ADU POKU vs. D. H. L. [1995]DLCA6213

Date	1995-07-13
Suit No.	CIVIL APPEAL NO. 11/95.
Citation No.	[1995]DLCA6213

G.L. LAMPTEY J.A. [PRESIDING]

G.T. LUTTERODT JA.

J.D. SAPONG J.A.

[1995]DLCA6213
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													<main id="main" class="content" style="min-height: 60rem" >ADU POKU<o:p></o:p>vs.<o:p></o:p>D. H. L.<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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APPEAL NO. 11/95.&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 13TH
JULY, 1995<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">G.L. LAMPTEY J.A.
[PRESIDING], G.T. LUTTERODT JA., J.D. SAPONG J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>LAMPTEY,
J.A. <o:p></o:p>The plaintiff respondent Ex-Warrant Officer
Adu Poku by his counsel obtained leave of the High Court, Accra presided over
by Armah, J. on 29th May, 1992, to issue a writ of summons accompanied by a
Statement of Claim against the defendant appellant company and for a further
order to serve same out of the jurisdiction. The appellant Co., which is based
in London on being duly served with process on 6th July, 1992, instructed
Solicitors in Accra to act on his behalf. On 25th August, 1992, solicitors for
the appellant company filed a notice of motion for an order discharging the
order made by Armah, J. The application was resisted by the plaintiff. It was
heard by Akoto Bamfo (Mrs.) J, who dismissed it. The appellant company was
aggrieved by the Ruling dismissing the application and appealed to this court. <o:p></o:p><o:p>&nbsp;</o:p>Before I proceed to deal with the instant
appeal on the merits, I must draw attention to what I believe to be an
administrative lapse which must and ought to be corrected. I find that in
respect of this application the Registrar opened two separate and distinct case
dockets. The first docket bears the No.109/92 and the second is No. 1396/92. I
noticed that suit No. 109/92 dealt with the application for leave to issue and
serve the writ out of the jurisdiction and all matters connected therewith
including the application to discharge Armah, J.’s order. This suit No. 109/92
is the case on appeal before this court. Suit No. 1396/92 is the substantive
action between the parties. The opening of two separate and distinct case
dockets had led to the exclusion from the record of appeal the pleadings in the
action which would be found in the docket No. 1396/92, and therefore not part
of this appeal record. <o:p></o:p><o:p>&nbsp;</o:p>I have made the above observation because
the record of appeal does not contain the entry of appearance under protest by
the appellant. One of the complaints made in this appeal contred around the
rules governing the entry of appearance under protest. This court would have been
better placed to deal with this compliant if the record of appeal contained all
the documents and pleadings in that matter. I find that the affidavit in
support of the application to set aside the service of the writ gave the date
of the entry of appearance under protest as 30th July, 1992. I have no reason
to disbelieve that information. The significance of this date would become
obvious when I come to deal with the complaint that the application to
discharge the order of Armah, J dated 9th May, 1992 was made out of time. <o:p></o:p>The applicant did not indicate the rule
under which the present application was brought in arguing the motion. 0.11 of
our rules is not different in content from the English 0.11. Indeed our rule is
a reproduction of the English rule in point. The courts of England have decided
a number of cases founded on 0.11. This court was referred to one case, namely,
Annin Rashieed Shipping Corp. vrs: Kuwait Insurance Co. reported in the Weekly
Law Reports, July 22, 1983, House of Lords. I reproduce holding (1) as
follows:— <o:p></o:p>“(1) That the proper law of the contract
was English Law……. since the provisions of the policy taken as a whole by
necessary implication led to the inevitable conclusion that it was the parties
intention that their mutual rights and obligations under it should be
determined in accordance with the English law of marine insurance. The court
held further that objectively determined the contract had its closest and most
real connection with English Law.” <o:p></o:p><o:p>&nbsp;</o:p>Before this court Counsel for applicant was
of the view that the application had not been brought under 0.11 R.1. It would
appear that the court was invited to consider the application “in the name of
equity.” In his reply, counsel for the plaintiff submitted that Ghana was the
“forum conveniens” because according to him the plaintiff had no money to
litigate in the U.K. He stated that if the application was granted the
plaintiff “would be without remedy.” He relied on 0.11 to oppose the
application. <o:p></o:p><o:p>&nbsp;</o:p>As I have already indicated elsewhere in
this judgment the record of appeal does not contain the entry of appearance
under protest. It does appear that on being served with the writ of summons and
statement of claim the step taken by the appellant company was to instruct
their Solicitor to file a motion of notice to discharge the order to Armah, J.
This step the solicitor took by filing the motion of notice on 25th August,
1992. One complaint made against the Ruling was that the judge erred in holding
that the application was brought out of time. Counsel for appellant submitted
that she erred in law in</main>