WESTEL TELESYSTEMS GH LTD v. BROADSPECTRUM LIMITED
October 27, 2022
COURT OF APPEAL
GHANA
CORAM
- G. SIMON SUURBAAREH JA PRESIDING
- P. BRIGHT MENSAH JA
- RICHARD A. FRIMPONG JA
Areas of Law
- Civil Procedure
- Evidence Law
October 27, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Western Telesystems (Gh) Limited, known commercially as Westel, sought to enforce a 31 March 2009 High Court judgment against Broadspectrum Limited by filing an entry of judgment on 19 February 2021. The High Court set aside that entry and declared the writ and subsequent proceedings a nullity, reasoning that the suit had been initiated in a non-juristic trade name and that there was no corporate entity with capacity to sue. On appeal, Bright Mensah JA identified the crucial issue as whether the use of "Westel Telesystems (Gh) Ltd" was a mere misnomer and whether the title could be amended to reflect "Western Telesystems (Gh) Limited." Reviewing the record and applicable authorities, the Court of Appeal held that misnomers are curable under the court’s inherent jurisdiction, that Broadspectrum had waived and was estopped from raising the irregularity after fully participating, and that modern procedural rules favor substantial justice over technicalities. The appeal was allowed, the High Court ruling set aside, and costs of GHS 20,000 awarded.
BRIGHT MENSAH JA:
This appeal has been launched against the Ruling of the High Court, Accra dated 11th June 2021, in which case the lower court upheld an application by the defendant/respondent to set aside an entry of judgment that the plaintiff/ appellant had earlier recovered against it. In consequence, the court set aside the entry of judgment the plaintiff/appellant filed with it on 19/02/2021. The ruling appears on pp 62-66 of the records of appeal [roa].
Grounds of appeal:
Being dissatisfied with the decision of the lower court, the plaintiff/appellant did on 29th June 2021 file a notice of appeal complaining that:
1. The trial court erred in holding that the plaintiff/respondent/appellant
is not the same as Western Telesystems Gh Ltd (now Airtel Ghana
Ltd.) a juristic entity and therefore not clothed with the requisite capacity to invoke the jurisdiction of the court.
2. The court failed to appreciate that the plaintiff/respondent/ appellant’s name was a mere misnomer or mis-description of the name, Western Telesystems Gh. Ltd., which could have been cured by an amendment.
3. The court erred in holding that the court cannot use its inherent power to allow an amendment in the plaintiff/respondent/appellant’s name.
4. The judgment is against the weight of evidence adduced.
5. Other grounds of appeal will be filed on receipt of the records of proceedings. See: pp 67-68 [roa]
So far as the records go, no additional grounds of appeal were ever filed. In this appeal the plaintiff/respondent/appellant shall henceforth be referred to as the appellant while the defendant/applicant/respondent shall be the respondent.
The crucial question:
Undoubtedly, in the face of the processes the parties filed and relied on in the lower court and in the context of the submissions of both lawyers filed in the instant appeal, the crucial question we are being called upon to decide is whether the name, Westel Telesystems (Gh) Ltd the appellant used in initiating this suit was a mere misnomer. And if so, whether it could not have been appropriate if the title of the case was amended to read: Western Telesystems (Gh) Limited, the real name of the plaintiff/appellant company.
Having regard to the question raised supra, I want to deal with the appeal globally by combining all the grounds of appeal.
It is now a cliché to say that an appeal is by way of rehearing the case. The Court of Appeal Rules, C.I 19 per rule 8(1) indeed provides that any appeal to t