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May 16, 2024
COURT OF APPEAL
GHANA
BARTELS-KODWO (JA):-
INTRODUCTION
This is an appeal against the interlocutory decision of the High Court, (Commercial Division 9), Accra dated 25th January 2023 which decision dismissed the Respondent/Applicant/Appellant (hereinafter called the 'Appellant')'s motion for declaration that the Appellant was not served with the Petition, the originating process in this suit, brought by the Petitioner/Respondent/Respondent (hereinafter, the 'Respondent').
BACKGROUND
The Respondent, a company in the business of supplying medical supplies and personnel to mining companies entered into a contract for services with the Appellant effective the 1st of April 2021. The agreement was extended by amendment four times until June 2023.
According to the petition filed by the Respondent, the Appellant had delayed in making payments, but the Respondent relied on the assurances of the Appellant and continued to provide the services under the agreement.
According to the petition, after the missing payment for a fourth time, the Parties entered into an acknowledgement of debt agreement which the parties agreed would supersede all previous agreements between the parties regarding the debt owed the Respondent.
However, the Respondent contends that even after entering into this acknowledgement of debt agreement, the Appellant still failed to honour its debt obligations.
As a result, on the 15th of November 2024, the Respondent commenced this action by bringing a petition for the winding up of the Appellant before the High Court. According to Appellant, even though it was not served with the petition, it entered a conditional appearance to the petition on the 28th of November 2022. On the 24th of January 2023, without seeking an extension of time within which to do so, the Appellant filed a motion on notice for a declaration that the Petition for Winding Up has not been served on the Appellant and 'For a Further Order for the Respondent to be served ' .
Attached to the motion were copies of two searches carried out at the registry of the High Court by the Appellant on the 12th of December 2022 and the 23rd of January 2023, both of which show no proof of service of the Petition on the Appellant.
On the 24th of January 2023 the date the motion was filed, the Parties were in Court. The Respondent informed the Court that the Appellant had failed to take any further step after filing the notice of conditional appearance on the 28th of November 2022. On the question of why the A
AI Generated Summary
This interlocutory appeal arises from a winding‑up petition brought against FGR Bogoso Prestea Limited by a medical supplies and personnel provider after disputes over unpaid debts, notwithstanding an acknowledgement of debt agreement. The High Court dismissed the company’s motion seeking a declaration of non‑service and an order for service, relying on the crystallization of conditional appearance and Order 7 rule 12(3) to deem service. On appeal, Justice Janapare Bartels‑Kodwo, writing for the Court, held that service of originating processes is governed by court rules, not by general company‑law provisions, and that section 291(5) of Act 992 cannot be used to infer service of court processes. Entry of appearance only creates a rebuttable presumption that must be investigated, and absent proof, the petitioner bears the burden. The Court set aside the High Court’s ruling and ordered the petitioner to properly serve the company, after which the matter should proceed in accordance with the rules. Justice Dennis Adjei concurred; Justice Christopher Archer agreed.