MUSSEY v. DARKO

JUDGMENT OF SOWAH J. A.

This is an appeal from the High Court, Accra, in the suit entitled, R. A. Darko, Trading as Okofoh Enterprises v. A. A. Mussey, whereby the court gave judgment against the said Mussey in the sum of ¢4,962.86.

It appears that the original plaintiff in the case was Okofoh Enterprises and that it was after judgment had been entered that an application for substitution of the plaintiff was made. Okofoh Enterprises is a firm registered under the Registration of Business Names Act, 1962 (Act 151), and the sole proprietor was one Rexford Ayeh Darko.

In this appeal the appellant has made no endeavour to attack the merits of the case but rested his argument on two points of law, namely, that there was no plaintiff in law at the date of the issue of the writ for which the respondent could be substituted. Secondly the learned High Court judge had no jurisdiction to grant the amendment for substitution.

For the first proposition learned counsel argued that Order 48A, r. 11 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), does not allow a firm consisting of a single person as sole proprietor to sue in the name of such firm and relied on the case of Ghana Industrial Holding Corporation v. Vincenta Publications [1971] 2 G.L.R. 24 at p. 29, C.A. which had held:

"The English case of Mason & Son v. Mogridge (1892) 8 T.L.R. 805, relied on by Mr. Korsah, decided that a single person cannot sue in a firm name either under rule 1 or rule 11 of Order 48A. In our opinion, the Mason case is a correct and sound decision and whoever is the sole proprietor of Vincenta Publications cannot be allowed to sue as plaintiff under that business name or style."

The argument in short, was that the learned judge had no discretion in the matter and it being brought to his notice that Okofoh Enterprises consisted of one person, he should not have, granted the amendment.

It is necessary at this stage to examine the transaction leading up to the action and judgment. On 24 June 1969 an agreement was entered into "between Okofoh Enterprises of Accra per its manager Rexford Ayeh [p.149] Darko (herein called the buyer) of the first part and Anthony Arthur Mussey (MTB) Timber Contractor of c/o Post Office Box 0259, Takoradi" in which it was agreed that the buyer, namely, Okofoh Enterprises would advance various sums of money to the contractor for the payment of timber to be supplied it a later date.

The respondent's case was that after the advances had be