NAOS HOLDING INC v. GHANA COMMERCIAL BANK LTD
2010
SUPREME COURT
GHANA
CORAM
- BROBBEY, JSC (PRESIDING)
- DOTSE, JSC
- YEBOAH, JSC
- BAFFOE-BONNIE, JSC
- AKOTO-BAMFO (MRS), JSC
Areas of Law
- Civil Procedure
- Banking and Finance Law
- Contract Law
2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Justice Dotse JSC, writing for a unanimous Supreme Court, traced NAOS Holding Inc’s multi-suit effort to recover the face value of five promissory notes issued by Sabat Motors Limited and guaranteed by the Respondent bank. After an originating summons (OS 557/97) was set aside on appeal, NAOS filed successive High Court actions—C 465/99 (discontinued), C 656/99 (struck out as a nullity for lack of corporate capacity), and while appealing that ruling, a fresh writ C 582/2000 seeking identical reliefs. Motions for strike-out and security for costs followed; the High Court struck out C 582/2000 as an abuse of process, and the Court of Appeal affirmed. Applying the rule in Henderson v Henderson and its own prior decision in Naos Holding Inc v GCB on corporate capacity, the Supreme Court held the fresh suit was a collateral attack and an attempt to beat limitation, rejected the ‘valid reason’ contention, and dismissed the appeal, affirming the lower courts.
DOTSE, JSC:
The facts leading to this case show a classic example of how time that is lost, can never be regained. We cannot but agree more with George Washington, in his letter to James Anderson, December 21st 1797, when he wrote thus:-
“The man who does not estimate time as money will forever miscalculate.”
In view of the many suits that had been previously filed by the Appellants in this case, we deem it expedient to set out in some detail the facts that have given rise to the instant appeal. In doing so, we consider it important to set out in a historical context the antecedents of all the previous suits and relate their relationship to the instant appeal.
The plaintiffs/appellants/appellants (hereinafter referred to as the Appellants) in suit number OS 557/97 by originating summons in the High Court claimed for a declaration that they were the holders in due course and entitled to receive from the defendants/respondents/respondents (hereinafter referred to as the Respondent) the full face value of five promissory notes issued by Sabat Motors Limited and guaranteed by the Respondents. The Respondents objected to the originating summons before the High Court and were overruled. However, their appeal to the Court of Appeal was successful. The Appellants then issued a writ of summons for the same relief as in the originating summons suit No. 465/99 on 21/5/1999. Gbadegbe J (as he then was) who presided over the case at the High Court ruled that the Appellant’s endorsement in the writ was calculated to avoid the payment of the appropriate filing fees. Instead of paying the appropriate filing fees, the appellants discontinued suit No. 465/99, and instead instituted a fresh action, suit No. 656/99. In suit No. C 656/99 the appellants claimed the same reliefs as in the suit No. 465/99.
The defendants entered conditional appearance and applied for an order to strike out or stay the action on grounds that:
a. The appellant did not exist as a legal entity and therefore did not have capacity to institute the action
b. The plaintiff did not pay the appropriate filing fees.
In addition, the Respondent applied for security for costs since the Appellant company was not resident in Ghana. The writ was set aside as a nullity by the trial judge, Agnes Dordzie J, (as she then was), since the plaintiff failed to establish its existence as a legal entity.
Following the ruling of Agnes Dordzie J (as she then was) on 17th April, 2000, the Appellants filed a new writ