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May 3, 1971
COURT OF APPEAL
CORAM
JUDGMENT OF ARCHER J.A.
Archer J.A. delivered the judgment of the court. This is an appeal by the Ghana Industrial Holding Corporation against the judgment of the Circuit Court sitting at Accra, in which it was adjudged that the corporation was indebted to Vincenta Publications in the sum of N¢2,350.00 for advertising services. Vincenta Publications also filed a notice of intention to contend that that part of the judgment of the court below which disallowed claims for travelling expenses and damages should be varied.
Although the corporation filed grounds challenging the total sum adjudged to be due, Mr. Korsah, learned counsel for the corporation, chose not to deal with these grounds but concentrated on the legal submission that Vincenta Publications was the business name of one man and therefore the proprietor of the business could not come to court as a plaintiff under the business name. The legal basis for this submission was Order 48A, r. 11 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which provides: "Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply." Mr. Korsah contended that as rule 11 enables a person carrying on business within the jurisdiction in a name or style other than his own name to be sued as a defendant, Vincenta Publications could not come to court under that name or style as a plaintiff. In other words, that name would have sufficed and would have been permissible if Vincenta Publications had been sued as defendants. With this submission, Mr. Korsah took his seat.
In answer to this submission, Mr. Ofori, learned counsel for Vincenta Publications, took a plunge in order to rescue his client but it seemed that he was undertaking a hopeless task as his client was already drowned by the fast current in Mr. Korsah's submission. As a result, Mr. Ofori could only emit a series of lamentations. He contended that the objection should have been taken at the trial. He also submitted that the parties were bound by their pleadings and it was not proper to raise the provisions of Order [p.26] 48A, r. 11 in this court. At first Mr. Ofori was not sure whether Vincenta Publications was a one man firm, but after the court had drawn his attention to the contents of affidavits filed by his own client, he
AI Generated Summary
The Court of Appeal, per Archer J.A., heard Ghana Industrial Holding Corporation’s appeal from the Circuit Court in Accra, which had adjudged GIHC liable to Vincenta Publications for N¢2,350.00 in advertising services and had disallowed travel and damages claims. On appeal, GIHC’s counsel, Mr. Korsah, did not contest the quantum but argued that Vincenta Publications was merely a one-man business name and could not sue under that firm name, relying on Order 48A of the Supreme [High] Court (Civil Procedure) Rules, 1954. Vincenta’s counsel, Mr. Ofori, conceded evidence indicated a one-man firm and sought to amend the respondent’s name to “Vincent Alisa Onuku trading as Vincenta Publications,” invoking Ghanaian and English authorities. The court contrasted Order 48A r.1 and r.11, found no bona fide mistake or inadvertence, highlighted inconsistent business naming and registration uncertainties, distinguished the English cases, endorsed Mason v. Mogridge’s rule against sole traders suing in firm names, refused the amendment, and allowed the appeal, setting aside the lower court’s judgment.