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J U D G M E N T
AKUFFO (MS), J.S.C.
BACKGROND FACTS:
By a Writ of Summons issued on
13th July 1999, the
Appellant herein commenced
proceedings against the
Respondent for a declaration
that the Appellant is a holder
in due course of certain
promissory notes dated 29th
July, 1996. According to the
Statement of Claim attached to
the Writ, Sabat Motors Limited
had issued these promissory
notes in favour of a corporate
entity named Eaglet Corporation.
Each of the notes (5 in all)
were due and payable on 29th
July 1997, at the Liberty House
Branch of the Ghana Commercial
Bank on account number D.4518.
The Respondent had guaranteed
the due payment of the notes.
The
Respondent entered conditional
appearance and filed a motion to
dismiss the suit or stay
proceedings, under Order 3 Rules
4 and 7 of the High Court (Civil
Procedure) Rules, and the High
Court’s inherent jurisdiction.
In the affidavit in support of
the motion, the Respondent
raised a number of issues, the
more relevant of which, for the
purposes of this appeal, are
paragraphs 12-14 which read as
follows: -
“12. Furthermore I am
advised and verily believe that
the plaintiff herein does not
exist as a legal entity
recognised with the capacity to
sue and be sued; accordingly the
plaintiff has declined to
disclose its address contrary to
the express requirement of the
rules of court. A search
conducted in the companies’
registry disclosed that no
company exists as a resident or
external company in Ghana as
Naos Holdings Inc….
“13 I am advised that a
foreign plaintiff is required by
the rules to disclose its
non-resident status and
residence. In total violation of
this requirement the plaintiff
concealed the fact that it is
non-resident and has
deliberately omitted to state
its offshore address.
“14. … I verily believe from
the deliberate omission that the
plaintiff herein does not exist
as a legal entity and is not
entitled to institute the action
herein. Accordingly the action
ought to be dismissed as an
abuse of process.”
In response to these assertions,
the Appellant, in its affidavit
in opposition to the
application, deposed (per its
attorney, Mr. Amarkai
Amarteifio) as follows: -
“14. That the plaintiffs
need not register in Ghana as a
legal entity, whether as a
resident or external company,
before asserting its legal
rights in Ghana.
“15. That the plaintiffs are
a legal entity in their country
of origin, with rights which
have accrued in Ghana against a
company registered and domiciled
in Ghana.
“16. The plaintiffs
appointed an attorney who is
resident in Ghana.
“17. That should it be
necessary to state the
Plaintiffs’ address, that should
not be a ground to dismiss the
suit as the Plaintiffs’ address
can always be stated, but it
was a deliberate act not to
state the Plaintiffs’ address,
as the attorney is a resident
and has powers to act for and on
behalf of the Plaintiffs and in
their name.”
On the issue of the existence of
the Appellant and its capacity
to sue, the learned High Court
judge ruled that since the
Appellant had failed to
establish that it was a legal
entity existing either in Ghana
or Panama, it was non-existent
and the writ was, therefore, a
nullity.
Being
dissatisfied with this outcome,
the Appellant appealed to the
Court of Appeal on the grounds
that the ruling was against the
weight of the evidence available
before the court; the judge
erred in holding that the
appellant does not exist, and
the judge erred in holding that
the writ is void.
The
learned judges of the Court of
Appeal affirmed the decision of
the High Court judge and
dismissed the appeal. Now, the
Appellant has appealed against
the Court of Appeal’s decision,
upon the following grounds: -
“a. The Court of Appeal
erred in affirming the trial
court’s decision that the
plaintiff does not exist as a
legal person.
“b. The Court of Appeal
erred in affirming the trial
court’s decision that the
plaintiff’s Writ of Summons is
void.”
In
arriving at its decision, the
Court of Appeal, per Ansah JA
(as he then was) found that the
terms of Order 3 Rule 4 were
clear and imperative, and
required that where an action is
commenced by or on behalf of a
person resident outside the
jurisdiction that fact must be
disclosed in the indorsement and
the residential address of such
person also must be disclosed.
The court also found that there
was no such endorsement on the
writ and concluded that this
failure to satisfy the
requirements the Rule was fatal
to the Appellant and that the
writ was a nullity.
In the Appellant’s Statement of
Case in support of the appeal
herein, counsel focused
primarily on the 1st
ground of appeal and argued that
it was clear that the Appellants
claimed to have been
incorporated (or constituted or
registered) in Panama, with a
registered office and address in
Panama City. Thus, even though
no address was indicated on the
Power of Attorney, yet there was
sufficient evidence of the
Appellant’s existence. Counsel
also argued that, although it is
true that the Appellant’s actual
address in Panama was not
indicated in the Power of
Attorney appointing Mr. Amarkai
Amarteifio as attorney for the
Appellant, there was other
evidence that the Appellant
existed and, therefore, the
‘mere failure’ to state the
actual address of the Appellants
in a Power of Attorney which
purported to have been executed
by the president of the
Appellants would not be
conclusive of the contention
that the Appellants did not
exist as a legal entity.
According to counsel for the
Appellant, furthermore, the
Appellant claimed to be
‘constituted or registered or
incorporated’ in the Republic of
Panama with a registered office
or address in Panama and there
was sufficient evidence to
support this claim and, even if
it was not sufficient, such
defect, as well as the other
defect (the non-stamping of the
power of attorney) could all
have been easily rectified,
had the courts below given the
Appellant the opportunity to do
so. Counsel, therefore,
submitted that: -
-
The failure to furnish an
external address is
insufficient to prove that
the Appellants did not exist
and, therefore, the Court of
Appeal’s finding that there
was no cogent evidence to
support the Appellants’
existence, was not
justified.
-
Given ‘a sporting chance’
the Appellant would have
supplied the court with
prima facie evidence of its
legal existence.
-
Therefore, the trial judge
ought to have allowed the
case to proceed to trial by
ordering the Respondent to
file its statement of
defence raising the
non-existence of the
Appellant as an issue for
trial.
-
The application to strike
out the suit could only have
been properly made under
Order 25 and, therefore, the
courts below should have
given the Appellant leave to
amend their writ to cure the
defect therein by inclusion
of the proper address of the
Appellant.
We have thoroughly examined the
judgement of the Court of Appeal
and have no cause to disturb the
same. The real effect of the
Respondent’s motion in the High
Court was to challenge the very
existence of the Appellant as a
corporate legal entity and place
into issue the Appellant’s
capacity to sue. The Appellant
at all material times did not
deny that it is not a Ghanaian
company or an external company
registered in Ghana under the
Companies Code, 1963 (Act 179).
Consequently, it was not enough
for the Appellant to rely on the
creation of the Power of
Attorney as evidence of its
existence. There is nothing on
the face of the Power of
Attorney that serves as cogent
proof of the corporate
personality of the Appellant. It
is merely a document signed by
one Rodolfo Silva Batista who
describes himself as the
president of the company ‘constituted
and in force in the Republic of
Panama, having its registered
offices in Panama….’ How can
this amount to sufficient
statement of residence or, more
importantly, serve as proof of
corporate existence? As
Hayfron-Benjamin J (as he then
was) so aptly stated in Kimon
Compania Naviera SARP v. Volta
Lines Limited (Consolidated)
[1973] 1 GLR 140 at 143: -
“… a person suing by a lawful
attorney can only sue in the
name of the principal…. If the
principal has no legal
personality he cannot acquire
one by using an attorney. The
law specifically authorizes an
infant to sue by his next friend
but the law does not authorize a
body which is not properly
incorporated to evade the
requirements of incorporation or
registration by suing by an
attorney….”
Once its
legal status was challenged and
its corporate capacity was
placed into issue, it was
incumbent upon the Appellant to
produce more cogent evidence of
its existence (such as its
registered address or a copy of
its certificate of
incorporation) to satisfy the
court that it has the requisite
legal capacity to sue. Since it
failed to do so, the court was
justified in arriving at the
conclusion that the Appellant
did not exist. Furthermore,
having dismally failed to
satisfy the court with regard to
such a fundamental issue as
capacity to sue, it would have
been pointless for the trial
court to order the matter to
proceed to trial. Having failed
to take the opportunity to prove
its capacity during the hearing
of the motion, the Appellant did
not merit any further ‘sporting
chance’, nor was the court
obliged to act suo motu to grant
the Appellant leave to amend the
writ to include its residential
address.
In conclusion, the Court of
Appeal committed no error in
upholding the High Court’s
ruling. The writ was void for
failure to state the residence
of the plaintiff in the action
and in any event, there was such
serious doubt as to the
corporate status of the
Appellant that the court was
justified in its conclusion that
the Appellant did not exist at
all. It is for the foregoing
reason that we dismissed the
appeal herein on 14th
December 2005.
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
DR. S. TWUM
JUSTICE OF THE SUPREME COURT
DR. S. K. DATE-BAH
JUSTICE OF THE SUPREME COURT
PROF. T. M. OCRAN
JUSTICE OF THE SUPREME COURT
R. T. ANINAKWA
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. William Addo for Appellant.
Mr. Kizito Beyuo for Respondent.
gso*
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