Lawyer Do I Have A Case?

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 This is a question that always pops up from clients and potential litigants after they have narrated the ordeal they have gone through with their opponents to their lawyer.

Every potential litigant would want to have a fair assessment of the final outcome of the intended litigation. In that regard, he would copiously go through his story bringing out all the fine points that should earn the anticipated victory.

Victory in a legal battle is fundamentally dependent on whether or not one has a right to sue which is technically known as “a cause of action”.
In ascertaining a good case, our courts investigate among others;
a. Jurisdiction i.e. whether the court is empowered by law to entertain and hear the matter that has been brought before it
b. Capacity i.e. whether the complaining party (Plaintiff) is allowed by law to sue and defendant allowed to be sued with regard to the subject matter of litigation. This is technically and legally referred to as “locus standi”
c. Cause of Action:There should be a factual situation, the existence and proof of which should entitle the Plaintiff to the reliefs he is seeking from the court.
Jurisdiction
Ghana has judicially been divided into Magisterial Districts, Circuits and finally a High Court which has various divisions sitting in different parts of the Country.

The Magistrate and Circuit Courts are limited to specific geographical areas and again limited by the value of the subject matter of litigation.
The subject matter of litigation must according to law, be resident or executable within the Magistrate or Circuit District or in some case the litigation must be commenced within the District where the opponent (Defendant) resides.

The law has created only one High Court which geographically covers the whole of Ghana but with divisions and sitting at different places in all the regions. The law however expects actions in the High Court to be commenced within divisions in the Regions where the subject matter is resident, executable or where the Defendant is resident or operates from.
If actions are not commenced by and / or from the right venue, the suit has the potential of being struck out on grounds of want of Jurisdiction.

 

A PARTY’S LOCUS STANDI

After showing that the Court (venue) has been given the power (Jurisdiction) to hear and determine the matter before it (subject matter), the complaining party must also show that he has a personal interest in the matter or he has the legal consent of some other person(s) who has a personal interest in the subject matter to institute the action. So for example, one cannot sue another for forcibly taking away his brother’s car if he does not have his brother’s legal authority to sue.

The onus is always on the complaining party to show either a direct or remote interest in the subject matter of the litigation. If the litigation is about title to a parcel of land, the Court expects one to show his or her interest by way of a licence, lease, sublease, assignment, a reversion or even a complete purchase or a power to represent someone who has any of the above mentioned interests.

Capacity is a very crucial ingredient in litigation. Lack of capacity goes to the every foundation of one’s case and the want of it will definitely lead to the action being lost eventually or struck out at the very beginning of the suit.

A CAUSE OF ACTION

One can win a case based on the strength of his case and not on the weakness of the opponent’s case. One’s case is strengthened by the evidence he can adduce and prove in court.
In this regard a good piece of evidence is one that has been pleaded, spoken to in evidence in chief, corroborated by witnesses (if any) and has remained unshaken through cross examination

ACCURAL OF CAUSE OF ACTION

After ascertaining that one has a right that has been wronged, the court goes on to determine whether one is entitled to the reliefs he is demanding. For example, even though every landlord has a reversion immediately after the tenancy period, the Court will not make an order for vacant possession during the period of the tenancy because the landlord’s right to the reversion is not due unless there are compelling circumstances

LIMITATION OF ACTION

In law every wrong or right has a period within which a remedy can be sought from our courts. For example, the court will not entertain an action for declaration of title to land after 12 years of the land being in your opponent’s possession with your knowledge but without any complaint.

In the light of the foregoing, a positive answer to the questions listed in the checklist below will more often than not determine your fate in any litigation.
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1). What is the subject matter of the potential litigation?

2) What is the monetary value of the subject matter?

3) Where is the subject matter situated or executable?

4) Do I have a direct or remote personal interest in the subject matter or do I have the authority of some one with an interest in the subject matter to sue?

5) Who is the defendant and in what way(s) has he wronged me?
6) Do I have proof of this wrong, i.e. via witnesses or documentary?

7) What relief would I be seeking, is the relief justifiable?
8) Has my cause of action accrued?

9) What are my limitations in this action, any statute of limitation?
Please try and answer the foregoing and put the same questions to your lawyer to determine whether you ‘’have a good case’’.

KWAME BOATENG Esq.