REMA TIPTOP SURFACE PROTECTION (PTY) LIMITED v. MOSPACKA COMPANY LIMITED & ORS
2022
SUPREME COURT
GHANA
CORAM
- PWAMANG JSC (PRESIDING)
- DORDZIE (MRS.) JSC
- PROF. KOTEY JSC
- TORKORNOO (MRS.) JSC
- AMADU JSC
Areas of Law
- Civil Procedure
- Corporate Law
2022
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Amadu JSC, dismissed the Appellants further appeal from the Court of Appeal in a dispute arising from a South African company0the Respondent0seeking recovery of R2,908,946.51, interest at prime overdraft rate plus 2% per month, and damages for breach, for goods sold and delivered on credit in December 20171 January 2018. The Appellants attempted to set aside the writ on the basis that the Respondent was not registered in Ghana, had no Ghanaian place of business, and had not endorsed a local address, arguing lack of capacity and jurisdiction. The Court held that capacity concerns legal personhood and is distinct from jurisdiction; no rule requires a foreign company to endorse a Ghana address to sue. Referring to Standard Bank Offshore and Edusei v Diners Club, and noting Order 240security for costs0as the appropriate safeguard, the Court struck out an improper ground of appeal and affirmed dismissal. PWAMANG JSC concurred.
AMADU JSC
The issue for determination in this appeal is a simple procedural and conceivably insignificant one. Yet, the Defendants/Appellants/Appellants (hereinafter referred to as the “Appellants”) have contested it through the hierarchy of the Superior Courts to the final court of the land.
In the High Court, the Plaintiff/Respondent/Respondent (hereinafter referred to as the “Respondent”) issued a writ claiming from the Appellants as follows:-
“(i) Recovery of the total sum of R2,908,946.51 (Two Million,
Nine Hundred and Forty-Six Rend and Fifty One Cents) particularized in paragraph 6 of the Statement of Claim, or its Cedis equivalent, in current exchange rate being the costs of goods sold and delivered to the Defendants on credit during December 2017 to January2018 and payment failed, refused and neglected despite repeated demands.
(ii) Interest on the principal sum supra at the prime overdraft
Rate Plus 2% per Month as at the date of invoice until date of final payment.
(iii) Damages for breach of contract.
Upon service of the writ, the Appellants entered conditional appearance and proceeded to move the trial court upon an application to set aside the writ on grounds that:-
(i)The Respondent had at the time of issuing the writ not
registered with the Registrar of Companies as a legal entity in Ghana.
(ii)The Respondent has no place of business within the
jurisdiction of Ghana.
(iii)The trial court is by reason of grounds (i) and (ii) above
not clothed with jurisdiction to entertain the Respondent’s action.
The trial court dismissed the Appellants’ application.
On appeal to the Court of Appeal the Appellants repeated substantially the same grounds upon which their application to set aside the Respondent’s writ in the trial court was anchored. In the notice of appeal to the 1st Appellate Court, the Appellant formulated one ground of appeal that:“The (Plaintiff/Respondent herein) has no the legal capacity to sue and writ taken by it ought to have been set aside”. The Court of Appeal dismissed the Appellant’s appeal.
In the exercise of their right of appeal, the Appellants who are dissatisfied with the decision of the Court of Appeal have appealed to this court on grounds have been set out as follows:-
“(i) The Court of Appeal erred when it held, affirming the
decision the High Court that the Plaintiff has the capacity to sue out the writ in this suit.
(ii) The Court of Appeal failed to set aside writ.”
It is obvious that the Appella