The Dichotomy of the Capacities (Capacity and locus standi)
Introduction
Capacity, like jurisdiction, is a foundational concept in our legal system and one of the key legacies of common law that remains familiar to all lawyers. It is the first major hurdle that anyone seeking to access the courts must clear. In the legal terminology has arisen the concept of locus standi which is often used interchangeably with capacity. Locus standi gives that person who has legal interest in the subject matter to bring an action to the court to seek audience and redress of that issue for which he needs the ruling or opinion of the Court.
Can one really say he has capacity and locus standi at the same time? Is there a difference between the two concepts even though they are used interchangeably? This dichotomy of the two concepts being Capacity and locus standi arouses our interest to carefully dissect its individualistic meanings to bring to bear its underlying meaning in our jurisprudence.
Differences between capacity and locus standi
Until recently, capacity and locus standi were often viewed as synonymous, with judges using the terms interchangeably. For example, in the case of Debora Boafo v. Comfort Oduro, Her Ladyship Irene Charity Larbi (Mrs) JA, while discussing the principle of capacity, stated:
‘It is well-established law among lawyers that the issue of capacity or locus standi is a legal matter that can be raised at any stage of the trial.’
In the context of civil procedure, capacity is defined as the legal ability of a person—whether natural or juristic—to assert, defend, or seek redress for a right or claim.
In 2021, His Lordship Pwamang JSC in Florini Luca & Anor. v. Mr. Samir & Ors. took pains to draw the distinction between the two concepts thus:
“Capacity properly so called relates to the juristic persona and competence to sue in a court of law and it becomes an issue where an individual sues in her own personal right but states a certain capacity on account of which she is proceeding in court. But locus standing relates to the legal interest that a person claims in the subject matter of a suit in court. … generally, locus standi depends on whether the party has a legal or equitable right that she seeks to enforce or protect by suing in court.”
About three months after the decision, the learned Judge further expatiated in George Agyemang Sarpong v. Google Ghana and Google Incorporated LLC supra thus: –
“Although separate, the two (capacity and locus standi) operate as twin concepts for capacity, the power or right to sue, is often bound with a right that exists to be asserted or defended. It is this right that vests a person who has that right or interest with the locus standi … that they are distinct in their significance cannot be denied. In Dallas Fort Worth International Airport v. Cox 261 SW 3d 378 (Court of Appeal of Texas at Dallas) Justice Richter drew the distinction succinctly thus: ‘A plaintiff has standing when he is personally aggrieved, regardless of whether he acts with legal authority; a party has capacity when it has legal authority to act, regardless of whether it has a justifiable interest in the controversy.
Deductions
From the foregoing narrative, you would realize that capacity deals with the person, the right of the person to bring an action. This right is in persona or in representative character. Thus, the head of family could act in representative character to institute action on behalf of a family because he is the head and would have the capacity to bring the action but may not necessarily have an interest in the subject matter at all. In the same vein a member of the family may by himself bring an action when he is aggrieved by the matters in contention and same will be deemed as being clothed with capacity.
However locus standi deals with the interest one has in the subject matter of the suit. This interest may be a legal interest or an equitable interest in the subject matter. This therefore do away with all busy bodies from being clothe with locus standi in bringing such suits and the Courts will not entertain such persons because they lack the requisite capacity.
Can a person have Capacity and not locus standi?
Yes, a person can have legal capacity to sue but still lack locus standi. This means that they can be considered competent to bring a legal action but may not have a sufficient legal interest in the matter to actually pursue a claim in court; essentially, they have the ability to sue but not the right to sue in a particular situation.
For example: a concerned citizen might have the legal capacity to file a lawsuit, but if they are not directly affected by a government decision, they may not have locus standi to challenge it in court.
Can a person also have locus standi and not capacity?
Yes, a person can technically have locus standi (standing to sue) but lack capacity to bring a legal action, meaning they have a legitimate interest in the case but may not be legally authorized to pursue it due to factors like age, mental state, or legal representation issues etc.
For example, a minor who is directly affected by a school policy change might have locus standi to challenge it, but due to their age, they may lack the legal capacity to file a lawsuit on their own, as they will require a guardian to act on their behalf.
Conclusion
It has been reckoned that one needs capacity to bring an action to the Courts but that can either be personal or in representative character. In another vein, one may be clothed with capacity by way of locus standi if the person has interest in the subject matter or suit and this interest may either be legal and equitable. Capacity and locus standi indeed have been used interchangeably by the Judges and this conundrum has been expressly laid bare in this article from judicial pronouncement on the subject matter.
References
- google.com
- https://ghanalawhub.com/capacity-a-janus-faced-concept-in-ghanaian-jurisprudence/
- Debora Boafo suing per her next friend and father Anthony Boafo v. Comfort Oduro and Another, Civil App. No. H1/21/2018, dated 27thFebruary 2019, C.A. (Unreported).
- Florin Luca & Anor. v. Mr. Samir & Ors., Civil App. No. J4/49/2020, dated 21stApril 2021, S.C. (unreported).
- George Agyemang Sarpong v. Google Ghana and Google Incorporated LLC, Civil App. No. H1/235/2016, dated 28thJuly 2016, S.C. (unreported).
