The National Investment Bank Vrs Messrs Agyakot co ltd and Others (H1/136/2006) [2007] GHACA 6 (01 November 2007);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL - A C C R A
CORAM - QUAYE, JA
MARIAMA OWUSU, JA
DUOSE, JA
H1/136/2006
1ST NOVEMBER, 2007
THE NATIONAL INVESTMENT … PLAINTIFF/RESPONDENT
BANK LIMITED
(Per THE BOARD CHAIRMAN)
HEAD OFFICE,
37 KWAME NKRUMAH AVENUE,
ADABRAKA, ACCRA
V E R S U S
1. MESSRS AGYAKOT CO. LTD.
(through the Managing director)
2. SAMUEL AGYAPONG … DEFENDANTS/APPELLANTS
(MANAGING DIRECTOR, MESSRS
AGYAKOT CO. LTD.
3. THOMAS YEBOAH WADIE
c/o MESSRS AGAKOT CO. LTD.
SUNYANI
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JUDGMENT IN APPEAL
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QUAYE, JA:- This is an appeal from the ruling of the High Court, Sunyani delivered on 22nd March 2006. The appeal was filed on 23rd March 2006.
The action was commenced in the High Court, Sunyani. The plaintiff/respondent Bank, acting per its Board Chairman, filed the writ on 1st September 2005 together with a statement of claim. From the averments therein, the cause of action arose from the grant of loan facilities of ¢200,000,000.00 (Two hundred million Cedis) by the plaintiff/respondent Bank, to the 1st defendant, a private construction company, based in Accra and Sunyani. The 2nd defendant is managing director of the 1st defendant company. The 3rd defendant is a businessman resident in both Accra and Sunyani. The 2nd and the 3rd defendants provided securities and or guarantees to support the loan. As at the time the writ of summons was filed the outstanding indebtedness of the defendants together with interest, had risen to ¢13,933,316,048.78, that is more than thirteen billion cedis.
The defendants responded to the suit by entering unconditional appearance on 6th September 2005 through their Solicitor Otu-Essel K.F. Esq. of Asempa Chambers, Sunyani, and following up on 8th September 2005 with the filing of a joint statement of defence which virtually admitted the plaintiff Bank’s claim in its entirety. I am unable to state emphatically that the notice of appearance was accompanied with a memorandum of appearance. If there was, the memorandum is not part of the appeal record.
The plaintiff filed a motion for judgment on admission on the 4th October 2005; a purported affidavit in opposition filed on behalf of the defendants on 11th October 2005 in effect did not oppose the application. Paragraph 4 thereof stated that:
“4 That I admit paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 of the
affidavit in support and say that we admit our indebtedness
to the plaintiff.”
The deponent to the said affidavit was one Samuel Osei who deposed to the affidavit on behalf of the three defendants in his capacity as Accountant of the 1st defendant. Thus on 9th November 2005, the trial court entered judgment, in favour of the plaintiff Bank. In the said affidavit in opposition filed on 11th October 2005, the deponent Samuel Osei made a serious misrepresentation of fact to the court amounting to a lie. He perjured himself by claiming to be the 2nd defendant although he was not. The next reaction of the defendants to the entry of judgment was the filing by them of a motion for leave to pay the judgment debt of ¢15,335,189,193.77 by monthly instalments. The application was opposed by the plaintiff/judgment creditor. The application was not finally determined. Then entered a new solicitor for the defendants Mr. Kwasi Afrifa of O & A Legal Consult, Kumasi who announced his entry by filing an application to set aside the writ of summons, the service of the writ and entry of judgment. The trial court gave its ruling in the matter on 22nd March 2006 after the issues raised had been fully argued. The court concluded that “from the totality of the affidavit evidence canvassed before me, coupled with the submission of learned counsel of the parties and the relevant authorities, the exhibits I think apart from vacating the judgment against the 2nd and 3rd Defendants, the Defendants have not convinced me why the whole process should be nullified. Unfortunately, the impression that the Defendants have created is that they have been loaned precious but scarce public money which puts bread on their table and then turn round to deliberately refuse to pay same. Application is dismissed.”
The appeal herein was filed on 23rd March 2006, that is one day after the ruling dismissing the motion to set aside the writ of summons on ground of nullity.
About seven different grounds of appeal were filed. They are:-
“(a) The Court erred in not setting aside the judgment which
is a nullity for non-service of the writ of summons on the
1st Defendant/appellant in the manner prescribed by law
thus occasioning a substantial miscarriage of justice to the
1st Defendant/Appellant.
(b) The Court erred in setting aside the judgment against the
2nd and 3rd Defendants but refusing to set aside the
judgment against the 1st Defendant/Appellant as all three
Defendants had a common set of facts underpinning the
application.
(c) The Court erred in not striking out and/or dismissing the
Plaintiff/Respondent’s writ which was incurably defective
and not sanctioned by any rule of practice or procedure
known to the Court.
(d) The Court erred in basing itself on matters which were not
in evidence at all and on extraneous material.
(e) The Court erred in purporting to lift the veil of incorporation
of the 1st Defendant/Appellant.
(f) The Court fell into error by making findings of fact on
affidavit evidence.
(g) The court erred in holding that although entry of judgment
had not been served on the 1st Defendant/Appellant the
execution levied against it was lawful……”
Before I begin to consider the merits of the above stated grounds of appeal, I am minded to make two short remarks or observations in passing. The first one is that from the wording of the grounds of appeal, it is clear that the appellant and his counsel are targeting the ruling delivered by the trial court on 22nd March 2006 for attack.
This fact appears clearly on the face of the Notice of Appeal which states that the subject of the appeal was the ruling of 22nd March 2006. In spite of this the Registry of the trial court, in compiling the record of appeal wrongly stated that it was the judgment of 9th November 2005 that is being appealed. This is very misleading. The Registry must sit up and discharge its functions properly since acts of carelessness or negligence might be costly and might lead unsuspecting litigants, lawyers and judges to commit, errors which although grave could have been avoided. The second comment relates to some of the grounds of appeal which were not argued by learned counsel for the appellant. The affected grounds are numbers 4, 5 and 6. Even though learned counsel set them down, he failed to present any argument, or submissions in respect of them. In accordance with practice, we shall treat those grounds of appeal as abandoned.
I now turn to the argued grounds of appeal .
Grounds (1) and (2) were argued together. The contention of learned Counsel for the appellant is that the 1st appellant being a limited liability, company ,the writ of summons was not served on them in the manner prescribed by law. He relied on the Supreme Court decision in BARCLAYS BANK VRS. GHANA CABLE [1998-1999] SCGLR 1 particularly to the statement per Acquah JSC as he then was, that:
“…..Thus although Section 263(1) of Act 179 talks of “leaving it
at” the registered office or address of the company, the bailiff must
obviously leave it with someone who is in a position to bring
the document to the attention of the company.
….In Ghana, one can take a cue from Sections 263(3) and (4)
of Act 179 and comfortably hold that a document left with a
director or the managing director, or the secretary or a member of
the company at the registered office or address, should be sufficient
service on the company within the expression “leaving it at” in
Section 263(1) of Act 179….” (emphasis mine).
Counsel submitted in respect of the above cited authority and with reference to the evidence of the bailiff who was charged with the responsibility of effecting service of the writ on the 1st Defendant/appellant, that there is no doubt that the 1st Defendant/appellant was not served in accordance with the law or at all. This submission was disputed by learned counsel for the plaintiff/respondent. He contended that the service was properly conducted.
Both learned counsel are agreed that the relevant provision is Section 263 of the Companies Act, 1963. (Act 179). The Section states in part.
(1) A document may be served on a Company by leaving it at, or
sending it by post to, the registered office of the company…..
(3) Where a company does not have a registered office, service on
a director of the company or,……on a member of the company
shall be deemed good and effectual service on the company.
(4) If it is proved that a document was in fact received by the board
of directors, managing director or secretary of a company the
document shall be deemed to have been served on the company
although service may not have been effected in accordance with
Subsection (1), (2) or (3)……”
It is beyond doubt that subsection (1) above casts the net very wide. The phrase “leaving it at” is open to a very wide interpretation and possibly, abuse. I am however bound by the principle of stare decisis to yield to the decision in the BARCLAYS BANK VRS. GHANA CABLE case (supra). This is because, the decision of the Supreme Court, the highest appellate court in Ghana, is binding on all other courts. My second reason for not embarking on a separate interpretation of the phrase “leaving it at” is that the exercise had already been undertaken. In simple terms however, the phrase cannot be interpreted in any other way than what it says. I can imagine the hypothetic scenario where a bailiff just walks to the registered office of an incorporated company and practically leaves the process. Even though that might appear to justify the provision, it would nevertheless be offensive to what a reasonable man would do. I would suggest that the drafters of the law take another look at that provision and tidy it up to avoid mischief.
In the BARCLAYS BANK VRS. GHANA CABLE case (supra) Acquah JSC (as he then was) made a bold effort to overcome the obvious mischief or ambiguity in the provision. His remedy was that the document, when left with “someone who is in a position to bring the document to the attention of the company” then that would be proper service. My immediate observation is therefore that, apart from the board of directors, managing director, secretary or accountant, anybody like a staff who is responsible enough, and can, or is in a position to bring the document to the attention of the appropriate officer, would suffice to meet the statutory requirement. The rule which seeks to name specific office holders, needs to be taken a second look at. Currently, considering the decided authorities, the prescription of Acquah JSC (as he then was) in the case under reference stands as good law, albeit that decision is subject to the relevant statutory provisions.
After analyzing the decision in the BARCLAYS BANK VRS. GHANA CABLE case, and after looking carefully at the provision in Act 179. I now have come to the evidence led in the trial court to examine whether what the bailiff did was in accordance with the law or contrary to it.
Francis Tegah, a senior bailiff attached to the High Court, Sunyani gave evidence on oath on 7th March 2006 as to what happened. He said principally that:
“I got to know Messrs Agyakot Company Limited during the issue
of the writ in this issue at stake which was issued by the National
Investment Bank. I was instructed to serve the writ on the
Defendants.
……..so I served the writ on the defendants at their office beyond
SSNIT Flats, Sunyani.
There were three copies of the writ. When I got there I met the
Secretary alone at the office. She gave her name as Juliana Birago.
I introduced myself to her and told her that I am coming to effect
service on the company. So I asked of the three (3) defendants, and
she told me that the defendants are all working in the company, so
she is ready to receive the three (3) writs. So I effected service on the
Secretary with all the three writs. At the end of the day I came to
prove service…..”
After the evidence, excerpts of which appear above, the bailiff was given in charge of learned counsel for the appellant to cross-examine him. Cross-examinantion has been defined in Section 179 of the Evidence Act 1975 (NRCD 323) to mean “the examination of a witness other than by the party who called the witness.” See also Section 62 thereof. The purpose of cross examination is a common ground to most practitioners and I dare say, that learned counsel for the appellant is very much conversant with that. Ordinarily, after a witness had been examined on oath, his evidence is subjected to the opponent who might cross examine to dispute a particular assertion, or create a doubt in the evidence, and/or put his own or his clients case across.
Where a witness had given a material evidence and that evidence was not challenged on cross-examination, the court might invariably take the failure to challenge as admission by the opponent of the truth of the matter stated. See Criminal Procedure In Ghana by A.N.E. Amissah page 124 where the learned author wrote that
“They are then subject to cross-examination by or on behalf of the accused. Every point of substance objected to by the defence must be put to the prosecution witnesses during cross-examination. And the case of the defence must also be put to the relevant prosecution witnesses in the witness box, if that case is to carry any weight….”
On the same point, the Supreme Court held in BEDIAKO & ORS. VRS. THE STATE [1963] 1 GLR 48 that “(3) where, on a crucial part of the case, the prosecution intend to ask the court to disbelieve the evidence of a witness, that witness should be challenged in the witness box, or it should be made plain while the witness is in the box that his evidence is not accepted.” See also S.A. Brobbey’s book on Practice and Procedure In The Trial Courts and Tribunals of Ghana pages 510 and 511 The principle runs across board in criminal as well as in civil causes.
In this appeal, the counsel for the appellant appropriately exercised his right to cross-examine the bailiff.
At the end of his evidence the following questions and answers were recorded when the witness was cross examined by learned counsel for the appellant herein.
“Q: Mr. Tega, it is not true that Juliana Birago told you that she can accept
service on behalf of all the defendants.
A: She said so.
Q: As an experience bailiff you know that when a person is sued in his
personal capacity you are to serve a writ personally.
A: My Lord, this is not individual writ.
Q: Have you looked at the writ yourself?
A: Yes.
Q: You were given three (3) writs, the 2nd defendant was summoned
Agyapong, the 3rd defendant was Thomas Yeboah Wadie. You would
agree with me that these persons have been sued in their own right.
A: I don’t agree with you.
Q: I will finally put it to you that the service you purported to effect was
erroneous.
A: If so then I was misdirected by the Secretary.
COUNSEL: My Lord that is all for the witness.
The above was the entire cross-examination of the bailiff. The cross-examination however fell short of disputing that the Secretary Juliana Brago accepted the service of the writ and statement of claim on behalf of the defendants, not excluding the 1st defendants/appellant. Another spoke in the wheel of the cross-examining counsel was the omission by him to dispute and/or dispel the position and/or capacity in which Juliana Birago held herself in respect of the defendants to the bailiff.
Finally, learned counsel failed to even remotely suggest that Juliana Birago was not know to the defendants. Where the evidence of a witness was not challenged on material aspects, the court has a simple duty to accept the evidence led as truth in the absence of contrary facts or other compelling evidence. I agree with the decision of the trial Court Judge when he accepted that in so far as the facts and evidence before him were concerned the 1st defendant/appellant was duly and properly served with the writ of summons and statement of claim in this cause which were filed at the instance of the plaintiff/respondent.
Having reached the above finding, it is my view that the facts and circumstances of the BARCLAYS BANK VRS. GHANA CABLE case (supra) should be distinguished from those herein. The query presented in the second ground of appeal raises issue as to the propriety of the trial Jude in setting aside the judgment against the 2nd and 3rd defendants while yet, confirming that against the 1st defendant/appellant. Learned Counsel for the appellant cited the statement of Acquah JSC (as he then was) in the BARCLAYS BANK VRS. GHANA CABLE case (supra) that
“a court has generally no jurisdiction to proceed against a party
who has not been served…..”
The Learned Supreme Court panel did not state nor imply that in any or every case where a party denied service of court processes upon him, then automatically, the court would have to set aside or nullify all the earlier, or preceding, proceedings in the cause or matter. Such an interpretation, with utmost respect, would be too sweeping amounting to miscarriage of justice. What the Supreme Court said was that, that claim of non service must be examined thoroughly before any decision was taken on it.
In this appeal, the evidence led showed that the bailiff served all the three writs and statements of claim on Juliana Birago, in her capacity as Secretary of the 1st Defendant/appellant. She did not purport to represent the 2nd and/or 3rd defendants, neither did she claim that they or either of them had mandated her to represent them or him. Her claim to capacity as well as her receipt of the processes was done for and on behalf of the 1st Defendant/appellant.
Further to this the evidence of the earlier solicitor, Mr. Otu Essel, established that the instructions given him, were done or confirmed by the 2nd defendant in his capacity as Managing director of the 1st defendant/appellant. I agree with the trial Judge that a distinction, on the face of the record, existed between the defendants. While the service of the processes proved satisfactory and relevant in terms of the law and procedure in respect of the 1st defendant/appellant, the same cannot be stretched to encumber the 2nd and 3rd defendants. There was overwhelming evidence on record to demonstrate and confirm that the 1st defendant/appellant was properly served with the processes and therefore he cannot seek solace under the roof provided by BARCLAYS BANK VRS. GHANA CABLE. A bailiff or a person intending to effect service of any process on an incorporated Company like the 1st defendant/appellant herein must do so in terms of the provisions of Act 179 and also Orders 6 and 7 of CI 47. On the other hand Order 7 of CI 47 regulates service of documents and other processes of the court on individuals. O 7 rr 2 and 3 contain some of the regulations for such service. They are:
“O 7 r 2(1). A document which is required to be served on a person
shall be served personally unless the express provisions of these
Rules otherwise provide or the court otherwise directs.
3. (1) Personal service of a document shall be effected by leaving
a duplicate or attested copy of the document with the person to
be served…….”
It is not necessary to belabour the clear distinction between service on a Company and service on a person any further except to say that they are entirely separate provisions and different processes. What happened in this case when the bailiff left the processes with Juliana Birago accords with proper service on a company, but does not satisfy the provisions dealing with personal service. This trial judge was therefore right.
The 3rd ground of appeal is that “the court erred in not striking out and/or dismissing the Plaintiff/Respondent’s writ which was incurably defective and not sanctioned by any rule of practice or procedure known to the Court.
In this Court, learned counsel for the appellant submitted that the plaintiff/respondent’s writ is defective because, as a Company they could sue and/or be sued in their own corporate name. To the extent therefore, that the action was taken as “per the Board Chairman” it is fundamentally defective.
Learned Counsel was of the view that in the event of any costs being awarded against the plaintiff, they would find it difficult to hold the Board Chairman personally liable. In support of his submissions, counsel for the appellant cited the Supreme Court case of REPUBLIC VRS. HIGH COURT, ACCRA: Ex Parte – ARYEETEY (ANKRAH INTERESTED PARTY) 2003-2004 SCGLR 398 wherein it was held inter alia that:
“(2) The requirement that a party endorses on the writ the
capacity in which he sues, is to ensure that a person suing
in a representative capacity is actually invested with that
capacity and therefore has the right to sue. Whether a person who has sued in a representative capacity indeed, has the capacity he claims to have or not, is a question of fact; and if challenged, he must prove same to avoid his suit being dismissed since it is analogous to taking an action against a non-existent defendant……”
Counsel also referred to ACQUATIC BIOLOGY INSTITUTE VRS. ABOKUMA {1978] GLR 72; SAM JONAH VRS. DUODU KUMI [2003-2004] SCGLR 50 among others to support his submission. On the part of the respondent, their Counsel contended that the conclusion drawn by opposing Counsel is without foundation. His view was that, on the face of the writ there is no ambiguity whatsoever as to who the real plaintiff was. He argued that the action was not instituted by the Board Chairman but rather, by the Bank itself. It was further stated that the Bank, being a corporate entity could only act through its accredited and lawful officer. The Board Chairman, being the highest in rank at the Bank therefore, could appropriately represent the plaintiff/respondent. Counsel referred the Court to Order 7 rule 5(1) of CI 47 wherein the Chairman of the Board has been mentioned and included among the officers on whom suit processes could be served on behalf of a corporate body. He submitted therefore, that if the Board Chairman was a proper person on whom service of court processes involving the Company could be effected, then mutatis mutandis, similar processes could as well be issued in his name or through him.
On the record available, I accept the fact that the action was filed by the Bank and the Board Chairman was mentioned as a point or figure of reference. It is indeed in accordance with the legal position that the Bank, qua bank, an incorporated body, can sue or be sued in their own right. It was therefore not essential that the name of the Board Chairman was stated. This fact notwithstanding. I do not share the view of learned Counsel for the appellant that the writ is void for that reason. The facts and circumstances in this case are different from what obtained, for instance in MOSI VRS. BAGYINA [1963] 1 GLR 337. In that case the matter related to irregular grant of a writ of possession by the High Court when indeed the action had commenced in the Native Court, Goaso/Ahafo. That was entirely different from the herein appeal where the plaintiff/respondent is acting per its Board Chairman. The High Court, Sunyani has jurisdiction to entertain the action. The judgment made earlier in the proceedings as well as the ruling, the subject matter of this appeal, were made in the proper exercise of the court’s jurisdiction. Assuming there was an error, by the inclusion of the Board Chairman, that would constitute a mere irregularity, not a fundamental error which would avoid or nullify the writ.
Legally, such unharmful irregularities could be cured by amendment. See GHANA MUSLIMS REPRESENTATIVE COUNCIL VRS. SALIFU [1975] 2 GLR 246; MANAGING DIRECTOR, GHANA FOOD DISTRIBUTION CORPORATION & ANOR. VRS. TORTO [1992-93] GBR 762 CA. In that case the plaintiffs instituted an action in the High Court against the Managing Director and Area Manager respectively
of the Ghana Food Distribution Corporation, a statutory corporation, jointly and severally……The defendants entered conditional appearance and applied to set aside the writ on the ground that the designations in which they were sued were not legal entities and consequently the writ was incompetent. The judge dismissed the application on the ground that the two defendants could be sued as agents of the corporation. The defendants appealed to the court to amend the proceedings by substituting the corporation for the defendants. The Court of Appeal upheld the contention of the defendants and held that
“It was clear from the record that the plaintiff’s action was against the
employers of which the defendants were officers. The defendants
would not be prejudiced in anyway or suffer any miscarriage of
justice of the application for amendment was granted. Having regard
also to the stage which the proceedings had reached, substantial
justice would be done to strike out the defendants and substitute the
corporation.
See also GHANA INDUSTTIAL HOLDING CORPORATION VRS. VINCENTA PUBLICATION [1971] 2 GLR 24 CA. In fact there are several decided authorities where the principle above stated was applied. In the light of the provision in Order 81 of C1 47 I have come to the conclusion that the filing of the writ per the Board Chairman is not such an infringement of the rules that would nullify the writ.
This Court has power, even at this stage to amend the writ and all the subsequent processes filed thereafter by striking out the reference to the Board Chairman following the statement in the White Book 1995 Vol. Supreme Court Practice of England where it was stated as a guiding principle that amendments ought to be made “for the purpose of determining the real question in controversy between the parties to any proceedings or correcting any defect or error in any proceedings” per Jenkins LT in G.L. BAKER LTD. Vrs. MEDWAM BUILDING & SUPPLIERS LTD. [1958] 1 WLR 1231 [1958 3 All ER 540 at 546. The White Book went on further to state that “It is a well established principle that the object of the Court is to decide the rights of the parties, not to punish them for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights…..”
Having considered the above, I should state firmly that the respondent herein, suing per se, per their Board Chairman is not such a defect as to justify the appellant in describing it as “incurably defective and not sanctioned any rule of practice or procedure known to the Court” such as description is too sweeping if not altogether too harsh and in-appropriate.
The last ground of appeal that I will take is ground 7 which alleges that “the court erred in holding that although entry of judgment had not been served on the 1st Defendant/Appellant the execution levied against it was lawful.”
My reading of the ruling appealed from does not lead me to draw the conclusion that the trial judge decided that no entry of judgment was served on the 1st Defendant/appellant.
On the contrary the trial Judge was satisfied that there was proper service, and I agree with him on this point. From the record the bailiff, Mr. Francis Tegah was quite positive that he served the entry of judgment on the 1st Defendant/appellant. He stated in court when he testified on oath on 7th March 2006 that
“Subsequent to this I was able to serve other documents on the
Defendants in the above stated case. That was the entry of
Judgment on the defendants on 23rd of November 2005. I served
the Entry of Judgment on one Mr. Osei Samuel, an accountant of
the Company…….”
At the end of this testimony, the only question asked by the learned counsel for the appellant which relates closely to the service or non service of the entry of judgment was “I finally put it to you that the service you purported to effect was
erroneous?
In order to find out whether the entry of judgment was served on the 1st
Defendant, further reference ought to be made to the evidence of Mr. Otu-Essel, of counsel. His evidence was that the entry of judgment was brought to him by Osei Samuel, whom he referred to as the errand boy of the 1st defendant.
Incidentally, it was the same Osei Samuel who had earlier received the process from the bailiff on behalf of the 1st Defendant/Appellant. This shows that indeed Mr. Osei Samuel received the service of the entry of judgment on behalf of the 1st Defendant Company and after he had duly brought it to the notice of he 1st Defendant, he was instructed to send it to Mr. Otu Essel, of Counsel with further instruction to file an application for leave to pay the judgment debt by monthly instalments. Going by the decision in the BARCLAYS BANK VRS. GHANA CABLE case, the 1st Defendant Company was duly and properly served with the entry of judgment. I do not find the contention that Mr. Otu Essel was not instructed to act on behalf of the 1st Defendant/Appellant made out. The facts are overwhelming that the contrary was what really happened.
Counsel for the appellant next contended that the action was filed and commenced in the wrong forum. The action should have been initiated in Accra rather than Sunyani. He argued that the addresses provided in the guarantee document in support of the original loan facility were all Accra addresses. He concluded relying on Civil Appeal No. 44/99 involving CHRISTIAN OPOKU VRS. SHELL GHANA LIMITED dated 13th April 2002 unreported that “the trial judge’s assumption of jurisdiction to hear the case was in error…..an objection that the cause or matter did not arise within the area of jurisdiction of the judge could be raised at any time in the proceedings. Hence the judge must satisfy himself that he possesses the territorial jurisdiction, lest he should embark upon a useless exercise.”
The relevant law, C1 47 Order 3 rule 6(5) requires actions to be filed in the region where the defendant resides and/or where he carries on business. It is my respectful view that a writ could be legitimately filed either in the Region where the defendant resides or the region where he carries on business. The record of appeal before us shows clearly that at the time the action was instituted the appellant was carrying on business in the Brong Ahafo Region, the capital city of which is Sunyani. I do not find any useful purpose in enumerating other pieces of facts apparent on the record which go to justify the institution of the action on Sunyani, in coming to the conclusion that the forum where the action was filed accord to the existing law.
I am satisfied upon the foregoing that the appeal fails and it is accordingly, dismissed.
G.M. QUAYE
JUSTICE OF APPEAL
I agree. MARIAMA OWUSU [MS]
JUSTICE OF APPEAL
I also agree. I.D. DUOSE
JUSTICE OF APPEAL
COUNSEL - MR. KWASI AFRIFA FOR THE DEFENDANTS/APPELLANTS.
MR. YAW WIREDU PEPRAH FOR THE PLAINTIFF/
RESPONDENT.
~eb~
