IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
MAHMOUND’S JEWELLERY LTD. - (Plaintiff)
G. T. BANK (GH) LTD AND GUARANTY TRUST BANK (GH) LTD - (Defendants)
DATE: 16TH JUNE, 2016
SUIT NO: CM/0206/2016
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
PLAINTIFF REPRESENTED BY ABDUL KADIL
APPLICANT, EUSTALE BAST-PLANGE
JONATHAN SARBLAH, ESQ. FOR PLAINTIFF
KWBENA ADU-KUSI, ESQ. FOR APPLICANT
This is a motion by the Applicant, Guaranty Trust Bank, seeking an order for the dismissal of the suit and the subsequent judgment obtained and in the alternative applicant prays for the following reliefs:
i. An order setting aside the service of the entry of judgment on the applicant.
ii. An order to stay the execution of the default judgment entered against the defendant pending the determination of this application.
iii. An order setting aside the service of the writ and statement of claim on the applicant/interested party.
iv. An order to restrain the plaintiff from executing the judgment against the applicant.
In an affidavit deposed to in support of the application by one Miss Chineze Ikeduba, she claims that the processes in this suit has wrongly been served on the applicant who is not a party to the suit and that the applicant is completely different from the defendant to this suit. Besides, that there is no company in Ghana by name as G.T. Bank (GH) Ltd, the defendant in this suit. As there is no such company in Ghana it was not proper for the processes to be served on the applicant.
This has vehemently been opposed by the Plaintiff/Respondent contending that the applicant is only interested in hiding under the veil of incorporation to perpetuate fraud not only on the Plaintiff but on the public as whole. This is because the defendant has always held itself out to the general public under the trade name and logo as G.T Bank. And the applicant herein is the same as the Defendant that has been sued as the two are not two different entities.
In a reply by way of a supplementary affidavit filed in support of the application the applicant admit that the GT Bank that is usually found in a square in the background on its documents as a logo is a registered trade mark of the applicant and was entitled to use that trade mark to promote its business. And that the applicant has always dealt with the plaintiff in its capacity as Guaranty Trust Bank and not G.T Bank.
There is no gainsaying as contended by the applicant that a void judgment ought to be set aside by a court ex debito justitiae. As noted by Akuffo –Addo JSC (as he then) in the well-known case of MOSI v BEGYINA  1GLR 337that:
“Where a judgment or an order is void either because it is given or made without jurisdiction or because it is not warranted by any law or rule or procedure, the party affected is entitled ex debito justitiae to have it set aside, and the court or a judge is under a legal obligation to set it aside, either suo motu or on the application of the party affected. No judicial discretion arises here. The power of the court or a judge to set aside any such judgment or order is derived from the inherent jurisdiction of the court to set aside its own void orders and it is irrespective of any expressed power of review vested in the court or a judge; and the constitution of the court is for this purpose immaterial. Further, there is no time limit in which the party affected by a void order or judgment may apply to have it set aside”.
See also AMOABIMAA v BADU (1957) 2 W. A. L. R. 214; REPUBLIC v HIGH v COURT, ACCRA, EX PARTE ABBAN [1992-93] GBR 702.
The question for my determination would be whether the institution of the action against G.T Bank instead of Guaranty Trust Bank and the service of all the processes on Guaranty Trust Bank with subsequent judgment obtained can be said to be nullity and therefore void. Going through the application and the affidavit filed in support, the applicant has exhibited its certificate of incorporation and known to the Registrar of Companies as Guaranty Trust Bank Ghana Ltd. The applicant also admit that the name G.T Bank with a yellow background that appears on most of its documents is its registered and recognized trade mark. And ought not be sued in its trade mark name but in its name registered name
I perfectly agree that it is correct that a party ought to be sued in its name but no other name. Nonetheless the applicant was duly served with the writ and statement of claim and yet choose only to return the writ with a covering letter that it is not G.T Bank but Guaranty Trust Bank. It would have appeared to the applicant when it returned those processes that it recognized and knew the plaintiff. Again it recognized that the substance of the claim of the plaintiff was not totally strange to the applicant. It was these recognitions of a dispute between the applicant and plaintiff that ignited the action of the applicant in Suit No. CM/0265/16 before my sister Jennifer Dodoo (Mrs.).
I think the rules of procedure amply lay out the course of action opened to a party who in circumstances upon service of writ think that it has not properly been sued or been served or that it was not a proper party to the action. For Order 9 Rule 8 of the High Court (Civil Procedure) Rules, C.I 47 states as follows:
Application to set aside writ
8. A defendant may at any time before filing appearance, or, if the defendant has filed a conditional appearance, within fourteen days after filing appearance, apply to the Court for an order to
(a) set aside the writ or service of the writ:
(b) declare that the writ or notice of it has not been served on the defendant ; or
(c) discharge any order that gives leave to serve the notice on the defendant outside the country.
Throwing light on the provision supra in the case of REPUBLIC v HIGH COURT; ACCRA, EX PARTE ARYEETEY, [2002-2003] SCGLR 537 the Supreme Court noted as follows:
“ A conditional appearance was to enable a defendant who intended to object to the issue or service of a writ or notice of a writ on him, or the jurisdiction of the court, to apply to the court to set aside the writ or notice of the writ or the service thereof on him. Such an application might encompass any irregularity or defect in the issue or service of the writ, or notice of the writ…”
It is the opinion of the court that when the applicant realized that in terms of substance there was an answer it needed to provide to the plaintiff for the action but only that its incorporated name was not G.T Bank but Guaranty Trust Bank; then under that circumstance it was not opened to the applicant to return the processes to the Registrar with a covering letter. The course opened to them was to have entered appearance under protest (conditional appearance) or not to enter appearance at all but seek directly by way of motion to set aside the writ or service of same on it.
I am fortified in this position by the case of REPUBLIC v THE DISTRICT MAGISTRATE, PRESTEA; EX PARTE NKANI  2 GLR 386 where issue of service of processes on the applicant was made but he refused to attend court leading to a judgment being obtained against him. The basis for not responding to the summons by the applicant was that his name had wrongly been stated even though he was pointed out by the plaintiff to the bailiff as the defendant. The Magistrate suo moto amended his name leading to this incarceration when summons to show cause was filed. After his release he brought an application for certiorari. In dismissing his action the learned High Court Judge, Adjabeng J. (as he then was) noted as follows:
“since the applicant admitted that the person interested pointed him out to the bailiff as the one he had sued before he was served with the process and furthermore, the Courts Ordinance, Cap 4 (1951 Rev.), Sched. II made a certificate of service on the writ of summons prima facie proof of service, that was evidence that the writ had been properly served. In the circumstances, if the applicant had only been wrongly described in the writ of summons the proper thing for him to have done was to have gone to court and had the name amended. Accordingly, the trial magistrate was right in proceeding to hear the suit and giving judgment in the absence of the applicant; and subsequently correcting the name when the misdescription came to his knowledge”
The applicant knew perfectly that if it had exercised that option, the court would have not set aside the writ but call for amendment of the name of the defendant to correctly reflect the applicant herein and therefore choose to behave like the proverbial ostrich keeping its head in the sand and deliberately being oblivious of the titanic battle going on around him. It is curious to find that what he should have done is among one of the alternative supplications he is making before the court and that is for the court:
“to set aside the service of the writ of summons and statement of claim”. If the applicant was entitled to ask the court for such a relief why then did he wait for so long in not responding to the writ by taking action. This was with intent to stultify the whole process on a pure arid technical ground that it is not G.T. Bank hoping to gain some advantage.
If that is the case, then one cannot say that the judgment in respect of some of the reliefs plaintiff sought before the court was a void judgment within the terms noted by the Supreme Court in MOSI v BEGYINA supra. This court was imbued with jurisdiction to the determination upon attachment of due service of the processes on the defendant by an official of the court that the defendant upon service has obstinately and deliberately not entered and filed a defence to the action and hence the judgment that was obtained.
I will accordingly refuse to set aside the judgment as it was made within the exercise of the jurisdiction of the court and the court was duly satisfied that the defendant was served. After all the services were effected on not the non-existent entity applicant claim but on Guaranty Trust Bank, the applicant herein.
I will rather order the plaintiff to amendment the name of the defendant in the writ, statement of claim and the entry of judgment filed to reflect the correct name of the defendant but decline the invitation to set aside all those processes. I am guided by Order 16 Rule 5(3) of the High Court (Civil Procedure) Rules, C. I 47 that:
“An amendment to correct the name of a party may be allowed under subrule (2) notwithstanding that it is alleged that the effect of the amendment will be to substitute a new party if the Court is satisfied that the mistake sought to be corrected was a genuine mistake and was not misleading or such as to cause any reasonable doubt as to the identity of the person intending to sue or intended to be sued”
That indeed was the subject of the decision in a 6-1 majority in the case of HANNA ASSI (NO 2) v GIHOC REFRIGERATION & HOUSEHOLD PRODUCTS LTD. [2007-2008] 1 SCGLR 16 that a court may at any time as the court think just, amend any error or defect in any proceedings.
Indeed G.T Bank on the writ as defendant was a genuine mistake for Guaranty Trust Bank and the conduct of Guaranty Trust Bank in taking the processes served and returning to the Registrar when he should have sought for correction has been done, suo periculo (at its own peril), and save for the order for plaintiff to amend the name of the defendant, and proceed with its execution processes, the application is dismissed as unmeritorious.
I will award cost of Gh¢ 1.000.00 in favour of the Plaintiff/Respondent.