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Practice and procedure – Courts
– Venue – Defendants denying
residence or carrying on
business within region – Burden
on defendant to establish
objection – Evidence Decree 1975
(NRCD 323) ss 11(1) and (4) –
High Court (Civil Procedure)
(Amendment) Rules 1977 (LI 1107)
r 1.
Practice and procedure – Appeal
- Record of proceedings –
Whether party may introduce
documents not forming part of
the record.
Practice and procedure – Courts
– Venue – Action against two
defendants resident in the same
region – Whether court has
discretion to decide forum
conveniens – High Court (Civil
Procedure) (Amendment) Rules
1977 (LI 1107) r 1(7).
The plaintiff who claimed to be
a shareholder of the 2nd
defendant-company issued a writ
in the Cape Coast High Court
against the two defendants for a
declaration that the purported
re-distribution of shares was
irregular, fraudulent, and of no
effect. She sought an order to
set aside the re-distribution
and a further order for the
valuation of the 2nd
defendant-company, for her to be
paid off. The defendants entered
conditional appearance and
applied for the transfer of the
case to Accra on the ground that
the 2nd defendant-company had
its registered offices in Accra
where both defendants resided
and carried on business. The
plaintiff opposed the
application and denied the
allegations. The trial judge
nevertheless held that the
plaintiff had admitted that the
first defendant lived in Accra,
upheld the objection and
adjourned the matter sine die
for the Chief Justice to effect
the transfer. The plaintiff
appealed to the Court of Appeal.
The defendants’ counsel was not
in court when the appeal was
called but applied on the day of
judgment and obtained the leave
of the Court of Appeal to submit
a written reply to plaintiff’s
arguments. He filed his written
address to which he attached the
writ of summons and a letter
which never formed part of the
record in the court below.
Held,
allowing the appeal: (1)
The court, being a court of
record, the parties were bound
only by the evidence, both oral
and documentary tendered at the
hearing. It was manifestly wrong
for the defendants’ counsel to
attempt to smuggle into the
record documents that were never
tendered at the trial. The court
would disregard them in
considering counsel’s argument.
(2) Under section 11(1) and (4)
of the Evidence Decree 1975
(NRCD 323) it was the duty of
the defendants to show that they
resided and carried on business
in Accra.
(3) Order 5 rule 1(7) of the
High Court (Civil Procedure)
Rules 1954 (LN 140A) as amended
by the High Court (Civil
Procedure) (Amendment) Rules
1977 (LI 1107) r 1(7) gave the
court the power, upon an
application or suo motu,
to determine the forum of
convenience where the defendants
resided in different regions.
Where all the defendants resided
in one region, no discretion
arose. In these present
proceedings both defendants
resided and carried on business
in Cape Coast and the rule did
not apply. The appeal ought to
be allowed.
APPEAL from the ruling of the
High Court.
E B Oduro
for the appellant.
L Otoo
for the respondent.
LUTTERODT JA.
On 5 May 1992, the
plaintiff-appellant through her
solicitors issued a writ against
the two defendants for the
following reliefs:
“(a) A declaration that
plaintiff is a shareholder of
the 2nd defendant company;
(b) A declaration that the
purported re-distribution of
shares reducing plaintiff’s
shares from 500 to 100 was
irregularly and fraudulently
done and accordingly null and
void and of no legal effect;
(c) An order setting aside the
purported reduction of
plaintiff’s shares in the 2nd
defendant company from 500 to
100.
(d) An order for the valuation
of the 2nd defendant company,
for plaintiff to be paid off the
value of her shares in the said
company.”
On being served with the writ,
the defendants caused their
solicitors firstly, to enter
conditional appearance on their
behalf and followed it with a
motion for the transfer of the
suit from Cape Coast to Accra.
The main ground on which the
application was founded was that
both defendants resided and
carried on business in Accra.
Additionally, it was said of the
2nd defendant that it had its
registered offices in Accra.
Their complaint therefore was
that the action had been
commenced in the wrong forum.
The plaintiff-appellant
vehemently opposed the
application and deposed to the
fact that contrary to the
defendants’ contention, none of
them either lived or carried on
business in Accra. Furthermore,
she alleged that the 2nd
defendant’s registered offices
were not in Accra. The learned
trial judge nevertheless upheld
the objection and ruled that the
case ought to be heard in Accra.
Consequently he adjourned the
matter sine die and
conveyed his findings to the
Chief Justice to enable him
effect the necessary transfer.
It is against these findings
that the plaintiff has appealed
to this court on two grounds,
which are closely allied to each
other, one of them being the
well-known omnibus ground, “the
ruling is against the weight of
evidence”.
I shall deal with the first
ground of appeal which reads as
follows:
“The trial judge erred in
finding that the 1st defendant
was resident in Accra whilst the
2nd defendant carried on its
business and had its registered
office in Accra in the light of
the records of the
Registrar-General’s department
before the trial court.”
Before I do so however I should
like to comment on a step taken
by the respondents’ counsel in
these proceedings. He was not in
court when this appeal came up
for hearing. He was however,
upon an application brought by
him on the date judgment was to
be delivered, granted leave to
submit his reply to appellant’s
counsel’s argument in writing.
One of the things that he did
was to attach the writ of
summons and a letter as exhibits
A and B, which never formed part
of the record in the court
below.
This court, being a court of
record, the parties are bound
only by the evidence both oral
and documentary tendered at the
trial court. It is therefore
manifestly wrong for the
respondents’ counsel to attempt
to smuggle into the record
documents which were never
tendered at the trial and which
therefore never formed part of
the issues the court was called
upon to try. In the
circumstances, I never took them
into account in considering
counsel’s argument.
The argument of the appellant’s
counsel on the ground quoted
above is that at the trial they
never admitted that the 1st
defendant lives in Accra or even
that Accra is the principal
place of business of either
defendant.
It was submitted that in view of
the weightier evidence led by
the plaintiff-appellant in
contradistinction to the
defendants-respondents’ bare
assertion supported by a mere
letter-headed sheet, the learned
judge erred in holding that the
1st defendant was resident and
carried on business in Accra and
the 2nd defendant had its
registered offices and carried
on business in Accra.
I think in fairness to the
learned judge that at the
hearing of the motion, he
appreciated the matters in
controversy between the parties.
This is why he was quick to
point out that the appellant had
denied the defendants’
contention that they lived in
Accra. In actual fact, her
affidavit in opposition clearly
showed that she disputed the
allegation.
It is rather unfortunate that
elsewhere in his judgment the
learned trial judge said the
following:
“The plaintiff has not disputed
that in actual fact the 1st
defendant does not reside in
Cape Coast and it appeared
certain that the plaintiff
admits the first defendant lives
in Accra but was only arguing on
the basis of the company’s
regulations.”
I think what led to these
unfortunate errors is the tenor
in which the depositions were
couched. I refer particularly to
paragraphs 3 and 4 which read as
follows:
“(3) That I am opposed to the
application because by the
records at the
Registrar-General’s Department,
1st defendant...
(4) That accordingly paragraphs
6, 7 and 8 of the affidavit in
support of the application are
denied.”
Perhaps, had the appellant kept
strictly within the rules
particularly, Order 38 rule 3
relating to the contents of
affidavits and restricted
herself to the facts, avoiding
altogether argumentative matters
or the evidence by which the
facts deposed to would be
proved, the learned judge would
not have been caught in this
quandary. Nevertheless I do
think it was the duty of the
trial judge to read the
affidavit as a whole and
determine what the deponent had
to say in opposition to the main
facts on which the application
was founded, to enable him do
substantial justice to the
parties.
The following emerged at the
trial:
1. The appellant did not, on the
face of the writ show that any
of the defendants lived or
worked in Accra.
2. It was the respondents who
were asserting that they resided
in and carried on business in
Accra.
3. These were facts particularly
within their knowledge.
I think in these circumstances,
it was the duty of the
respondent to show that they
resided in and carried on
business in Accra. I would,
unlike the trial judge, not
place the burden on the
appellant to prove the contrary.
What this means in law has been
spelt out in s 11(1) and (4) of
the Evidence Decree 1975 (NRCD
323). They read as follows:
“11(1) For the purposes of this
Decree, the burden of producing
evidence means the obligation of
a party to introduce sufficient
evidence to avoid a ruling
against him on the issue...
(4) In other circumstances, the
burden of producing evidence
requires a party to produce
sufficient evidence so that on
all the evidence a reasonable
mind could conclude that the
existence of the fact was more
probable than its
non-existence.”
Both sides tendered documents at
the trial. The appellant
tendered the company’s own
official document which showed
that both defendants lived and
carried on business in Cape
Coast and the 2nd defendant’s
registered offices were in Cape
Coast. More particularly, the
special resolution that provoked
this action was passed in Cape
Coast. The 1st respondent on his
part tendered only one document,
a plain sheet of paper with the
company’s letterhead giving an
Accra address as the company’s
address.
I agree with the learned trial
judge that the mere fact that a
company has not informed the
Registrar-General of changes in
the address of the company, its
directors and shareholders,
where they live and carry on
business etc. is no conclusive
proof of these matters i.e.
address of company, place of
business etc. Indeed, where in
violation of the Companies Code
the registrar is not notified of
such matters, sanctions that
ought to be applied have been
laid down by law. But it is
equally true that in
controversial matters such as
the one before us, such
notifications provide one of the
surest, if not perhaps the best,
means of proof.
In the instant case, the only
evidence provided by the 2nd
respondent is the exhibit A. We
have for example no evidence of
any resolution passed by the
company in Accra or any other
business carried on in Accra. We
have no evidence of its new
registered offices. In the case
of the 1st defendant there is no
documentary evidence in support
of his assertion that he resides
in Accra and carries on the
business there. I would not
describe the evidence tendered
by respondents as sufficient in
law. I think then that the
learned judge erred in accepting
the claims of the defendants.
Order 5 rule 1(7) of the High
Court (Civil Procedure) Rules
1954 (LN 140A) as amended by
High Court (Civil Procedure)
(Amendment) Rules 1977 (LI 1107)
gives the court power, upon an
application by any of the
parties, or suo motu, to
determine the forum of
convenience. But the court can
only do so where there are more
defendants than one resident in
different regions. In other
words it is only where there are
more than one defendant resident
in different regions that the
court exercises this discretion.
So that, where all the
defendants for example live in
one region, no discretion arises
in the matter.
Such is not the case in the
present proceedings. Here, the
evidence shows that both
defendants live in and work in
Cape Coast. In the circumstances
sub-rule (7) does not apply in
this instant case, and the
learned trial judge had no
discretion to exercise. In my
view the learned justice acted
in error. I think the appeal
ought to be allowed. In these
circumstances, I would allow the
appeal, set aside the ruling of
the court below and dismiss the
respondents’ application.
ESSIEM JA.
I agree.
AMUAH JA.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner.
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