Benyarko v. Mensah [1992] 2 GLR 404.

JUDGMENT OF KPEGAH J.

This is an application for an amendment relating to the plaintiff’s capacity. On 2 April 1985 one Antwi

Benyarko, who describes himself as pastor of the Church of Christ Mission, brought an action “for and on behalf of the Church of Christ Mission”, Dunkwa-on-Offin against one S. K. Newlove Mensah and two others. This suit is entitled:

“Antwi Benyarko

Pastor for and on behalf of

Church of Christ Mission

v.

1. S. K. Newlove Mensah, Accra

2. Seventh Day Adventist Church - Dunkwa Branch (Dunkwa-on-Offin)

3. J. F. Nyamekye, Seventh Day Adventist Church Dunkwa-on-Offin.”

Summons for directions were taken on 21 July 1986 and issues settled for hearing. The case has since then been fixed several times for hearing but without success. This was partly due to the numerous interlocutory applications and, in my particular situation, since I inherited the case, the difficulty in getting all three counsel involved in the case together for hearing. In this wise, may I say that counsel for the plaintiff and the second and third defendants have had an impressive record of attendance. I do not think such compliments can be paid to counsel for the first defendant, Mr. Ray Kakraba-Quarshie.

On the last adjourned date it was decided that the case was to be started on 26 April 1989 up to 28 April 1989 for completion. On 20 April 1989 the plaintiff filed a motion seeking leave of this court to amend the title of the suit to read:

“Antwi Benyarko
For and on behalf of the trustees
of Church of Christ Plaintiff

v.

1. S. K. Newlove Mensah
2. Seventh Day Adventist Church Dunkwa-on-Offin
3. J. K. Nyamekye
Seventh Day Adventist Church Dunkwa-on-Offin Defendants”

The same application is also seeking to amend paragraph (1) of the statement of claim to read: “The plaintiff is a pastor of Church of Christ and representative of the trustees of the Church of Christ and brings this action on their behalf.” (The emphasis is mine.) The original paragraph (1) sought to be amended reads:

“The plaintiff is a member and the pastor of the Church of Christ Mission, Dunkwa-on-Offin and brings this action for and on behalf of the said mission.”

(The emphasis is mine.)

In his affidavit in support of the application, the plaintiff deposed as follows:

“(1) That I am the deponent-applicant herein.

(2) That I am the pastor in charge of the Dunkwa-on-Offin branch of the Church of Christ which is registered under the Trustees (Incorporation) Act, 1962 (Act 106).

(3) That I am advised and verily believe same to be true that it would be just and proper for the court to grant me leave to amend the title and paragraph (1) of the statement of claim to enable the court adjudicate all issues between me and the defendants.

(4) Wherefore I swear to this affidavit in support of my application.”

There is no formal affidavit in opposition to the application. In moving the application, learned counsel for the plaintiff, Miss Danquah, said that although there was no affidavit in opposition, they were aware that the ground for opposition was that the trustees of the church could not delegate their authority to the plaintiff. This assumption of learned counsel as to the possible ground of opposition was not without reason.

The case was fixed for hearing on 26 April 1989 up to 28 April 1989. On 20 April 1989 the motion for leave to amend was filed. When the case came on for hearing, therefore, the application for amendment was on the docket. Mr. Asare-Bediako, learned counsel for the second and third defendants, who travelled from Kumasi, was unaware of this application. Mr. Ray Kakraba-Quarshie who lives in Accra with counsel for the plaintiff was made aware of the application for amendment. He indicated to counsel for the plaintiff that he was not opposing the application and therefore did not come to court as he might have felt the amendment would necessitate an adjournment.

Mr. Asare-Bediako, acting within the rights endowed him by the rules of court, indicated he had been short-served with the application since he was served that morning, and consequently asked for a date and intimated he might oppose the application for he was not too sure if trustees could delegate their power in such a situation. It was this fact which accounted for learned counsel’s assumption that the application would be opposed on this ground alone; and her argument in support of the application was therefore, in the main, intended to deflate such an argument even before it was presented on behalf of the second and third

defendants.

However, the argument of Mr. Asare-Bediako in opposition to the application proved the assumption of Miss. Danquah as to the ground of objection to have been wrong. The main thrust of her argument was that the claim was on behalf of a group of people with a common interest. She submitted that the group is registered under the Trustees (Incorporation) Act, 1962 (Act 106). That there is no provision in Act 106 which suggests or can be taken to prevent the trustees from delegating to the applicant the power or authority to litigate this case on their behalf.

Mr. Asare-Bediako in his opposition to the application said the issue touched on something more fundamental than the power of trustees to delegate their authority; the issue, he submitted, relates to the capacity of the plaintiff. Counsel contended that the actual plaintiff who is suing is only suing per Antwi Benyarko is the “Church of Christ Mission.” The said “Church of Christ Mission”, counsel submitted, does not exist and even if it does, it is not registered under Act 106 as required. One would have thought of the necessity of an affidavit in which these facts are deposed to or averred. Mr. Asare-Bediako submitted that the applicant is now seeking to amend the writ to reflect that he is now suing on behalf of a different group called “Church of Christ.” This latter group, admittedly, exists and is registered under Act 106 thereby acquiring a legal personality.

The other argument advanced against the instant application for amendment is that the suit must be initiated by the trustees themselves and that on the principle of delegatus non potest delegare, the applicant cannot be appointed to initiate this action, not needing a special skill the trustees are devoid of.

The objection which to me goes to the root of the whole application is that relating to the status of the group of persons on behalf of whom the applicant had initially issued the writ. I therefore invited Miss Danquah to advert to this. She did not take objection to the fact that the application was without any affidavit in opposition and therefore the assertion that the “Church of Christ Mission” does not exist or if it does, it is not registered, cannot be made because it is an issue of fact. Her answer to the assertion was that the addition of the word “Mission” was a mistake and should be so regarded. This, in my humble view, impliedly admits the contention of Mr. Asare-Bediako that the “Mission” is not registered; or at least admits the ferocity and the implied validity of such an argument. As I have said, Miss. Danquah only said the addition of the word “Mission” was by sheer inadvertence and the amendment be

permitted for the title to reflect the identity of the party actually suing. I have the distinct or clear impression that learned counsel accepts the position that the “Church of Christ Mission” does not exist either as a legal or juristic person, or even as an amorphous or variegated collection of individuals.

The legal problems I conceive to be facing me in this ruling, in view of the nature and purview of the arguments advanced by both counsel, are as follows:

(1) The type of person or persons who can issue out a writ of summons from the court.

(2) Whether where a writ is taken out in the name of a non- existent plaintiff, an amendment can be allowed to add or substitute a new plaintiff.

(3) As a collorary, whether a non-existent plaintiff can take out an action per an attorney.

(4) At what time of the proceedings can a defendant raise the objection that the action is really by or in the name of a non- existent plaintiff.

If I find, in the course of my ruling, that there is an extreme need for such an excursion, 1 will journey into the consideration whether trustees can appoint an agent to conduct litigation on their behalf.

Litigation, by its very nature presupposes the existence of a dispute between two persons or parties. It is therefore natural that there must be before the court two persons or parties to enable an adjudication of the matter to be effectively carried out. The class of persons so recognised in this context are natural persons, corporations and firms. In short, the parties must either be natural persons or juristic persons. In the case of Von Hellfeld v. Rechnitzer and Mayer Freres & Co. [1914] 1 Ch. 748 at 754, C.A. Phillimore L.J. had this to say about the matter:

“According to our modern practice there are three classes who can sue, or appear to writs,—persons, corporations, and firms. The introduction of partnerships is comparatively modern and since the Judicature Act, but the fact is merely for convenience of nomenclature and of service; the results are in the end the same as if the individuals composing them sued or were sued by their individual names.”

On the authority of this case, I think it can safely be said that in this jurisdiction a person can sue or be sued only if he is either a natural person, or a juristic person.

I will proceed to consider the effect of a writ taken out by or against a person who was not properly cognisable under any of these two generic classifications. The courts of this country are not without their fair share of experience of this type of legal situation. In the case of Wadad Haddad Fisheries v. State Insurance Corporation [1973] 1 GLR. 501 the matter came up for consideration by the High Court, Accra presided over by Abban J. (as he then was). The plaintiff in this case was a firm solely owned by one Madam Ramia. It carried on business under the name of Wadad Haddad Fisheries. The firm insured its fishing vessel with the defendant-company “against losses and damages, howsoever caused.” The vessel sank while it was at anchor at the Fishing Harbour, Tema. The plaintiff therefore sued in the firm’s name for the insured value of the vessel. The defendants took a preliminary point as to the capacity of the plaintiff to sue in view of certain provisions in the rules of court—Order 48A, rr. 1 and 11 of the High Court (Civil Procedure Rules), 1954 (L.N. 140A) to be precise—and the fact that the plaintiff’s had a sole proprietress in the person of Madam Ramia. The plaintiff contended, inter alia, that this was a mere irregularity and that the title could be amended by substituting Madam Ramia as the plaintiff.

Abban J. (as he then was) held that the failure of the plaintiffs to comply with the mandatory provisions of Order 48A, r. 1 of L.N. 140A constituted a defect which did not amount to a mere irregularity under
Order 70, r. 1 of L.N. 140A but which rendered void the whole proceedings. And that since the plaintiffs had no legal status either as an individual person or as a corporate person, there was no plaintiff before the court and so there was nothing to substitute or amend in order to save the proceedings. After quoting rules 1 and 11 of Order 48A of L.N. 140A he noted at 505-507 as follows:

“The meaning of the two rules is clear. Under these rules, a single person carrying on business in a firm name can be sued as a defendant under the said firm name. But that person, however, cannot institute an action in the firm name . . . There is no doubt that ‘Wadad Haddad Fisheries’ is a firm name . . .

In the circumstances, all actions by the firm ‘Wadad, Haddad Fisheries’ ought to be brought in the name of the sole owner, the said Madam Ramia ... Thus, in the first place, the firm herein, as 1 have held, had no legal status, whether as an individual person or as a corporate person, to institute the action. So legally, there is no plaintiff before the court and so there is nothing to substitute or amend in order to save the proceedings.

In short, the writ of summons itself is a nullity and it follows that the subsequent proceedings are also null and void.”

See also the case of Ghana Industrial Holding Corporation v. Vincenta Publications [1971] 2 GLR. 24, C.A. where the same problem was considered by the Court of Appeal. This case is perhaps the best known local authority on the point. It was there also held that a single person cannot sue in a firm’s name and the court refused an application to substitute an existing person for a business name that was not a person as a plaintiff. The court held there was no plaintiff before it to be substituted.

I would also like to consider the case of Lazard Bros. and Co. v. Midland Bank Ltd. [1933] A.C. 289, H.L. This is a case in which the appellants took out a writ in England against a Russian bank. The respondents, Midland Bank in London, owed the Russian bank large sums of money. At the same time the Russian bank also owed the appellants. The appellants after issuing the writ obtained an order for substituted service after swearing an affidavit that the bank was registered and domiciled in Russia. Judgment was signed in default of appearance and garnishee proceedings brought against the Midland Bank of London. On the evidence of Russian experts to the effect that the bank had ceased to exist since after the Bolshevik Revolution in October 1917, it was held that the writ, the judgment and garnishee proceedings were a nullity and must be set aside. Lord Wright said at 296:

“I shall deal first with question (2.), which is most important and is decisive, since it is clear law, scarcely needing any express authority, that a judgment must be set aside and declared a nullity by the Court in the exercise of its inherent jurisdiction if and as soon as it appears to the Court that the person named as the judgment debtor was at all material times at the date of writ and subsequently non-existent. . .”

And commenting on Lord Parker’s statement in Daimler Co. Ltd. v. Continental Tyre and Rubber (Great Britain) Ltd. [1916] 2 A.C. 307 at 337, H.L. that “when the Court in the course of an action becomes aware that the plaintiff is incapable of giving any retainer at all, it ought not to allow the action to proceed”, Lord Wright said at 297:

“In such a case the plaintiff cannot be before the Court. In the present case if the defendants cannot be before the Court, because

there is in law no such person, I think by parity of reasoning the Court must refuse to treat these proceedings as other than a nullity.”

The headnote in the case of Tetlow v. Orela Ltd. [1920] 2 Ch. 24 reads: “Where an action is commenced in the name of a dead man his representative cannot be substituted as plaintiff.” This was a case in which a writ was issued in the name of Joseph Tetlow as plaintiff to restrain the defendants from infringing the plaintiff’s trade mark by passing off their toilet powder as the plaintiff’s. The case pursued its normal course till later when it was discovered that the plaintiff had been dead nearly eight years at the date of the writ. By his will the business was devised to his wife Ida J. Tetlow who was the executrix and had been carrying on the business. The writ was apparently issued in the mistaken belief that Joseph Tetlow was alive. The widow applied to be substituted as the plaintiff. The rule relied upon for the application was Order 16, rr. 2 and 11 of the English Rules of the Supreme Court. Referring to rule 2 of the said Order, Russell J. said at 26:

“In my opinion that rule means that, where an action has been commenced between two living parties by a living plaintiff, and the living plaintiff afterwards turns out to be the wrong person, an application may be made to the Court, and the Court can substitute another person for the living plaintiff or may add another person as co-plaintiff as the case may be. But it does not justify the Court in creating a plaintiff in an action for the first time.”

I do not think it is necessary for my purposes to quote Order 16, r. 2 which was considered in this case in view of the amendment effected to our L.N. 140A by the High Court (Civil Procedure) (Amendment) (No. 2) Rules, 1977 (L.I. 1129). By this amendment, Order 15, r. 6 is the proper rule to look at when an application is being made to substitute a party or add another to a suit. This rule provides:

“6. (1) No proceedings shall be defeated by reason of the misjoinder or non-joinder of any party; and the Court may in any proceedings determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the proceedings.

(2) At any stage of the proceedings the Court may on such terms as it thinks just and either
on its own motion or on

application—

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any person who ought to have been joined as a party, or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon, to be added as a party.”

Although this new Order is drastically different in wording from the old Order 16, rr. 2 and 11 of L.N.
140A which were considered in cases like Ghana Industrial Holding Corporation v. Vincenta Publications (supra), the basic injunction is that the court cannot create a new plaintiff. The assumption, therefore, is that there must be a party or parties to the suit before the court can invoke the powers it has under Order 15, r. 6 (2) of L.N. 140A to effect any necessary amendment in respect of the parties to the action at any stage in the proceedings. The provisions are to save rather than to destroy, and to cure that which is curable or capable of cure. And the defect will be incapable of cure if the plaintiff who initiates the proceedings does not exist either as a natural person, or a juristic or legal person so-called.

What then is the situation in the instant case? The “Church of Christ Mission” by whom Antwi Benyarko is suing admittedly does not exist in fact or in law as a legal personality. Such a church even if it does exist factually only, will be a voluntary association of christians. And not being registered, it would be an unincorporated members’ club which has no existence apart from its members who constitute it: see the case of Mensah v. Ghana Football Association, High Court, Cape Coast, 4 May 1988, unreported in which I alluded to the point and discussed the limitations imposed on such a club or association when it comes to issuing a writ in court.

The problem was also adverted to by the Court of Appeal in the case of Interim Executive Council v
Interim Executive Committee of the Apostolic Divine Church of Ghana [1984-86] 1 G.L.R. 529, C.A.
The facts in that case were that as a result of a rift in the Apostolic Divine Church of Ghana, an emergency delegates’ conference was held and officers were elected to manage the affairs of the church pending the resolution

of the dispute. This group was referred to as the Interim Executive Committee. Some of its members later defected so another conference was held and a new group, christened Interim Executive Council, was elected. This later group carried on with the church’s administration and this eroded the powers of the earlier interim executive.

This group, the Interim Executive Committee, brought an action to claim that the election of the council was null and void and also an injunction to restrain them. On appeal, it was argued that the committee had no capacity to sue since it did not disclose the names of its members. It was held by the Court of Appeal that whether the church was a club or not, an unregistered society could not sue or be sued in its own name nor could the secretary or any other officer of the society sue or be sued on behalf of the society, even if the society’s rules purported to give him power to sue and provide for his being sued.

I have already said that learned counsel for the plaintiff does not deny that the “Church of Christ Mission” does not exist in fact and therefore is consequently unregistered. It is rather the “Church of Christ” which exists and is indeed registered. Antwi Benyarko therefore took out the writ on behalf of a non-existent plaintiff. In Kimon Compania Naviera v. Volta Lines Ltd. (Consolidated) [1973] 1 G.L.R. 140 it was held by Hayfron-Benjamin J. (as he then was) that a person suing as a lawful attorney could only sue in the name of the principal and not in his own name. If, therefore, the principal has no legal personality, he cannot acquire one by suing through an attorney. In the course of his judgment, this is what Hayfron-Benjamin J. (as he then was) said at 143:

“A person suing by a lawful attorney can only sue in the name of the principal and not in his own name. If the principal has no legal personality he cannot acquire one by using an attorney. The law specifically authorises an infant to sue by his next friend but the law does not authorise a body which is not properly incorporated to evade the requirements of incorporation or registration by suing by any attorney.”

If “Church of Christ Mission” had existed as a legal personality, then it could be said that the writ was issued in the name of the wrong plaintiff, in which case the court could have been justified in exercising the discretion it has under Order 15, r. 6 of L.I. 1129 to effect the necessary amendment in respect of the parties. Since the “Church of Christ Mission” is non-existent, the writ has then been taken out in the name of a non-existent plaintiff and to permit the amendment being sought would

be creating a new plaintiff. I will therefore refuse the application and it is hereby dismissed.