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JUDGMENT
LAMPTEY, J.A.:
The plaintiff
respondent Ex-Warrant Officer Adu Poku by his counsel
obtained leave of the High Court, Accra presided over by
Armah, J. on 29th May, 1992, to issue a writ of summons
accompanied by a Statement of Claim against the
defendant appellant company and for a further order to
serve same out of the jurisdiction. The appellant Co.,
which is based in London on being duly served with
process on 6th July, 1992, instructed Solicitors in
Accra to act on his behalf. On 25th August, 1992,
solicitors for the appellant company filed a notice of
motion for an order discharging the order made by Armah,
J. The application was resisted by the plaintiff. It
was heard by Akoto Bamfo (Mrs.) J, who dismissed it.
The appellant company was aggrieved by the Ruling
dismissing the application and appealed to this court.
Before I proceed to
deal with the instant appeal on the merits, I must draw
attention to what I believe to be an administrative
lapse which must and ought to be corrected. I find that
in respect of this application the Registrar opened two
separate and distinct case dockets. The first docket
bears the No.109/92 and the second is No. 1396/92. I
noticed that suit No. 109/92 dealt with the application
for leave to issue and serve the writ out of the
jurisdiction and all matters connected therewith
including the application to discharge Armah, J.’s
order. This suit No. 109/92 is the case on appeal
before this court. Suit No. 1396/92 is the substantive
action between the parties. The opening of two separate
and distinct case dockets had led to the exclusion from
the record of appeal the pleadings in the action which
would be found in the docket No. 1396/92, and therefore
not part of this appeal record.
I have made the above
observation because the record of appeal does not
contain the entry of appearance under protest by the
appellant. One of the complaints made in this appeal
contred around the rules governing the entry of
appearance under protest. This court would have been
better placed to deal with this compliant if the record
of appeal contained all the documents and pleadings in
that matter. I find that the affidavit in support of
the application to set aside the service of the writ
gave the date of the entry of appearance under protest
as 30th July, 1992. I have no reason to disbelieve that
information. The significance of this date would become
obvious when I come to deal with the complaint that the
application to discharge the order of Armah, J dated 9th
May, 1992 was made out of time.
The applicant did not
indicate the rule under which the present application
was brought in arguing the motion. 0.11 of our rules is
not different in content from the English 0.11. Indeed
our rule is a reproduction of the English rule in
point. The courts of England have decided a number of
cases founded on 0.11. This court was referred to one
case, namely, Annin Rashieed Shipping Corp. vrs: Kuwait
Insurance Co. reported in the Weekly Law Reports, July
22, 1983, House of Lords. I reproduce holding (1) as
follows:—
“(1) That the proper
law of the contract was English Law……. since the
provisions of the policy taken as a whole by necessary
implication led to the inevitable conclusion that it was
the parties intention that their mutual rights and
obligations under it should be determined in accordance
with the English law of marine insurance. The court
held further that objectively determined the contract
had its closest and most real connection with English
Law.”
Before this court
Counsel for applicant was of the view that the
application had not been brought under 0.11 R.1. It
would appear that the court was invited to consider the
application “in the name of equity.” In his reply,
counsel for the plaintiff submitted that Ghana was the
“forum conveniens” because according to him the
plaintiff had no money to litigate in the U.K. He
stated that if the application was granted the plaintiff
“would be without remedy.” He relied on 0.11 to oppose
the application.
As I have already
indicated elsewhere in this judgment the record of
appeal does not contain the entry of appearance under
protest. It does appear that on being served with the
writ of summons and statement of claim the step taken by
the appellant company was to instruct their Solicitor to
file a motion of notice to discharge the order to Armah,
J. This step the solicitor took by filing the motion of
notice on 25th August, 1992. One complaint made against
the Ruling was that the judge erred in holding that the
application was brought out of time. Counsel for
appellant submitted that she erred in law in reaching
that conclusion. He argued that the period of the legal
vacation did not count in computing time limited for
filing of process. He stated that the appellant’s
application was properly before the court. In reply,
counsel for plaintiff argued that the application should
have been brought within 14 days calculated from the
date appellant Co. entered conditional appearance. The
application was filed outside of the 14 days and the
judge was right in dismissing it. He concluded that the
application did not come within the exceptions spelt out
in the rule.
In the light of the
submission and arguments of counsel for parties.sic (,)
I reproduce the relevant provision of o.12 R.24 as
follows:
“12(24) A defendant
before appearing shall be at liberty, without obtaining
an order to enter or entering a conditional appearance,
to take out a summons or service of notice of motion to
set aside the service upon him of the writ or notice of
the writ or to discharge the order authoring such
service.”
The rule does not
provide that the summons or the notice to set aside must
be taken within 14 days upon the service of the writ or
notice of writ. The above rule is so plain and clear
that it does not call for comment or observation. The
bone of contention in this case is whether or not the
appellant can invoke 0[sic].64 R.4 which provides as
follows:—
“64(4) The times of the
vacation in any years shall not be reckoned in the
computation of the times appointed or allowed by these
rules for amending, delivering, or filling [sic] any
pleading unless otherwise directed by the Court or a
judge.”
Counsel for plaintiff
contended that a motion on notice to set aside the writ
was not one for “amending delivering or filing any
pleadings” hence the application should have been filed
within 14 days, during the legal vacation. Counsel for
appellant argued the contrary. In considering the above
issue the trial judge expressed the following opinion:—
“There are no
provisions under our rules for appearance under
oritest”. With great respect, the trial judge erred in
law when she held that the rules of court do not contain
a provision relating to an appearance under protest. I
have elsewhere in this judgment pointed out that there
is provision under 0[sic].12 R.24 for entry of
appearance under protest. The method prescribed by the
rules is either by summons or in the alternative by
motion on notice. There is no time limit for taking out
a summons or applying by motion on notice, to set aside.
In the instant case, the motion to set aside was filed
during the legal vacation, when time does not run;
meaning that, that is frozen for purposes of computing
time limits. In my view, what the rules seek to do is to
ensure that for purposes of computing time pursuant to
the rules the period of the legal vacation cannot and
must not be taken into account. In the instant case,
appearance was entered for the appellant company on
July, 1992, the appellant was not obliged to file a
statement of defence during the legal vacation. 0.[sic]
21 R.6 gave the appellant company 14 days within which
to file a statement of defence. The means in effect
that the appellant must file a statement of defence
before the 13th October, 1992. The application to set
aside the writ in my view must be governed by the same
rule, because the fate of such an application would
determine whether or not the substantive plaint should
proceed according to the rules. I find that the trial
judge erred in holding that the application to set aside
the writ and the service of the writ out of the
jurisdiction was incompetent.
The other ground of
appeal argued was that the judge erred in refusing the
application on the merits. Counsel for appellant
submitted that on the facts before the court the proper
law of the contract of carriage was English law. He
argued that the English Court was the court clothed with
jurisdiction to hear and determine the plaint. He
recited the matters which support his submission that
the Ghanaian Courts have no jurisdiction and cannot
assume jurisdiction in the matter.
In reply, counsel for
plaintiff submitted that the lower court was clothed
with jurisdiction. He described the court below as the
“forum convenience.” To hear and determine the case.
On the issue of
jurisdiction in such cases, there is wealth of
respectable authority both local and foreign. A local
case to which our attention was drawn is the Court of
Appeal case of Society General de Compensation vrs:
Ackerman (1972) 1 E.L.R.[sic] 413 at holdings (1) (2)
(3) as follows:—
“(1) the proper law of
a contract is the system of law by which the parties
intended the contract to be governed, or where their
intention is neither expressed nor to be inferred from
the circumstances, that system of law with which the
transaction has its closest and most real connection.”
The court proceeded to
offer guide lines on the ascertainment of the proper law
at holdings (2) and (3) thus:
“(2) The mode of
judicial ascertainment of the proper law of a contract
is, in the absence of express choice of a system of law,
the objective and pragamatic one of applying the
external standard of the reasonable man of business and
then considering what the parties ought to have intended
had they considered the question of the proper law when
the contract was executed. Dicta of Singletion L.J. in
the Assunziene (1954) 1 ALL E.R.278 at pp 289 and 292.
(3) The court is also
assisted in ascertaining the proper law by certain
well-known presumptions such as the “lex loci
contractus” and “lex loci solutions” which are neither
irrebuttable [sic] nor arbitrary.”
The principle of law
enunciated in the above case has been applied in a
number of cases in this country. What then would the
reasonable man of business find as the proper law of the
contract in the instant case. The undisputed facts are
that both the appellant company and the plaintiff
entered into the contract in England, in the premises of
the Ghana High Commission in London. The consideration
to support the contract was paid in English money. The
contract was frustrated and breached in London,
England. Both the appellant company and the plaintiff
were at the date and time of the breach resident in
London. The reasonable man of business would expect the
plaintiff to sue the appellant company in London and
most certainly not to sue in Ghana. It seems to me that
the fact only that the plaintiff returned to Ghana some
time after all these events cannot be a factor to
consider in determining the proper law of the contract.
In this case all that the plaintiff stated on this issue
would be found at paragraphs 3 and 4 of the affidavit in
support of the application. Paragraphs 3 and 4 read
thus:
“3. On 23 December,
1991, I gave a letter to the Defendants with express
instructions that they be delivered to my superiors in
Accra.
4. Contrary to my
instructions Defendant wrongfully delivered the said
letter to my superior officer in London.”
It is clear from the
above that the letter never left London. The contract
was thus breached and frustrated in London. The
plaintiff’s right to sue the respondent company accrued
immediately the contract was breached in London. In my
opinion it would be unconscionable to hold that the
plaintiff should travel to Ghana to prosecute his claim
on the undisputed facts. The plaintiff at paragraph 4
deposed as follows:—
“(4) In the events that
followed I was ordered to return to Ghana.”
He did not disclose in
his affidavit “the events that followed”. He therefore
did not disclose to the court those matters which would
assist the court in deciding that the proper law of the
contract was other than English Law. As to what matters
an affidavit in support of an application under
0[sic].11 must contain the 1962 Annual Practice Provides
as follows:—
“Though the applicant
need only establish a “prima facie” or “good arguable
case,” the affidavit should contain a full statement of
the facts on which the application is based, and which
justify the issue of the writ and the statement must be
frank.”
I find that the
affidavit in support of the application fell far short
of what was required under 0.[sic] 11. It did not
contain a full and frank statement of “the events that
followed the breach.” In my opinion the omission and
failure to make a full and frank statement of matters
which would have assisted the judge to determine the
proper law and the “forum coveniens” was fatal to the
application. I so find.
It was submitted that
the statement of defence filed by the appellant amounted
to an admission of the claim of the respondent. I must
observe that I do not share the view that the fact of
admitting the claim is a ground or reason for conferring
jurisdiction on the court. It is trite learning that
the issue of jurisdiction is a matter of law. In this
case the appellant did not admit the whole of the claim
of the respondent. A careful reading of Exhibit “AP2”
shows that the appellant did not admit the case put
forward by the plaintiff. The relevant portion of “AP2”
reads thus:—
“……..At this point I
would like to say that your client’s version and my
currier’s version of what took place (in London) seem to
be in perfect accord except for one point”
The language used above
is plain and clear. It drew attention to a disagreement
between the parties “on one point”. In my case the
reference here is to matters that took place in London
and not in Ghana. These matters cannot clothe the lower
court with jurisdiction.
Another complaint, made
against the Ruling was that the judge erred in law in
relying on the case of Chatteney vrs The Brazilian
Sub-Marine Co. Ltd. (1891) 1 Q.B.D.89. She held that the
lower court was the “forum conveniens” because, Ghana
was the place of performance of the contract. In my
opinion the trial judge’s reliance solely on a passage
from the Chatteney case misled her into applying the
wrong principle of law to the fact of this case. In the
instant case, the parties did not expressly state the
law which was to govern their contract. The presumption
that the law of Ghana was to govern the contract was
rebuttable. An objective test to apply was whether or
not the parties intended the law of Ghana to govern the
contract. My answer is that the parties intended
English law to govern the contract. My simple reason is
that it would be absurd for plaintiff who at all
material time lived and resided in London and who
expected to continue to live and reside in London after
he had handed the letter to appellant company in London
to travel to Ghana to sue the appellant company then
resident in London in the event that company breached
the contract. In order to sue the appellant company in
Ghana in instant case the plaintiff must disclose to the
Ghanaian court full and frank matters which would make
Ghana the “forum competens and convenience”. I have not
been persuaded that the delivery of the letter in London
rather than in Ghana led to the recall of plaintiff back
to Ghana: I have not found from the affidavit evidence
that the delivery of the letter to an officer in London
resulted in the premature retirement of the plaintiff
from the Ghana Army. I have no evidence before me to
prove and establish the fact that the failure of
appellant company to deliver the letter in Ghana
resulted in the plaintiff’s inability to continue and
complete a professional accounting course in London.
The above matter which were not tested by
cross-examination which the plaintiff swore to in his
affidavit in support unduly impressed the trial judge
and misled her into holding that the parties intended
the law of Ghana to govern the contract of carriage.
With respect, she erred in considering matters which are
plainly and clearly extraneous. I therefore allow the
appeal. I set aside the Ruling of the lower court. I
enter judgment for the appellant company.
G.L. LAMPTEY
JUSTICE OF APPEAL
LUTTERODT, J.A.:
I agree.
G.T. LUTTERODT
JUSTICE OF APPEAL
SAPONG, J.A.:
I also agree.
J.D. SAPONG
JUSTICE OF APPEAL |
