HOOPER AND ANOTHER vs. OILS & FATS CO LTD AND OTHERS [1992]DLCA4239

Date	1992-02-06
Suit No.
Citation No.	[1992]DLCA4239

ESSIEM JA

KPEGAH JA

OFORI-BOATENG JA

[1992]DLCA4239
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													<main id="main" class="content" style="min-height: 60rem" >HOOPER AND ANOTHER<o:p></o:p>vs.<o:p></o:p>OILS &amp; FATS CO LTD
AND OTHERS<o:p></o:p>[COURT
OF APPEAL]<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">

[1993 - 4] 1 GBR 352 - 357 CA&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; DATE: 6 FEBRUARY 1992<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;
padding:0in 0in 1.0pt 0in">

ESSIEM
JA, KPEGAH JA, OFORI-BOATENG JA<o:p></o:p>

</div>OFORI-BOATENG
JA. This is an appeal against the ruling of Benin J presiding over the High
Court of Cape Coast. Briefly the facts are as follows: The respondents in this
appeal, took a specially endorsed writ under the High Court (Civil Procedure)
Rules 1954 LN 140A, Order 3 r 6 in which they claimed:<o:p></o:p>A
declaration that Madam Mary Crentsil was a member of the 1st appellant (Oils
&amp; Fats Co Ltd) in her life time holding 15,000 shares of no par value and
that the 1st respondent Grace Hooper by operation of law was entitled to those
shares.<o:p></o:p>A
declaration that the 2nd respondent Madam Ama Aferba was a member of the
appellant company holding 30,000 shares of no par value.<o:p></o:p>A
declaration that the appointment of the 2nd, 3rd, 4th and 5th appellants as
directors of the 1st appellant-company was void as against the Companies Code
(1963) Act 179.<o:p></o:p>Counsel
for the appellants entered a conditional appearance for 1st, 2nd, 4th and 5th
appellants and subsequently filed a defence for them. After counsel had filed a
conditional appearance, he petitioned the Chief Justice under section 99(1) of
the Courts Act 1971 (Act 372) to change the venue for hearing of the case from
Cape Coast to Accra. The reasons for this petition were that:<o:p></o:p>(a)
The principal target of the litigation, the appellant company is registered and
resident in Accra, and does its business in Accra; and according to LI 1107 reg
1(6) actions like the one in issue “shall be commenced in the region in which
the defendant resides or carries on business.<o:p></o:p>(b)
That the respondents were in the habit of bringing the Cape Coast workers of
the appellant company to the precincts of the court in order to harass and
intimidate the appellants in Cape Coast whenever they went to court. Cape Coast
was therefore the wrong place for hearing the case.<o:p></o:p>The
Chief Justice turned down the application and advised counsel to make his
application to the court. The application was made to the High Court of Cape
Coast and requested a transfer of the case to Accra under LI 1107 reg 1(6). The
application was refused and hence this appeal.<o:p></o:p>Counsel
for the appellants rightly pointed out that the principal person sued was the
company. Although the persons also sued were sued in their personal capacity
and so separate from the company, they were sued simply because they were
directors of the company, the alter ego of the company for practical purposes
of litigation. Properly speaking, the address of the directors should have been
the same as the company’s, since it is the company which is the essential
litigant; the Cape Coast address given to some of the directors should make no
difference to the proper venue of the trial which is Accra.<o:p></o:p>He
also referred to LI 1107 reg 1(6) which mandatorily demands that the proper
venue for this case should be Accra; as already pointed out.<o:p></o:p>Counsel
drew attention to the fact that the suit involved rectification under s 35(1)
of the Companies Code 1963 (Act 179), for the respondents demanded that the
register should be rectified by including the name of 2nd respondent as a
member of the company and a declaration of the 2nd, 4th and 5th appellants as
directors of the 1st appellant-company, as void. He then referred to s 35(2) of
the Code which provides:<o:p></o:p>“Where an application is made under
this section, the Court may either refuse the application or may order
rectification of the register and payment by the company of compensation for
any loss sustained by any party aggrieved.”<o:p></o:p>As
the suit is essentially an issue in rectification of the register, it is a suit
against the company since the debt incurred by the rectification will have to
be borne in law by the company alone whether or not directors, in their private
capacity, or in their official capacity are added as co-defendants. If only the
company is responsible for the resulting judgment debt, then essentially the
company is the defendant, and in accordance with LI 1107 reg 1(6) the suit for
such rectification should be commenced where the company is registered and does
its business, which in this case is Accra. Rule 1(7) of LI 1107 is therefore
not applicable in this case.<o:p></o:p>It
would appear then that the case should have started in Accra, but was wrongly
started in Cape Coast. Regarding such a situation the rule of court provides as
follows in LI 1107 rule 1(8):<o:p></o:p>“Where an action is commenced in a
Region other than that in which it ought to have been commenced, the action
may, notwithstanding, be tried in the Region in which it was commenced unless
the Court reports to the Chief Justice that in its opinion the action ought to
be transferred, and the Chief Justice orders that it be transferred
accordingly, or the defendant raises an objection to the jurisdiction before or
at the time when he is required to plead in the action.”<o:p></o:p>The
question to be answered is, when clearly the suit against the appellant-company
should have started in Accra but was wrongly started in Cape Coast, did the
company follow the procedure laid down by law for pursuing its remedy for
bringing the suit to the proper venue?<o:p></o:p>In
the first place, as this appeal indicates, when the issue of the venue came to
the notice of the High Court judge trying the case, he did not consider that
the action ought to be transferred, and so he declined to report it to the
Chief Justice. The defendant then attempted to raise the objection to the
jurisdiction, (which in this context means simply “venue of trial”) but
unfortunately raised it belatedly contrary to rule 1(8) of LI 1107. The
appellant-company should have raised the objection before it was expected to
plead, or at the time it was expected to plead. Entering appearance,
conditionally or simpliciter, commenced pleading for a defendant. At this point
in time, the defendant-appellant should by motion have raised his objection to
the venue. It went further and filed a defence. After having taken these major
steps in pleading, it then complained about the wrong jurisdiction. This
procedure, as stated, is unknown to the land. If the appellant se</main>