IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2019
ASPEE PHARMACEUTICAL LTD - (Plaintiff/Respondent/Appelant)
MR. OWUSU AGYEMANG - (Defendant/Applicant/Respondent)
DATE: 25TH MARCH, 2019
SUIT NO: H1/52/2018
JUDGES: MARIAMA OWUSU (MRS.), J.A. (PRESIDING), DZAMEFE, J. A. AND WELBOURNE (MRS), J. A.
LAWYERS: ABENA BOSOMPEMAA ANTWI FOR PLAINTIFF/RESPONDENT/APPELLANT
MARGARET WELBOURNE (MRS.) J.A.
This is an appeal against the Ruling of the Circuit Court dated 7th December, 2017.
The parties became business partners from the year 2016 per an oral agreement in Kumasi. As part of their business dealings, it was agreed that after the Plaintiff/Respondent/Appellant had supplied some drugs to the Defendant/Applicant/Respondent, he should then pay for the drugs supplied to him by the Plaintiff/Applicant/Respondent, within a specified time frame; that is three months upon delivery. This agreement worked perfectly until a subsequent business transaction involving the supply and sale of drugs by the Plaintiff to the Defendant.
After the Plaintiff had supplied drugs worthThirty Nine Thousand One Hundred and Sixty-Six Ghana Cedis, Twenty-One Pesewas (GH₵39,166.21) to the Defendant on 2nd September 2016, he failed to make good his promise to pay for the cost of the drugs within the agreed specified time limit.
On 5th October, 2017, the Plaintiff issued a Writ of Summons in the Registry of the Circuit Court, Kumasi, claiming against the Defendant the following reliefs:
Recovery of the sum of Thirty Nine Thousand One Hundred and Sixty-Six Ghana Cedis, Twenty-One Pesewas (GH₵39,166.21); being the total amount that the Defendant is indebted to the Plaintiff which the Defendant ought to have paid on or before December, 2016 and which he has failed and/or refused to honour payment despite repeated demands and in spite of the elapse of the due date of payment.
Interest at the prevailing bank rate on the said amount stated in reliefs (i) supra from December 2016 till date of final payment.
Such further order(s) as this Honourable Court may deem fit, equitable and just.
According to the Respondent, he worked for the Appellant’s company as its agent in Tamale and admits that there was an oral agreement where the Appellant supplied goods to him to sell to interested persons or firms and he transferred monies to the Appellant’s Company as and when monies were received from customers. The Respondent case was that some customers were indebted to him and that he was doing his best to collect or recover the monies owed for onward transmission to the Appellant’s company.
On 20th October, 2017, the Defendant entered Conditional appearance and thereafter took no step until the Plaintiff filed a motion for judgment in default of defence on 17th November, 2017, praying the Honourable Court for an Order transferring the action from the Circuit Court, Kumasi to a Circuit Court in Tamale.
However, before the Defendant/Applicant/Respondent’s motion filed on 22nd November, 2017 could be heard, he caused a statement of defence to be filed on his behalf on 28th October,2017.
At the end of the hearing of the Defendant/Applicant/Respondent’s motion filed on 22nd November, 2017 at the Circuit Court, Kumasi, presided over by Her Honour Patricia Amponsah, Esq. a ruling was delivered on 7th December 2016 in favour of the Defendant/Applicant/Respondent as follows:
“I have heard both Counsel for Applicant and Respondent. To the extent that the Plaintiff filed the Writ and endorsed the address of the Defendant as “Kinapharma Company Limited, Tamale”, and paragraph 2 of the Statement of Defence also stated as follows:
“The Defendant is a businessman dealing in the buying and selling of Pharmaceutical products and based in Tamale”. I believe that with the objection raised, this cannot be treated as a mere irregularity. I am inclined to grant the application and I so do.
I hereby recommend the transfer of this suit to the Honourable Chief Justice to be put before a Circuit Court at Tamale. (see page 19-22 of the record).
Dissatisfied and aggrieved with the ruling of the Circuit Court, Kumasi, the Appellant appealed on the following grounds:
i. The learned trial judge erred in law when she granted the Defendant/Applicant/Respondent’s application.
Particulars of error of law
a. The learned trial judge erred in law when she failed to treat the conditional appearance as unconditional appearance.
b. The learned trial judge erred in law when she failed to treat the Defendant/Applicant/Respondent’s Statement of Defence as amounting to a fresh step in the action.
c. The Defendant/Applicant/Respondent having filed his statement of defence is deemed to have waived his right to object to the jurisdiction of the Honourable trial Court.
i. The learned trial judge erred when she reported the pendency of the action to the Chief Justice for an order transferring the suit from Circuit, Kumasi to a Circuit Court in Tamale.
ii. Additional Grounds of Appeal to be filed upon the receipt of the record of proceedings.
As at the date of the hearing of the appeal no additional grounds have been filed. In this appeal, the Plaintiff/Respondent/Appellant is hereinafter referred to as “the Appellant” while the Defendant/Applicant/Respondent is hereinafter referred to as “the Respondent”. The record of Appeal is hereinafter referred to as “the ROA”.
The ruling of the trial Circuit Court is found at pages 19 - 22 of theROA, while the Notice of Interlocutory Appeal (NOIA) is also found at pages 23 - 24 of the ROA.
The principle is that an appeal is by way of re hearing. In the case of Nortey (No 2 ) v African
Institute of Journalism and Communication & Others (No 2) [2013-2014] 703 at 711 per Akamba JSC;SC; it was held as follows:
“This court has stated in numerous cases such as Tuakwa v Bosom[2001-2002]SCGLR]61;65; Quarcoopome v Sanyo Electric Trading Co Ltd SCGLR213;229; Oppong v Anarfi  2 SCGLR,556 that an appeal is byway of rehearing particularly where the appellant alleges as in the omnibus ground that the decision of the trial court is against the weight of the evidence. In such a case it is incumbent on an appellate court such as this, in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decisions so as to satisfy itself that on the preponderance of probabilities, that the conclusions of the trial judge are reasonably or amply supported by the evidence.”
GROUNDS OF APPEAL:
In the instant appeal, we would deal with the grounds of appeal in seriatim.
(i) The learned trial judge erred in law when she granted the Defendant/Applicant/Respondent’s application:
“(a)The learned trial judge erred in law when she failed to treat the Defendant/Appellant/Respondent’s conditional appearance as unconditional appearance”
On the issue of the conditional appearance becoming unconditional appearance, we agree with the Appellantthat to the extent that time for the conditional appearance being fourteen days (14) dayshad lapsed per Order 9 r 8 of the C.I. 47, the Respondent’s conditional appearance should have been treated by the trial Court as an unconditional appearance; particularly, as he had not given any tangible reason to the court for his failure to meet the deadline.
The law is that if a Defendant enters appearance unconditionally, he is deemed to have acknowledged the Court’s jurisdiction including the regularity of the writ and the regularity of the service. Where a Defendant enters conditional appearance he then gives notice to the Plaintiff that he intends to challenge the jurisdiction of the Court, the regularity of the writ or its service.
We agree with Counsel’s submission that the aim of Conditional appearance is to halt or stop the proceedings for the protest or the basis of the conditional appearance to be investigated. Therefore after fourteen (14) days of the filing of the conditional appearance, the Defendant will be deemed to have admitted the regularity of the writ or its service and the conditional appearance shall be treated as an unconditional appearance. See the cases of Amissah-Abadoovrs. Abadoo  1 GLR 490; and Republic vrs. High Court, Denu; Ex Parte Avadali IV [1993-94]1GLR56.
In the instant case when the Respondent entered conditional appearance on the 20th October 2017, he had up to 2nd November 2017 to challenge the regularity of the writ. Per Order 9 rule 8 of C.I. 47, after 2nd November 2017 the conditional appearance would now be treated or considered as unconditional appearance and for the suit to take its normal course. He was deemed to have waived his right to stop the proceedings. Counsel submitted the following cases in support of his argument:
Eduseivrs. Diners Club Suisse Sa [1982-83]GLR 808, CA;Dede 11 vrs.Ansah& Others GLR 746 and Renault Vehicle Industries Ltd. vrs. Ashanti Engineering Industries 1 GLR 443, CA.
We agree with the Appellant on this leg of the argument on ground one (i) of the appeal.
This ground of the appeal succeeds.
(b) and (c)The learned trial judge erred in law when she failed to treat the Defendant/Applicant/Respondent’s statement of Defence as amounting to a fresh step in the action; and The Defendant/Applicant/Respondent’s having filed his statement of defence is deemed to have waived his right to object the jurisdiction of the Honourable trial Court:
Since these two issues are the same, we would discuss them simultaneously.
On the issue of the Respondent having filed his statement of defence as amounting to a fresh step in the action and same constitute a waiver of his right to object to the jurisdiction of the Honourable Court; we again agree with the Appellant that since the Respondent herein has filed his statement of defence in the instant case, he has indeed waived his right to object to the jurisdiction of the court. However, the law is that any issue in relation to jurisdiction of the court is a threshold issue that goes to the root of the case and same must be fully dealt with by the court before any further proceedings in the matter.
Counsel for the Appellant rightly submitted in our opinion that the Respondent after filing a motion on notice on 22/11/17 praying for an order transferring the suit to a Circuit Court in Tamale with the return date fixed for 29/11/17;took a fresh step in the matter by filing a statement of defence on the 28/11/17. Indeed counsel rightly stated that the Respondent in the circumstances is deemed to have waived his right to object to the jurisdiction of the trial court. The case of Quaiko vrs. Mobile Oil (Ghana) Ltd & Anor 1GLR461 is apposite here. In that case the court held that:“taking a fresh step would amount to a waiver of the objection as to irregularity in the issue connected with it or service of the writ or an informality, of course except fundamental or jurisdictional objection.
Again, our meticulous examination of the ROA reveals that, the Respondent herein had taken a fresh step in the action by filing his statement of defence, which can found at pages 13 – 14 of the ROA. This action by the Respondent indeed ought to have denied the Respondent the opportunity to object to the jurisdiction of the trial court in the instant case.
In all, this ground of appeal succeeds.
(ii)The learned trial judge erred when she reported the pendency of the action to the Chief Justice for an order transferring the suit from Circuit, Kumasi to a Circuit Court in Tamale:
The court’s power to hear a case is basically determined by certain important factors, critical among them is jurisdiction. The issue of jurisdiction of a circuit court to hear a matter before it is provided in section 40(2) of the Courts Act 1993 (Act 459); and also in the Lower Courts and Tribunals Instrument 1993 (LI 1574) under which the area of jurisdiction of each Circuit Court extends over the Region of Ghana in which the court is located. So basic and important is the jurisdiction of a Court to hear and decide on a case that whenever any party to a case before a court raises a concern in relation to the jurisdiction of that court, that concern must be addressed before any further fresh step is taken in the proceedings.
In the instant case, Counsel for the Appellant at page 20 of the ROA, submitted that the application of the Respondent by his Counsel recommending to the trial judge to apply for the transfer of the case from the Circuit Court, Kumasi Circuit Court to Tamale Circuit Court was incompetent. Counsel of the Appellant’s case is that, this is a motion for an order transferring the case to another court. Counsel further submitted that the trial Court does not have the power to transfer a case to another court. According to Counsel, the power to transfer the case under the circumstances lies in the bosom of the Chief Justice. The Appellant therefore relied on sections 104 to 106 of the Court’s Act, 1993 (Act 459) to fortify their arguments. Counsel for the Appellant in further submission of their case cited and relied on the case of Fano vrs. Francis (2005-2006) SCGLR 1003, which made jurisdictional issues the sole prerogative of the Chief Justice’s power to transfer the suit. Per the rule of transfer, the transferring court is only given the power to report the pendency of the case to the Chief Justice for the case to be transferred once the objection is raised by the party. Counsel for the Appellant holds the view that, if the trial court grants the application, same would amount to a usurpation of the powers of the Chief Justice and per the law, the trial court does not have the power to do so.
In furtherance of their argument, Counsel for the Appellant submitted at page 21 of the ROA, that on the strength of Order 3 rule 1 (4), when it comes to contracts, the key determinant for the court to look out for is where the contract ought to be performed; where the Defendant carries on business; and where the Defendant resides, so that any of the parties contemplating a suit is entitled to choose from one of the three (3) venues.
It is pertinent to note that, the High Court Civil Procedure Rule, 2004 (C.I. 47) under Order 3 generally provides for venue for hearing a civil case by a trial High Court or Circuit Court, as in the instant case. Specifically, Order 3 rule 1 sub-rules 4 and 5 provides as follows:
“(4) Every cause or matter for specific performance of a contract or in respect of breach of contract shall be commenced in the Region in which the contract ought to have been performed or in which the defendant resides or carries on business.
(5) All other cause or matter shall be commenced in the Region in which the defendant resides or carries on business.”
The law is therefore settled that every cause or matter for specific performance of a contract or in respect of breach of contract shall be commenced in the Region in which the contract ought to have been performed or in which the defendant resides or carries on business. In the opinion of this Court, the instant suit is no exception to this rule. See Order 3 rule 1(4).
Under the present circumstance, the dictum of the Supreme Court as demonstrated in the case of
Boyefio v. NTHC Properties Ltd (1996-97) SCGLR 531 that:
“The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed”, is inescapably apt.
In the opinion of this court the recommendation made by the trial judge for the case to be transferred from the Kumasi Circuit Court to Tamale Circuit Court is in accordance with the rules of court. This is because, per the facts of the instant case, Tamale in the northern region was where the contract ought to be performed and the same town is where the Respondent resides and carries on his business. The following extract from paragraphs 3, 4, 5, and 7 of the Respondent’s Statement of Defence which can be found at page 13 of the ROA will attest to this fact:
“3….Defendant has ever worked for the Appellant’s company as its agent in Tamale…
4….that there was an oral agreement in 2015.
5….that the Plaintiff contacted him in Tamale to act as its agent in Tamale.
7…that goods are supplied as and when the agency at Tamale makes request and monies received from customers transferred to the Plaintiff.”
Also, the Appellant herein shot itself in the foot when it stated the address of the Respondent on the Writ of Summons as:
“MR. OWUSU AGYEMAN
KINAPHARMA COMPANY LIMITED
The above extract form the Writ of Summons can be found at pages 1and 22 of the ROA.
Again, the Appellant caused an irreparable damage to its own case when at paragraph 2 of its Statement of Defence which can be found at page 3 of the ROA, it says that:
“2. The Defendant is a businessman dealing in the buying and selling of Pharmaceutical products and based in Tamale.” See also page 22 of the ROA for fact.
We hold the strong view that the issue of jurisdiction will override the argument of the Appellant, that Respondent herein waived his right to challenge the jurisdiction of the trial court. This is because, the issue of jurisdiction of the court is of great importance to the hearing of the case, to the extent that Order 81 of the Civil Procedure Rule, 2004 (C.I. 47) cannot cure or save this non-compliance or defect committed by the Appellant. This is because where the non-compliance goes to the jurisdiction, Order 81 becomes impotent. See the following cases on the nature and scope of Order 81 of C.I. 47:
Republic vrs. High Court, Koforidua, Ex Parte Ansa Out  SCGLR 141; Republic vrs. High Court, Accra, Ex Parte Allgate Co. Ltd. (Amalgamated Bank Ltd. - interested Parties) [2007-2008] SCGLR 104; and Republic vrs. High Court, Koforidua, Ex Parte Eastern Regional Development Corporation[2003-2004] SCGLR 21.
A thorough analysis of the ROA before this Court revealed that, in the instant case, the venue for the performance of the contract is Tamale Circuit Court and not Kumasi Circuit Court.
The following extract from the ruling of the trial court at page 22 of the ROA support the position of this court;
“The Defendant is a businessman dealing in the buying and selling of Pharmaceutical products and based in Tamale.”
In the case of Oils and Fats Co Ltd &Others vrs. Hooper &Anor 1GLR 326, an action was brought against the Defendant in a wrong region, it was held that the court was clothed with jurisdiction to try the suit unless either the trial judge reported the matter to the Chief Justice for a transfer to the proper venue or the Defendant raised the objection to the jurisdiction as to venue before or at the time he was required to plead to the action.
In any case, Order 81 rule 2of C.I.47 provides that:
“2(1) An application may be made by motion to set aside for irregularity any proceedings, any step taken in the proceedings or any document, judgment or order in it, and the grounds of it shall be stated in the notice of the application.
(2 )No application to set aside any proceedings for irregularity shall be allowed unless it is made within a reasonable time and the party applying has not taken any step after the knowledge of the irregularity.”
In our view, even though sub-rule 1 provides an opportunity for the Respondent herein to raise objection after filing his conditional appearance to the Writ of Summons by the Appellant, per provision under sub-rule 2 such an opportunity was rendered impotent by virtue of time lapse.
We therefore hold that the ruling of the trial Circuit Court Judge at the end of the hearing of the Defendant/Applicant/Respondent’s motion to the effect that she has recommended the transfer of the instant suit to the Honourable Chief Justice to be put before a Circuit Court at Tamale, is apt and lawful.
This was what the trial Circuit Judge said at page 22 of the ROA in respect of the transfer of the instant case:
“I have heard both Counsel for Applicant and Respondent. To the extent that the Plaintiff filed the Writ and endorsed the address of the Defendant as ‘Kinapharma Company Limited, Tamale’, and paragraph 2 of the Statement of Defence also stated as follows:
‘The Defendant is a businessman dealing in the buying and selling of Pharmaceutical products and based in Tamale’. I believe that with the objection raised, this cannot be treated as a mere irregularity.”
I hereby recommend the transfer of this suit to the Honourable Chief Justice to be put before a Circuit Court at Tamale.”
It is also the law that, even if the Defendant did not raise objection in respect of the venue, the judge can suomotu recommend for the transfer of the suit by the Chief Justice.
The issue of jurisdiction is so fundamental to the hearing of the case, to the extent the successful transfer of the same by the Chief Justice will override the issue of waiver. Flowing from this analysis, the Appellant can raise these objections when the matter is successfully transferred to the new and proper venue, that is to the Circuit Court, Tamale. The law is that all orders made by the trial court as well as the evidence on record before the transfer remains valid and binding on the parties, notwithstanding the transfer of the suit to the new and proper venue.
See Republic vrs. Korle Gonno District Magistrate Grade I, Ex Parte Amponsah [1993-93] GBR 196.
It is worthy of note that, the fact that an action is commenced in the wrong venue does not automatically render it a nullity. See Order 3 r 2(2) of C.I. 47. Where an action is mounted by a Plaintiff in a wrong venue, the Defendant may at the appropriate time as prescribed by the Rules raise an objection to the venue, as was done by the Respondent in the instant case, except that he raised his objection after taking a fresh step in the matter, by filing his defence. The law is that the Defendant in a case ought to raise objection to the jurisdiction of the court as to venue, before or at the time the defendant is required to file a defence in the proceedings.
From the foregoing analysis, this Court affirms the ruling of the trial court with her recommendation that the instant case be transferred by the Chief Justice from the Kumasi Circuit Court to Tamale Circuit Court.
This ground of the appeal is therefore dismissed.
In conclusion, we affirm the judgment of the trial Circuit Court that the instant suit be transferred to Tamale Circuit Court.
The appeal is therefore dismissed in its entirety for want of jurisdiction of the trial court.
No order as to costs.