Capacity: A Fundamental Concept Suffering From Conflicting Notions

Capacity: A Fundamental Concept Suffering From Conflicting Notions


In 2008, His Lordship Anin Yeboah J.A. (as he then was) in the case of The Republic v. The Arbitration Committee of Mampong Gyase Council, Ex parte Opanin Kofi Twumasi,[1] expressed his admiration for the state of the law on capacity and warned against introducing new vistas into the concept thus:

[T]he issue of capacity has been discussed several times in decided cases that no new proposition of law should be laid down.”

These passionate sentiments by the learned Judge are shared by most judges, some of whom have described the concept as ‘well-settled.’[2] Capacity is not a mere legal principle; its status as a foundational concept in Ghanaian jurisprudence cannot be overemphasized. In the US, cases that espouse major concepts are treated with some amount of ‘piety’ and are christened, ‘superprecedents’[3]. In a way, they are distinguished from other precedents and principles. We are told by George Orwell[4] that,

“[A]ll animals are equal, but some animals are more equal than others.”

That is how ‘the men are separated from the boys.” Superprecedents[5] are therefore Supreme Court decisions that are so deeply rooted in the legal landscape and have been reaffirmed so many times that no Judge would dare to overrule, even if they disagree with the interpretative premises from which the precedent proceeds.

Michael Gerdhardt offers the explanation that:

“[T]he point at which a well-settled practice becomes, by virtue of being well-settled, practically immune to reconsideration is the point at which that precedent has become a superprecedent.”[6]

It does not appear, however, that when the former Chief Justice shut the door on new formulations of the concept, he successfully ‘sealed the windows’. In the space of capacity today, divergent propositions have emerged, competing toe-to-toe with the pristine formulations. As unacceptable as it may seem, it is worth pointing out that traditionally, the common law detested the practice of putting fences around some principles and precedents (like untouchable players in a football team) to make them impermeable. According to Lord Simons in Christie v. Leachinsky,[7]

“Blind unquestioning obedience [to a principle] is the law of tyrants and slaves; it does not yet flourish on English soil.’

Some few years ago, it was amazing how the Courts in US and Ghana extolled some superprecedents such as Roe v. Wade[8] and Kwan v. Nyieni[9] respectively. Only last year, the former was ‘ostracized’ by the Supreme Court of the US and painfully lost its place after being subjected to a critical judicial scrutiny.[10] The state of the latter is no better. It is currently suspected to be in an ICU battling survival under Ghanaian jurisprudence. This is a warning to the original formulation of the concept of capacity that has been assured of a permanent place in the courtrooms. At her blind side, the Courts are already in bed with some suitors and this article seeks to expose some of the rival propositions that have come into the picture and are locking horns with the established ones.

Does The Plaintiff Or Petitioner Have To Establish His Capacity If It Is Not Challenged?

The axiomatic proposition is that the Plaintiff or Petitioner assumes the duty to prove his capacity if his capacity is denied. In the case of Asante Appiah v. Amponsah alias Mansa,[11] the Supreme Court held:

“… The relevant rule applicable …  is that where the capacity of a person to sue is challenged, he has to establish it before his case can be considered on its merits.”[12]

The position is not significantly different from what pertains generally at common law.[13] For instance, in the South African case of Gross v. Pentz[14], it was held:

“The general rule is that it is the party instituting proceedings to allege and prove its locus standi and the onus of establishing it, rests on that party. It must accordingly appear ex facie the founding papers that the parties have the necessary legal standing.”

The corollary is that where the capacity is not challenged, no duty is cast on the Plaintiff to prove it. In the case of Yeboah Richard v. Opanin Yaw Manu & Opanin Kofi Boadi of Jankufa[15], Her Ladyship Domakyaareh (Mrs.) J.A. decided:

“… if the representative capacity he claims is not challenged, naturally a plaintiff assumes no such burden”.

It is imperative that we consider whether the Defendant sometimes assumes the burden of proof. It may appear that for a very long time, what the law had always demanded from a Defendant doubtful of the Plaintiff’ capacity, was to simply deny the capacity, and issues would be joined. However, some relatively recent decisions churned out by the Court of Appeal sought to set new standards for Defendants challenging the capacity of Plaintiffs.

In Kwaku Appiah & Anor. v. Akosua Tawiah,[16] His Lordship Korbieh J.A. formulated the law thus:

“In any case it is true that the issue of capacity can always be raised at any time. But when raised by a party it is that party’s duty to convince the court that his opponent lacks capacity. There are exceptions to the rule that only a head of family can sue in relation to family property. So, it is not always the case that a party who sues is not the head of family automatically lacks capacity. It is therefore the duty of the party asserting that the plaintiff has no capacity to convince the court that indeed the plaintiff has no capacity to institute the action.(emphasis supplied).

His Lordship Marful-Sau J.A. (as he then was) virtually said the same thing in Madam Abigail Twuba Halm v. Gracoma Ltd & 4 Ors.[17], when he held:

“The law as I have stated above is that capacity can be raised at any time even on appeal and when raised it goes to the root of the case. It is thus a serious issue and must only be raised if there is legal basis for the challenge.In other words, a party’s capacity should not be challenged for the sake of it. The challenge must be bona fide and grounded in law. The court therefore must not entertain cases where a party’s capacity is challenged on frivolous grounds” (my emphasis).

The path charted by the Court in the two decisions just cited is a departure from the conventional practice, where all that a Defendant needed to do in order to raise the issue of capacity was, to deny the capacity of the Plaintiff in his pleadings.

In Thomas Baiden & Another v. Francis Parker,[18] the Supreme Court held through Dotse JSC that:

“Capacity is vital to the right to initiate any legal action in court. It must be noted that when capacity is raised, the Plaintiffs alone bears the burden of establishing his/her status to initiate the action.”

In the light of the Supreme Court’s decision supra, the binding effect of the Court of Appeal’s decisions appears to have been neutralized.

When Is A Person’s Capacity Deemed To Be In Issue?

In Deeper Christian Life Ministry v. Landline Properties (Gh.) Ltd,[19] Her Ladyship Amoah J. decided that:

“When a person’s capacity is in issue, it behoves the Court, whether or not the matter is raised at the trial, to consider same.”

It is on the pleadings that issues are usually joined. The law generally is that, when an averment has been made by a party and that averment was not denied by his adversary, no issue was joined and no evidence need be led on that averment.[20] Therefore, if the Plaintiff’s capacity was not raised or denied, it is difficult to fathom how his capacity could be in issue, as Her Ladyship Amoah J. supra seemed to have canvassed.

Since capacity is a point of law, which can be raised at any stage of the case, even on appeal, or by a Court suo motu[21]; it could be argued, quite forcefully, just as Her Ladyship Prof. Mensa-Bonsu (Mrs.) JSC said in the case of Kasseke Akoto Dugbartey Sappor & 2 Ors. (substituted by Atteh Sappor) v. Very Rev. Solomon Dugbatey Sappor (substituted by Ebenezer Tekpetey Akwetey Sappor) & Ors.[22] that capacity remains a live issue throughout the life of a case.

We are thus, entrapped between two seemingly conflicting principles, like poor Ato in the Dilemma of a Ghost. One of the principles enjoins the Plaintiff to lead evidence to establish his capacity, because his capacity is in issue throughout the case and it does not matter whether it was denied or not; the other principle, does not require the Plaintiff to lead evidence to establish his capacity, because it had not been denied by the Defendant.

Where the Court raises the issue of capacity suo motu, it must afford the parties reasonable opportunity to be heard on the issue.[23] The issue becomes murkier when the challenge against the Plaintiff’s capacity is raised for the first time in counsel’s address. The law is that where the challenge against capacity is not pleaded, but is raised for the first time in counsel’s address, the Court is to reject it, even if it is maintainable.[24] It may be argued that, if capacity is a live issue throughout the case and has been found to be maintainable, why should the Courts be stopped from setting it down for the parties to argue on it? Does it not impinge on the principle that capacity is a live issue throughout the proceedings? Is it that the principle, in practice, applies subject to the issue being raised timeously?

How Do Appellate Courts Deal With The Issue Of Capacity That Was Not Raised?

The seemingly contradictory approaches adopted by the Courts is again evident where the issue of capacity before an appellate Court was not pleaded at the trial Court or raised as a ground of Appeal.

In Export-Import Bank of the United v. Bibiani Loggings & Lumber Co. Ltd & Anor.[25], the Court of Appeal shied away from determining the issue of capacity when it discovered that it was not raised at the trial court. Her Ladyship Torkornoo J.A. (as she then was) in delivering the decision of the panel noted:

“Appellant counsel also said that in the Reply filed on 7 July 2015 that ‘Having elected to sue by an attorney however, the attorney must prove when it is challenged that the suit it brings purportedly on the Plaintiff’s behalf is validly brought’. This is again an unfortunate argument raised on appeal because nowhere in the suit was the attorney challenged regarding her capacity as an attorney of fact … Since the appellant did not attack the capacity of the attorney to represent the Respondent as an attorney of fact in commencing the action, the learned trial judge was also not wrong in accepting the validity of the capacity of the Plaintiff’s attorney.”

Her Ladyship Torkornoo’s pronouncements may be contrasted with that of Her Ladyship Irene Charity Larbi (Mrs.) J.A. in the case of Ekow Esssuman v. Aboso Goldfields Ltd.[26] where the latter decided that, if the issue of the Plaintiff’s lack of capacity was not raised in the Notice of Appeal, the Appellate Court could still consider it.

Should the Denial of the Plaintiff’s Capacity be Express?

The common practice is that where the Defendant is denying the capacity of the Plaintiff, he pleads it expressly. However, in George Fianko Sackey & Unique Trust Financial Services,[27] it was held that capacity need not be specifically mentioned in the pleadings before issues would be deemed to have been joined.

The Court of Appeal expressed itself on the point in these terms:

“Whether the word capacity was used or mentioned by either party or not, once the plaintiff had pleaded that he had been appointed and given power of attorney to prosecute the claim and this averment has been denied in the statement of defence, the issue of capacity has been raised and the plaintiff is obliged by the rules of procedure to prove it by a preponderance of the evidence.”


Strict Proof of Capacity

The practice of putting Plaintiffs to strict proof of capacity thrives in our Courts. A Defendant in his Statement of Defence may deny the paragraph dealing with the Plaintiff’s capacity by pleading in like terms thus:

“Paragraph 2 of the Statement of Claim is denied and shall at the trial put the Plaintiff to the strictest proof thereof.”

When Plaintiffs are put to “strict proof” of their capacity, the Courts appear not to see anything wrong with that and ensure that the said burden is established. In Yartey & Anor. v. Construction & Furniture (West Africa) Ltd. & Ors.[28], for example, when the Plaintiffs alleged that they had been authorized by the whole community to sue in court and it was challenged, the Supreme Court insisted that they proved their capacity strictly.[29]

It was therefore not surprising that in the recent case of Export-Import Bank of the United v. Bibiani Loggings & Lumber Co. Ltd & Anor. supra, it was submitted on the authority of Yartey & Anor. v. Construction & Furniture (West Africa) Ltd. & Ors. supra that where the capacity of the Plaintiffs is denied, they are bound to prove it strictly.

In Adum Akyeampong & Anor. v. Mrs Owusu Brown[30], the Court of Appeal held thus:

Capacity of a person in court being such a vital element in a trial, one would have expected the 1st defendant to have raised it properly, directly and clearly to enable the duty of establishing it to be strictly proved by the attorney for the 2nd and 3rd defendants, as demanded by the authorities. Refer to the case of Fosua [2009] SCGLR 3110, Ex parte Aryeetey [2003-2004] SCGLR 399. Where there is no challenge no such duty arises.” (emphasis is mine).

His Lordship Amissah-Koomson J. also in the cases of Adu Kofi Djin and Naa Dedei Aryee v Nyamebekyere & Anor.[31], held that a Plaintiff whose capacity had been denied, has the duty to prove it strictly.

It seems to me that the jurisprudence of “strict proof” of capacity in Ghana is fallacious and palpably misleading. This is because, under Ghanaian law, there are basically two standards of proofs – proof on the preponderance of probabilities (in civil cases) and proof beyond reasonable doubt (in criminal or quasi criminal cases).

It is worth stating here that the practice of Defendants demanding from Plaintiffs the proof of their capacities strictly is not limited to only Ghana, but also in other common law jurisdictions. Interestingly, it has been deprecated in most of these jurisdictions as a wrong practice.

In contributing to the debate on the subject, an Illinois lawyer, Robert Thomas Kuehi, noted:

The concept of ‘strict proof’ is not found anywhere in Illinois law and it is not proper to make such demands

Lawyer Scott Allen Berndtson on his part, claimed:

The ‘strict proof’ language is just one of those “lawyerly” phrases that still hangs around in documents because some people still like to use it and/or they cut and paste from other answers they’ve used and it’s still there – and, let’s be honest, it sounds intense. The main point though is just read over it. It adds nothing. An unnecessarily wordy denial, true, but still just a denial … The addition of the word ‘strict’ does not change the standard of proof needed to defeat your claim, it’s just rhetoric.

“Strict proof” generally, implies a high standard of evidence required to establish a fact. The Concise Oxford English Dictionary defines “strict” to include:

1. … (of a rule) demanding total compliance; rigidly enforced. 2. following rules or beliefs exactly. 3. Not allowing deviation or relaxation”.

The word “strict” was derived from the Latin ‘strictus’; past participle of ‘stringere’; which means ‘something drawn tightly or is stringent.’ Arguably, the rigid demands elicited in “strict proof” makes it a proof closer, if not equal to the criminal standard of proof beyond reasonable doubt. It has been observed that when the Courts talk about “strict proof” of an issue, they have in mind proof higher than the ordinary proof on the balance of probabilities.

In the Indian case of Palanisamy v. State Bank of India & Ors.[32], Justice V.M. Velumani, sitting at the Madras High Court decided that where an issue is to be proved strictly in law,

“the theory of preponderance of probabilities cannot be applied”.

Coming back home to Ghana, in the case of Re Yendi Skin Affairs, Andani v. Abdulai[33], His Lordship Adade J.S.C. in elucidating the duty on a party to prove a fact strictly seemed to have postulated a relatively higher standard than the ordinary civil benchmark.

The learned Judge decided thus:

“I have heard it said that this being a civil matter, the standard of proof required must be the civil standard, i.e. proof on a balance of probabilities. I agree but I also think that there are varying gradations on this scale of balance and, without seeking to lay down any specific rule, … I think the proof must be of the highest order possible, approaching, if not equal to, the criminal standard of proof beyond reasonable doubt.”

The exposition of the law by the learned Supreme Court Justice was applied by His Lordship Essilfie-Bondzie JA at the Court of Appeal in the case of Y.K. Quartey v. John Hammond.[34]

Going back to history, we noticed that the Courts in Ghana set a higher standard of proof in actions for declaration of land – proof beyond reasonable doubt.[35] Sometimes, short of stating the ‘proof beyond reasonable doubt’, the words used by the Courts could have no other connotation. For instance, in the case of Abakam Effiana Family v. Mbibado Effiana Family[36], Van Lare JA said thus:

“It is clear that the onus upon the plaintiffs in this case was heavy in the extreme.”

This was later cited as an example of the higher standard of proof beyond reasonable doubt set in land cases.[37] Presumably, if there were doubts about the legal standards in the old law, I believe they were cleared in 1975 upon the enactment of the Evidence Act, N.R.C.D. 323, when two legal standards were stipulated – one for proof on the balance of probabilities in civil cases and the other for proof beyond reasonable doubt in the case of a crime, as already stated.

Despite the clear provisions of the statute, the Supreme Court continued to apply the higher standard of proof beyond reasonable doubt in land cases.[38] A German proverb goes: – “An old lie is often more popular than a new truth.” Not only did the Apex Court apply the old principle but demanded equal compliance from the Courts below. His Lordship Francois JSC’s remonstration in the Banga v. Djanie case supra[39] in 1989 (about 14 good years after the coming into force of the Evidence Act) is a case in point.

Excerpts of his declarations reported at pages 519-520 are herein reproduced for its effect:

“Since a declaration of title is sought, it is essential that the usual burden of proof should be satisfactorily discharged …  That burden was clearly laid in Kodilinye v. Odu (1935) 2 W.A.C.A. 336.  That burden, which is now trite learning, … has for several decades been the fulcrum for determining ownership in land matters in our courts.  In recent times a dangerous trend has been erupting of equating this burden with the normal burden in a civil case of measuring success by a balance of probabilities.  In my view the requirement of a higher burden of proof in land matters cannot be whittled away by glosses on the principle.  This quality of proof has sometimes even been equated with proof in criminal matters, i.e. “proof beyond reasonable doubt.”

Around that time, when newly-appointed judges were sworn in and had to be trained, Amua Sekyi JSC chose no other topic than one on proof required in land cases, to persuade the new judges to diligently ensure compliance of the higher standard of proof in land suits.[40] That tells us how the Apex Court was emotionally attached to the old evidential rule.  Trial judges who shared contrary views had to “repent”, because the option of choice making was sadly curtailed due to the workings of stare decisis. It is said that “when the desirable is not available, available becomes desirable”.

It took the boldness of His Lordship Acquah JSC (as he then was) to ‘right the wrong’ and reversed the trend.[41] He emphasized that upon the enactment of the Evidence Act, all civil issues are required to be proved on the balance of probabilities, with no varying gradations. In the same vein, one can argue that the strict requirement of proof for an issue of capacity is a misnomer.

It is gratifying to say that in the midst of the confusion that our jurisprudence appears to find itself, as regards the standard of proof required to establish an issue of capacity, His Lordship Ofoe J.A. timeously stepped in to keep us focussed, by setting down the standard clearly in the case of Nkoom v. Sowatey.[42]

The learned Judge beautifully, and with such a remarkable brevity, espoused:

“Proof of … capacity is on the preponderance of probabilities.”

Then in 2016, His Lordship Acquaye J.A. in George Fianko & Unique Trust Financial Services v. Augustina Quaye & Patience Quaye, supra enunciated the same legal proposition championed by the Court thus:

“… the issue of capacity has been raised and the plaintiff is obliged by the rules of procedure to prove it by a preponderance of the evidence.”

Having observed that the law on the burden of proof has often been an embarrassing entrapment for most lawyers, perhaps, it is appropriate that I take an excursus to offer some clarity on the subject. The standard of proof is always fixed, it does not change. A crime is always a crime, whether it makes an appearance in a criminal case or civil. It is said that a decorated monkey is still an ass, and black is always black; it cannot be white. It is a natural law and the attempt to decolorize it at any time has often been questioned. In the Good Book, God demonstrated his disdain for bleaching, when He asked through his Prophet Jeremiah thus:

“Can an Ethiopian (African) change his skin or a leopard its spots?”[43]

Therefore, if crime, such as fraud or forgery pops up in civil cases, and it is to be proved beyond reasonable doubt,[44] it does not mean it has the same influence it occupies in criminal cases, where it can attract an imprisonment or a fine; in civil cases, that is not possible. The proof of the crime may only serve as a vitiating factor to affect the strength of the person’s case. A wise man once said, “[T]he little opportunity given to a monkey to wear clothes does not guarantee it to join the dining table.” Therefore, pleading and proving crime in a civil case does not change the nature of the case. At the end of a civil trial where an issue bordering on crime was considered, the matter would still be determined on a preponderance of probabilities. In effect, a proof of an issue of crime in a civil case is by proof beyond reasonable doubt, while a proof of the whole civil matter at the end of the trial is determined on the balance of probabilities.


Capacity Not Endorsed On The Writ.

Order 2 Rule 4 of C.I. 47 provides:

Indorsement as to capacity

  1. (1) Before a writ is filed it shall be indorsed

(a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which the plaintiff sues; or

(b)  where a defendant is sued in a representative capacity, with a statement of the capacity in which the defendant is sued.”

The issue then is whether it is proper for capacity to be described in the statement of claim or the title of the suit, other than it being endorsed on the writ of summons? In the view of Her Ladyship Ackah-Yensu J.A. (as she then was) in Alex Adotey Mingle & Anor. v. Philip Yovonoo & Ors.[45] that is unacceptable.

She held as follows:

“It is of utmost importance that the capacities of the parties are disclosed in the writ and proved at the trial. The Rules provide that before a writ is filed, the representative capacity in which the Plaintiff sues, or the defendant is sued shall be endorsed in the writ. And that is the essence of Order 2 Rule 4 of C.I. 47. The endorsement on the writ, not elsewhere, is therefore the place to disclose the capacity. So, the fact that the plaintiff sues, or the defendant is sued as administrator, for example, must appear in the endorsement, failing which evidence offered in proof of capacity at the trial would be rejected upon objection by the opponent.” (emphasis is supplied).

The learned editors of the Supreme Court Practice, 1995 Volume 1, published by Sweet & Maxwell at page 47 paragraph 6/3/1 are in total agreement with Her Ladyship Ackah-Yensu when they expounded the law as follows:

“[The rule] requires the representative capacity, if any, of the plaintiff and the defendant to be indorsed on the writ before it is issued. It is the indorsement on the writ that is the crucial matter and not the statement in the title which is mere description.”

In Mackenzie & Anor. v. Yeboah,[46] the Court of Appeal per Apaloo J.A. (as he then was) said:

“It is the endorsement in the writ and not the title of the suit or an averment in the statement of claim that determines whether or not an action has been brought by a person clothed with legal capacity under the statutes . . . The fact that the respondent wrongly described himself as a personal representative in the statement of claim does not affect the matter.”[47]

It may seem that Her Ladyship Prof. Mensa-Bonsu (Mrs.) JSC in Kasseke Akoto Dugbartey Sappor & 2 Others v. Very Rev. Solomon Dugbartey Sappor & 4 Others,[48] is a proponent of the school of thought just discussed.

She held in the case thus:

“Capacity to bring and maintain the action remains a cardinal hurdle that must be jumped if either party is to remain in the case. It is for good reason that Order 2 (4) of the High Court (Civil Procedure) Rules, 2004 (CI 47) as amended, insists on the capacity of the plaintiff being indorsed on the writ before it becomes a competent writ.”

Nonetheless, in Ibrahim Adjetey Mensah v. Chief Masaudu Moro Gariba,[49] Her Ladyship Avril Johnson J.A. (as she then was) noted that in line with Order 1 rule 1 (2) of C.I. 47, the Courts are moving away from the strict and technical application of the rules which demands that Plaintiffs indorse their capacities on their writs. She then proceeded to hold that a defective indorsement can be cured by the accompanying statement of claim[50] and that nothing should prevent a Court from relying on pleadings in a statement of claim to cure a defect in a writ of summons which, would, otherwise have been defective for the absence of the endorsement of the Plaintiff’s capacity.

Curiously, while the Supreme Court in Standard Bank Offshore Trust Co. Ltd. substituted by Dominion Corporate Trustees Ltd. v. N.I.B. Ltd & 2 Ors.,[51] decided that the failure of the Plaintiff to comply with the requirements of Order 2 Rule 4 of C.I. 47 is a nullity[52] which cannot be cured by an amendment or the Court; in Living Faith World Outreach Centre & Ors. v. The Registrar-General & Ors.[53], the Court, in its bid to do substantial justice, decided that the absence of the indorsement on the writ or the defect therein can be cured by a description of the Plaintiff’s capacity in its statement of claim. Since the Supreme Court did not depart from its prior decision, it may appear that there are now two emperors in charge, both demanding obedience.

Can Order 81 of C.I. 47 Cure A Defect in Capacity?

The long-held position was that the want of capacity goes to the root of a case,[54] and rendered the writ a nullity.[55] The Apex Court in Republic v. High Court, Accra, Ex parte Allgate Co. Ltd (Amalgamated Bank Ltd., Interested Party).[56] decided that Order 81 of C.I. 47 cannot cure breaches of fundamental nature. In the Standard Bank Offshore v. NIB supra, their Lordships fortified the proposition by holding that Order 81 cannot be brought in aid to cure a fundamental defect in Order 2 Rule 4 of C.I. 47 pertaining to the capacity to be indorsed on the writ of summons. In Leslie Nartey Marbell & Anor. v. Salamatu Marbell,[57] the Supreme Court held that a writ that does not meet the threshold of capacity is null and void, and that the default cannot be cured by Order 81 of C.I. 47.

In recent times however, the Supreme Court has been relying on Order 81 of C.I. 47 to save suits that would otherwise have failed for want of capacity.[58]

While the Apex Court has relaxed the rules on capacity, there is no indication that they have dumped the strict requirements of Order 2 Rule 4 of C.I. 47 instituted by the Standard Bank Offshore Case v. N.I.B. supra[59]. Could it therefore be that the Court, by continuing to apply both the strict rule and the relaxed authorities, are serving two masters?



How amazing it would be if the Courts could speak with one voice. However, that seems difficult to achieve, as most of the propositions on the subject are seemingly conflicting. While the Courts are sometimes in haste to nullify proceedings for lack of capacity, because it is a fundamental defect which goes to the root of a case and cannot be cured; on other occasions, they are slow or unwilling to take it up, either based on the notion of doing substantial justice or the fact that the issue was not raised timeously. Capacity, like Equity, now appears to be operating in our courtrooms according to “the Chancellor’s foot”. It is my humble plea that the Apex Court would endeavour to narrow down the principles to realise some level of certainty and predictability.

Significantly, lawyers are admonished to take immediate steps to put an end to pleadings that require Plaintiffs to prove their capacity strictly. The concept of strict proof is an anomalous nineteenth and twentieth century jurisprudence, which survives in the modern law of evidence on account of its antiquity rather than its coherence. The plain truth is that it has overstayed its welcome. There is obviously no way “yesterday’s drunkenness can quench today’s thirst”, as the Egyptians would say.

It is suggested that where Defendants’ counsel plead that they are putting the Plaintiff to the ‘strictest proof thereof’, Plaintiffs’ counsel should apply under Order 11 Rule 18 (1) (c) of C.I. 47 or under the Court’s inherent jurisdiction to have that paragraph struck out for its propensity to prejudice the court (to expect a higher standard of proof from the Plaintiff) or for being an embarrassment to the fair trial of the case. Putting Plaintiffs ‘to proof of their assertion of capacity’ is allowed but putting them to “strict proof” is unacceptable. Strict proof in civil suits is shamefully a twenty-first century misnomer in Ghanaian jurisprudence!

[1] See the case of The Republic v. The Arbitration Committee of Mampong Gyase Council, Ex parte Opanin Kofi Twumasi, Civil App. No. H1/210, 2007, 24th July 2008.

[2] See for instance, Tanko Amadu J.S.C. in Andrews Narh Bi & 3 Ors. v. Asafoatse Kwetey Akorsorku [2023] DLSC 16083.

[3] The term is credited to Chief Justice Roberts.

[4] See George Orwell, “Animal Farm” (1945).

[5] Examples of such superprecedents are Madbury v. Madison (1803) establishing judicial review, Brown v. Minister for Education (1954) declaring racial segregation unconstitutional, Roe v. Wade (1973) legalizing abortion and Miranda v. Arizona (1966) requiring the police to inform a suspect of his rights.

[6] See Michael Gerdhardt, ‘The Power of Precedent’ 65 (2008).

[7] [1947] A.C. 573.

[8] [1973]. The case is authority for the legalization of abortion in US.

[9] [1959] GLR 67.

[10] See Dobbs v. Jackson Women Health (2022).

[11] [2009] SCGLR 90 at p. 95.

[12] See also Fred Robert Coleman v. Joe Tripollen & Ors. [2014] 70 G.M.J. 20 at p. 40 & Keelson v. Mensah [1957] 2 WALR 271.

[13] See for instance, A.G. Fed v. A.G. Lagos State [2017] 8 NWLR (Part 15600) 20 at 40 paras E-H.

[14] [1996] 4 All SA 63 (A), 1996 (4) SA 617 (A).

[15] Suit No. H1/46/2016, dated 23 May 2017, C.A. (unreported).

[16] Civil App. No. H1/59.2012, dated 17 June 2012, C.A. (unreported), per Korbieh J.A.

[17] Civil App. No. H1/26/2012, dated 22 Nov. 2012, C.A. (unreported), per Marful-Sau J.A. (as he then was).

[18] Suit No. J4/58/2022, 1 February 2023, S.C. (unreported).

[19] Suit No. RPC/21/2018, 14 February 2017, H.C. (unreported), per Her Ladyship Akua Sarpomaa Amoah J.

[20] See Fori v. Ayirebi [1966] G.L.R. 627 at Holding 6, S.C.; Asamoah v. Fritz (2013) 53 G.M.J. 158 at p. 177-178 & Kwame Bonsu & Ors. v. Kwame Kusi & Anor. (2010) 26 G.M.J. 20.

[21] See Fosua & Adu Poku v. Adu Poku Mensah supra.

[22] Civil APP. No. J4/46/2020, dated 13 January 2021, S.C. (unreported).

[23] See Attorney-General v. Faroe Atlantic Co. Ltd [2005-2006] SCGLR 271 at p. 308, per Georgina Wood JSC (as she then was) & Ekow Essuman v. Aboso Goldfields Ltd., Civil App. No. H1/22/2017, dated 20 March 2018, C.A.

[24] See In Re Wereko (Dec’d); Wereko v. Armar & Ors. [1980] G.L.R. 689, per Osei Hwere J. (as he then was) & Francis Yankey v. Kofi Yartey & Ors., Court of App. No. 26/2003, dated 29 February 2004, C.A. per Lartey J.A.

[25] [2016] DLCA 4735.

[26] Civil App. No. H1/22/2017, dated 20 March 2018, C.A. (unreported), per Irene Charity Larbi (Mrs) J.A.

[27] Civil App. No. H1/113/2016, dated 14 April, 2016, C.A. (unreported), per K.A. Acquaye J.A.

[28] [1972] 1 GLR 86.

[29] See also Siasoum & Anor. v. Kyi & Ors. [1971] DLCA 21 65.

[30] [2016] DLCA 4425.

[31] [2012] DLHC 7085.

[32] W.P. No. 57 of 2012 & W.M.P. No. 15678 of 2017, delivered on 23 October 2019.

[33] [1982-83] G.L.R. 1080 at Holding 3, S.C.

[34] See also Y.K. Quartey v. John Hammond, Civil App. No. 17/99, dated 23 December 1999, C.A. (unreported).

[35] See Kodilinye v. Odu (1935) 1 WACA 336; Bissah v. Bampoh [1964] GLR 381, S.C. & Kponuglo v. Kodadja (1933) 2 WACA 24.

[36] [1959] GLR 362 at p. 364, C.A.

[37] See article on Amua Sekyi infra.

[38] See for instance, Banga v. Djanie [1989-90] 1 GLR 510 at p. 520 by Francois JSC

[39] Supra.

[40] See Amua Sekyi JSC, “Proof in Civil Suits: Some Thoughts on Land Cases” (1987-88) Vol XVI 1 RGL 110-116.

[41] See Adwubi v. Domfeh [1997-98] 1 GLR 282 at p. 295.

[42] [2013-2014] 2 G.L.R. 887.

[43] See Jeremiah 13 v. 23a.

[44] See cases such as, Wrangler Ghana Ltd v. Spectrum Industries PVT Ltd & Lands Commission; Civil App. No. J4/87/2022, dated 29 March 2023, S.C. (unreported); John Tagoe v. Accra Brewery Ltd [2016] 93 G.M.J. 103; Feneku v. John Teye [2001-2002] SCGLR 985 & Ayeh v. Ayaa Iddrisu [2010] SCGLR 891 at p. 903.

[45] Suit No. H1/230/2018, dated 24 October 2019, C.A. (unreported), per Ackah-Yensu J.A.

[46] [1970] C.C. 103, C.A. 103.

[47] See also Interim Executive Committee of the Apostolic Divine Church of Ghana v. Interim Executive Council & Ors. [1984-86] 2 G.L.R. 175 at p. 179, per Asare-Kwapong J. (as he then was).

[48] Civil App. No. J4/46/2020, dated 13 January 2021, S.C. (unreported).

[49] Suit No. H1/165/2018, dated 22 November 2018, C.A., per Avril Johnson J.A.

[50] See cases such as Hydrafoam Estates Gh. Ltd. v. Owusu per Lawful Attorney (Okine & Ors.  v. [2013-2014] 2 SCGLR 1117 at Holding 1 & Agbo v. Rainbow Windscreen [1994-95] 2 GBR 859, C.A.

[51] See Civil App. No. J4/63/2016, dated 21st June 2017, S.C. (unreported).

[52] China Shandon International Ltd. v. Mrs. Vivian Acheampong & Nana Serwaa Acheampong [2018] DLCA 6176, His Lordship Korbieh J.A. held that capacity not endorsed in accordance with Order 2 rule 4 of C.I. 47.

[53] Suit No. J4/49/2021, dated 17 May 2023, S.C. (unreported), per Asiedu JSC.

[54] See Fosua & Adu Poku v. Adu Poku Mensah [2009] SCGLR 310; Edith v. Keelson [2012] 37 M.L.R.G. 127 at p. 137 & Musama Disco Christo Church v. Jehu-Appiah [2010] 27 M.L.R.G. 56, C.A.

[55] See Obaapanin Adjoa Nyarkoa v. Kwabena Darko & 3 Ors. [2017] 113 G.M.J. 213 at p. 219 & Republic v. High Court, Accra, Ex parte Aryeetey [2003-2004] 1 SGLR 398 at p. 405.

[56] [2007-2008] SCGLR 1041

[57] Civil App. No. J4/15/2020, dated 28 October 2020, S.C. (unreported).

[58] See for instance, Adisa Boya v. Mohammed [2017-2018] 1 SCGLR 997 and Subunor Agorvor v. Mr. J.K. Kwao v. Aaron Narh Achia, Civil App. No. J4/07/2018, dated 27 May 2019, S.C. (unreported).

[59] See for instance, Republic v. High Court, Kumasi, Ex parte Ministry of Road & Transport and Attorney-General, Civil Motion No. J5/05/2023, dated 24 January 2023, S.C. (unreported).

The author is a Justice of the High Court of Ghana and is currently on secondment in the Gambia. He obtained his LLB at the University of Ghana in 2000 and was called to the bar in 2002. In 2010, he joined the bench as a circuit court judge – after 8 years in private practice. He became a High Court Judge in 2013. Justice Alexander Osei Tutu holds an LLM in International Human Rights from the Fordham University and a Diploma in Transnational Criminal Law from the International Law Enforcement Academy at Roswell, USA.

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