AMOS WEDZI vs. RICHARD WEDZI & HOTEL MAJORIE ‘Y’. LTD [2016]DLCA4945

Date	2016-02-11
Suit No.	CIVIL APPEAL NO.HI/60/2015
Citation No.	[2016]DLCA4945

MARFUL-SAU J.A. (PRESIDING)

FRANCIS KORBIEH J.A

TANKO AMADU J.A

KWAME AGATI ESQ. - (FOR APPELLANT)

OSAFO BUABENG ESQ. - (FOR RESPONDENTS).

[2016]DLCA4945
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													<main id="main" class="content" style="min-height: 60rem" >AMOS WEDZI<o:p></o:p>(APPLICANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>RICHARD WEDZI &amp;
HOTEL MAJORIE ‘Y’. LTD.<o:p></o:p>(RESPONDENTS/RESPONDENTS)<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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO.HI/60/2015&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: 11TH
FEBRUARY 2016<o:p></o:p>

OSAFO
BUABENG ESQ. - (FOR RESPONDENTS).<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;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>TANKO AMADU J.A<o:p></o:p>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This appeal emanates from the judgment
of the High Court&nbsp; (Commercial Division)
Accra, dated 21st May 2014 wherein the Applicant/Appellant’s originating notice
of motion filed pursuant to Sections 217 and 218 of the Companies Act 1963 (Act
179) was dismissed.&nbsp; In this judgment, I
shall refer to the Applicant/Appellant simply as the Appellant and the
Respondents/Respondents as the Respondents.<o:p></o:p>(2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Before I proceed to deal with the
substance of the appeal, it is important to determine an issue of law which
relates to the propriety of the Appellant’s form of action at the Court below
which the Respondents’ counsel has raised for the first time in this
appeal.&nbsp;&nbsp; This is because implicit in
that issue, is the question of the jurisdictional competence of the Court below
in entertaining the Appellant’s action when its jurisdiction may have been
wrongly invoked.&nbsp; In paragraph 3 of the
Respondents’ counsel’s submission it was submitted as follows:-<o:p></o:p>“3&nbsp;&nbsp; Can the instant action be commenced by way
of an originating<o:p></o:p>Motion
on Notice.&nbsp; This is a preliminary point
which admittedly was not raised in the Trial Court but being a point of law
which requires no further adduction of evidence, it can be argued for the first
time in this appeal.&nbsp; In any case, this
court suo motu, can raise this point and then proceed to hear the parties herein
on the issue before determining same”.&nbsp;
Learned counsel for the Respondents has referred us to the cases of
ATTORNEY-GENERAL VS. FAROE ATLANTIC CO.[2005-2006] SCGLR, 271 &amp; KWAME VS.
SERWAH AND ORS. [1993-94]1 GLR 429 SC.<o:p></o:p>(3)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; I would have thought that given the
fundamental nature of the issue raised by the Respondents aforesaid, the
Appellant’s counsel would have taken advantage of the provisions of Rule 20(5)
of the Court of Appeal Rules to file a reply, the same having been raised after
the Appellant’s submission had been filed and served. Though he did not find it
necessary so to do, being a threshold issue which has implications on the
propriety of the action, the Respondents’ submission thereto will be dealt with
being one which can be raised at any time.<o:p></o:p>(4)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Now, it is provided pursuant to Order 1
Rule(1) and Order 2 Rule 2 of the High Court (Civil Procedure) Rules 2004
C.I.47 as follows:-<o:p></o:p>“1(i)
These Rules shall apply to all civil proceedings in the <o:p></o:p>High
Court and the Circuit Court, except that the application by the Circuit Court
shall be with such modifications as may be necessary.<o:p></o:p>“2(2)
“Subject to any existing enactment to the contrary, all civil proceedings shall
be commenced by filing of a writ of summons.<o:p></o:p>(5)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; There is no doubt that the action
commenced by the Appellant at the Court below is civil in nature.&nbsp; It is also not in dispute that the
Appellant’s action was commenced by an originating notice of motion pursuant to
the provisions of a parent statute, the Companies Act 1963 (Act 179) which has
procedural provisions for invoking jurisdiction of the High Court in particular
circumstances provided for under the act.&nbsp;
The answer to the implicit jurisdictional issue raised by the
Respondent’s counsel with respect to the Appellant’s form of action in the
Trial Court is therefore not farfetched.&nbsp;
Whereas the Provision of Order 2 Rule 2 of C.I.47 provides an answer to
the issue, available case law puts it beyond any legal doubt.<o:p></o:p>(6)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In the case of JONAH VS. KULENDI &amp;
KULENDI [2013-2014] SCGLR 272 the Supreme Court had the opportunity of
pronouncing on the issue of form of action provided by statute as against
actions generally commenced under the provision of Order 2(2) of C.I.47.&nbsp; It held inter alia that:-<o:p></o:p>“……………………A
statute like the Legal Profession Act 1960 (Act 32) could be both procedural
and substantive.&nbsp;&nbsp; It confers rights to
be exercised and regulates the procedural steps for seeking reliefs for
violations of those rights.&nbsp; In our
respectful opinion, as the Act itself regulates its own procedure for
redressing any cause of action arising from it, this court should not resort to
any statute for assistance”.&nbsp; In his
concurring opinion Dotse JSC held inter alia as follows:-<o:p></o:p>‘The
procedure outlined under the Legal Profession Act 1960 (Act 32) must therefore
be deemed to be superior to any rule of</main>