It is common knowledge that capacity is a fundamental legal principle in the commencement of any legal suit, the lack of which strips a plaintiff of his or her locus. For many years, the law as established in the case of Akrong & Another vrs. Bulley (infra) had been that a plaintiff who issued a writ must first have the capacity to be able to do so and that one cannot commence an action before later acquiring the requisite capacity. Later, the High Court Civil Procedure Rules, 2004 (C.I. 47) introduced some reforms in the procedural rules of the High Courts and Circuit Courts pertaining to capacity which has been acknowledged by renowned writers. Nonetheless, the courts continue to apply the old principle adumbrated in Akrong v. Bulley. In this article, the writer examines the original principle and how it has been relegated to the background by C.I. 47. The views of some text writers and decisions of the Courts are further considered.
The original principle
Writing on the issuance of writs, Enoch D. Kom in his Civil Procedure (Third Edition) 1990 set the ball rolling for this discussion at page 23 thus: “where a plaintiff sues in a representative capacity, but at the date of issue of writ he is not clothed with such capacity, the writ and the statement of claim are null and void and incurably bad”. According to the distinguished lawyer and writer, “It is immaterial that later during the course of the proceedings he acquired the capacity”. The above views were well grounded on judicial decisions.
The locus classicus is the case of Akrong & Another v. Bulley[i]. In that case a man was killed by the negligent driving of the second defendant’s servant. The man’s mother sued for damages for the death of her son in a running down action in her capacity as the successor and next-of-kin. In the course of proceedings, she applied to amend her capacity as the personal representative of the deceased, but the Supreme Court held that since she had not taken out letters of administration at the institution of the action, the writ was a nullity. In the Court’s view, the capacity relied upon to initiate the action must exist from the beginning of the suit and it was immaterial that during the pendency of the action the plaintiff acquired the requisite capacity.
Apaloo JSC (as he then was) noted:
“At the date the plaintiff issued her writ she was neither an executor nor administratrix. No cause of action was therefore vested in her and she could not and did not commence a competent action, I am therefore constrained to hold that the writ was a nullity and so are the proceedings and judgment founded on it”.
The principle gained momentum and was unanimously applied two years later by the Court of Appeal constituted by a strong bench comprising of Azu-Crabbe, Ollenu and Apaloo JJA in the case of Graves v. Oyewoo.[ii] Azu-Crabbe JA speaking for the Court held: “In my judgment, the plaintiff’s action was incompetent at the date when the writ was issued, and that his position was not in any way ameliorated by the subsequent grant to him of Letters of Administration and the amendment of the writ. Consequently, the whole proceedings and the judgment by the trial judge were a nullity.”
Critique of the principle
The decision in Akrong v. Bulley did not receive massive acceptance by the legal fraternity. One person who boldly registered his disagreement over the decision was the learned Date Bah S.K. He did so brilliantly in his article titled: Akrong & Another v. Bulley: The Perpetration of Injustice? (Published in 1972, Vol IX, No. 1 of the University of Ghana Law Journal at pages 64-66).
According to him, the case:
“affords a singular example of the ghost of Austin ruling us from the grave and compelling us to reach unjust results. In many American jurisdictions where functional jurisprudence has had an influence, a result such as that reached in this case could have been avoided. Thus the plaintiff, who had succeeded in proving that her son had been negligently killed by the defendants and that she was a dependant of the deceased, was nonetheless denied a remedy because the magic word “dependant” or “beneficiary” had not appeared on her writ. This, it is submitted, is arid legalism of a most undesirable nature. This is the kind of result which brings the law into disrepute among laymen who despairingly proclaim “The law is an ass.”
He expressed his sentiments further in the middle of his article thus: “It is believed that this is legal formalism of pre-nineteenth century vintage… The present author is totally unconvinced that the plaintiff’s failure to set out her capacity as dependant should have been fatal to her claim, in spite of there being evidence on record that she was in fact such dependant”.
Before he concluded his article, he could not hide his personal disappointment in the Bench for their decision when he stated thus: “This decision is a sad reminder that the forms of action are not yet dead. It is particularly surprising that this was a judgment delivered by Apaloo J.S.C., the same judge who delivered the judgment in Mackenzie v. Yeboah,[iii]another fatal accident case, in which this time he adopted quite a functionalist approach”.
High Court Civil Procedure Rules, 2004 (C.I. 47)
It needs mentioning here that the High Court (Civil Procedure) Rules, 2004 (C.I 47) has revolutionized the Rules on amendments under Order 16 Rule 5(4) pertaining to amendment of capacity in which a plaintiff sued. The said Order reads:
“An amendment to alter the capacity in which a party sues may be allowed under sub-rule 2 if the new capacity is one which that party had at the date of commencement of the proceedings or has since acquired’. (My emphasis).
The above rule appears to have issued a death blow to the principle adopted in Akrong v. Bulley supra making it possible for a person who was in want of capacity at the commencement of the action to apply to amend the capacity he later obtained in the course of the proceedings.
Opinion of some text writers on the issue
Samuel Marful-Sau who is currently a Justice of the Supreme Court at page 77 of his book, A Practical Guide to Civil Procedure in Ghana’ convincingly pointed out:
“Under Order 16 r 5 (4), the court may allow an amendment to alter the capacity in which a party sues if the new capacity is one which that party had at the date of the commencement of the proceedings or has since acquired. It must be pointed out that that rule has changed the position of the law in Akrong v. Bulley  GLR 469, which held that a writ issued by a person who lacked capacity to sue was a nullity”.
The learned author expressed his preference of the new position in C.I. 47 thus: “This rule is very progressive and it is aimed at boosting the objectives of C.I. 47 to avoid multiplicity of suits and make litigation less expensive”.
The view of the learned Justice and author on the principle is not different from what is shared by Kwame Tetteh in his book, Civil Procedure, A Practical Approach. At page 23, Kwame Tetteh discussed the law as expounded in Akrong v. Bulley, but went ahead to add that under the current rule, that is Order 16 rule 4 C.I. 47, such amendment is now possible.
How the Courts have applied the principle since 2004
The Akrong v. Bulley principle having been shot down and buried in 2004 by C.I. 47, one would have thought that its painful sting suffered by plaintiffs in our law courts spanning a period of about four decades would be a thing of the past, but it turned out not to be so. I do not know whether the Courts are yet to come to terms with its demise or it is its ghost that has refused to rest peacefully in its grave and has come back to haunt us.
About seven years after the expiry of the principle in Akrong v. Bulley and under the current regime of C.I. 47, the Court of Appeal in the case of Muhammed S. Bello v. Joseph A. Nyarko still found the old principle attractive and paid overwhelming allegiance to it. Kanyoke J.A. (as he then was) held:
“The law is that when a plaintiff sues in a representative capacity as in the instant case but at the date of issue of the writ he is not clothed with such capacity, the writ of summons and the statement of claim are null and void and incurably bad and it is immaterial that later during the course of the proceedings he acquired the capacity.”[iv]
Again, five years later after the Court of Appeal decision, the Apex Court in the case of Standard Bank Offshore Trust Company Limited v. National Investment Bank Housing Limited and Others (hereinafter called ‘the NIB Case’)[v] appeared to pay similar obeisance to the seemingly dead rule in Akrong v. Bulley without acknowledging the existence of the new rules in C.I. 47. In the unanimous decision delivered by Benin JSC after citing the case of Akrong v. Bulley to support his position on capacity went ahead to state: “A person’s capacity to sue, whether under a statute or rule of practice must be found to be present and valid before the issuance of the writ of summons, else the writ will be declared a nullity.”
The learned retired Judge authoritatively pronounced: “It must be emphasized that capacity to sue must be present before the writ is issued … it cannot be acquired while the case is pending; and an amendment cannot be sought to introduce it for the first time.”
It must be reiterated that the Supreme Court in applying the Akrong v. Bulley principle did not make any reference to the provision of Order 16 rule 5 (4) of C.I. 47. It is not known whether the Court’s position on Akrong v. Bulley would have been the same had it done so.
Text writers versus the Courts
It can be gleaned from our discussion above that whereas text writers appear to agree that Akrong v. Bulley is no longer good law, the Courts see it otherwise. The views expressed on the subject by text writers mentioned supra appear to be in sync with the current state of the law, but since our laws are fashioned along the lines of the common law and not the civil law, text writers’ views may only have a persuasive effect and nothing more. They cannot take the place of Judges as would have been possible in Civil law jurisdictions.
A Ghanaian law lecturer by name Opoku K.T. in a lecture delivered at the University of Lagos on March 7, 1966 emphasized the crucial role text books play in civil law jurisdiction as opposed to case law in common law jurisdictions. He explained thus: “Traditionally, text-writers are supposed to be given more weight in the civil law system than in the common law”. On the other hand, he noted: “the common law … is largely the work of judges and not professors”.[vi]
He argued further as follows: “In the study of the sources of the common law system, the place of pride must be given to cases. The common law was largely the work of the Royal Courts of Westminster and that of the Chancery. The influence of the universities and doctrinal writings, at least in the formative years of the common law, was negligible. Unlike the civil law systems … the common law remains essentially a jurisprudential system of law. In other words, a case-law system, a system devised by professional judges deciding actual cases”.[vii]
Another departure from the Akrong v. Bulley case
In the case of Akrong v. Bulley, the Court delved into the merits of the case and found that the plaintiff had made out a very good case, but for the want of capacity, her action should fail. Apaloo JSC noted: “I need hardly say that I reached this conclusion with no relish, especially as the plaintiff made out an unimpeachable case of negligence against the defendants on the merits. But the question of capacity, like the plea of limitation, is not concerned with merits…”
The position of the law now is that where the Plaintiff is not clothed with capacity to institute the action, the Court is not supposed to deal with the merits of the case as their Lordships did in Akrong v. Bulley. In the case of Alfa Musah v. Dr. Francis Asante Appeagyei, Anin Yeboah JSC (as he then was) stated the rule thus: “We think the law is that, when a party lacks capacity to prosecute an action the merits of the case should not be considered… If a suitor lacks capacity it should be construed that the proper parties are not before the court for their rights to be determined.”[viii] (Emphasis is mine).
It needs pointing out that the principle does not apply only to plaintiffs lacking capacity, but also where the court is not seised with jurisdiction or where the action is statute-barred. In the case of Ebusuapanyin Yaw Stephens v. Kwesi Apoh, His Lordship Anin Yeboah again decided: “It is therefore the law that if the action succeeds on a plea of limitation, lack of jurisdiction, or lack of locus standi, the trial court for that matter the appellate court should not proceed to determine the merits of the case irrespective of the evidence”.[ix]
The principle was loyally followed recently by the Court of Appeal in the case of Ebenezer Ogbordjor & 3 Others v. Attorney General and Inspector General of Police.[x]
In view of the fact that the Courts, particularly the Supreme Court in the NIB case in applying Akrong v. Bulley did not make reference to the provisions of C.I. 47, it may be argued that the decision was made per incuriam. However, I am not sure I have what it takes to champion that cause. Since C.I. 47 has been in existence for over a decade and half, it is my hope and prayer that the Apex Court will begin to recognize the new rules on capacity discussed in this write up by exorcising and sending the ghost of Akrong v. Bulley back to hades once and for all so that we can live happily ever after under the shelter of C.I. 47, Order 16 rule 5 (4); the same way we are earnestly praying to God for our scientists to find a vaccine for the deadly Coronavirus as they did and wiped away the Small Pox Epidemic from the face of the earth in 1980. Until the day comes for the Supreme Court to consign Akrong v. Bulley to its rightful place among abolished laws, the question on the lips of many a practitioner of the law is; whether Akrong v. Bulley is still good law?
I owe a debt of gratitude to His Lordship Justice Victor D. Ofoe JA, whose motivation and guidance led to the production of this article. My further gratitude goes to Her Ladyship Justice Janapare Bartels-Kodwo JA and His Lordship Justice Kyei Baffour JA for their constant support and useful inputs.
[i] Akrong v. Bulley  GLR 469, S.C.
[ii] Graves v. Oyewoo  GLR 803 at page 807.
[iii] Mackenzie v. Yeboah; Unreported Court of Appeal, 2nd February 1970
[iv] Muhammed S. Bello v. Joseph A. Nyarko  36 G.M.J. 86 at pp. 99-100
[v] Standard Bank Offshore Trust Company Limited v. National Investment Bank Housing Limited & Others; (J4/63/2016) GHASC 26 (21st June 2017)
[vi] Opoku K.T: ‘Our Civil Law Neighbours’ (1967) Vol. IV, No. 1, UGLJ pp. 40-53
[viii] Alpha Musa v. Francis Asante Appiagyei (2018) DLSC 475
[ix] Ebenezer Ogbordjor & 3 Others v. Attorney-General & Inspector General (2010) 2 MRLG 12 at p. 26 per Anin Yeboah JSC
[x] Ebusuapanyin Yaw Stephens v. Kwesi Apoh (2018) DLCA 6178 at paragraph 22 per Amadu Tanko J.A. (As he then was).