technicality; our primary concern…being to do substantive justice….The plaintiff who has urged this point before us took part in the proceedings before the trial court without raising a finger and we are firmly of the opinion that it is too late in the day to do that which would have the effect of escaping through the back door after much time and expense has been incurred in the action herein. The matter having been fought to this stage, the parties are entitled to have the issues determined finally between them.” (Emphasis)
The immediately preceding dictum could reasonably be argued to suggest that the Plaintiff could not properly now challenge the capacity of the Defendants in the action because of the time that had been expended in the proceedings, and the conduct of the Plaintiff in suing the Defendant in the first place. Moreover, the Plaintiff’s objection to the Defendant’s capacity was too late in the day.
Even though it is noteworthy that the argument of a party’s tardiness to raise an objection to another’s capacity was rejected in the subsequent decision of the Court in the Standard Offshore Trust case, it featured prominently in the case of Adisa Boya. It is also, however, worth noting that while the Court in the Standard Offshore Trust and the Okyerecases found that the Respondent had no capacity to sue, the Court found in Adisa Boya that the Defendants were clothed with capacity to make a counterclaim.
Will Equity Prevail against the Law?
The question of whether a party has capacity to institute an action is a question of law.[10] The decision in Adisa Boyaseems to suggest that there may be an instance where an objection to capacity may be treated as one of mere technicality in the face of the justice and equity of a particular case. It, however, remains doubtful that the dictates of equity and fairness could successfully assert itself on the subject and refuse to follow the law. This doubt is further anchored by the fact that the objection to capacity in the Adisa Boya case was addressed by the Court in three stages. The Court held that:
- The Okyere case which was relied on by the plaintiff was not applicable to the circumstances of Adisa Boya. That is, whilst the Okyere case was decided on the facts of a Defendant, not a child of the testatrix, based on dispositions made to the Defendant in a will, Adisa Boya was a case of a deceased who had died intestate whose children were the Defendants (Emphasis);
- The Plaintiff took part in the proceedings in the trial court without raising an objection. Therefore, it was too late in the day to object to Defendants’ capacity. The Plaintiff could not escape the consequence of the proceedings through the back door;
- By virtue of the rules on intestacy contained in PNDC Law 111, following the death of the father and the mother of the Defendants, the property devolved upon the children (Defendants) and as such they had an immediate legal interest in the property that they were competent to defend and or sue in respect of the property.
The holding observed in (c) above was that the Defendants had the capacity to sue and or be sued in the matter. As a result, the question whether equity (i.e. the holding observed in (b) above) would have sufficed as the sole basis to rule out the question of capacity at that stage of the proceedings appears to be a crucial question worth noting.
Conclusion
The holding in Adisa Boya suggests that there may be instances where a party’s legal right to raise an objection to capacity at any time in civil proceedings would be clogged by considerations of equity and fairness. It presents a scene where equity may admit its place to follow the law, yet not slavishly. It is respectfully submitted that justice would be done in accordance with the law when the Court has the discretion to take or refuse parties the right to take objections to capacity at any time in the proceedings. Timeliness, fairness and good faith should have a prominent place against technicalities of the law.
[1] [2018] DLSC 475
[2] Yeboah CJ (as he later became), p. 3, 4 & 5
[3] [2018]DLSC151
[4] Appau JSC, p. 4
[5] [2017]DLSC 2989
[6] Benin JSC at 10
[7] [2011]DLSC 2664
[8] [2018]DLSC 4225
[9] Ibid n 7
[10] Ibid n
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