IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
KWADWO OPOKU & ANOTHER - (Plaintiff)
ERIC KOFI BOATENG - (Defendant)
DATE: 6 TH FEBRUARY, 2018
SUIT NO: OCC. 80/2017
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
ANITA ASHONG-KATAI FOR PLAINTIFF/APPLICANT
AMA ASSENSO FOR DEFENDANT/RESPONDENT
This ruling seeks to determine the merits of the preliminary legal objection challenging the jurisdiction of the Commercial Court from hearing an application for an order appointing a receiver under Order 27(1) of the High Court (Civil Procedure) Rules, 2004 (CI 47) and for an ancillary injunction order under Order 27(2) of CI 47.
The issue of “whether or not the suit has been commenced in the proper forum” is one of the issues set out for trial. The court,however, decided to hear and determine this preliminary legal issue in a bid to ensure speedy and effective justice as required by Order 1 rule 1(2) of CI 47. This is coupled with the fact that the issue of jurisdiction of the court can be raised at any time. See Republic v High Court Denu, Ex-parte Avadali IV [1993/94] 1GLR 561 at 562 (holding 1).
I have carefully considered the arguments advanced by both counsel. While counsel for the defendant/respondent argues that the commercial court has no jurisdiction to entertain the motion, as the suit relates to land not commerce, counsel for the plaintiff/applicant submits that the substance of the suit shows that the reliefs are commercial in nature and as such the commercial court has the jurisdiction to hear same. Counsel for the defendant/respondent submits that the enactment of Order 58 of CI 47 which sets out matters which could be tried by the commercial court limits it to only matters specified in the Order, therefore the commercial court has no jurisdiction to try matters that are not set out in the Order. Both counsel agree that the Commercial Court has jurisdiction to try commercial claims.
Rule 58.1(2) of UK’s Civil Procedure Rules, 1998 defines ‘commercial claims’ to mean:
“Any claim arising out of the transaction of trade and commerce and includes any claim relating to: (a) a business document or contract, (b) the export or import of goods, (c) the carriage of goods by land, sea, air or pipeline, (d) the exploitation of oil and gas reserves or other natural resources, (e) insurance and re-insurance, (f) banking and financial services, (g) the operation of markets and exchanges, (h) the purchase and sale of commodities, (i) the construction of ships, (j) business agency, and (k) arbitration.”
This definition together with many of the procedures of UK’s Commercial Court were adopted by Lord Woolf in his Access for Justice, Final Report, 1996. Lord Woolf’s blueprint for reform of civil litigation in general has found its way into the Civil Procedure Rules 1998.
It appears Ghana’s Rules Committee also took inspiration from r 58.1(2) of Civil Procedure Rules, 1998. Order 58 rule 2 of CI 47 defines the nature of commercial claim as:
“2. A commercial claim is any claim arising out of trade and commerce and includes any claim relating to:-
i. The formation or governance of a business or commercial organization.
ii. The winding up or bankruptcy of a Commercial or business or commercial organization or corporate person.
iii. The restructuring or payment of commercial debts by or to business or commercial organization or person.
iv. A business document or contract.
v. The export or import of goods.
vi. The carriage of goods by sea, air, land or pipeline.
vii. The exploration of oil and gas reserves.
viii. Insurance and re-insurance.
ix. Banking and financial services
x. Business agency;
xi. Disputes involving Commercial Arbitration and other settlements awards.
xii. Intellectual property rights, including patents, copyrights, and trademarks.
xiii. Tax matters
xiv. Commercial fraud.
xv. Application under the Companies Code, 1963 (Act 179)
xvi. Other claims of commercial nature.”
Per the writ of summons, the plaintiff claims the following reliefs against the defendant:
Recovery of the land as well as the building thereon known as House No. Block 39, Plot 1, Ahodwo-Kumasi.
An order from this honorable court directing the defendant to render accounts on the said property.
General damages for breach of the lease agreement of 18th August, 1999.
Costs including lawyer’s fees.
It is important to look beyond labelling in construing whether or not a claim is commercial in nature. In that regard the reliefs sought although useful in making a determination, the same do not, however, tell the full story. A look at the statement of claim will help determine whether the relationship between the parties is commercial in nature.
After a careful reading of the writ of summons and statement of claim, it is palpably clear that the claim is borne out of contract. Paragraphs 3 and 4 sum up the alleged contractual relationship between the parties. The plaintiff claims as follows:
“3. The Plaintiffs say that on the strength of their beneficial interest, they entered into an agreement with the Defendant for the development of the undeveloped part of Block 39, Plot1, Ahodwo, Kumasi. The Plaintiffs will say that the agreement with the Defendant was in both written and oral terms
4. The Plaintiffs repeat the immediately preceding paragraph and add that by a written agreement dated 18th August, 1999 the property was given to the Defendant for a period of Thirty Five (35) years to develop and after the expiration of the said term, the Defendant will hand over the property to the Plaintiffs.”
I therefore agree with counsel for the plaintiff/applicant that the fact that relief (a) seek a recovery of land and the building thereon does not depart the alleged transaction from commerce. Indeed, the matter in issue is purely based on an alleged breach of a leasehold agreement. It is not about a declaration of title to land to morph it into an exclusively land litigation as claimed by the defendant/respondent. The matter has, therefore, been placed in the proper forum within the meaning of Order 58 rule 2 of CI 47 particularly rule 2 (iv) – the jurisdiction of the commercial court to hear this matter is apparent on the face of the pleadings.
From the reasons above, I overrule the legal objection raised by counsel for the defendant/respondent.