GHANA INDUSTRIAL HOLDING CORPORATION vs. VINCENTA PUBLICATIONS [1971]DLCA2117

Date	1971-05-03
Suit No.
Citation No.	[1971]DLCA2117

SIRIBOE J.S.C.

ANIN JA

ARCHER J.A.

R. KORSAH (JOUBERT WITH HIM) FOR THE APPELLANTS.

OFORI FOR THE RESPONDENT.

[1971]DLCA2117
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													<main id="main" class="content" style="min-height: 60rem" >GHANA INDUSTRIAL HOLDING CORPORATION<o:p></o:p>&nbsp;vs. <o:p></o:p>VINCENTA PUBLICATIONS <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 2 GLR 24<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
3 MAY 1971.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

R. KORSAH
(JOUBERT WITH HIM) FOR THE APPELLANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SIRIBOE J.S.C., ANIN AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>Archer
J.A. delivered the judgment of the court. This is an appeal by the Ghana
Industrial Holding Corporation against the judgment of the Circuit Court sitting
at Accra, in which it was adjudged that the corporation was indebted to
Vincenta Publications in the sum of N¢2,350.00 for advertising services.
Vincenta Publications also filed a notice of intention to contend that that
part of the judgment of the court below which disallowed claims for travelling
expenses and damages should be varied.<o:p></o:p><o:p>&nbsp;</o:p>Although
the corporation filed grounds challenging the total sum adjudged to be due, Mr.
Korsah, learned counsel for the corporation, chose not to deal with these grounds
but concentrated on the legal submission that Vincenta Publications was the
business name of one man and therefore the proprietor of the business could not
come to court as a plaintiff under the business name. The legal basis for this
submission was Order 48A, r. 11 of the Supreme [High] Court (Civil Procedure)
Rules, 1954 (L.N. 140A), which provides: “Any person carrying on business
within the jurisdiction in a name or style other than his own name may be sued
in such name or style as if it were a firm name; and, so far as the nature of
the case will permit, all rules relating to proceedings against firms shall
apply.” Mr. Korsah contended that as rule 11 enables a person carrying on
business within the jurisdiction in a name or style other than his own name to
be sued as a defendant, Vincenta Publications could not come to court under
that name or style as a plaintiff. In other words, that name would have
sufficed and would have been permissible if Vincenta Publications had been sued
as defendants. With this submission, Mr. Korsah took his seat.<o:p></o:p>In answer
to this submission, Mr. Ofori, learned counsel for Vincenta Publications, took
a plunge in order to rescue his client but it seemed that he was undertaking a
hopeless task as his client was already drowned by the fast current in Mr.
Korsah’s submission. As a result, Mr. Ofori could only emit a series of
lamentations. He contended that the objection should have been taken at the
trial. He also submitted that the parties were bound by their pleadings and it
was not proper to raise the provisions of Order 48A, r. 11 in this court. At
first Mr. Ofori was not sure whether Vincenta Publications was a one man firm,
but after the court had drawn his attention to the contents of affidavits filed
by his own client, he conceded that there was evidence on record from which it
might be inferred that Vincenta Publications was a one man firm.<o:p></o:p><o:p>&nbsp;</o:p>Mr. Ofori
then applied to this court for leave to amend the name of the respondent to
read “Vincent Alisa Onuku trading under the firm name and style of Vincenta
Publications.” He cited the case of Nkyi XI v. Kumall [1959] G.L.R. 281, C.A.
and referred to page 285 as authority for his application. In the Nkyi XI v.
Kumah case, the then Court of Appeal granted leave to the plaintiff to amend
his claim by adding a claim for a declaration of title as the amendment did not
raise any issue on which evidence had not already been taken. There the
plaintiff was properly before the court and he had locus standi.<o:p></o:p><o:p>&nbsp;</o:p>But what
is the locus standi of Vincenta Publications in this appeal? The firm name as
such has no legal status whether as an individual person or a corporate person.
It is not a defendant in this suit so as to make Order 48A, r. 11 applicable.
In his earlier submissions Mr. Korsah relied on the case of Tetlow v. Orela
Ltd. [1920] 2 Ch. 24. This decision related to Order 16, r. 2 which gives the
court power to add or substitute a plaintiff where the action has been taken in
the name of the wrong person. The rule presupposes the existence of a person
who has wrongly sued in his name. The amendment allowed in the Nkyi v. Kumah
case (supra) was an amendment of the plaintiff’s statement of claim, that is,
his pleading under Orde</main>