S. A. TURQUI & BROS v.

DAHABIEH
[1987-88] 2 GLR 486

Division: COURT OF APPEAL, ACCRA

Date: 21 APRIL 1988
Before: TAYLOR J.S.C., OSEI-HWERE AND ESSIEM J.J.A.

Practice and procedure⎯Parties⎯Capacity to sue⎯Business name⎯Partnership of two or more can

sue and be sued in name of firm⎯Whether one person trading under business name can sue under
business name⎯Incorporated Private Partnerships Act, 1962 (Act 152)⎯High Court (Civil Procedure)
Rules, 1954 (L.N. 140A), Order 48A.

Practice and procedure⎯Writ of summons⎯Proper party to sue⎯Business name⎯D, sole proprietor

trading under business name TTC⎯Whether action can be maintained against D in the name of
TTC⎯L.N. 140A, Order 48A, r. 11.

Judicial precedent⎯Stare decisis⎯Court of Appeal⎯High Court bound by decisions of Court of Appeal

on questions of law⎯Court of Appeal pronouncing on propriety of suing a person under his business
name⎯Decision supported by statutory provisions⎯Whether High Court entitled to refuse to follow
decision⎯Constitution, 1979, art 121 (3)⎯L.N. 140A, Order 48A, r. 11.

Practice and Procedure⎯Writ of summons⎯Service on a business name⎯Action against business name

action against proprietor⎯Person on whom writ to be served⎯Action by SAT against business name
TTC⎯No document served on D, proprietor of TTC⎯Whether ex parte judgment obtained against TTC
sustainable⎯L.N. 140A, Order 48A, r. 11.

Judgment⎯Setting aside⎯Judgment obtained by fraud⎯Definition of fraud⎯Status of judgment

obtained by fraud⎯Action by SAT against TTC business name operated by only D⎯Misrepresentation
by SAT that TTC operated by several persons who are evading service⎯SAT aware D out of
jurisdiction⎯Whether misrepresentations constituting fraud⎯Whether ex parte judgment to be set aside.

Judges⎯Function of judges⎯Charge of fraud⎯Appeal on ground, inter alia, ex parte judgment

obtained by fraud⎯Ample evidence of fraud⎯Judge upholding appeal on other grounds⎯Whether
proper⎯Provisional National Defence Council (Establishment) Proclamation (Supplementary and
Consequential Provisions) Law, 1982 (PNDCL 42), s 1 (1) (c).

Practice and procedure⎯Writ⎯Substituted service⎯When substituted service available⎯D trading

under business name TTC⎯SAT issuing writ against TTC at time D out of jurisdiction and trading
activities banned⎯Rules requiring service on human beings ⎯ Personal service impossible⎯Whether
substituted service can be effected⎯Whether ex parte judgment founded on substituted service
nullity⎯L.N. 140A, Order 9, r. 6, 10, r. 1 and 48A, r. 11.

Practice and procedure⎯Writ of possession⎯Nullity⎯SAT obtaining ex parte judgment against TTC,

business name⎯SAT sealing writ of possession without leave of court and notice of judgment to D, sole
proprietor of TTC⎯Writ of possession sealed five months before SAT moving for substituted service of
judgment after trial⎯Whether writ of possession lawful⎯L.N. 140A, Order 47, rr. 1 and 2.

[p.487] of [1987-88] 2 GLR 486

Landlord and tenant⎯Business premises ⎯Recovery of possession⎯Order for recovery obtainable only
under section 17 (1) of Act 220⎯Section 17 (1) (h) stipulating conditions for grant⎯Order 13, r. 8 of
L.N. 140A also providing for recovery in default of appearance⎯Order 13, r. 8 amended by section 17
(1)⎯SAT not giving D six months’ notice⎯Facts deposed by SAT not within purview of section 17 (1)
(h)⎯SAT seeking possession of premises for personal occupation⎯SAT not exempted from proscription
of trading activities of aliens by Act 334⎯Ex parte judgment a nullity⎯Act 220, s 17 (1) (g) and
(h)⎯Ghanaian Business (Promotions) Act, 1970 (Act 334)⎯L.N. 140A, Order 13, r. 8.

Damages⎯Exemplary damages⎯Judgment obtained by fraud⎯Action by SAT for recovery of business

premises⎯SAT obtaining ex parte judgment by fraudulent misrepresentation⎯SAT illegally going into
occupation and removing D’s goods⎯Whether award of exemplary damages of ¢100,000 against SAT
justified.

HEADNOTES
The respondent (D), an alien trading under the business name of TTC, rented the premises of the
appellants (SAT), a partnership of alien traders, for his trading business. On the enactment of the
Ghanaian Business (Promotions) Act, 1970, (Act 334) in July 1970 proscribing the carrying on of trading
activities by aliens, both the appellants and the respondent stopped their activities while they sought
exemption from the operation of the Act. D meanwhile closed his shop. On 29 June 1974, when the shop
was still closed, SAT wrote a letter addressed to the “General Manager of TTC” giving TTC six months’
notice to quit the premises because they needed it for their own business. On receipt of that letter D
informed SAT, inter alia, that because of the expenses he had incurred in renovating the premises he
would not be able to comply with the notice. Soon thereafter D travelled to Lebanon and did not return
until 28 April 1976. While D was out of the jurisdiction SAT brought action in High Court, Accra in suit
No 104/75 against the trade name TTC only for an order for recovery of the store for their personal
occupation. On 27 March 1975 SAT filed a motion ex parte for substituted service on TTC and in their
supporting affidavit deposed, inter alia, that they had unsuccessfully made several attempts to serve TTC
but on each occasion found the stores locked and since they believed the “defendants” were evading the
service the surest way to serve “them” was by substitution. The application was granted and SAT
subsequently obtained ex parte judgment against TTC in default of appearance. In execution of the
judgment SAT had bailiffs remove D’s goods worth over ¢400,000 from the store and kept them in one
small room but his furniture were left in the backyard. On D’s return to the country he, as the first
plaintiff, and TTC, as the second plaintiff brought action in the High Court, Accra, differently constituted,
against SAT for a declaration that the ex parte judgment SAT obtained against them was vitiated by fraud
and was therefore null and void and so the judgment and all subsequent processes should be set aside. The
court ignored the charge of fraud but nonetheless gave judgment for D on the grounds that (i) the writ in
suit No 104/75 was issued against TTC, a business name which had no corporate personality, (ii) SAT
knew that D was out of the jurisdiction and so the order for substituted service was a nullity, (iii) the writ
of possession was also a nullity because it was issued without leave and before SAT obtained the order
for substituted service of the judgment after trial. The court also awarded exemplary damages of ¢100,000
and costs of ¢10,000 in favour of D. On appeal by SAT on the grounds, inter alia, that the decision that a
suit could not be issued against a business name was wrong, the Court of Appeal found, inter alia, that
SAT were aware that D was out of the jurisdiction when they commenced suit No 104/75 and that they
deliberately gave trial court the false impression that TTC was a business carried on by more than one
person.

[p.488] of [1987-88] 2 GLR 486

Held, dismissing the appeal:

(1) under Order 48A, r 1 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) and the
Incorporated Private Partnerships Act, 1962 (Act 152) a partnership of two or more persons
carrying on business within the jurisdiction could sue or be sued in the name of their firm. However
a business name being a mere trade name used by one person could not commence an action
because it was a mere expression and not a legal personality. Accordingly, TTC would be struck
out of the appeal as the second plaintiff-respondent. Dicta of Coussey J.A. in Arejian v. Suleman
(1952) 14 W.A.C.A. 201 at 202 and of Archer J.A. (as he then was) in Ghana Industrial Holding
Corporation v. Vincenta Publications [1971] 2 G.L.R. 24 at 26, C.A. applied.
(2) Order 48A, r. 11 of L.N. 140A, however, provided that an action could be maintained against any
person carrying on business within the jurisdiction in his business name. Accordingly, the decision
of the High Court that TTC, the business name under which D carried on his business activities,
could not be used to sue him was per incuriam and the voiding of the ex parte judgment on that
ground was wrong and unsound.
(3) Article 121 (3) of the Constitution, 1979 as saved by the Provisional National Defence Council
(Establishment) Proclamation (Supplementary and Consequential Provisions) Law, 1982 (PNDCL
42) provided, inter alia, that all courts inferior to the Court of Appeal were bound to follow
decisions of the Court of Appeal on questions of law. Since the Court of Appeal had pronounced
on the question of law as to the propriety of suing a person by using the name under which he
carried on business and cited statutory provisions in support of its decision in GIHOC v. Vincenta
Publications (supra) and that decision was cited to the High Court, the refusal of the High Court to
accept that decision was clearly wrong and violated the constitutional provisions.
(4) The ex parte judgment obtained by SAT against TTC was a nullity because:
(a) It was clear from the wording of Order 48A, r. 11 of L.N. 140A that it was in fact the
proprietor or owner of the business name who was being sued but not the dehumanised
concept in the abstraction that was represented by the business name and which was used
merely as a strategy to reach the person operating under that name. Consequently, it was the
proprietor or the person owning the business name or the person with the control and
management of the business who must be served with the writ and all other processes. On the
evidence SAT only made efforts to serve TTC but D, the real person against whom the
judgment was obtained, did not have any of the court processes which culminated in the ex
parte judgment served on him. Accordingly, that failure rendered the ex parte judgment null
and void and the High Court rightly set it aside. MacIver v. Burns [1895] 2 Ch 630 at 633,
C.A. cited. Dicta of Baidoo J. in Konadu v. Ntoah [1971] 1 G.L.R. 318 at 321 and of Taylor
J.S.C. in Amoakoh v. Hansen [1987-88] 2 G.L.R. 26, C.A. approved.
(b) A charge of fraud in law could be taken to be properly made against a party who knowingly
or recklessly whether by conduct or words used unfair, wrongful or unlawful means to obtain
a material advantage to the detriment of another party. Where a judgment had been obtained
by fraud the court had jurisdiction in a subsequent action brought for that purpose to set the
 judgment aside. The representation made to the trial court by

[p.489] of [1987-88] 2 GLR 486

SAT that the defendants were evading service when they knew very well that they were
suing only one defendant and no attempt whatsoever had been made to serve him at his
known place of residence, and the further representation that substituted service within the
jurisdiction was the surest way to serve the respondent when they were fully aware that D
was at the material tune outside the jurisdiction, and the further uncontroverted evidence that
they studiously avoided using D’s name in all the processes and proceedings they initiated
showed that they were out to deceive the court in order to have judgment against D without
giving him any notice of the proceedings. They were thus guilty of abuse of the judicial
process by unworthy and clearly dishonest conduct. Accordingly, the charge of fraud was
amply established and since the ex parte default judgment was obtained by that fraud it
would be set aside for fraud. Dicta of Lord Herschell in Derry v. Peek (1889) 14 App Cas
337 at 374 and of Nettleton J. in Quagraine v. Davies (1921) FC ‘20-’21, 63 at 65 applied.
Per Taylor J.S.C. Clearly because the trial judge had other less disquieting grounds on which
to set aside the judgment he must have thought he should in the greater interest of justice
pass over the charge of fraud in a non-committal fashion.
I am afraid the revolutionary changes which have taken place in this country and which have
breathed some new lease of life to some of our well-known notions and concepts of legality,
do not permit this approach to adjudication. Whatever the previous legal position might have
been in regard to deciding cases in the interests of justice in such a manner as to give as little
pain as possible to parties in litigation . . . the subsisting enabling provisions of section 1 (1)
(c) of PNDCL 42, which enjoins the judiciary to eradicate corrupt practices from the body
politic as a matter of state policy, do militate against this passive attitude of glossing over
corrupt and dishonest conduct of parties in a suit. In . . . order to eradicate such corrupt
practices and other dishonest conduct and thus fulfil our constitutional mandate, judges at
trials are in duty bound to make pronouncements on the merits of fraud charges which form
the issue or part of the issues in trials before their courts.
(c) Under Order 10, r. 1 of L.N. 140A it was only where it appeared to the court either after or
without an attempt at personal service that for any reason personal service could not be
conveniently effected that substituted service should be ordered by the court. The
uncontroverted evidence showed that at the date of the issue of the writ in suit No 104/75 up
to the date when substituted service was effected and judgment obtained, D was out of the
jurisdiction and by law his trading activities had been banned and since he had no one in
control of his office it was impossible to serve the writ personally. Furthermore, since SAT
chose to sue D by his business name, by the provisions of Order 48A, r 11 of L.N. 140A so
far as the nature of the case permitted all rules relating to proceedings against firms should
apply. But Order 9, r. 6 which provided for the procedure for service of writs against firms
however required that service should have been effected on either D or at the premises where
he had his place of business upon any person having at the time of service the control and
management of his business. Service must therefore be on a

[p.490] of [1987-88] 2 GLR 486

human being. Since at the time the writ was issued D was out of the jurisdiction it was not
therefore a question of it being inconvenient to effect personal service so as to justify
 recourse to substituted service under Order 10. The circumstances demonstrated that
personal service under the rule was impossible. In such circumstances substituted service
was inapplicable and should neither have been applied for nor granted. Since the substituted
service was unlawful the ex parte Judgment founded on it was a nullity. Fry v. Moore (1889)
23 QBD 395 at 397-398; Wilding v. Bean [1891] 1 QB 100 cited. Ba v. Oyegoke [1977] 2
G.L.R. 412 approved.
(5) On the evidence five months before SAT moved for substituted service of the judgment after trial
they had already obtained and sealed a writ of possession from the High Court registry without the
leave of the court and without notifying D that a judgment for recovery of possession had been
obtained against the business name. Since that definitely breached the provisions of Order 47, rr. 1
and 2 of L.N. 140A, the High court rightly decided the writ of possession was a nullity.
(6) Section 17 (1) of the Rent Act, 1963 (Act 220) provided that no order for recovery of possession
could be made under any enactment except under its provisions. By the provisions of section 17 (1)
(h) before an order for possession of a business premises should be given against a tenant, (i) there
should be an agreement for the letting of the premises, (ii) the lease had expired, (iii) the premises
were reasonably required by the landlord to be used by him for his own business purposes, (iv) the
premises were constructed to be used for such purposes, (v) the landlord had given not less than six
months’ written notice to the tenant, and (vi) the notice must inform the tenant of the landlord’s
intention to apply for recovery of possession and ejectment from the premises. Act 220 post-dated
L.N. 140A and therefore section 17 (1) (h) must be taken to have impliedly amended Order 13, r 8
which had regulated recovery of land in default of appearance or defence; and therefore from 1
October 1964 when Act 220 was enacted, in all actions for recovery of land or for ejectment where
the defendant had defaulted in entering appearance, a plaintiff in an ex parte application for
judgment or order in default of appearance must in support of his application depose to facts which
show that his action satisfied one or more of the conditions precedent spelled out in section 17 (1)
of Act 220. In the absence of such an affidavit Act 220 mandatorily enjoined the judge from giving
judgment. On the evidence at no time did SAT give D six months, notice of their intention to apply
to the court for recovery of possession and the affidavit in support of the ex parte judgment did not
depose to facts within the purview of section 17 (1) of Act 220. Moreover by their writ sought
possession to use the premises for personal occupation although the premises were not constructed
to be used as a dwelling-house in accordance with section 17 (1) (g). But even if by personal
occupation SAT meant business occupation, since their trading activities had been prescribed by
Act 334, they should have deposed to facts showing that they were not affected by the Act. Their
ex parte judgment accordingly offended both Acts 220 and 334 and was for that reason null and
void and was rightly set aside. Smith v Poulter [1947] KB 339; Peachey Property Corporation Ltd.
v. Robinson [1966] 2 All E.R. 981; Massoud v. Khalil [1959] G.L.R. 278 at 279, C.A. and
Sfarijilani v. Basil [1973] 2 G.L.R. 260, C.A. cited.

[p.491] of [1987-88] 2 GLR 486

(7) Having regard to the treatment given D by SAT and the fraudulent tactics SAT resorted to to obtain
judgment, the exemplary damages of ¢100,000 awarded and the order as to costs of ¢10,000 were
very reasonable and would not be varied.

CASES REFERRED TO
(1) Smith v. Poulter [1947] K.B. 339, [1947] 1 All E.R. 216, 62 TLR 736.
(2) Ghana Industrial Holding Corporation v. Vincenta Publications [1971] 2 G.L.R. 24, C.A.
(3) R v. Holden [1912] 1 KB 483; 81 LJKB 327; 7 Cr AppR 93, C.C.A.
(4) Sadler v. Whiteman [1910] 1 K.B. 868; 79 L.J.K.B. 786, 102 LT 472, C.A.; on appeal sub nom
Whiteman v Sadler [1910] AC 514; 79 LJKB 1050; 103 LT 296, HL.
(5) Arejian v. Suleman (1952) 14 W.A.C.A. 201.
(6) MacIver v. Burns [1895] 2 Ch 630; 64 L.J.C.H. 681; 73 LT 39, C.A.
(7) West African Lighterage Co. Ltd. v. Micah (1919) FC (CC) 19, 1.
(8) Abono v. Sunkwa [1962] 1 G.L.R. 154, S.C.
(9) Derry v. Peek (1889) 14 App Cas 337; 58 LJCh 864. 61 LT 265, H.L.
(10) Quagraine v. Davis (1921) FC ‘20-’21, 63.
(11) Republic v. High Court, Accra; Ex parte Ploetner [1984-86] 2 G.L.R. 107, S.C.
(12) Fry v. Moore (1889) 23 QBD 395; 58 L.J.Q.B. 382; 16 L.T. 545, C.A.
(13) Field v. Bennett (1886) 56 L.J.Q.B. 89; 3 TLR 239.
(14) Wilding v. Bean [1891] 1 QB 100; 60 L.J.Q.B. 10: 64 L.T. 41 C.A.
(15) Bawa v. Oyegoke [1977] 2 G.L.R. 412.
(16) Salomon & Co v. Salomon [1897] A.C. 22; 66 LJCh 35; 75 L.T. 426. H.L.
(17) Konadu v. Ntoah [1971] 1 G.L.R. 318.
(18) Amoakoh v. Hansen [1987-88] 2 G.L.R. 26, C.A.
(19) Massoud v. Khalil [1959] G.L.R. 278, C.A.
(20) Sfarijilani v. Basil [1973] 2 G.L.R. 260, C.A.
(21) Peachey Property Corporation Ltd. v. Robinson [1967] 2 QB 543, [1966] 2 W.L.R. 1386; [1966] 2
All E.R. 981. C.A.

NATURE OF PROCEEDINGS
APPEAL against a decision of the High Court, Accra wherein Anterkyi J. set aside the ex parte judgment
in default of appearance of appearance of another High Court judge for recovery of possession of a
business

[p.492] of [1987-88] 2 GLR 486

premises granted the appellants. The facts are fully set out in the judgment of Taylor J.S.C.

COUNSEL
Nana Tabi-Amponsah for the appellants.
Emmanuel Ampadu (for Dr. W. C. Ekow Daniels) for the respondent.

JUDGMENT OF TAYLOR J.S.C.

This appeal has been brought to test the legality of one High Court judge’s order setting aside an ex parte
judgment in default of appearance given by another High Court judge in a suit No 104/75 which was
ostensibly instituted at the High Court, Accra against the two plaintiffs-respondents herein for the
recovery of the possession of a store. The first plaintiff-respondent is one Nasib Dahabieh, an alien trader
normally resident in Ghana and carrying on business alone within the jurisdiction under the name and
style: “Technical Trading Co.” The second plaintiff-respondent herein is the said Technical Trading Co,
the registered company name under which as I have already pointed out, the plaintiff Nasib Dahabieh
carried on his individual business. The defendants-appellants herein who instituted the said suit No
104/75, S.A. Turqui and Bros, are a partnership firm operating in Ghana and their members are also
aliens.
The undisputed facts which led up to the commencement of proceedings in suit No 104/75 are that some
time in June 1966 Nasib Dahabieh trading under the name and style of Technical Trading Co took
possession from S.A. Turqui and Bros for the purpose of his business their premises No. 61, Kojo
Thompson Road, Accra at a monthly rent of ¢240. There was no lease or any written agreement
evidencing the transaction. However on 29 June 1974 after Nasib Dahabieh had occupied the premises for
about eight years, S. A. Turqui and Bros wrote a letter addressed to the General Manager of Technical
Trading Co notifying him that they needed the premises for their own business use and were by that letter
giving the Technical Trading Co six months’ notice allegedly under the Rent Act, 1963 (Act 220).
Accordingly, in the letter they requested that the keys should be surrendered to them “six months from the
date of the notice, i.e. 31 December 1974 or any earlier date.” In evidence Nasib Dahabieh averred that he
saw one of the partners of S.A. Turqui and Bros in the early part of September 1974 and informed him
that it was not possible for him to give up possession, having regard, inter alia, to his business prospects
and the expenses he had incurred in putting the premises in a fit condition for his business. He indicated
to the said partner that he would be travelling and would discuss the matter further on his return. The
partner in his evidence denied that Nasib Dahabieh told him he would travel.

[p.493] of [1987-88] 2 GLR 486

Overwhelming and indisputable evidence was led that Nasib Dahabieh travelled on 30 September 1974 to
Lebanon and returned to Accra on 28 April 1976. He gave very cogent and convincing reasons as to why
he was obliged to stay in Lebanon for so long, but that has no relevance to the issues involved in this
appeal. There was however unchallenged evidence that the businesses of both Nasib Dahabieh and S .A.
Turqui and Bros and of many aliens were adversely affected by the Ghanaian Business (Promotions) Act,
1970 (Act 334) which came into force on 3 July 1970 and that they both made frantic efforts to obtain
exemption under the Act. Pending the grant of the exemption, they stopped their trading activities
proscribed under the Act and shut their affected business premises. S.A. Turqui and Bros may therefore
be presumed as aliens to know the reasons why Nasib Dahabieh’s business premises were inevitably shut.
It was however while his business premises were thus shut, that Nasib Dahabieh travelled to Lebanon;
and it was while he was thus outside the jurisdiction that S.A. Turqui and Bros commenced a suit No
104/75 by issuing a writ at the High Court, Accra on 6 February 1975 not against their tenant Nasib
Dahabieh but rather against Technical Trading Co, the name under which he carried on his business
before Act 334 put a stop to his trading activities. On 27 March 1975 while Nasib Dahabieh was still in
Lebanon, S.A. Turqui and Bros as plaintiffs in the said suit No 104/75 filed a motion ex parte for the
substituted service of the writ on the trading name, Technical Trading Co. In the writ S.A. Turqui and
Bros claimed: “(a) An order of possession of the store occupied by the defendants which the plaintiffs
require for personal occupation. (b) An order for mesne profit.” (The emphasis is mine.)
I can quite understand why S.A. Turqui and Bros claimed possession for their personal occupation
although the premises were not a dwelling-house. S.A. Turqui and Bros are a firm of petty traders and Act
334 banned them also from trading. They dare not ask a court of law for possession to carry out business
activities which had been proscribed. I take it therefore that they were ostensibly claiming possession of
the premises for the personal occupation of the partners themselves. I shall in the light of the decision of
the English court in Smith v Poulter [1947] KB 399 give consideration later on in this judgment to this
request for an order of possession of premises for personal occupation or other purpose under Act 220.
What is startling about suit No 104/75 is that the name of Nasib Dahabieh, the substantive person
intended to be affected by the suit, was neither mentioned in the title of the suit, the statement of claim,
the motion for substituted service or in any process whatsoever nor was any hint given in any of the
proceedings in court so that the judge who was to

[p.494] of [1987-88] 2 GLR 486

adjudicate on the case would know and appreciate that Technical Trading Co. was a mere trade name
used by one person only who is the said Nasib Dahabieh.
In the affidavit in support of the ex parte application for substituted service, an employee of S.A. Turqui
and Bros deposed to facts difficult to describe as honest, inter alia, in regard to questionable attempts
made at service as follows:
“3. That I have accompanied the court bailiff to effect service on the defendants for more than four
occasions without success.
4. That each time we went to serve the defendants with the writ of summons, the doors of the stores
were shut.
5. That I am informed that the defendants are evading service and the surest way to serve them is by
substitution.
6. That I have been advised by counsel and do verily believe that an order for substituted service will be
the surest way to serve the writ on the defendants, ie by putting up notices at the following:
(a) House No 61, Kojo Thompson Road, Accra where the store is.
(b) District Court, Grade I, Accra Central.
(c) High Court, Accra notice board.”

(The emphasis is mine.)

Quite clearly S A Turqui and Bros were avoiding all references to the name of Dahabieh, the real and the
only defendant in the suit. The averment that “the defendants are evading service and the surest way to
serve them is by substitution”, an innuendo suggestive of a plurality of persons sued, is surely quite
dishonest. The partners of S.A. Turqui and Bros were aware that Technical Trading Co is the name under
which a single individual Nasib Dahabieh carried on his sole individual trading activities. It is surely an
abuse of language in the circumstances to suggest so nonchalantly that a trade name is “evading service”
and with their knowledge that Nasib Dahabieh’s business was a one-man business and not a partnership
the impression that S.A. Turqui and Bros created that a number of persons were avoiding the judicial
process by their use of defendants and “surest way to serve them” does show them in a most
compromising light as parties capable of manoeuvres by avoiding candour in a calculated effort to subvert
the truth.
By the legal strategy which S.A. Turqui and Bros thus adopted their application was heard and granted by
the judge in good faith on 14 April 1975 when Nasib Dahabieh was still outside the jurisdiction because
the fact that he has had no notice of the issue of the writ or the application for substituted service was
deliberately withheld from the court. On 24 June 1975 following an application in that behalf, the

[p.495] of [1987-88] 2 GLR 486

High Court granted against Technical Trading Co an ex parte judgment in default of appearance.
Subsequently, S.A. Turqui and Bros obtained a writ of possession on 29 July 1975 which was in due
course, with Nasib Dahabieh still absent from the jurisdiction, duly executed on 2 February 1976.
There were some pertinent and certainly valid pronouncements of the trial judge which cast grave doubts
on the legal propriety of the writ of possession issued by the High Court registry but although I think the
pronouncements are not without their merit and significance nevertheless I propose to deal at this stage
with those aspects of the trial judge’s holding which touched on the legal validity of the ex parte
judgment for recovery of possession rather than on the said writ of possession. This is because in his said
pronouncements the learned judge would seem to draw a sharp distinction blurring and thereby glossing
over the sequential validity between the order of possession granted by the ex parte judgment of 24 June
1975 and the writ of possession obtained on 29 July 1975. He thought rightly in my view that the grant of
the writ of possession offended the provisions of section 17 (1) (h) of Act 220. He concluded that on that
account the ex parte judgment was null and void. I prefer primarily to deal with the ex parte judgment of
24 June 1975 which granted the order of possession in favour of the appellants because it antedated the
writ of possession; I will, of course endeavour not to ignore the writ of possession, well aware of the fact
that if the judgment is void all processes dependent on it will equally be void.
Be that as it may, the appellants entered into execution, as I have indicated, on 2 February 1976 and
consequent on the execution, goods in the stores said to be worth over ¢400,000 were on the instructions
of S.A. Turqui and Bros removed by the bailiffs and stored in a little room behind the stores. The
padlocks to the stores were changed and the show cases, shelves, desks and the items of furniture in the
stores were put in the backyard.
Dissatisfied with the manner he had been treated, Nasib Dahabieh, as a first plaintiff, issued a writ in suit
No 152/76 at the High Court, Accra against S.A. Turqui, and Bros to challenge the legal validity of the
default judgment. The second plaintiff in the suit being his business name, Technical Trading Co. I
suppose the Technical Trading Co was also used apparently as the second plaintiff because the suit No.
104/75 was in fact instituted against that company, but of course this is quite wrong for a business name
per se cannot commence an action. I shall deal with this later in his judgment.
In the said suit No. 152/76 Nasib Dahabieh and Technical Trading Co. claimed:
“(a) a declaration that the judgment obtained by the defendants in suit No. 104/75 is null and void and is
vitiated by fraud;

[p.496] of [1987-88] 2 GLR 486

(b) an order setting aside the judgment in the said suit No. 104/75 and all subsequent processes; and
(c) damages.”

On 7 July 1982 the learned trial judge after hearing the witnesses at the trial and subjecting their evidence
to a rather very detailed analysis, proceeded further to give elaborate consideration to Act 220, especially
section 17 (1) (h) thereof, and decided that the ex parte judgment obtained by S.A. Turqui and Bros in suit
No. 104/75 is a nullity. He thereupon set aside the said ex parte judgment and gave the following six
reasons for setting aside the said judgment:
“(1) There was no evidence that the rented premises were reasonably required for the plaintiffs’ business
purposes.
(2) The postings were also not made at the last known place of abode of the present first plaintiff to
enable an inmate to know of the action and to communicate it to him.
(3) The defendants, then the plaintiffs in that earlier case, knew that the first plaintiff in this present case
was out of the jurisdiction and that therefore he could not be served within the jurisdiction. The
 essence of substituted service being that the defendant is within jurisdiction but tries to evade personal
service, the service by substitution in that case was a nullity.
(4) The writ was issued against the business name “Technical Trading Co.” and not against himself ¾ the
mere registration of that business name does not clothe it with legal or corporate personality, and
therefore no legal person was the defendant. The action was one without a defendant.
(5) The writ of possession was a nullity as it was issued without the prior leave of the court and before
the grant of the motion for order for substituted service of the judgment after trial.
(6) At the time of the execution of the void writ of possession the first plaintiff (in the present case) was a
statutory tenant of the rented premises and therefore entitled to a month’s notice to quit, but no such
notice was given him.”

In view of these reasons the learned trial judge gave judgment in favour of Nasib Dahabieh and besides
setting aside the ex parte judgment, he set aside also the order for possession given in favour of S.A.
Turqui and Bros in suit No. 104/75. Furthermore, he struck out Technical Trading Co as the defendant
from the said suit, holding that the name is not a legal person and that consequently suit No. 104/75 was a
suit with a plaintiff but no defendant. For reasons which he indicated he awarded exemplary damages of
¢100,000 in favour of

[p.497] of [1987-88] 2 GLR 486

Nasib Dahabieh with ¢10,000 costs including counsel’s costs of ¢5,000.

It is against this judgment and orders that the appellants, S.A. Turqui and Bros, have appealed and seven
grounds of appeal were urged on us in this court as sufficient justification entitling us to reverse the
decision of the learned High Court judge. With the exception of two grounds of appeal, all the other
grounds filed do not go to the root of the decision that the judgment is null and void and therefore a
decision on those grounds even if given in favour of the appellants will clearly serve no useful purpose. I
do not therefore propose to give any consideration to those grounds. The two other grounds which
deserve close scrutiny were formulated by counsel for the appellants as follows:
“(a) The learned judge was wrong in holding that the judgment obtained in suit No. 104/75 was a nullity.
(b) The learned judge erred in law in holding that because Technical Trading Co. was a business name, it
could not be sued as a defendant in suit No. 104/75 and this is a decision contrary to the Court of
Appeal decision in Ghana Industrial Holding Corporation v. Vincenta Publications [1971] 2 G.L.R.
24, C.A.”

On the facts before the learned judge, as I have already pointed out, there was no evidence that any lease
was executed by the parties nor indeed was there any agreement spelling out the terms under which the
appellants let out their premises to Nasib Dahabieh the first respondent. Moreover the complaint of the
first respondent (hereinafter called the respondent) is merely that the judgment ostensibly obtained against
his supposed company in suit No. 104/75 was a nullity and was furthermore obtained by fraud. In view of
these circumstances, I do not think it is necessary, at least, on logical grounds, for the judge to advance,
nor relevant for me to consider, the very elaborate points he canvassed in his judgment which led him to
set aside the ex parte judgment on the ground that the writ of possession which post-dated the ex parte
judgment was a nullity.
One of the two legal grounds, the fourth given by the judge for setting aside the judgment is exemplified
in his reasoning that the writ was issued against a business name and not a legal or corporate personality
and that the action was on that account, one without a defendant. This line of thinking led him to strike
out the name of Technical Trading Co. from the suit No. 104/75. Obviously without a defendant a
judgment cannot exist and the judge was therefore able by this strategy to invalidate the judgment. As he
put it in his judgment:
“The essence of the registration of a business name ... is not for giving it a corporate personality but to enable
it to be known at

[p.498] of [1987-88] 2 GLR 486

any eventuality the personality of the one who runs that business. In suing the Technical Trading Co., the
plaintiff in that suit sued no one, and therefore the institution of that suit No. 104/75 was a nullity on that
ground, because there were plaintiffs therein but no defendant.”

In one of the grounds filed on their behalf the appellants complained that this is a view of the law in
conflict with the decision of this court in Ghana Industrial Holding Corporation v. Vincenta Publications
[1971] 2 G.L.R. 24, C.A. Under Order 48A, r. 1 of the High Court (Civil Procedure) Rules, 1954 (L.N.
140A) it is provided, inter alia, that any two or more persons carrying on business as partners within the
jurisdiction may sue or be sued in the name of their firm. Admittedly this applies to a plurality of persons
in a partnership under English law for there can be no doubt that i n the English law which we inherited, a
business name like the name of a firm whether of partners or sole proprietor is nothing but a mere
expression; for with the English, a business name or a firm name is not a legal person. This is in
consonance with the view of Hamilton J in R v. Holden [1912] 1 KB 483 at 487 citing Farwell LJ in
Sadler v. Whiteman [1910] 1 KB 868. As Farwell LJ argued and put it in Sadler v. Whiteman at 889
(supra):
“The fallacy is to say that a partner in a firm does not, but the firm does, carry on business. In English law a
firm as such has no existence; partners carry on business both as principals and as agents for each other
within the scope of the partnership business; the firm name is a mere expression, not a legal entity, although
for convenience under Order XL VIII. A it may be used for the sake of suing and being sued.”

Accordingly, in the absence of Order 48A, r. 1 an English partnership cannot sue or be sued. The learned
judge is therefore right in holding in effect, if he had English law of partnership in mind that the firm
name was not in itself the name of any person other than the partners. Indeed the law used to be so also in
this country but since 1 April 1963 under the Incorporated Private Partnerships Act, 1962 (Act 152) a
partnership is now a corporate body and it would seem therefore that for Ghana Order 48A, r 1 has since
that date been for all practical purposes rendered otiose. The old English position regarding one person
trading under a name which is not his own name is however the same as in our law and the learned judge
is therefore right to state the law in relation to the sole proprietorship of the Technical Trading Co: see
Arejian v. Suleman (1952) 14 W.A.C.A. 201 at 202 per Coussey J.A. It is however the conclusion he
draws from this legal position as regards suing a defendant in his business name which is non sequitur

[p.499] of [1987-88] 2 GLR 486

and falsifies his reasoning, having regard to the specific provision of Order 48A, r. 11 of L.N. 140A. The
Order provides:
“11. 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.”

(The emphasis is mine.)

In view of his provision and the redundant but innocuous Order 48A, r. 1, Archer J.A. (as he then was) in
delivering the judgment of the Court of Appeal in Ghana Industrial Holding Corporation v. Vincenta
Publications (supra) at 26 decided quite clearly the effect of the rule when he said:
“We think rule 11 should be carefully contrasted with rule 1 of Order 48 A. 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.”

In the course of the trial, the attention of the learned judge was drawn to the Vincenta case (supra) and the
submission was made in consonance with the decision of the Court of Appeal in that case and the
provisions of rules 1 and 11 of Order 48A that a partnership of two or more can sue and be sued in the
partnership name, but that a lone trader cannot maintain an action in his business name, although he can
be sued as a defendant in his business name. I agree of course with the submission that a plaintiff cannot
use only his business name without more to sue. For this reason, I hold that the Technical Trading Co.
should be and is accordingly struck out of the instant appeal as the second plaintiff-respondent because it
is not a corporate entity.
What is amazing about this clear legal position is that the statutory and case law foundation for enabling a
trade name to be sued was rejected by the High Court judge even after the principle had been affirmed by
this court in the Vincenta case (supra). Without considering the ratio decidendi of the Vincenta case
(supra) or the rules of Order 48A of L.N. 140A, the learned High Court judge in a reaction to this legal
submission which would seem to have inexplicably done violence to his commonsense and scandalised
his sense of justice protested peremptorily:

[p.500] of [1987-88] 2 GLR 486

“To say that a business name could be used as a ‘defendant’ and not as a ‘plaintiff’ is obviously
unconvincing. If the business name cannot be applied as a plaintiff, it equally cannot be applied as a
defendant. If there is any ratio decidendi to that effect, I cannot abide by it. The plaintiff or the defendant in a
suit must be a legal person.”

It is remarkable that the learned High Court judge studiously refrained from mentioning Order 48A, r. 11
or the Vincenta case (supra) which was cited to him, nor did he canvass its ratio decidendi to expose any
error in it, apart from baldly asserting his reluctance to abide by a binding decision of this court. This is
an approach to stare decisis and the binding force of precedent, which as I hope to show presently, is a
heresy and must be deprecated.
Under articles 116 (3) and 121 (3) of the Constitution, 1979 as saved by the Proclamation 1981 and the
Provisional National Defence Council (Establishment) Proclamation (Supplementary and Consequential
Provisions) Law, 1982 (PNDCL 42), it is, inter alia, provided in effect that all courts in Ghana below the
Supreme Court are bound to follow the decisions of the Supreme Court on questions of law and all courts
(and these include the High Court) inferior to the Court of Appeal are bound to follow the decisions of the
Court of Appeal on questions of law. The question of law as to the propriety of suing a person by using
the name under which he carries on business has been pronounced upon by the Court of Appeal in the
said Vincenta case (supra) and the Court of Appeal cited statutory provisions in support. In holding that a
name under which a person carries on his business activities cannot be used to sue the man, after the
Vincenta case (supra) which decided the contrary had been cited to him, the learned judge was clearly in
error and violated the provisions of the articles of the Constitution, 1979 already referred to in this
judgment. When this is coupled with his utter failure to consider the enabling provision of Order 48A, r.
11, it becomes clear that his decision is per incuriam and I hold therefore that his declaring the ex parte
decision void and setting it aside as a nullity on this ground is wrong and not sound.
It must be appreciated however, from its very wording that under Order 48A, r. 11, it is in fact the
proprietor or owner of the business name who is being sued and not the dehumanised concept in the
abstraction that is represented by the business name. That name is used merely as a strategy to reach the
person operating under that name. Consequently it is the proprietor or the person owning the business
name or the person with the control and management of the business who must be served with the writ
and all other processes: see MacIver v. Burns [1895] 2 Ch 630 at 633-634, CA where Lindley LJ at the
English Court of Appeal dealt with the principle governing service of

[p.501] of [1987-88] 2 GLR 486

the writ on a firm under Order 48A. r. 11 of the Rules of the Supreme Court, 1883.
In the impugned suit No. 104/75 frantic efforts were made by the appellants to serve the Technical
Trading Co. by the strategic ploy that it was a firm, presumably a partnership made up of a number of
members, when they knew very well that it was merely the business name used by Nasib Dahabieh, the
respondent, in his trading activities. This leads me to a consideration of one of the issues at the High
Court set down for trial on the summons for directions which is as follows: “Whether or not the defendant
was aware that at the time the court proceedings were taken to eject them, that the first plaintiff was
residing outside the jurisdiction of the court.”
It is necessary in considering this issue to keep in mind one of the central complaints of the respondent
that the judgment obtained against him in suit No. 104/75 is void or at least in effect voidable because it is
vitiated by fraud. Fraud is a really very serious charge indeed even in civil proceedings and on grounds of
state policy it should not be glossed over in our courts, if it is alleged in a suit and the requisite evidence
demanded by law is proffered in proof thereof. As Nettleton J. said in West African Lighterage Co. v.
Micah (1919) FC (CC) ‘19, 1 at 3 “A charge of fraud in a Court of Justice is never to be made lightly and
without solid foundation.” The solid foundation of the fraud charge in this case is contained in the
particulars of fraud given in the statement of claim as follows: “The defendant fully knowing that the first
plaintiff was not within the jurisdiction misled the court into believing that he was evading service.”
On the issue of the particulars of fraud so given, the learned High Court judge in a very able analysis of
the evidence of the parties and their witnesses and in particular after considering the unequivocal
admissions of the defendants who are now the appellants herein on certain pertinent issues and the
circumstances leading to their institution of suit No. 104/75 as the plaintiffs therein, made the following
firm findings:
“I find from the circumstances of that earlier case that at the time the writ and other processes were taken by
the defendants as plaintiffs in that case they very well knew the residence of the first plaintiff and that at the
material times of the motion ex parte and their attendant orders for substituted service, they did know that the
first plaintiff was outside the jurisdiction of the court.”

In arriving at his findings set out above, the learned trial judge was faced with the rival and contradictory
assertions of the parties. He had the advantage of seeing and hearing the witnesses and his findings are

[p.502] of [1987-88] 2 GLR 486

not merely based on the credibility of the witnesses called by the appellants but on their admissions on
collateral issues which buttressed his findings. Accordingly on the issue of their knowledge that Nasib
Dahabieh was out of the jurisdiction at the material time when they issued the writ and obtained their ex
parte judgment, their version that they did not know that he was not within the jurisdiction cannot be
believed. The learned judge’s findings are therefore amply supported by evidence led at the trial and any
invitation to this court to interfere with these findings will surely be met by the caveat which one of our
eminent predecessors in this court, van Lare J.S.C. of blessed memory, in Abono v. Sunkwa [1962] 1
G.L.R. 154 at 156, S.C. prospectively addressed to us when he cryptically remarked: “It is not the
function of a Court of Appeal to disturb a finding where credibility of witnesses had been in question.”
Apart from considering the credibility of the witnesses to arrive at his findings, which in my view are
reasonable and amply supportable, other pieces of evidence uncontroverted and emanating from the
appellants overwhelmingly show both beyond reasonable doubt and by a preponderance of probabilities
in accordance with section 10 of the Evidence Decree, 1975 (NRCD 323) that the findings of the trial
judge are unexceptionable and well founded. Exhibit 10 for instance which was tendered by the
appellants indicated that in their dealings with Nasib Dahabieh, they were aware that he was a sole trader
operating under the name and style of Technical Trading Co. In spite of this, in the statement of claim in
suit No 104/75 the name of Nasib Dahabieh was studiously suppressed. Moreover although they knew his
residence they made no attempt whatsoever to go there, but, on the contrary, they pretended in the course
of the trial that they endeavoured to go there to effect service but were unsuccessful in their attempts. In
fact they gave perjured evidence that they posted copies of the order of substituted service at the residence
of Nasib Dahabieh. Fortunately documentary evidence and the bailiff’s statutory indorsements on the
process documents and affidavits exposed their mendacity. Furthermore aware that following the ban on
his trading activities on the coming into force of Act 334 the respondent had shut his store and was no
more conducting business in his store, they nevertheless went to the store to effect personal service on the
store. I am unable to appreciate how they proposed to serve a store! Do these circumstances, coupled with
the findings of the judge, constitute fraud perpetrated by members of the appellant’s firm on the High
Court to seduce it to give an ex parte judgment in favour of their firm? I am afraid they do.
In my opinion, a charge of fraud in law can be taken to be properly made against a party who knowingly
or recklessly whether by conduct or words uses unfair, wrongful, or unlawful means to obtain a material

[p.503] of [1987-88] 2 GLR 486

advantage to the detriment of another party. It is an insidious form of corruption and it is therefore a
charge involving moral obloquy. Bluntly put without equivocation, it is a species of dishonest conduct. In
law, it involves a false representation whether exhibited by words or conduct or otherwise which in the
well-known words of Lord Herschell in the locus classicus, Derry v. Peek (1889) 14 App. Cas. 337 at
374, H.L. is: “. . . made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether
it be true or false.” I think the representation made to the court by the appellants that the defendants were
evading service, when they knew very well that they were suing only one defendant and that no attempt
whatsoever had been made to serve the said defendant at his known place of residence, and the further
representation made to the court that substituted service within the jurisdiction in the manner suggested
by the appellants is the surest way to serve the respondent when the appellants also were fully aware that
the respondent was at the material time outside the jurisdiction, were all false and were undoubtedly
either knowingly made or at all events recklessly made with no care as to whether they were true or false;
and this is so because the most casual of inquiries in the Lebanese community; inquiries which a prudent
and honest businessman of integrity with no intention to overreach would no doubt have made could have
shown the appellants that the respondent was outside the jurisdiction. The further uncontroverted and
indeed documented fact that they studiously avoided using his name in all the processes and proceedings
which they set in motion only support the view that they were out to deceive the court in order to have
judgment against Nasib Dahabieh, the respondent herein, without giving him any notice of the
proceedings. In the words of the learned trial judge after carefully analysing their conduct: “They wanted
possession of the premises fair or foul.” I think they are guilty of an abuse of the judicial process by
unworthy and clearly dishonest conduct.
In my respectful view, the charge of fraud having regard to the Herschell definition in Derry v. Peek
(supra) was amply established by the evidence. It is by means of the said fraud practiced on a not very
vigilant court that the appellants obtained their ex parte judgment in default of appearance. The resultant
legal position was stated neatly by Nettleton J. in Quagraine v. Davis (1921) FC ‘20-’21. 63 at 65, when
he said: “It is settled law that where a judgment has been obtained by fraud the Court has jurisdiction in a
subsequent action brought for that purpose to set the judgment aside.” The instant action has been
instituted to set aside the offensive judgment.
I have already referred to the six grounds specified by the learned judge on the basis of which he
proceeded to set aside the ex parte default judgment. Although he made findings of facts which supported

[p.504] of [1987-88] 2 GLR 486

what the respondent had alleged to be the particulars of the fraud which the appellants utilised to obtain
their judgment, he would seem to have deliberately refrained from peremptorily setting aside the
judgment squarely on the ground of the said fraud so particularised. I am unable to say whether he
entertained some doubts as to whether the said particulars satisfy the type of fraud which by the civil law
is capable of vitiating judgments. I am inclined to think however that probably in accordance with what
he not unreasonably conceived to be the traditions governing the exercise of judicial power, he
approached the matter cautiously having regard to the fact that a charge of fraud tarnishing as it does a
person’s reputation is a serious matter and a virtual accusation involving moral turpitude. Clearly because
he had other less disquieting grounds on which to set aside the judgment, he must have thought he should
in the greater interest of justice pass over the charge of fraud in a non-committal fashion.
I am afraid the revolutionary changes which have taken place in this country and which have breathed
some new lease of life into some of our well-known notions and concepts of legality, do not permit this
approach to adjudication. Whatever the previous legal position may have been in regard to deciding cases
in the interests of justice in such a manner as to give as little pain as possible to parties in litigation, I
think the subsisting enabling provisions of section 1 (1) (c) of PNDCL 42 which enjoins the judiciary to
eradicate corrupt practices from the body politic as a matter of state policy, do militate against this passive
attitude of glossing over corrupt and dishonest conduct of parties in a suit. In my respectful opinion, in
order to eradicate such corrupt practices and other dishonest conduct and thus fulfil our constitutional
mandate, judges at trials are in duty bound to make pronouncements on the merits of fraud charges which
form the issue or part of the issues in trials before their courts. This is the main reason why in Republic v.
High Court, Accra; Ex parte Ploetner [1984-86] 2 G.L.R. 107, SC I, as a panel member refused to gloss
over the shameful conduct of an apparent applicant who was endeavouring to use the judicial process for
a corrupt purpose. Having regard to the findings of the judge which were amply supported by the
evidence, it is my view that the ex parte default judgment given in suit No. 104/75 was obtained by fraud
and I therefore agree with the judgment of the High Court judge that it should be set aside. I will
accordingly without any hesitation whatsoever set aside the said judgment in suit No. 104/75 for fraud.
The charge of fraud is based, inter alia, on the finding that the appellants were aware that the respondent
was out of the jurisdiction when the writ was issued and substituted service effected. Under Order 10, r. 1
of L.N. 140A, it is only where it appears to the court either after

[p.505] of [1987-88] 2 GLR 486

or without an attempt at personal service, that for any reason personal service cannot be conveniently
effected that the court orders substituted service. Assuming that the appellants did not know that the
respondent was out of the Jurisdiction, the uncontroverted facts led in evidence show that at the date of
the issue of the writ, up to the date when substituted service was effected and judgment obtained, the
respondent in truth was out of the jurisdiction. They sued the respondent by his business name, but the
wording of Order 48A, r. 11 shows clearly that the business name was only a convenience provided by
statute, the real defendant being by law the respondent. Once the appellants chose to use the business
name in the suit, then by the provisions of Order 48A, r. 11: “so far as the nature of the case will permit,
all rules relating to proceedings against firms shall apply.” (The emphasis is mine.)
Now the procedure against firms in regard to the service of the writ of summons is Order 9, r 6 of L.N.
140A and it is as follows:
“6. Where persons are sued as partners in the name of their firm, the writ shall be served either upon any
one or more of the partners or at the principal place, within the jurisdiction, of the business of the
partnership upon any person having at the time of service the control or management of the
partnership business there; and, subject to these rules, such service shall be deemed good service upon
the firm so sued, whether any of the members thereof are out of the jurisdiction or not, and no leave to
issue a writ against them shall be necessary . . .”

Clearly therefore the service of the writ of summons should have been effected on either the respondent
Nasib Dahabieh or at the premises where he had his place of business, upon any person having at the time
of service the control and management of his business. It must therefore be served on a human being. The
respondent was out of the jurisdiction, so obviously he could not be served. He had been compelled by
the law effected by Act 334 to shut his business to the knowledge of the appellants and they were aware
that no one had control or management of his business. Clearly therefore when the writ was issued it was
not a question of it being inconvenient to effect personal service so as to have recourse to substituted
service under Order 10 of L.N. 140A; the circumstances demonstrate that personal service under the rule
was impossible. In such a situation a long line of authorities supports the view that substituted service is
inapplicable and ought not to be applied for or granted. In Fry v. Moore (1889) 23 QBD 395 at 397-398
Lindley LJ on the authority of Field v. Bennett (1886) 56 LJQB 89 reiterated the principle thus “if a writ
could not be served personally at the time when it is issued, there cannot be

[p.506] of [1987-88] 2 GLR 486

substituted service.” The principle in Fry v. Moore (supra) was applied in Wilding v. Bean [1891] 1 QB
100, C.A. a case virtually on all fours with this case. The headnotes read:
“Where a writ was issued in the ordinary form for service within the jurisdiction against a person who
shortly before the issue of the writ had left . . . and had ever since remained out of the jurisdiction, and it did
not appear that the defendant had gone out of the jurisdiction to avoid service of the writ:

Held ... that an order for substituted service of such writ could not be made.”
In the said Wilding v. Bean (supra) a writ was issued against the defendant. As the plaintiff was unable to
discover where she was, he was not able to effect personal service. He applied for and obtained
substituted service. As a matter of fact the defendant left the jurisdiction eight days before the issue of the
writ to stay abroad and apparently she did not do so to evade service. The Divisional Court applying Fry
v. Moore (supra) set aside the order for substitution. This was affirmed by the Court of Appeal, Lord
Esher M.R. observing at 101-102:
“It was said, and I think rightly said, ... that, where the writ cannot be served on a person directly, it cannot
be served indirectly by means of substituted service. As long as the defendant is abroad such a writ as this
cannot be served upon her personally. Therefore it cannot be served by substituted service.”

I have already indicated that at the time the writ was issued, it was impossible to serve it personally
because the respondent, Nasib Dahabieh, the substantive defendant in that suit was out of the jurisdiction
and by law his trading activities had been banned and he had no one in control of his business. The
substituted service obtained in the circumstances is therefore unlawful and cannot be a foundation for an
ex parte judgment against him. Relying on these English authorities I had occasion in 1977 while sitting
at the High Court, Accra to consider a similar situation in Bawa v. Oyegoke [1977] 2 G.L.R. 412. My
decision reflected in holding (1) in that case is as follows:
 “(1) where a writ was issued in the ordinary form for service within the jurisdiction .. against a person who
before the issue of the writ had left the country and had since remained out of the jurisdiction, and it
did not appear that the defendant had gone out of the jurisdiction to avoid service of the writ, an order
for substituted service could not be made because where a writ could not be served on a person
directly, it could not be served indirectly by means of substituted service.”

[p.507] of [1987-88] 2 GLR 486

I think the procedural law of Ghana as stated above is the same as the English position in the headnote of
Wilding v. Bean (supra).
The appellants were obviously under the wrong impression that they can sue the so-called company,
Technical Trading Co, as an entity distinct and separate from Nasib Dahabieh on the principle applicable
to limited liability companies as was canvassed by the House of Lords notably in the speeches of the Lord
Chancellor and Lord Macnaghten in Salomon & Co. v. Salomon [1897] A.C. 22 at 31 and 51, H.L.
respectively. This must be the reason why they deliberately omitted all references to Nasib Dahabieh’s
name in suit No 104/75, and consequently Nasib Dahabieh the real person against whom the judgment
was obtained did not have any of the court processes which culmunated in the ex parte judgment served
on him. The resultant legal position was succinctly stated with commendable clarity by Sampson Baidoo
J. in Konadu v. Ntoah [1971] 1 G.L.R. 318 at 321 when he said: “. . . where a process that requires
service on the other side or party is not in fact served, such process and all subsequent proceedings are
null and void.” In Amoakoh v. Hansen [1987-88] 2 G.L.R. 26 at 44-45, C.A. I had occasion to remark:
“Our High Court for almost 100 years has been singularly alive to the need for service in all cases where
service is required by law as a condition precedent to the validity of the proceedings. The judgment of Hayes
Redwar J. in the case of Bossom v. Attonie (1897) Red 199 and in modern times of Amissah J.A. sitting as
an additional judge of the High Court in Vasquez v. Quarshie [1968] G.L.R. 62 at 65; of Baidoo J. in
Konadu v. Ntoah [1971] 1 G.L.R. 318 at 321; of Abban J. (as he then was) in Waddad Fisheries v. State
Insurance Corporation [1973] 1 G.L.R. 501 at 507 and quite recently of Osei-Hwere J. (as he then was) in
Acheampong v Asare-Manu [1976] 1 G.L.R. 287 at 289, are all learned decisions supporting the invalidity of
proceedings in cases where there had been no service.”

I hold therefore that as the order for substituted service was wrongfully obtained and as the respondent
Nasib Dahabieh was not in law served, the ex parte judgment obtained against him in suit No. 104/75 is a
nullity and the judge was consequently right to set it aside.
As I have already pointed out the judge proceeded further to consider the validity of the procedure
resorted to by the appellants in enforcing the order of possession granted by the ex parte judgment. They
did it by obtaining from the High Court registry on 29 July 1975 a writ of possession. The applicable
provisions in Order 47, rr. 1 and 2 of L.N. 140A of 1954 are the following:

[p.508] of [1987-88] 2 GLR 486

“1. (1) A judgment or order that a party do recover possession of any land may by leave obtained on
ex parte application to the Court or a Judge supported by affidavit, be enforced by writ of
possession.
(2) Such leave shall not be given unless it is shown that all persons in actual possession of the
whole or any part of the land have received such notice of the proceedings as may be
considered sufficient to enable them to apply to the Court for relief or otherwise.
2. Where by any judgment or order any person therein named is directed to deliver up possession of any
lands to some other person, the person prosecuting such judgment or order shall, without any order
for that purpose, be entitled to sue out a writ of possession on filing an affidavit showing due service
 of such judgment or order and that the same has not been obeyed.”

After obtaining the ex parte judgment the appellants moved for substituted service of the “judgment after
trial.” This was granted on 1 December 1975 and copies of the said judgment after trial were posted on 8
December 1975 on the premises in dispute and on the notice boards of the district court and High Court,
Accra, respectively in accordance with the order for substituted service. Curiously however before this
was even done a writ of possession had already five months previously, been obtained from the High
Court registry and sealed on 29 July 1975 without the leave of the court and without notifying Nasib
Dahabieh that a judgment for recovery of possession had been obtained against his business name.
Clearly the provisions of Order 47, rr. 1 and 2 were definitely breached and I think the learned High
Court judge was justified in deciding that the writ of possession was a nullity for the reasons numbered
(5) herein which he gave in his judgment. The only criticism that can be legitimately levelled against the
judge’s decision on this aspect of the case is that the said reasons will on logical grounds justify setting
aside the writ of possession rather than the ex parte judgment which he set aside.
The learned judge also considered the relevant provision of Act 220 and held, as I have already indicated,
that its provisions were breached and that the ex parte judgment and the writ of possession are therefore
null and void. Although the learned judge appears to me to be right the steps in his reasoning were not
articulated with such clarity as to clinch his conclusion as would a logical syllogism and I propose
therefore to examine and justify his general proposition in the light of some decided authorities.
Under Act 220 an order for the recovery of possession or for ejectment is proscribed except under certain
circumstances. The enabling

[p.509] of [1987-88] 2 GLR 486

provision, section 17 (1) of the said Act, provides that subject to certain provisions which are not relevant
for our purpose:
“. . . no order against a tenant for the recovery of the possession of, or for the ejectment from, any premises
shall be made or given by the appropriate Rent Magistrate, or any other Judge of a court of competent
jurisdiction in accordance with the provisions of any other enactment for the time being in force, except in
any of . . .”

eleven circumstances which were provided for under the section in alphabetical sequence from (a) to (k).
(The emphasis is mine.)
A close reading of the entire provisions shows that the only possible provision under the Act which may
be said to be even liable to remotely or otherwise cover the circumstances of this case having regard to
the admitted facts is section 17 (1) (h). All the other circumstances from (a) to (k) are clearly inapplicable.
The conditions spelled out in the said section 17 (1) (h) under which a judge has power to order recovery
of possession against a tenant are:
“(h) Where the lease has expired and the premises are reasonably required by the landlord to be used by
him for his own business purposes, such premises being constructed to be used as such, if the landlord
has given not less than six months’ written notice to the tenant of his intention to apply for an order
for the recovery of the possession of, or the ejectment from, the premises.”

Under section 36 of Act 220, a “lease” includes every agreement for the letting of any premises whether
oral or otherwise and so although there was no written agreement or formally drawn lease, the oral
agreement in this case satisfies the requirement of a lease under section 17 (1) (h). It seems that for a
judge to give an order for possession against a tenant under section 17 (1) (h) of Act 220, he must be
satisfied of the following:
(1) That there had been an agreement whether oral or otherwise for the letting of premises by a
landlord to a tenant.
(2) That the lease has expired.
(3) That the premises are reasonably required by the landlord to be used by him for his own business
purposes.
(4) That the premises are constructed in such a way that they can be used for the said business
purposes.
(5) That the landlord has given not less than six months’ written notice to the tenant.

[p.510] of [1987-88] 2 GLR 486

(6) That the written notice must inform the tenant of the landlord’s intention to apply for an order for:
(a) the recovery of possession, or
(b) the ejectment from the premises

L.N. 140A came into force in 1954 and Act 220 came into force on 1 October 1964 by the Rent Act, 1963
(Commencement) Instrument, 1964 (E.I. 100). Apart from the fact that the rules are a piece of subsidiary
legislation, Act 220 post-dated the rules and on principle in case of conflict in their provisions the
accepted principle of law is that the later provision prevails. The significance of this rule of law is
highlighted when section 17 (1) of Act 220 is read in conjunction with Order 13, r. 8 of L.N. 140A. The
rule reads:
“8. In case no appearance shall be entered in an action for the recovery of land, within the time limited by
the writ for appearance, or if an appearance be entered but the defence be limited to part only, the
plaintiff shall be at liberty to enter judgment that the person whose title is asserted in the writ shall
recover possession of the land, or of the part thereof to which the defence does not apply, upon the
production of a certificate by the solicitor for the plaintiff or, in the case of a plaintiff in person of an
affidavit that the action is not one to which rule 18 of this Order applies.”

(The emphasis is mine.)

Rule 18 of Order 13 applies generally to actions on mortgages and it provides that in such actions
specified in the order:
“18. No judgment shall be entered in default of appearance without leave of the Court or a Judge who may
require the application for leave to be supported by such evidence as might be required if relief were
being sought on originating summons, and may require notice of such evidence to be given to the
defendant and to such other person (if any) as the Court or a Judge may think proper.”

In my opinion section 17 (1) of Act 220 must be taken to have impliedly amended Order 13, r 8 and
consequently as from 1 October 1964 in all actions for recovery of land, or for ejectment where the
defendant has defaulted in entering appearance, a plaintiff in an ex parte application for judgment or order
in default of appearance must in support of his application depose to facts which show that his action
satisfies one or more of the eleven conditions precedent spelled out in section 17 (1) of Act 220 for
ordering recovery of possession or ejectment. In the absence of such an affidavit or such evidence, Act
220

[p.511] of [1987-88] 2 GLR 486

mandatorily enjoins the judge to refrain from giving judgment ordering possession or ejectment.
In the said suit No. 104/75 the appellants in order to qualify for judgment in default of appearance were
obliged to depose to the six sets of facts provided for in section 17 (1) (h) and which I have identified and
itemised in this judgment, assuming that the substituted service was regular, lawful and unimpeachable. A
casual examination of the said set of facts shows that at no time did the appellants give Nasib Dahabieh
six months’ written notice of their intention to apply to the court for an order for the recovery of the
possession of the premises in accordance with the set of facts I have itemised as (6). The notice under
section 17 (1) (h) of Act 220 is notice of an intention to apply for an order of recovery or ejectment and it
must in accordance with the clear terms of the section be given after the lease has expired although by the
unanimous holding of this court in the judgment of Acolatse J. in Massoud v. Khalil [1959] G.L.R. 278 at
279, C.A. such a notice of intention to apply to the court for such an order is in no way vitiated even if it
is included in a notice to terminate a tenancy so long as it is given in sufficient time for the tenant after his
tenancy has expired to have the six months’ notice of the landlord’s intention to apply to the court for the
order. The notice given in this case is clearly outside the terms of the enabling provision and it is no
notice.
In any case, since the tenancy was a monthly tenancy, when therefore one may ask, did the lease expire?
If it expired at the end of the period when they terminated it and asked for vacant possession, namely 31
December 1974, then the six months’ notice under section 17 (1) (h) should commence from a period
after 31 December 1974 and yet their so-called notice was dated 29 June 1974 when the tenancy had not
been determined. In any case the affidavit of the appellants in support of the ex parte judgment is as
follows:
“I Kwabena Baah of Accra make oath and say as follows:
(1) That I am the deponent herein and have authority of the plaintiffs to depose to the following facts.
(2) That on 6 February 1975, the plaintiffs instructed their solicitor to cause a writ of summons to be
issued against the defendants herein claiming the following:
(a) an order for recovery of possession of the store occupied by the defendants which the plaintiffs
require for their occupation.
(b) an order for mesne profit.
(3) That on 14 April 1975 after unsuccessful attempts to serve the defendants with the writ of summons,
this honourable court granted the plaintiffs an order for substituted service and further ordered that the
writ of summons and the statement of claim be posted on the front doors of the defendants’ store for
21 days.
(4) That the writ and the statement of claim were posted accordingly on 1 May 1975.
(5) That the 21 days have elapsed but yet the defendants have not entered appearance.
(6) That since the defendants have no defence to this suit I humbly pray that summary judgment be
entered against the defendants.
(7) That in the circumstances I swear to this affidavit in support of my motion for summary judgment.”

Apart from indicating the nature of the relief they had claimed in their writ of summons, no facts
whatsoever were sworn to, to bring the action within the purview of the provisions of section 17 (1) of
Act 220 which alone gives power to the judge to make the requisite order. Moreover by their writ they
claimed recovery of possession not to use as business premises but for personal occupation although the
premises were not constructed to be used as a dwelling-house in accordance with section 17 (1) (g) of Act
220. Assuming that by personal occupation, S.A. Turqui and Bros meant business occupation, then they
must contend with Act 334. The effect of the said Act on alien landlords asking for recovery of
possession under section 17 (1) (h) of Act 220 was adequately dealt with by this court in Sfarijilani v.
Basil
[p.512] of [1987-88] 2 GLR 486

2 G.L.R. 260, C.A. The holding in that case germane to this case where an alien landlord as respondent
was claiming possession under the section is as follows at 260 of the headnote:
“. . . since the respondent was not a Ghanaian his business concerns in the country were caught by the
provisions of Act 334. He could only carry on the business of wholesale or retail trade if he had a valid
permit under Act 334 . . .”

In my view, in their affidavit in support of their application for judgment they must depose to facts
showing that they are not affected by Act 334. From the evidence they failed to do so. For the reasons I
have given I think the ex parte judgment ordering recovery of possession offends Act 220 as well as Act
334 and is therefore null and void, or at least unlawful.
I find support in this view by considering the approach of Denning J. (as he then was) in a case somewhat
similar but not identical with the instant appeal. In that case, Smith v. Poulter (supra), the landlord of a
house which was within the English Rent Restriction Acts gave the tenant notice to quit. The tenant
refused to quit in accordance with the

[p.513] of [1987-88] 2 GLR 486

notice and the landlord issued a writ in the High Court claiming, inter alia, possession. The tenant failed
to enter appearance and the landlord signed judgment, inter alia, for possession, in default of appearance.
The tenant applied to set aside the judgment. Denning J. (as he then was) held that the judgment was bad
because under the relevant Rent and Mortgage Interest Restriction (Amendment) Act, 1933 (23 & 24
Geo. 5, c 32), the court had no power to give judgment for possession unless it considered that it was
reasonable to do so and in the case before him, the question whether the conditions of the Act had been
satisfied was never considered. Having regard, inter alia, to the procedural rules in the High Court
contained in Order 47, r. 1, the ipsissima verba of our own Order 47, r. 1, Denning J (as he then was) at
341-342 made a suggestion which I am inclined to adopt mutatis mutandis in this appeal. He said:
“it is desirable . . . that, in actions in the High Court for possession of a dwelling-house, the endorsement of
the writ should state either the reason why the house is not within the Rent Restriction Acts or, if it is within
those Acts, what is the ground on which possession is sought.”

The decision in Smith v. Poulter (supra) was quoted with approval and applied by the English Court of
Appeal in Peachey Property Corporation Ltd. v. Robinson [1966] 2 All E.R. 981, C.A. In that case having
obtained an ex parte judgment in default of appearance in a case under the Rent Acts, the landlords
applied to the Master Mr. Elton for a writ of possession; he refused and the judge upheld his decision. On
appeal to the Court of Appeal, that court dismissed the appeal and held that a judgment in default of
appearance for the recovery of premises to which the Rent Acts applied, was proscribed by the Act unless
the conditions prescribed by the Rent Act had been complied with. Such a judgment was held to be a
nullity and of no effect. Sellers L.J. at 988 while agreeing with the leading judgment of Winn L.J. said:
“Once it is established (as it clearly is) that the premises are within the Rent Acts, then it seems to me that
Master Elton’s decision was right. He said:
‘While the High Court has jurisdiction to make orders for possession in certain cases in respect of premises
to which the Rent Acts apply, the court still has to be satisfied before making an order for possession in such
a case that the provisions of . . . the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, have
been complied with. A judgment obtained in default in these circumstances is of no effect’;

[p.514] of [1987-88] 2 GLR 486

 and he cited Smith v. Poulter. I too would respectfully agree that the latter decision was rightly decided and
that the principles can properly be applied here.”

The statutory conditions precedent which must be satisfied before a judge is empowered to order
possession under Act 220 were never considered in suit No. 104/75. And there was in fact no material
before the judge in suit No. 104/75 to enable him to consider the applicability of Act 220. Indeed he was
seduced with and deceived by the use of plausible but false depositions to grant an ex parte judgment on
an alleged default of appearance when the defendant had no notice of the action.
It seems to me therefore that the ex parte judgment for recovery of possession in default of appearance
which the appellants obtained on 24 June 1975 is a nullity and of no effect for failure to comply with
section 17 of Act 220 and the trial Judge, Anterkyi J. was also perfectly right even on that ground to set it
aside. Having regard to the treatment given to the respondent by the appellants and the fraudulent tactics
they resorted to to obtain the judgment and for the other reasons adverted to by the trial judge, I think the
exemplary damages of ¢100,000 awarded and the order as to costs are all very reasonable and I am not
disposed to vary them. I will in the circumstances dismiss the appeal with costs.
The appeal is accordingly dismissed with costs.

JUDGMENT OF OSEI-HWERE J.A.

I agree.

JUDGMENT OF ESSIEM J.A.

I also agree.

DECISION
Appeal dismissed.
J. A. A.