NAOS HOLDING INC. vs. GHANA COMMERCIAL BANK [2005]DLSC2410

Date	2005-12-14
Suit No.	CIVIL APPEAL NO. J4/7/2005
Citation No.	[2005]DLSC2410

MS. AKUFFO J.S.C. (PRESIDING)

DR. TWUM J.S.C.

DR. DATE-BAH J.S.C

PROF. OCRAN J.S.C

ANINAKWA J.S.C.

MR. WILLIAM ADDO FOR APPELLANT.

MR. KIZITO BEYUO FOR RESPONDENT.

[2005]DLSC2410
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													<main id="main" class="content" style="min-height: 60rem" >NAOS HOLDING INC.<o:p></o:p>vs.<o:p></o:p>GHANA COMMERCIAL BANK<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/7/2005<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: 14TH DECEMBER 2005.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
WILLIAM ADDO FOR APPELLANT.<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">

MR.
KIZITO BEYUO FOR RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

MS.
AKUFFO, J.S.C. (PRESIDING), DR. TWUM, J.S.C., DR. DATE-BAH, J.S.C., PROF.
OCRAN, J.S.C., ANINAKWA, J.S.C.<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>AKUFFO (MS), J.S.C.<o:p></o:p>&nbsp;BACKGROND FACTS:<o:p></o:p>&nbsp;By a Writ of Summons issued on 13th July 1999,
the Appellant herein commenced proceedings against the Respondent for a
declaration that the Appellant is a holder in due course of certain promissory
notes dated 29th July, 1996. According to the Statement of Claim attached to
the Writ, Sabat Motors Limited had issued these promissory notes in favour of a
corporate entity named Eaglet Corporation. Each of the notes (5 in all) were
due and payable on 29th July 1997, at the Liberty House Branch of the Ghana
Commercial Bank on account number D.4518. The Respondent had guaranteed the due
payment of the notes.&nbsp;&nbsp; <o:p></o:p>The
Respondent entered conditional appearance and filed a motion to dismiss the
suit or stay proceedings, under Order 3 Rules 4 and 7 of the High Court (Civil
Procedure) Rules, and the High Court’s inherent jurisdiction. In the affidavit
in support of the motion, the Respondent raised a number of issues, the more
relevant of which, for the purposes of this appeal, are paragraphs 12-14 which
read as follows: -<o:p></o:p>“12.&nbsp;&nbsp;&nbsp;&nbsp; Furthermore I am advised and verily
believe that the plaintiff herein does not exist as a legal entity recognised
with the capacity to sue and be sued; accordingly the plaintiff has declined to
disclose its address contrary to the express requirement of the rules of court.
A search conducted in the companies’ registry disclosed that no company exists
as a resident or external company in Ghana as Naos Holdings Inc….<o:p></o:p>“13&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; I am advised that a foreign plaintiff is
required by the rules to disclose its non-resident status and residence. In
total violation of this requirement the plaintiff concealed the fact that it is
non-resident and has deliberately omitted to state its offshore address.<o:p></o:p>“14.&nbsp;&nbsp;&nbsp;&nbsp; … I verily believe from the deliberate
omission that the plaintiff herein does not exist as a legal entity and is not
entitled to institute the action herein. Accordingly the action ought to be
dismissed as an abuse of process.”<o:p></o:p>In
response to these assertions, the Appellant, in its affidavit in opposition to
the application, deposed (per its attorney, Mr. Amarkai Amarteifio) as follows:
-<o:p></o:p>“14.&nbsp;&nbsp;&nbsp;&nbsp; That the plaintiffs need not register in
Ghana as a legal entity, whether as a resident or external company, before
asserting its legal rights in Ghana.<o:p></o:p>“15.&nbsp;&nbsp;&nbsp;&nbsp; That the plaintiffs are a legal entity in
their country of origin, with rights which have accrued in Ghana against a
company registered and domiciled in Ghana.<o:p></o:p>“16.&nbsp;&nbsp;&nbsp;&nbsp; The plaintiffs appointed an attorney who
is resident in Ghana.<o:p></o:p>“17.&nbsp;&nbsp;&nbsp;&nbsp; That should it be necessary to state the
Plaintiffs’ address, that should not be a ground to dismiss the suit as the
Plaintiffs’ address can always be stated, but it was a deliberate act not to
state the Plaintiffs’ address, as the attorney is a resident and has powers to
act for and on behalf of the Plaintiffs and in their name.”<o:p></o:p>On
the issue of the existence of the Appellant and its capacity to sue, the
learned High Court judge ruled that since the Appellant had failed to establish
that it was a legal entity existing either in Ghana or Panama, it was
non-existent and the writ was, therefore, a nullity. <o:p></o:p>Being
dissatisfied with this outcome, the Appellant appealed to the Court of Appeal
on the grounds that the ruling was against the weight of the evidence available
before the court; the judge erred in holding that the appellant does not exist,
and the judge erred in holding that the writ is void.<o:p></o:p>The
learned judges of the Court of Appeal affirmed the decision of the High Court
judge and dismissed the appeal. Now, the Appellant has appealed against the
Court of Appeal’s decision, upon the following grounds: -<o:p></o:p>“a.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal erred in affirming
the trial court’s decision that the plaintiff does not exist as a legal person.<o:p></o:p>“b.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal erred in affirming
the trial court’s decision that the plaintiff’s Writ of Summons is void.” <o:p></o:p>In
arriving at its decision, the Court of Appeal, per Ansah JA (as he then was)
found that the terms of Order 3 Rule 4 were clear and imperative, and required
that where an action is commenced by or on behalf of a person resident outside
the jurisdiction that fact must be disclosed in the indorsement and the
residential address of such person also must be disclosed. The </main>