SHEIK AHMED RUFAI YAHAYA & 8 ORS. vs. SUMMA HOLDING CORPORATION & 8 ORS. [2005]DLCA6984

Date	2005-07-15
Suit No.	SUIT NO.:H1/48/2005
Citation No.	[2005]DLCA6984

AKAMBA J.A. [PRESIDING]

TWENEBOA-KODUA J.A.

ANIN-YEBOAH J.A.

G.A. ESHUN FOR EDGAR ANSAH OBIRI FOR 5TH APPELLANT.

AGYABENG AKRASI FOR RESPONDENTS.

[2005]DLCA6984
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													<main id="main" class="content" style="min-height: 60rem" >SHEIK AHMED RUFAI YAHAYA &amp; 8 ORS.<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>SUMMA HOLDING CORPORATION &amp; 8 ORS.<o:p></o:p>(DEFENDANTS/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>SUIT
NO.:H1/48/2005 &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: 15TH JULY, 2005<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
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ESHUN FOR EDGAR ANSAH OBIRI FOR 5TH APPELLANT.<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">AGYABENG
AKRASI FOR RESPONDENTS.<o:p></o:p>

</div>CORAM:<o:p></o:p>AKAMBA
J.A. [PRESIDING], TWENEBOA-KODUA J.A., ANIN-YEBOAH J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>ANIN
YEBOAH, J.A.:<o:p></o:p>On
the 7/7/2003 the plaintiffs/respondents [referred to in this judgment as the
respondents] obtained leave from the High Court, Accra, [Fast Track Division]
to issue a writ of summons and statement of claim and serve same out of
jurisdiction. The leave was granted by Dordzie, J on the said date and on
10/7/03 the respondents filed the writ of summons together with the statement
of claim. In appears the first to fifth respondents are individual whereas the
sixth to the ninth respondents are corporate bodies. The action was against the
eight defendants and out of the eight only the first defendant was a corporate
body.<o:p></o:p>&nbsp;From the statement of claim which accompanied
the writ of summons, the plaintiffs, now the respondents alleged that the first
to fifth respondents were the shareholders of all the shares in the 6th to the
9th plaintiffs companies. <o:p></o:p>They
further claimed that the first to the fifth plaintiffs now respondents
incorporated the 9th plaintiff which is Spirax Metals Limited. The statement of
claim catalogued several allegations of impropriety against the defendants. The
allegations touched on accounts, dividends, breach of promise and conversion
fraudulent misrepresentation, negligence, deceit, breach of agreement, issues
as to the share structure of the 9th plaintiff, in the form of variation and
acquisition of its shares, etc. The writ was also endorsed with a claim for
special damages of ¢1,000,000,000.00 by the 9th plaintiff/respondent against
the 1st to 6th defendants and other ancillary reliefs in the form of
injunctions, accounts and order for determination of dividends due the plaintiffs/respondents
in the 9th plaintiff company. Even though the record shows that service was
made through couriers, only the 5th defendant entered appearance. It is not
clear whether the other defendants entered appearance. However, on the 6/8/03,
the fifth defendant who is the sole appellant in this appeal entered appearance
under protest. On that same day the fifth defendant [hereinafter called the
appellant] conducted a search at the Registry of the trial court to ascertain
whether the respondent paid the appropriate filing fees upon the filing of the
writ of summons which culminated in this appeal. The search disclosed that a
filing fee of only ¢11,851,800.00 was paid for the filing of the writ of
summons endorsed with a claim of special damages of ¢1,000,000,000.00. This was
a subject of complaint which will be addressed later in this judgment as it has
seen a ground of appeal. <o:p></o:p>On
the 20/8/2003, the appellant filed a motion on notice to strike out writ of
summons. The basis of the motion could be gleaned from the affidavit in
support. The appellant contended in the affidavit that the action was
vexatious, irregular and that the issues raised in the statement of claim had
already been adjudicated upon the[sic] therefore res judicata.<o:p></o:p>&nbsp;The respondents resisted the application and
after hearing arguments the trial judge dismissed the application which has led
to this appeal by the appellant herein. Before I proceed to deal with the
grounds of appeal upon which counsel for the appellant has relied on to reverse
the judgment of the trial court, it is very important that certain procedural
irregularities which were ignored by the parties and the trial judge should be
addressed. <o:p></o:p>The
first procedural irregularity which appears on the record and which attracted
the attention of this court relates to the entry of appearance under protect or
conditional appearance by the appellant. Conditional appearance is entered by
any defendant basically to dispute the jurisdiction of the trial court, or
challenge some irregularity in the issue or service or renewal of the writ or
notice of the writ. In our jurisdiction no leave is required to enter
conditional appearance entered by the appellant appeared defective. The notice
of appearance filed by counsel stated clearly that he was entering conditional
appearance for and on behalf of the appellant. The memorandum of appearance
which is a statutory form provided for under Order 12 rule 7 of the then
existing High Court Rules LN.140A of 1954 ought to have been varied to show
that the appellant was entering conditional appearance. For it will be clearly
absurd for the memorandum of appearance to be unconditional appearance and the
notice to be conditional appearance in form. This irregularity was ignored by
counsel for the respondent and as the motion was actually heard on the merits
without any objection he [counsel for the respondent] was deemed to have taken
a fresh step after filing of an affidavit to oppose the motion and thereby
waived the irregularity. This situation could also be cured under Order 70 rule
1 of the High Court Rules, LN. 140A as the irregularity was not fatal under the
circumstances of the case. More so, a conditional appearance is deemed as
appearance for all purposes, except that when entered, the defendant reserves
the right to proceed to set aside the issue or service of the writ on grounds
of irregularity. <o:p></o:p>Another
irregularity which appeared on the record could b</main>