KIMON COMPANIA NAVIERA S.A.R.P. AND OTHERS vs. VOLTA LINES LTD. (CONSOLIDATED) [1973] 1 GLR 140

CASES REFERRED TO

(1) Lazard Brothers & Co. v. Midland Bank, Ltd. [1933] A.C. 289; 102 L.J.K.B.191; 148 L.T. 242; 49 T.L.R. 94; 76 S.J. 888, H.L.

(2) In re Pritchard; Pritchard v. Deacon [1963] Ch. 502; [1963] 2 W.L.R. 685; [1963] 1 All E.R. 873, C.A.

NATURE OF PROCEEDINGS

APPLICATION by the defendant company that service of the plaintiffs’ writ be set aside on the ground of nullity. The facts are fully set out in the ruling.

COUNSEL

U. V. Campbell for the plaintiffs.

Joe Reindorf for the defendant.

JUDGMENT OF HAYFRON-BENJAMIN J.

These are thirteen different applications for orders to set aside the service of the writs of summons in thirteen suits. I have taken them together because the same issues of law and fact are raised in them.

On 10 July 1972, writs of summons were taken out on behalf of the plaintiffs claiming various sums totalling over four million cedis from the defendant company. The address of the plaintiffs in the title of each suit is given as “c/o Campbell & Co., House No. D.45/4, Knutsford Avenue, Accra.” The writs were taken out by Messrs. Campbell and Company and were signed by U. V. Campbell of Apagya Chambers, solicitor for the plaintiffs. The address of Campbell and Company is given as P.O. Box 214, Accra and the address for service endorsed on

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the writ is D.45/4, Knutsford Avenue, Accra. It is stated on the writ that U. V. Campbell, the solicitor for the plaintiffs resides at Accra.

On the face of the writs of summons therefore the impression is created that the plaintiffs are companies resident or doing business in Accra, and having as their registered office or place of business house No. D.45/4, Accra. On receipt of the writs of summons the solicitor for the defendants rightly and promptly wrote to the Registrar-General’s Department to ascertain whether these companies were registered either as local companies incorporated in Ghana or as external companies registered in Ghana under the provisions of the Companies Code, 1963 (Act 179). The Registrar-General’s reply was in the negative. The defendants’ solicitor was therefore justified to assume that the writs as taken out were incompetent in that they had been taken out on behalf of persons who have no legal capacity to sue. The purported plaintiffs are not natural persons, they are not partnerships carrying on business in Ghana, and they are not legal persons. The defendants’ solicitor therefore filed a motion on notice to set aside the service of the writ. In the affidavit in support of the motion the grounds for the application are carefully and clearly set out. The affidavit states in paragraphs (3)-(5) that:

“(3) I am advised and verily believe that the said writ is null, void, invalid and of no effect and that the same should not have been accepted for filing and service on defendant since it offends against Order 3, r. 4, and Order 4, r. 1 (1) of the 1954 Rules of this court in that it does not state the address of the plaintiff.

(4) I have every reason to believe that the alleged plaintiff herein is neither a natural person nor resident within the jurisdiction.

(5) I have caused inquiries to be made at the office of the Registrar-General in Accra, from which it appears that the plaintiff is not registered with the Registrar-General as a Ghanaian company, firm, partnership, proprietary businessname or other business organisation, or as a foreign company with a place of business within the jurisdiction, or as a foreign partnership doing business within the jurisdiction.

I attach hereto marked ‘A’ a document emanating from the Registrar-General’s Department in support of the statements made in this paragraphs.”

This affidavit was filed on 28 July 1972. No affidavit in opposition to the application was filed by any of the plaintiffs. It is not shown therefore on any affidavit whether the absence of any address of the plaintiffs is due to inadvertence or otherwise; it is not shown on any affidavit whether or not the plaintiffs are legal corporations or bodies

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and if so in which country or countries. The plaintiffs’ solicitor contended himself with filing a notice of amendment under Order 28, r. 1. This he is perfectly entitled in law to do.

The amendment seeks to add the words “a body corporate by its lawful attorney Aegis Shipping Co., Ltd., 167 Alkivadon Street, Pireaues, Greece,” to the title of the suit. Learned counsel for the defendants has submitted that this amendment does not meet the objections taken. A person suing by a lawful attorney can only sue in the name of the principal and not in his own name. If the principal has no legal personality he cannot acquire one by using an attorney. The law specifically authorises an infant to sue by his next friend but the law does not authorise a body which is not properly incorporated to evade the requirements of incorporation or registration by suing by an attorney. The plaintiffs in these cases are not shown to be incorporated under any legal system. One plaintiff for example is shown as Coronet Shipping Company, Monrovia. It is not clear whether this is a Liberian company suing in Ghana by a Greek attorney. In the shipping world companies are formed in several parts of the world, and their ships sometimes are registered under flags of convenience. Moreover it is highly important in the present conditions of world trade, that these courts should not countenance companies which are registered in Portugal, South Africa or Rhodesia which do business in contravention of United Nations and Organisation of African Unity resolutions on trade embargo with these countries. It is therefore of especial importance that foreign companies should show under what law they are incorporated. These companies cannot by using an attorney in a friendly country avoid the restrictions placed on trade by international decisions and resolutions. The amendment sought in my view does not meet the objection of learned counsel for the defendant company. The address and the place of incorporation of the plaintiff companies should be stated on the writ.

The next question is whether failure to state these is fatal and renders the writs null and void, or is merely an irregularity which can be waived. It is clear that when a writ is taken out by a non-existent plaintiff it is a nullity and will be set aside: see Lazard Brothers & Co. v. Midland Bank, Ltd. [1933] A.C. 289, H.L. In these cases there is no dispute that these plaintiffs actually exist somewhere, it is their whereabouts that have not been disclosed. Learned counsel for the plaintiffs has said that he is prepared to furnish the addresses and the place of incorporation of these companies, and I think in accordance with the reasoning of the learned judges in In re Pritchard; Pritchard v. Deacon [1963] Ch. 502, C.A., I ought to grant him the facility to remedy these defects. Any inconvenience or damage suffered by the defendant company as a result of this irregularity can be compensated by an award of costs, which in these cases ought to be on the high side. I grant leave [p.144] of [1973] 1 GLR 140 to the plaintiffs to amend the writs of summons in all the thirteen suits within ten days. The plaintiffs will pay the defendant company’s costs which I assess to ¢50.00 per case as a condition precedent to the amendment.

DECISION Application granted.

S.E.K.