MANAGING DIRECTOR, GHANA FOOD DISTRIBUTION CORPORATION AND ANOTHER vs. TORTO [1993]DLCA4331

Date	1993-10-14
Suit No.
Citation No.	[1993]DLCA4331

ESSIEM JA

ADJABENG JA

LUTTERODT JA

NUTSUKPUI FOR THE APPELLANTS.

ADUAMA OSEI WITH HIM QUAINOO FOR THE RESPONDENT.

[1993]DLCA4331
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													<main id="main" class="content" style="min-height: 60rem" >MANAGING DIRECTOR, GHANA FOOD DISTRIBUTION CORPORATION AND
ANOTHER<o:p></o:p>vs.<o:p></o:p>TORTO<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">

[1992-93]
2 G B R 762 – 766&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;DATE: 14 OCTOBER 1993<o:p></o:p>

</div>COUNSEL:<o:p></o:p>NUTSUKPUI FOR THE
APPELLANTS.<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">

ADUAMA
OSEI, WITH HIM, QUAINOO FOR THE RESPONDENT.<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, ADJABENG JA, LUTTERODT JA<o:p></o:p>

</div>LUTTERODT JA. On 10 April
1992, the plaintiffs, acting through their solicitor, issued a writ against the
two defendants jointly and severally for three reliefs. <o:p></o:p>These were for: <o:p></o:p>“(a) Fifteen million cedis damages for
wrongful dismissal or wrongful termination of the plaintiffs’ appointments; <o:p></o:p>(b) Five million cedis damages for
breach of contract with the plaintiffs; <o:p></o:p>(c) An order that the salaries, allowances
and entitlements of the plaintiffs be paid from 1988, when they were
interdicted to the date of judgment with interest at the prevailing bank rate”.<o:p></o:p>As the accompanying
statement of claim clearly spelt out, the two plaintiffs were, until 1988, in
the employ of the Ghana Food Distribution Corporation, and were both stationed
at the corporation’s depot at Wenchi in the Brong-Ahafo Region. The 1st
plaintiff joined the corporation in or around 1973 while the 2nd did so some
seven years later.<o:p></o:p>The two defendants, on the
other hand, are the Managing Director and Area Manager respectively of the
corporation and the claim clearly indicates that this action was brought
against them in these capacities. On being served with the writ and
accompanying statement of claim, the two defendants, also acting through their
solicitors, entered conditional appearance and moved the court at a subsequent
date to have both the writ and claim set aside.<o:p></o:p>The ground upon which they
brought the application was simple. Counsel, as was expected of him, plainly
laid out the grounds of his objection. Regrettably, plaintiff’s counsel seems
to have missed the point, so did nothing to remedy the situation. This has
thereby brought about an altogether unnecessary protraction of this litigation.<o:p></o:p>The point raised by the
defendants was that the two positions in which they were sued were not legal
entities and consequently the writ was incompetent. Unfortunately, the learned
High Court judge dismissed the motion on the ground that it was misconceived
since the two defendants, he felt, could be sued as agents of the corporation.<o:p></o:p>The defendants being
dissatisfied with this ruling have now appealed to this court on one simple
ground namely, that the learned trial judge erred in law when he held that, the
action is maintainable against the named defendants.<o:p></o:p>At the hearing,
plaintiffs’ counsel in one breath made our task both easy and difficult. It was
the readiness with which he conceded that the proper person who ought to have
been sued was the corporation and not the two defendants, which made our burden
light. However, it was when counsel proceeded further to invite us nevertheless
not to dismiss the action but rather save it by substituting the corporation
for the defendants that our task became difficult; for then the issue we have
to determine is whether this court has power to effect any such amendment.<o:p></o:p>What then are the
arguments advanced on either side, as far this issue is concerned? It was
contended on behalf of the plaintiffs that the trial court had power under
order 15 rule 6 of the High Court (Civil Procedure) Rules 1954 (LN 140A) to
substitute the parties. It was argued further that since an appeal was by way
of a rehearing, this court could, on the authority of Ohene v Principal Secretary
of the Ministry of Finance [1971] 1 GLR 102 and Van Gelder Apsimon Co v
Sowerby, Bridge District Flour Society (1890) 44 Ch D 37, do what the High
Court could have done, by the substitution of the Ghana Food Distribution
Corporation for the named defendants in order that the real matters in
controversy between the parties be determined and justice thereby done.<o:p></o:p>On the contrary, it was
argued in favour of the named defendants that the two defendants are not legal
entities and cannot be sued in the capacities in which they have been
described. Consequently, it was contended since they were non-existent, there
was no defendant before the court and an existing personality, like the
corporation cannot be substituted in their stead. The authority counsel relied
on in support of his argument is the well known case of Ghana Industrial
Holding Corporation v Vincenta Publications [1971] 2 GLR 24, CA.<o:p></o:p>I have read the above case
and come to the following conclusion. Firstly, it seems to me that that case
turned on its own peculiar facts. In that case the respondents sued the
appellants in the circuit court for the sum of N¢2,350 and won. The appellants
being dissatisfied with the decision appealed on a number of grounds including
one important legal one namely, that Vincenta Publications was the business
name of one man and therefore the proprietor of that business could not sue as
plaintiff under that business name. The respondent counsel conceded the point
and sought, as had been done in this instant case, to have that name amended to
read: Vincent Alisa Onuku trading under the firm name and style of Vincenta
Publications.<o:p></o:p>The court refused the
application, it seems to me, on the principal ground that no reasons had been
advanced to show there had been a bona fide mistake or inadvertence on the part
of the solicitors who issued the writ. The court also found the respondents
were unwilling to divulge or disclose certain vital information to the court
that would enable it do justice to the parties. The court thus found that the
respondents lacked candour in a matter in which it was being called upon to
exercise discretion.<o:p></o:p>The reason why I think it
was for these reasons that the application was refused and not because there
was no plaintiff before the court is this: had it been for the latter, the lack
of candour on the part of the applicant, the fact that no reasons had been
advanced in explanation of the inadvertence or mistake would not have mattered
to the cou</main>