COURT OF APPEAL
DATE: 3 MAY 1971
SIRIBOE JSC., ANIN AND ARCHER JJA
CASES REFERRED TO
(1) Nkyi XI v. Kumah [1959] G.L.R. 281, C.A.
(2) Tetlow v. Orela Ltd. [1920] 2 Ch. 24.
(3) Noble Lowndes and Partners (A Firm) v. Hadfields, Ltd. [1939] 1Ch. 569; 108 L.J.Ch. 161; 161
L.T. 138.
(4) Hill (W) & Son v. Tannerhill [1944] 1 K.B. 472; 113 L.J.K.B. 456; 170 L.T. 404; 60 T.L.R. 410, C.A.
(5) Mason & Son v. Mogridge (1892) 8 T.L.R. 805.
NATURE OF PROCEEDINGS
APPEAL from a decision of the Circuit Court, Accra in which it was adjudged that the appellants were indebted to the respondent.
COUNSEL
Korsah (Joubert with him) for the appellants.
Ofori for the respondent.
JUDGMENT OF ARCHER JA
Archer J.A. delivered the judgment of the court. This is an appeal by the Ghana Industrial Holding Corporation against the judgment of the Circuit Court sitting at Accra, in which it was adjudged that the corporation was indebted to Vincenta Publications in the sum of N¢2,350.00 for advertising services. Vincenta Publications also filed a notice of intention to contend that that part of the judgment of the court below which disallowed claims for travelling expenses and damages should be varied.
Although the corporation filed grounds challenging the total sum adjudged to be due, Mr. Korsah, learned counsel for the corporation, chose not to deal with these grounds but concentrated on the legal submission that Vincenta Publications was the business name of one man and therefore the proprietor of the business could not come to court as a plaintiff under the business name. The legal basis for this submission was Order 48A, r. 11 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which provides: “Any person carrying on business within the jurisdiction in a name or style other than his own name may be sued in such name or style as if it were a firm name; and, so far as the nature of the case will permit, all rules relating to proceedings against firms shall apply.” Mr. Korsah contended that as rule 11 enables a person carrying on business within the jurisdiction in a name or style other than his own name to be sued as a defendant, Vincenta Publications could not come to court under that name or style as a plaintiff. In other words, that name would have sufficed and would have been permissible if Vincenta Publications had been sued as defendants. With this submission, Mr. Korsah took his seat.
In answer to this submission, Mr. Ofori, learned counsel for Vincenta Publications, took a plunge in order to rescue his client but it seemed that he was undertaking a hopeless task as his client was already drowned by the fast current in Mr. Korsah’s submission. As a result, Mr. Ofori could only emit a series of lamentations. He contended that the objection should have been taken at the trial. He also submitted that the parties were bound by their pleadings and it was not proper to raise the provisions of Order
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48A, r. 11 in this court. At first Mr. Ofori was not sure whether Vincenta Publications was a one man firm, but after the court had drawn his attention to the contents of affidavits filed by his own client, he conceded that there was evidence on record from which it might be inferred that Vincenta Publications was a one man firm.
Mr. Ofori then applied to this court for leave to amend the name of the respondent to read “Vincent Alisa Onuku trading under the firm name and style of Vincenta Publications.” He cited the case of Nkyi XI v. Kumall [1959] G.L.R. 281, C.A. and referred to page 285 as authority for his application. In the Nkyi XI v. Kumah case, the then Court of Appeal granted leave to the plaintiff to amend his claim by adding a claim for a declaration of title as the amendment did not raise any issue on which evidence had not already been taken. There the plaintiff was properly before the court and he had locus standi.
But what is the locus standi of Vincenta Publications in this appeal? The firm name as such has no legal status whether as an individual person or a corporate person. It is not a defendant in this suit so as to make Order 48A, r. 11 applicable. In his earlier submissions Mr. Korsah relied on the case of Tetlow v. Orela Ltd. [1920] 2 Ch. 24. This decision related to Order 16, r. 2 which gives the court power to add or substitute a plaintiff where the action has been taken in the name of the wrong person. The rule presupposes the existence of a person who has wrongly sued in his name. The amendment allowed in the Nkyi v. Kumah case (supra) was an amendment of the plaintiff’s statement of claim, that is, his pleading under Order 28. But the application for amendment made in this court cannot be for the amendment of the statement of claim. It is an application to substitute an existing person for a business name which is not a person. If that is the case, then there is no plaintiff before the court and there is nothing to substitute or amend.
We think rule 11 should be carefully contrasted with rule 1 of Order 48A. Under rule 1 any two or more persons carrying on business within the jurisdiction may sue or be sued in the firm’s name. Under rule 11, any person carrying on business within the jurisdiction may be sued under the firm name. Rule 1 has a wider ambit whereas rule 11 has a very narrow scope. In rule 1, there must be more than one person who can sue or can be sued in the firm name. Under rule 11, one person may be sued as defendant under the firm name. If it had been intended to enable such an individual to sue also as plaintiff under the firm name, rule 11 would have expressly provided for such a case. But the rule is completely silent and it is not open to any court of law to give it a greater field of operation. Rules of court, like the Queensbury rules in boxing, are meant to be observed by litigants and enforced by the courts. Where there is no rule of court enabling a party to take a certain course or mode of action, the party must show legal justification for the course taken.
We have considered two English decisions, and although they are not binding on us, we wish to consider them in case they should be of some benefit in considering the application for amendment. The first case is that of Noble Lowndes and Partners (A Firm) v. Hadfields, Ltd.
[p.27] of [1971] 2 GLR 24
[1939] 1 Ch. 569. There, one Mr. N. F. Lowndes entered into a contract with the defendants in the name of Noble Lowndes and Partners under the mistaken impression that there was a partnership between himself and five other persons. When Mr. Lowndes sued the defendants later, he described the plaintiffs as “Noble Lowndes and Partners (A Firm).” Mr. Lowndes applied to amend the title by substituting his own name for that of the plaintiffs when the defendants discovered that there was no such firm and also applied to strike out the action. In his judgment Farwell J. approached the matter with the following reasoning at pp. 571-572:
“The contract which Mr. Lowndes seeks to enforce is in the same terms as that originally pleaded, and the only amendment necessary is the substitution throughout of his name in the place of the name of a firm which does not exist. The question is whether such an amendment can be permitted under the rules. Until Order XLVIIIA., r. 1, came into force each individual forming a partnership had to sue or be sued in his own name, but under this rule that is no longer necessary, and a partnership can now sue or be sued in the firm name. … Before any such amendment as the applicant seeks here can be allowed the Court has to be satisfied that there has been a bona fide mistake. From the evidence before me I am satisfied that there has been a bona fide mistake, and on that ground the application ought not to be dismissed. [Farwell J. then referred to the case of Tetlow v. Orela, Ltd. [1920] 2 Ch. 24 and continued:] It is said in the present case that the original plaintiff is non-existent, and on the principle of Russell J.’s decision a living person cannot be substituted for a firm which never had any existence. In my judgment that case is not applicable here. Order XLVIIIA. enables persons carrying on business in partnership to sue or be sued in the firm name, but that is a rule of convenience, and an action by or against a firm notwithstanding the rule remains an action by or against the individual members of the firm. That appears from the rule itself, which enables the other side to ascertain at once the names and addresses of the individuals. Such an action remains therefore an action by or against individuals, and consequently I am not being asked to substitute a living person for a non-existent entity, but I am being asked to strike out the names of all the plaintiffs except one and to leave that one as the sole plaintiff. Under these circumstances, in my judgment I have power to do what I am asked to do, and I think that I ought to exercise my discretion in the applicant’s favour and allow the amendment; . . .”
The second English case is that of W. Hill & Son v. Tannerhill [1944] 1 K.B. 472, C.A. which followed the decision of Farwell J. in the Lowndes case (supra). The facts were that Walter Hill carried on business alone and without partners under the name of “W. Hill & Son.” Mr. Hill’s car was damaged and he therefore took action against the other driver. By the inadvertence of a solicitor’s clerk, “W. Hill & Son” were stated in the writ to be the plaintiffs. Later Mr. Hill applied for an order substituting as plaintiff in the action “Walter Hill trading as W. Hill & Son.” The
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master made the order asked for, and on appeal, it was affirmed by Stable J. The defendant appealed. It was held that as W. Hill was an actually existing person and the real plaintiff in the action, he was entitled to the order. Scott L.J. reasoned as follows at pp. 474-475:
“When the writ was issued in the name of ‘W. Hill & Son’ there was an individual person in fact interested in the claim. His description as ‘W. Hill & Son’ was a mistake by a clerk. The question is whether that mistake is more than a mistake in form. In my opinion, it is not. Under Or. 48A, r. 1, one person, even if he is carrying on business in a firm name, cannot issue a writ in the firm name, but if a real person does issue the writ in his own name, say, of ‘W. Hill,’ the fact that he adds the two additional words ‘and Son’ does not prevent his still being the real plaintiff in the action.
The application under the order for directions that his name should be written in full as ‘Walter Hill’ instead of ‘W. Hill’ obviously by itself would have been unobjectionable. The addition asked for, ‘trading as W. Hill and Son,’ as if he were a firm, is mere useless and inappropriate surplusage, but it does not prevent the fact that it was Walter Hill himself who was still going to be the plaintiff just as he had originally in the writ been the plaintiff. For these reasons I think the master and the judge were right in allowing the amendment.”
Du Parcq L.J. agreeing added at p. 475:
“It is clear that a single person trading under a firm name is not entitled to issue a writ in a firm name, but it is wrong to say that when this writ was issued in the name of ‘W. Hill & Son,’ it was issued in the name of a non-existent person.. If the writ had been issued in the name of ‘W. Hill & Son, LTD.’ the case would have been very different, because ‘W. Hill & Son, LTD.’ indicates a legal entity and a person. I do not say what we should have done or what the learned judge would have been in a position to do if there had been no ‘W. Hill’ of the address given and the owner of the lorry had been someone of a different name trading in the name of ‘W. Hill & Son.’ A question may arise about that some day, but in this case there is a ‘W. Hill,’ and all that need be said is that ‘and Son’ ought not to have been added.”
In each of these two English decisions the learned judges felt that it would be unjust to refuse the amendment. In the Lowndes case, the plaintiff made an honest mistake thinking there was a partnership when there was none. He also had his full name Noble Lowndes in the title and so it was easy to delete “and Partners.” In the Hill case, there was the real Walter Hill but through the inadvertence of the solicitor’s clerk, the writ was issued in the name of “W. Hill & Son.” Here too all that need be done was to delete “and Son.”
But what are the circumstances in the present application for amendment? Mr. Ofori has advanced no reasons whatsoever whether there has been a bona fide mistake or there has been inadvertence on the part of the
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solicitors, that is, Messrs. Fred P. Segbefia & Co., who issued the writ. In the course of his argument Mr. Ofori dabbled in provisions of the Companies Code, 1963 (Act 179), and even suggested that as that Code permitted the formation of one man companies, Vincent Publications could be a business entity. If that is the case, the word “limited” should have appeared after the name of the firm. In any case there is no evidence that Vincenta Publications is registered under the Companies Code, 1963.
As already pointed out, Mr. Ofori could not at first say whether Vincenta Publications was a one man business or not. He was not also in a position to reveal whether or not the business name had been registered under the Registration of Business Names Act, 1962 (Act 151). We must confess that the inability or the reluctance of Vincenta Publications to put all their cards on the table for the court to see astounds us. Nevertheless, Mr. Ofori’s plight can be excused as he did not issue the writ and he did not appear at the trial. It is likely that he has not taken full instructions from his client whom he has identified in court.
But should the amendment be allowed? We think it should be refused. The name “Vincenta Publications” does not suggest the name of any human being in existence. In the Lowndes and Hill cases, the full names of the proprietors of the businesses were disclosed. Only the words “and partners” and “and son” were found to have been mistakenly or inadvertently added. These English cases are distinguishable on the facts. When one reads exhibit 2, the name of the business is no longer Vincenta Publications but Vincenta Bureau of Publicity. Exhibit 2 was the last letter written before the writ was issued. Mr. Vincent Onuku no longer signs as managing director but signs as managing editor. It seems to us that when litigants and their lawyers come to court, they should be fully prepared to answer with candour all of the questions that the court may legitimately put to them to enable the court to ascertain the truth. In the present case no reasons have been given for using the name Vincenta Publications as plaintiff in issuing the writ and the application for amendment must be refused.
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. In conclusion, the appeal must succeed and the judgment of the court below must be set aside.
DECISION
Appeal allowed.
T.G.K.
