SUPREME COURT, ACCRA
DATE: 11TH JUNE, 1962
BEFORE: KORSAH, C.J., SARKODEE-ADOO AND ADUMUA-BOSSMAN, JJ.S.C.
CASES REFERRED TO
(1) Re Busfield; Whaley v. Busfield (1886) 32 Ch.D. 123, C.A.
(2) Johnson v. Taylor Brothers and Co. Ltd. [1920] A.C. 144
(3) Vitkovice, e.t.c. v. Korner [1951] A.C. 869; [1951] 2 T.L.R. 188; [1951] 2 All E.R. 334, H.L.
[p.454] of [1962] 1 GLR 453
NATURE OF PROCEEDINGS
APPEAL from a judgment of Ollennu, J., in the High Court, Accra, (reported at [1961] G.L.R. 324)
on the ground that the High Court had no jurisdiction to entertain the action. The facts are fully set out in the judgment of the Supreme Court.
COUNSEL
J.G. Le Quesne with him E.N.P. Sowah for the appellant.
E. Akufo-Addo for the respondent.
JUDGMENT OF KORSAH C.J.
Korsah C.J. delivered the judgment of the court. This is an appeal from a judgment of Ollennu, J.,
sitting in the High Court, Accra, Ghana, in which the plaintiff claims:
“(a) A declaration that the interest which the defendant held as a partner with one Salim Shamoon in
the firm of City Furniture Company from 1943 to 1948 and in the Company of City Furniture
Company Ltd., which is now known as Construction and Furniture Company Limited, was held
by the defendant as a trustee as to one-half share thereof for the benefit and use of the plaintiff.
(b) A true and faithful account of all profits received by the defendant in respect of a textiles retail
business which he operated from June 1943 to August 1947 and in respect of the business of City
Furniture Company as a partner there from 1943 (1947) until its conversion into the company of
City Furniture Company Limited (now known as Construction and Furniture Company (West
Africa) Limited) in 1948 and in the C.F.C. Furniture Company (West Africa) Ltd. (See
amendment filed 17-5-61 and order thereon dd. 1-6-61).
(c) A detailed account of all sums of money received by the defendant on the plaintiff’s behalf from
the year 1942 to 1947, first, in the business of Eboe Automotive Products Company, secondly in
the partnership business operated by the defendant, Mougrabi and Sawaf, and thirdly in the
partnership and fourthly in textile retail business operated by the defendant.
(d) A true and faithful account of all profits received by the defendant in respect of his interest
(shares etc.) in the company of Construction and Furniture Company Limited from its inception in
1948 as City Furniture Company (West Africa) Limited to date of judgment and in the C.F.C.
Furniture Company (West Africa) Limited (Order dd. 1-6-61-amendment filed 17-5-61).
(e) A full and faithful disclosure of all properties and other assets acquired by the defendant from
profits which accrued to him in respect of his interest in the partnership firm of City Furniture
Company and in the Construction and Furniture Company (West Africa) Limited (aforesaid) and
in the C.F.C. Furniture Company (West Africa) Ltd. aforesaid. (Order dd. 1-6-61- amendment
filed 17-5-61).
(f) A declaration that all such properties and assets as mentioned in paragraph (e) supra are held by
the defendant as a trustee as to one-half share thereof for the benefit and use of the plaintiff.
(g) An order for the payment to the plaintiff by the defendant on such of one-half share of the profits
received by the defendant in the partnership business of City Furniture Company aforesaid and in
the City Furniture Company Ltd. and in the Construction and Furniture Company (West Africa)
Ltd . and such of the profits in the textiles trade run by, the defendant from 1943 to 1947 as ire
adjudged to be payable to the plaintiff and in the C.F.C. Furniture Company (West Africa) Ltd. (Order dd. 1-6-61 amendment dd. 17-5-61).
(h) An order for the transfer to the plaintiff by the defendant of one-half share of the properties and assets mentioned in paragraph (e) supra.
(i) And an order for the transfer to the plaintiff by the defendant of one half part of all the shares and
other interest held by the defendant in the Company of Construction and Furniture Company
(West Africa) Limited and in the C.F.C. Furniture Company (West Africa) Ltd. (order dd.
1-6-61-amendment notice filed 17-5-61).” [p.455] of [1962] 1 GLR 453
The plaintiff is a Lebanese temporarily residing at Accra; the defendant is a naturalised British subject
domiciled in Nigeria. Upon an ex parte application of the plaintiff, the High Court, Accra, made an
order for service of the writ of summons outside the jurisdiction, on the defendant at Port Harcourt,
Nigeria.
Thereafter the defendant’s solicitors on his behalf “entered conditional appearance without prejudice
to an application to set aside the writ, and service thereof, on the grounds of jurisdiction”. In due
course notice of motion was filed by the defendant’s solicitors for an order, to set aside the writ of
summons “on the ground that the defendant is not subject to the personal and territorial jurisdiction of
the courts in Ghana”. This was supported by defendant’s affidavit in which the following relevant
allegations appear:
“(3) That I am a naturalised British subject having been naturalised in Nigeria.
(4) That I have adopted Nigeria as my permanent home and am now domiciled in Nigeria.
(5) That since coming to live in Nigeria in April, 1955 I have been ordinarily resident in Nigeria and have been continuously resident in Nigeria except for short visits abroad.
(6) That I am neither domiciled nor resident i3 n Ghana.”
These allegations were not challenged.
The motion was duly heard by the court which dismissed the application, holding that:
“It is a claim for an account and a declaration of payment of what is found due founded upon a contract,
express or implied, between the parties, which will be by way of evidence or admission, that the
defendant has committed a breach of the contract by converting to his own use interest of the plaintiff
which he, defendant, holds in C.F.C. for the use and benefit of the plaintiff. The fundamental and the
material essence of the claim is one of alleged breach of the agreement between the two brothers, one of
which was or is the agent of the other, to be performed within the jurisdiction.”
The defendant applied for special leave to appeal against this interlocutory order, but his application
was dismissed. The defendant’s solicitors were then obliged to file his statement of defence in which
the point of jurisdiction was again raised in paragraph 19, in the following terms:
“The defendant will at the trial raise all legal and equitable defences available to him and will in
particular plead that the courts of Ghana have no jurisdiction over him in personal actions as he is
domiciled and ordinarily resident in Nigeria and consequently this honourable court has no jurisdiction
to try this case as the writ of summons was served upon him in Nigeria. The defendant has since the
service of the writ of summons upon him consistently objected to the jurisdiction of this honourable
court over this action.”
At the trial the defendant in his evidence stated:
“I live in Lagos Nigeria. I have lived in Lagos since 1955, and now resident in Port Harcourt. I am a
Lebanese by origin with British nationality, i.e. I hold a British passport. I am a naturalised British
subject. I was naturalised in Lagos. I am permanently resident in Nigeria. The writ in this case was
served on me at Port Harcourt.”
This evidence also was unchallenged. His counsel in his final address to the court again emphasised
the objection to the court’s jurisdiction, thus: “As to jurisdiction raised in paragraph 19 of the statement of defence, he would reiterate the submissions made in the preliminary proceedings and submit that this court has no jurisdiction. Refers to Order 11 as treated by Dicey on Conflict of Laws, (6th ed.) pp. 171 to 204 at p. 189.” [p.456] of [1962] 1 GLR 453
In reply to defendant’s counsel’s submissions on jurisdiction quoted above, the plaintiff’s counsel
stated:
“As to jurisdiction, reiterated, submits though jurisdiction may be raised at any stage, submits that where
the law has specifically provided for challenging the law, that procedure must be followed. Refers to
Order 11, rule 25 (e) (i) and (iii) under which the writ was issued and served. There is a right of appeal
upon refusal to set aside the order for service; application for leave to appeal was refused, and now
having entered appearance and contested the suit, they cannot raise the question of jurisdiction again.”
It will be observed that this all important question of jurisdiction of the court to entertain this action
was not considered by the learned trial judgment in his judgment, as no reference whatsoever was
made to it by him in his judgment, which determined the claims set out in the plaintiff’s writ of
summons on the merits in his favour.
The defendant in his appeal against this judgment, has again raised this question of jurisdiction, and
his counsel first argued this question of jurisdiction, contending that the substance of the plaintiff’s
claim was one to enforce a trust, and that that is made clear by reference to paragraphs (a) and (f) of
the writ of summons already referred to and also paragraph 15 of the statement of claim which is in
the following terms:
“The defendant has been back in Nigeria for sometime now, but refuses to account to the plaintiff and he
now, in fraud of the plaintiff, claims to be the sole owner of all the interests which he holds in the
Construction and Furniture Company Ltd. and has thus converted to his use interest of the plaintiff
which he holds upon trust for the use and benefit of the plaintiff.”
Counsel referred to the dictum of Cotton, L.J., In Re Busfield; Whaley v. Busfield1(1)1 and submitted
that apart from statute, generally courts exercise jurisdiction only over persons who are within the
territorial limits of their jurisdiction. He also referred to the dictum of Lord Haldane in the case of
Johnson v. Taylor2(2)2 and submitted that Order 11, rule 1 did not give power to the High Court to
make an order for service out of jurisdiction, unless the case fell strictly within the provisions thereof.
The court holding that this question of jurisdiction is fundamental to the determination of the appeal,
called upon counsel for the respondent to answer to the submissions.
Learned counsel for the respondent in answer conceded that claims (a) and (f) in the writ of summons
were claims in respect of breach of trust; but contended that the plaintiff’s writ was based essentially
on a contract of agency which establishes a fiduciary relationship which imposes upon the agent the
obligations of a trustee, and further that the plaintiff came to court for relief in respect of that breach
of contract of agency. He further argued that claims (a) and (f) are only two out of nine claims, and
contended that if those two claims were in breach of trust and therefore not within Order 11, rule 1
(e), all that the defendant could do was to apply to have struck out those two claims, but he would not
be entitled to ask the court to dismiss the suit for want of jurisdiction.
In order to decide whether or not the court had the power to make the order for service out of
jurisdiction, it is necessary to determine the nature of the claims as disclosed by the writ of summons
and the statement of claim.
[p.457] of [1962] 1 GLR 453
In considering that question it will be observed that there are nine claims set out in the writ of
summons of which the first and the sixth (i.e. (a) and (f)) appear to be the most important and the
basis of the other seven reliefs claimed. For easy reference we quote hereunder the first and the sixth claims:
“(a) A declaration that the interest which the defendant held as a partner with one Salim Shamoon in
the firm of City Furniture Company was held by the defendant as a trustee as to one-half share
thereof for the benefit and use of the plaintiff.”
“(f) A declaration that all such properties and assets as mentioned in paragraph (e) supra are held by
the defendant as a trustee as to one-half share thereof for the benefit and use of the plaintiff.”
The remaining seven in our view are consequential reliefs depending upon the defendant being
declared a trustee as claimed under (a) and (f).
We are unable to agree with the contention of counsel for the respondent that this is a claim based
essentially on a contract of agency and that the plaintiff has come to court for a relief in respect of that
breach, because plaintiff has claimed all properties acquired by the defendant from 1942 up to date of
action, on the ground that the defendant was holding his money as trustee, and has employed that
money to acquire the properties; such a claim is properly available as against a trustee and not against
an agent who has committed a breach of his agency, as in the latter case the principal is only entitled
to claim his money and the interest thereon but not properties acquired with his money.
In this case the plaintiff appears to have adopted the equitable principle that “if a trustee has in breach
of trust converted trust money into some other form, the property into which it has been so converted
becomes subject to the trust”. (See Underhill’s Law of Trusts and Trustees (11th ed.) p. 560, art. 91.)
Counsel for the respondent made a further submission that, admitting that the claims under (a) and (f)
are claims in respect of breach of trust, the defendant was only entitled to move the court to strike out
those two claims and for the case to proceed in respect of the remaining claims. As to this, we hold
that if a writ of summons contains any claim in respect of which leave for service out of jurisdiction
cannot be granted then even though it may contain other claims in respect of which leave can be
granted, the court cannot by reason of the former claims grant leave for service out of jurisdiction, as
such writ does not fall within any of the provisions of Order 11, rule 11.
In the case of Vitkovice, etc. v. Korner, Lord Tucker discussing the scope of Order 11, rule 1
observed thus: “It is to be remembered that it has frequently been laid down that this jurisdiction is to
be exercised with great care, and that any doubts should be resolved in favour of the foreigner.3(3)3
In this case however we observe that in his judgment the learned trial judge, inter alia, held: “Since in
my opinion that original investment was made with funds of the plaintiff which the defendant held as
a trustee, the plaintiff can pursue all the business interests and other assets which have developed out
of it.”4(4)4 There can therefore be no doubt that the defendant was sued as a trustee and was held by
the learned trial judge to be a trustee. In those circumstances, as it is admitted [p.458] of [1962] 1 GLR 453 that there was no written instrument as required by Order 11, rule 1 (d) the High Court erred in granting the order for service out of jurisdiction. In the result the High Court had no jurisdiction to entertain the action. The appeal is accordingly allowed and the judgment of the trial court includingthe order as to costs is set aside. In lieu thereof the plaintiff’s action is struck-out for want ofjurisdiction to entertain the same. The appellant will have his costs in this court fixed at £G232 6s. and in the court below fixed at 2,000 guineas. Any costs paid by the appellant in pursuance of the order of the trial court should be refunded.
Court below to carry out.
DECISION
Appeal allowed.
Plaintiff’s action struck out for want of jurisdiction.
