MANSELL GHANA LTD VS ACCESS BANK GH LTD & ANOR (H1/127/2019) [2022] GHACA 165 (3 February 2022)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA - GHANA CORAM: ACKAH-YENSU, J.A (Presiding) BARTELS-KODWO, J.A KOOMSON, J.A SUIT NO. H1/127/2019 3RD FEBRUARY, 2022 MANSELL GHANA LIMITED ---- PLAINTIFF/RESPONDENT VRS 1. ACCESS BANK GHANA LTD. 1ST DEFENDANT 2. FBN BANK (UK) LTD. 2ND DEFENDANT/APPELLANT J U D G M E N T BARTELS-KODWO, J.A: On the 6th of November, 2017 the High Court, Commercial Division delivered a Ruling dismissing the 2nd Defendant/Appellant’s application to set aside the Writ of Summons and Statement of Claim issued by the Plaintiff/ Respondent (hereinafter referred to as 1 the Respondent) against it. This is an Interlocutory Appeal by the 2nd Defendant/Appellant (hereinafter referred to as the Appellant) against the said ruling. The Grounds of Appeal are as follows: a. That the learned trial judge erred in failing to dismiss the action against the 2nd Defendant/ Appellant even though he found as a fact that the Plaintiff did not seek the court’s leave before it issued the Writ, notice of it which was to be served outside the jurisdiction; b. That the learned trial judge erred in failing to nullify the Writ on the ground that one of the Defendants was resident in Ghana even though he found as a fact that no Statement of Claim was attached to the Notice of Writ served on the 2nd Defendant outside the jurisdiction; and c. That the learned trial judge erred in assuming jurisdiction even though the parties had expressly agreed to submit all disputes arising out of the their agreement to the English Courts for adjudication. BRIEF FACTS The parties herein entered into an uncommitted revolving Import Finance Agreement on 9th September, 2012 originally dated 3rd September, 2010 for the import of sugar, rice and cooking oil. This was amended further on 19th April, 2011 and subsequently in June, 2014. These were referred to collectively as the Facility Agreement. Under this Agreement the Appellant provided a loan facility to the Respondent subject to the terms and conditions set out in the Facility Agreement. The Respondent also provided financial collateral as Stand-By Letters of Credit (SBBLC)of Three Million and 2 Three Hundred United States Dollars (USD 3,300,000)representing 15% of the facility value of the financing facility. The SBLC was also successively extended in tenure. The Facility Agreement also had a Collateral Management Agreement under which the imported goods were kept in a warehouse for release upon request. The Appellant however in September 2015 by email informed the Respondent that it was no longer interested in trade financing facilities thereby terminating the short term collateral. This was said to be without notice to the Respondent hence impacting negatively on its business. Thereafter the parties were said to have entered into a Term Sheet Agreement for the Respondent to pay Five Million US dollars (USD5,000.00) to the Appellant under a new facility agreement. The Respondent secured this by a Deed of Charge and based on that a Trade Finance Facility of Eight Million United States Dollars (USD8,000,000) was granted by the Appellant to the Respondent. The Appellant was to release goods worth One Million Dollars (USD1,000,000) to the Respondent after this. It failed to do so. This resulted in the Respondent losing its goods which had expired in the warehouse. With the resultant loss in business and reputation it is the Respondent’s contention that it applied for leave and obtained same then it issued a Writ against the 1st Defendant and served the Appellant who resides in the United Kingdom with the Notice of the Writ. It is also the appellant’s case under clauses 37 and 38 of the Facility Agreement that the parties had agreed on the governing law and jurisdiction of the agreement which was to be English law in settlement of any dispute regarding the existence, the validity or termination with regard to the Finance Document. The Respondent however contrary to the parties’ agreement to submit to the exclusive jurisdiction of the English Courts in case of disputes brought an action in the High Court against the Appellant. The Appellant, holding on to the agreement in respect of submitting to the English Courts in case of disputes, filed a motion on notice praying the court for an order to set aside the 3 Writ of Summons and Statement of Claim for want of Jurisdiction. It is in the wake of the Appellant’s dissatisfaction with the said ruling dated 6th November, 2017 dismissing his application that this Appeal stands. In the suit the Respondent claimed against the 1st Defendant and the Appellant as follows: a. A declaration that the securities provided by the Plaintiff to the 2nd Defendant in the nature of the Deed of Charge and the SBLC of the face value of US $3,300,000 issued by the 1st Defendant created for the Term Sheet and Facility Agreement to support imports by Plaintiff is not enforceable by reason of failure of consideration. b. A perpetual injunction restraining the 2nd Defendant from enforcement of the securities in the nature of the Deed of Charge and SBLC for failure of consideration. c. An order against the 1st Defendant for the cancellation of the Standby Letters of Credit and for; d. Costs. The Appellant entered conditional appearance whereby it prayed the court to either dismiss the action against it or stay same for lack of jurisdiction. APPELLANT’S CASE The Appellant argued the first ground of Appeal, being (a) That the learned trial judge erred in failing to dismiss the action against the 2nd Defendant/ Appellant even though he found as a fact that the Plaintiff did not seek the court’s leave before it issued the Writ, notice of it which was to be served outside the jurisdiction; and submitted that the learned trial judge should have dismissed the action against the Appellant for the Respondent’s failure to seek leave before issuing the Writ, notice of which was to be 4 served on the Appellant outside the jurisdiction. This failure he submitted was in flagrant breach of the rules of court. He relied on Order 2 rule 7 (5) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) which provides that: No Writ, notice of which is to be served outside jurisdiction, shall be issued without leave of the Court as provided in Order 8. Order 8 rule 1 of C.I. 47 provides as follows: (1) No Writ shall be served out of jurisdiction. (2) Notwithstanding sub rule (1), notice of a Writ in Form 3 in the schedule may be served out of the jurisdiction with leave of the court. He submitted that the use of the word SHALL made it mandatory that the court’s leave be sought before a Writ, notice of which was to be served out of the jurisdiction is issued. See s.42 of the Interpretation Act, 2009 (Act 792). Anything short of compliance with the mandatory nature of a rule he argued rendered the action taken null and void. He relied on a plethora of cases in support of this point among which are REPUBLIC V CENTRAL HOUSE OF CHIEFS JUDICIAL COMMITTEE; EX PARTE AABA [2001- 2002] 1 GLR 221, REPUBLIC V HIGH COURT, TEMA; EX PARTE OWNERS OF MV ESSCO (DARYA SHIPPING SA INTERESTED PARTY) [2003-2004] 2 SCGLR 689 and LOKKO V LOKKO [1991] 2 GLR 184 where the court held as follows: A Writ of summons intended for service out of the jurisdiction if issued without leave would be a violation of Order 2,r. 4 of the High Court (Civil Procedure Rules, 1964 (L.N. 140A). Such a fundamental error would result in the Writ being declared null and void and it could not be saved under Order 70, rr. 1 and 2. He went further to cite the case of SANYO ELECTRIC TRADING CO V QUACOOPOME [2001-2001] 2 GLR 198 where in similar circumstances as in this case 5 an Appeal was launched against the trial court’s decision when it granted an interim injunction and failed to dismiss the action when it was called upon to do so because the Writ was served on the Appellant without the court’s leave since the Plaintiff only owned shares in Ghana Sanyo and was neither registered nor carried on business in Ghana. The trial court granted the injunction on the basis that Manager of Ghana Sanyo Co Ltd was the Defendant’s agent and so it carried on business in Ghana through him consequently the Plaintiff did not need the court’s leave to serve the Writ on the Defendant. The Court of Appeal granted the Appeal holding that: Since the Defendant was not domiciled in Ghana, Order 2 rl 4 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) mandatorily required that the Plaintiff should have first obtained leave of the court to issue his Writ of Summons. His non-compliance with that specific procedure constituted abuse of the court’s process. Accordingly, in exercise of its inherent jurisdiction and its power under Order 25, r 4 of LN 140A, the court would strike out the Plaintiff’s action. He pointed out that though these cases were determined under the old rules the principle still applies and is relevant hence in cases such as MALIA IMORO THOMPSON V MUSTAPHA MAHAMADU & ANOR [Unreported, SN E1/7/08, 14/05/08] the court stated that: It is trite law that a Writ of Summons meant for service outside the jurisdiction if issued without leave of the Court would fundamentally violate Order 2 r7 (3) of the High Court (Civil Procedure) Rules 2004 CI 47 and that it cannot be cured by recourse to Order 81 rl 1 and 2 of CI 47. Hence it was well settled that where a particular procedure had been put down by law for which an act, relief or remedy was to be exercised that procedure ought to be 6 adhered to. See the case of BOYEFIO V NTHC PROPERTOES LTD [1996-1997] SCGLR 531. If this was not followed sanity would not prevail in judicial administration, see the case of AGYEKUM V BABA [2003-2004] SCGLR 60. More importantly, the courts, he submitted have also held that non-compliance with the mandatory rules of court is fatal to proceedings. Hence in the case of STANDARD BANK OFFSHORE TRUST CO LTD & ORS V NATIONAL INVESTMENT BANK LIMITED [2017- 2018] 1 SCGLR 707 the Supreme Court per Benin JSC as he then was he stated as follows: … it must be noted that all cases cited whereby this court had declared non-compliance with a rule of practice to be fatal to the proceedings, it has been based on mandatory provisions of the rules…..Where a rule is mandatory by the use of the expression ‘shall’ it should be so regarded in view of section 42 of the Interpretation Act, 2009, (Act 792)…. There must be reasons why some of the rules are mandatory whilst others are discretionary, a fact which the court must always bear in mind in deciding whether to waive non-compliance or otherwise. Learned Counsel for the Appellant therefore reasoned that in the instant case, the rules of court placed a mandatory requirement on the Respondent to seek the leave of the High Court before it issued the Writ and serve Notice of it on the Appellant which is resident outside jurisdiction. Yet it failed to do so and went ahead to issue the Writ and serve notice of same on the Appellant. He pointed out that the Exhibit RAMI 1 which the Respondent relied on as his prove of having sought leave before it took out the Writ only stated that he had been given leave to serve Notice of the Writ and not that he took leave to issue the Writ. More so even the learned trial judge found it as a fact that no leave was sought before the Writ was issued and this is clear from page 4 of his ruling where he stated that “I find that Plaintiff never obtained prior leave before issuing the Notice of the Writ and that is a clear violation of the law.” For this reason learned 7 Counsel submitted that the learned trial judge ought to have dismissed the Writ against the Appellant. He went on to address ground (b) that the learned trial judge erred in failing to nullify the Writ on the ground that one of the Defendants was resident in Ghana even though he found as a fact that no Statement of Claim was attached to the Notice of Writ served on the 2nd Defendant outside the jurisdiction. Learned Counsel proffered that the Writ should have been dismissed because the Respondent failed to attach a Statement of Claim to the Notice of the Writ to be served on the Appellant. Also the learned trial judge erred in failing to dismiss the suit against the Appellant on the basis that one of the defendants was resident outside the jurisdiction. The law is clear under Order 11 rule 1 of C.I. 47 where it provides that: “The plaintiff shall serve a statement of claim on a defendant at the same time as the Writ and Notice of the Writ is served on that defendant. Where the Plaintiff fails to serve a statement of claim on a defendant, that defendant may apply to the Court for an order to dismiss the action, and the Court may by order dismiss the action or make such other order on such terms as it considers just.” Counsel submitted that failure to attach a statement of claim to the Writ is a breach of the audi alteram partem rule of natural justice. See the case of REPUBLIC V HIGH COURT; ACCRA, EX PARTE ALLGATE CO LTD (AMALGAMATED BANK LTD INTERESTED PARTY) [2007-2008] SCGLR 1041 @1052 “… non-service of a process where service of same is required, in my view goes to jurisdiction. Non- service implies that audi alteram partem, the rule of natural justice is breached. This is fundamental and goes to jurisdiction.” 8 Similarly in the case of KONADU V NTOAH [1971] 1 GLR 318 a Writ was filed and served on the Defendant without a Statement of Claim. Subsequently the Plaintiff filed and served an amended Writ of Summons and a Statement of Claim on the Defendant, who then filed an application to have the first action dismissed. The court held that the second Writ and its Statement of Claim were null and void since they were subsequent to an incomplete process. See also YARTEY BOAT BUILDING CO V ANNAN [1991] 2 GLR 11. In view of the position of the law on these mandatory provisions counsel reiterated that the learned trial judge ought to have dismissed the action more so when it stated at page 4 of its ruling that “The issue of Notice of the Writ outside jurisdiction without the required Statement of Claim cannot be justified.” Instead it went ahead to maintain the action on the grounds that one of the Defendants is resident in Ghana. This counsel argued was wrong in law since the application by the Appellant was only to have the action against it dismissed so the Court should have done that to enable the Respondent proceed against the other Defendant alone. In doing so the learned trial judge committed a jurisdictional breach. Counsel for the Appellant made submission on the last ground of appeal that the learned trial judge erred in assuming jurisdiction even though the parties had expressly agreed to submit all disputes arising out of the their agreement to the English Courts for adjudication. He argued that once the parties had by express agreement submitted disputes arising out of their transactions to the court of England the learned trial judge erred to have assumed jurisdiction in the matter. He called upon this court to respect the agreement which is binding on the parties. The Facility Agreement is what should bind the parties. This can be found in Exhibit REN 3 (ROA 136) which they have both signed and subjected themselves to the English Courts. Hence properly this action should have been instituted in the Courts of England. Here again learned counsel for the Appellant 9 referred to a host of cases where the courts were minded to uphold the decision of parties in actions before them when they had agreed that disputes between them were to be adjudicated by a foreign tribunal. See C.I.L.E. V BLACK STAR LINE & ANOR [1967] GLR 744; THE ELEFTHERIA [1969] 2 ALL ER 641; INTERBERTON V KODUA [2003-2005] 2 GLR 244 among others where this principle was upheld. He therefore urged the court to uphold the parties’ agreement. Learned counsel pointed out that it was not correct when the learned trial judge held that the Respondent’s action was based on claims of breach of the Deed of Charge which was provided as security for the facility granted the Respondent. He submitted this is so because the pleadings do not disclose anything of that nature instead they show that the action is based on the Facility Agreement. See paragraphs 18, 19, 20 and 38 of the Statement of Claim (ROA 5 & 7) where the Respondent contends that it relied on the Facility Agreement to contact one of its suppliers with the believe that the Appellant would provide it with Letters of Credit but it failed to do so. This caused it loss as a result of the failure of consideration. It was as a result of the Appellant’s failure to comply with the Facility Agreement that Respondent brought this action to prevent it from enforcing securities provided pursuant to the Facility Agreement without first addressing the breaches in respect of the Facility Agreement. See paragraph 40 of the Statement of Claim, ROA 8. Where it is not in doubt that the action was based on the Facility Agreement and the fact that the Respondent made mention of the securities it provided for the Facility and sought orders to prevent their enforcement, does not make the action based on the Deed of Charge. Counsel further stated that the learned trial judge held wrongly when he said it was more reasonable and practical for the dispute to be heard in the Ghanaian Courts. He cited the case of INTERBERTON V KODUA [2003-2005] 1 GLR 244 where the trial judge refused a Stay of Proceedings and reference of the dispute to Geneva, the Court of 10 Appeal set aside the order and granted the appellant’s Stay of Proceedings with an Oder for the parties to resort to arbitration in Switzerland as they had contracted to in fulfilment of their Agreement. It is therefore not a matter of convenience or practicality that determines where a case should be held. In this particular case parties had entered into a Facility Agreement and subjected themselves to a Dispute Resolution Mechanism and the terms agreed upon therein have to be strictly complied with. It matters not that one of the parties is in Ghana. The Appellant is only concerned about itself hence the action against it should be dismissed for the Respondent to proceed against the other Defendant. RESPONDENT’S CASE With regard to the first and second grounds of appeal (a) That the learned trial judge erred in failing to dismiss the action against the 2nd Defendant/ Appellant even though he found as a fact that the Plaintiff did not seek the court’s leave before it issued the Writ, notice of it which was to be served outside the jurisdiction; and (b) that the learned trial judge erred in failing to nullify the Writ on the ground that one of the Defendants was resident in Ghana even though he found as a fact that no Statement of Claim was attached to the Notice of Writ served on the 2nd Defendant outside the jurisdiction; learned counsel for the Respondent addressed the following issues:- 1. Whether or not the Plaintiff sought leave before it issued the Writ, notice of which, was to be served outside jurisdiction contrary to the alleged finding of fact by the trial judge; and submitted that this related to fact rather than the law. He said it was a fact that the Respondent filed an ex-parte application on 21st July, 2017 intituled “Motion Ex Parte for leave to issue Writ of summons and Statement of Claim and service of notice out of the jurisdiction- Order 8 of C.I.47”. He said on the face of the 11 said motion paper which can be found at page A of the Record of Appeal (hereinafter referred to as ‘the ROA’) and in the affidavit of the deponent therein as seen on pages C and D of the ROA as per paragraphs 3, 5, 6, 7 and 8 it was clear that leave was sought to commence the action and to serve notice of the Writ on the Appellant out of the jurisdiction at their U.K address provided in the affidavit. He emphasized that the date of 13th July, 2017 that appeared on the Order (Ex RAM1– ROA 229) was a clerical error which the Appellant had conceded to and yet insists that they did not seek leave before issuing the Writ. This is because in the Appellant’s own Supplementary Affidavit in Support of its Motion to Dismiss the Action/Stay Proceedings seen at page 255 of the ROA it stated at paragraph 2 “That a search conducted at the registry of this honourable court shows that the Plaintiff was given leave to issue the Writ on 24th July, 2017 and not on 13th July, 2017. (A copy of the search result is hereby attached and marked as “Exhibit REN 6)”. The search result is contained in page 257 of the Record of Appeal.” He submitted further that chronologically the Motion Ex parte for leave to issue the Writ of Summons was filed on 21st July, 2017 and same was moved and leave granted on the 24th of July, 2017 as per the Search carried out by the Appellant. Hence upon reading the Order dated 13th July, 2017 it is noticeable that same is a clerical error since the first paragraph of the Order makes reference to the affidavit of the deponent to the Motion in issue as having been filed on the 21st of July, 2017. The Writ itself and the Statement of Claim was filed on the 26th of July, 2017 which showed that leave had been obtained prior to this. Hence in his view leave was definitely sought before the Writ was taken out. He put the question whether an error of a court registry can be visited on a party, particularly when that error can be addressed by judicial notice or the de minimis rule without the necessity of amendment? He answered it by stating that courts have always preferred substance over form when confronted with the two and would 12 as much as possible avoid trivialities as is seen to be the trend in judicial decisions. In support of this he referred to the case of GBOGBOLULU V HODO [1947] WACA and the case of OFOKOH ESTATES LTD V MODERN SIGNS LTD AND ANOTHER [1995- 96] 1GLR 310-349 where the court per Akuffo JSC as she then was posited that: “Although where there are specific rules of procedure they must be complied with and although this court in matters such as this, has generally followed the High Court (Civil Procedure) Rules 1954 (LN) because CI 13 makes no specific prescriptions for the procedure to be applied in applications for the exercise of this court’s supervisory jurisdiction there cannot be any serious doubt that for this court to decline jurisdiction simply because a matter has been headed in what is considered the normal matter will be to take technicalities to an absurd level (emphasis mine). As was recently confirmed in the court by learned brother Kpegah, JSC in the case of Republic v. Owusu alias Buor Ex Parte Anane Baffour II, Supreme Court, Accra, 25 July, 1995, the maxim de minimis non carat les remains as applicable today as it ever was. Furthermore, as has been emphasized time and again by this and other courts. It is the duty of courts to aim at doing substantial justice between the parties and not to let that aim be turned aside by technicalities.” He went further to add that by s.9 of the Evidence Act, NRCD323 s. 9 (1) and (2) provide as follows: Section 9 – Judicial Notice. (1) This section governs the taking of judicial notice of facts in issue or facts which are relevant to facts in issue. (2) Judicial notice can be taken only of facts which are either: 13 (a) so generally known within the territorial jurisdiction of the court, or (b) so capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned, that the fact is not subject to reasonable dispute. As well as s.9 (6) of the Evidence Act where it is stated that: (6) Judicial notice may be taken at any stage of the action, The court may take judicial notice of certain facts in making a determination of an issue such as this one of clerical error in issue. Hence the court was in a good position to cure this error from its own stable. This it could do so by taking notice of the record leading to the making of the Order or apply the de minimis rule. It is his view that substantial justice ought to be carried out and the arguments of his learned friend ignored on ground (a). Since even case law was in support of a party not suffering from the errors of the registry. See the case of KWAME V OMABOE [1978] GLR 122-126 [PAGE 12 0F RWS] Learned Counsel then lumped together the following issues; Whether or not failure to obtain prior leave before the issuance of a Writ of Summons, notice of which is to be served out of the jurisdiction, should necessarily lead to dismissal of the action; Whether or not failure to attach a Statement of Claim to the Notice of Writ, served on the 2nd Defendant outside the jurisdiction renders proceedings premised on the said notice of writ a nullity and 14 Whether or not the learned trial judge committed an error when it failed to set aside the Writ of Summons; And argued that since the respondent had satisfied the court that it had indeed sought leave to issue the Writ notice of which was to be served outside the jurisdiction it may be stretching it, to address the court on whether non-compliance with the rules of court should warrant a court to nullify its proceedings arising from that non-compliance. He made reference to Order 2 rule 7(5) of C.I. 47 (5) No writ, notice of which is to be served out of the jurisdiction, shall be issued without leave of the Court as provided in Order 8 as follows: ORDER 8 SERVICE OUT OF JURISDICTION Notice of a writ or other processes may be served out of jurisdiction 1. (1) No writ shall be served out of the jurisdiction. (2) Notwithstanding sub rule (1), notice of a writ as in Form 3 in the Schedule may be served out of the jurisdiction with leave of the Court. And submitted that though the Respondent acknowledges the importance of seeking leave to issue a Writ, Notice of which is to be served outside the jurisdiction it is also necessary to note that the Supreme Court has settled the new thinking on non- compliance with the rules of court in the REPUBLIC V HIGH COURT ACCRA; EX PARTE ALLGATE CO LTD [2007-2008] SCGLR 1041. Furthermore, he submitted that recent cases such as LESLIE NARTEY MARBELL AND DUDLEY NARTEY MARBELL V SALAMATU MARBELL, CA NO. JA/15/2020 DATED 28/10/2020 and FRIESLAND 15 AND FRICO DOMO ALIAS FRIESLAND FOODS BV DACHEL CO LTD [2021] 1 SCGLR 41 all affirm that non-compliance with the rules of court ought not to be perceived as nullifying proceedings. In the ALLGATE case supra he referred to Date- Baah JSC as he then was holding that “My interpretation of Order 81 (1) is that whilst it treats non-compliance with the High Court rules as not nullifying the non-complying proceedings, this rule does not apply to non-compliance which is so fundamental as to go to jurisdiction or which is in breach of a statute other than the civil procedure rules” Consequently in learned counsel’s view it is clear from the rules and case law that as far as non-compliance was in respect of the rules of procedure, the court can waive it and not render the proceedings a nullity. See also the Supreme Court cases of BOAKYE V TUTUYEHENE [2007-2008] 2 SCGLR 970; HALLE V SONS SA V BANK OPF GHANA & WARM WEATHER ENTERPRISE LTD [2011] 1 SCGLR 378; OPOKU & ORS (NO. 2) V AXES CO LTD (NO. 2) [2012] 2 SCGLR 1214. He harped on the FRIESLAND FRICOMO DOMO case in which the Appellant contended that the Plaintiff had failed to seek leave of the court before issuing a Writ out of the jurisdiction as well as failure to seek leave to serve notice of the Writ outside the jurisdiction, the court held that “… non-compliance with the rules of procedure should not render any proceedings void but be regarded as a mere irregularity which might be allowed, amended or set aside on terms at the discretion of the court upon application within a reasonable time and the person applying had not taken a fresh step after becoming aware of the irregularity”. The courts followed this principle when in the Allgate case it was held that non- compliance was a mere irregularity which did not derail the jurisdiction of the court. To learned counsel’s mind therefore if the court has jurisdiction in a matter then it will save the proceedings where even there is a breach of the rules with regard to seeking leave to 16 issue a Writ and serving notice of it outside jurisdiction. Similarly in the recent case of DUDLEY NARTEY MARBELL supra the court under similar circumstances to this instance case held that non-compliance with the rules of court would not render proceedings void unless it amounted to a breach of the rules of natural justice, a breach of the Constitution or of a statute other than the rules of court or that the breach goes to the jurisdiction of the court. As a result learned counsel prayed this court to dismiss the issue of Appeal that the failure to attach a Statement of Claim to the Notice of Writ, served on the Appellant outside the jurisdiction rendered the proceedings based on same a nullity. Touching on the last ground which is that the learned trial judge erred in assuming jurisdiction even though the parties had expressly agreed to submit all disputes arising out of the their agreement to the English Courts for adjudication. Learned counsel submitted that under Article 125 (1) of the Constitution and clause 3 of the same Clause justice is said to emanate from the people and administered by an independent judiciary in the name of the people subject only to the Constitution. It is therefore the case that parties cannot enter into an agreement to oust the jurisdiction of the Court. He relied on the cases of LEE V SHOWMEN’S GUILD OF GREAT BRITAIN [1952] 1 ALL ER 1175; ESSILFIE AND ANOTHER V TETTEH AND OTHERS [1995- 1996] GLR 297; TETTEH AND OTHERS V ESSILFIE AND ANOTHER [2001-2002] 1 GLR 297 to buttress this principle. Learned counsel pointed out that with regards to jurisdiction and exclusionary clauses, parties subject to the jurisdiction of a court cannot contract to oust the jurisdiction of the court because that is a creation of both Statute and the Constitution which even statute cannot derogate from how much less a private agreement between two parties. He further stated that in circumstances where a term of contract indicates an exclusive jurisdiction clause, the court will under principles governing same exercise its discretion whether to hear the matter or not. The court was therefore not bound to grant 17 a stay. It could look at the circumstances of a particular case and exercise its jurisdiction to either hear the matter or not. Learned Counsel referred to the case of C.I.L.E. V BLACK STAR LINE AND ANOTHER [1967] GLR 744-748 [TYPE PG 19 RWS] likewise in the cases of FANMILK V STATE SHIPPING CORPORATION [197] 1 GLR 238 -242; POLIMEX (POLISH EXPORT & IMPORT) CO. LTD. V B.B.C. BUILDERS & ENGINEERS CO. LTD. [1968] GLR 168-174 where the courts exercised their discretion and even though the parties had jurisdictional clauses in their contracts, at the end of the day decided where it was best heard depending on all the circumstances involved. Consequently learned counsel argued that though in the instant case the parties originally surrendered their dispute to the English courts, this was modified in the Deed of Charge when they accorded the Ghana Courts the jurisdiction to settle their disputes. A careful look at the issues surrounding the Deed of Charge which is within this jurisdiction and the SBLC which were issued by a Bank with its registered office in Ghana upon the Respondent’s authority all point to the fact that Ghana is the most probable and reasonable forum for the matter to be heard. He submitted that though they concede that the SBLC was in the Appellant’s favour whose registered office is ordinarily in the UK all the other parties affected by it are domiciled in Ghana. Therefore the trial court was not wrong in coming to the conclusion that it had the jurisdiction to determine the matter. See page 265 of the ROA where the judge delivered himself as follows: “On the other hand, the fact remains evidently clear on record per plaintiff’s Exhibit ‘RAME 3’ that the parties have also executed a Deed of Charge dated 3 September, 2010 that evidently created security over the Facility Agreement. Applicant does not deny execution of Exhibit ‘RAME 3’ which on its part created Ghanaian law and courts as the choice law and judicial forum to settle any disputes or proceedings which may arise in connection with and forms core part 18 of the agreements between the parties. Indeed Exhibit ‘RAME 3’ and Exhibit ‘REW 1’ were executed within the same period.” Besides the learned trial judge was of the view that it was reasonable to have the matter heard in Ghana since both the Plaintiff and one of the Defendants are resident in Ghana. Moreover since Ghanaian and English law traced their roots to the Common law they would not differ in any material particular on the matter. He also drew the court’s attention to Clause 37 of the Agreement on which the Appellant was relying to have exclusive jurisdiction conferred on the English Courts and pointed out that it was more expansive than the Appellant made it appear to be. “The parties agree that the courts of England shall have jurisdiction to settle any dispute arising out of or in connection with any Finance Department (a dispute) and that any judgment or order in connection with any Finance Department is conclusive and binding on them and may be enforced against them in the courts of any other jurisdiction. This Clause 37.1 for the benefits of parties only and shall not limit the right of any party to bring Dispute against the borrower in connection with any Finance Department in any other court of competent jurisdiction or concurrently in more than one jurisdiction.” He referred the court to the case of MAGNA INTERNATIONAL TRANSPORT LIMITED V GHANA TELECOM COMMUNICATIONS LTD SN. H1/227/2018 DATED 17TH OCTOBER, 2019 where the court faced with similar circumstances came to the conclusion that the Ghanaian court was the proper place to settle the dispute. In there the court had this to say: “A cursory look at the sub clauses in Clause 21 of the VPA confirms that the parties never intended to give ‘exclusive jurisdiction’ over any and all of their disputes to the 19 courts of England and Wales, such that the courts in Ghana could not adjudicate matters in conflict between them. In sub clause 21. 3 , the parties agreed that “Notwithstanding clause 21.1, each party shall have the right to file any action necessary in any court of competent jurisdiction to seek specific performance, an injunction or other equitable relief to restrain the other as a remedy for any actual or threatened breach.” Having stated that they were the courts in England and Wales exclusive jurisdiction over their disputes, the parties seemed to have had second thought concerning situations over their disputes, the parties seemed to have had second thought concerning situations which would involve specific performance of their contract, injunctions and other equitable reliefs. … The parties on their own determined that notwithstanding their attachment to the law of England and Wales and the court in which that law is practiced, they could still run to any court of competent jurisdiction.” Learned Counsel for the Appellant therefore urged this court to find based on all the circumstances that the most reasonable forum for the determination of this case is in the Courts of Ghana and thus waive the non-compliance with the rules based on error of the Registry and in the interest of justice allow the matter to proceed in the trial court. In a reply to the Respondent’s submissions, the 2nd Appellant disagreed that the non- compliance with the rules of court was just a mere irregularity. It is his view that it is a breach in respect of a mandatory requirement and so cannot be salvaged under any circumstances therefore the proceedings are a nullity. Since the learned trial judge found as a fact that leave had not been sought and the Respondent itself at page 17 of its written submission concedes that it failed to attach the Statement of Claim which had been filed to the Notice, the proceedings are null and void. The rules of court which are mandatory ought to be complied with hence in the case of PATRICK ANKOMAYI V HANNAH BUCKMAN [2013-2014] 2 SCGLR @ 1379 per Akoto Bamfo JSC as she then was, the court held that “The rules of court are not ornamental pieces. They are meant 20 to be complied with”. The judge simply ought to have set the Writ aside he counteracted. He pointed out that in the case of LESLIE NARTEY MARBELL supra cited by his colleague to canvas the point that failure to seek leave to issue the Writ does not result in a nullity counsel was silent on the relevant points that caused the court to come to the conclusion it did. This was because though the Writ was issued under the same circumstances as the one in issue in this case the Appellant upon entering a conditional appearance failed to take any steps to set it aside. Instead she filed a defence and counterclaim and participated fully in the trial. She further provided her Ghanaian address for service in her Notice of Appearance. In the court’s view her posture and conduct showed that she waived her right under Order 81 rule 2 and cannot enjoy any gains under it. Again learned Counsel for the Respondent’s interpretation of the ALLGATE CASE is misleading and misdirected because Order 81 rule 1 of CI. 47 is not a panacea to all cases of non-compliance with the rules of court. In this case the non-compliance complained of is a fundamental breach that goes to the jurisdiction of the court to deal with the matter at hand. Hence the failure to attach a Statement of Claim to the Notice of the Writ is mandatory and against natural justice, there cannot be any concession. He also reiterated that in the STANDARD BANK OFFSHORE case supra it was clear that non-compliance with mandatory rules was fatal to proceedings. And in any case, in that case, the implications of the Allgate case were considered and the court came to the conclusion that under Order 81 rl 2 (a) a court could either wholly or in part set aside proceedings which where borne out of non-compliance and this could even be post judgment of even a judgment or the entire proceedings. Therefore the Allgate case was not an inflexible rule that the court has discretion to waive non-compliance. 21 Failure to serve the Statement of Claim rendered the proceedings in the trial court in respect of the Appellant null and void and the essence of service of court processes was stressed by Taylor JSC as he then was in the case of AMOAKO V HANSEN [1987-1988] 2 GLR 26 when at page 42 he laid it down that “Clearly by the rules, it is laid down without any equivocation the type of documents to be served, whom to serve and how to serve them. I should think these directives must be complied with in accordance with the rules”. It is also not for nothing therefore that in Allgate supra Date Bah JSC as he then was quoted Taylor with approval and in applying his erudite dictum stated at page 1052 that “Non-service of a process where service of same is required, in my view goes to jurisdiction. Non-service implies that the audi alteram partem, the rule of natural justice is breached. This is a fundamental breach that goes to jurisdiction”. Learned counsel urged this court to discount the submissions of his learned colleague and grant this appeal by striking out the Respondent’s action against it or staying it. This court will proceed to deal with Ground 1 that the learned trial judge erred in failing to dismiss the action against the 2nd Defendant/ Appellant even though he found as a fact that the Plaintiff did not seek the court’s leave before it issued the Writ, notice of it which was to be served outside the jurisdiction. A close look at Exhibit MGL 1 dated 21st July, 2017 found on Page A of the ROA that is the Respondent’s “Motion Ex Parte for leave to issue Writ of summons and Statement of Claim and service of notice out of the jurisdiction in line with Order 8 of C.I.47” together with affidavit in support found on pages C and D of the ROA and as per paragraphs 3, 5, 6, 7 and 8 clearly shows that leave was sought to commence the action and to serve notice of the Writ on the Appellant out of the jurisdiction at their U.K address provided in the affidavit. The Motion was taken on the 24th of July, 2017. Learned Counsel for the Appellant makes a mountain out of a molehill by insisting that because the Order, Exhibit RAM 1, is dated 13th July, 2017 it is not the case that the 22 Respondent sought leave to issue the Writ, Notice of which was to be served outside Jurisdiction. The Appellant itself had conceded in its own Supplementary Affidavit in Support of its Motion to Dismiss the Action/Stay Proceedings seen at page 255 of the ROA where it stated at paragraph 2 “That a search conducted at the registry of this honourable court shows that the Plaintiff was given leave to issue the Writ on 24th July, 2017 and not on 13th July, 2017. (A copy of the search result is hereby attached and marked as “Exhibit REN 6)”. The search result is contained in page 257 of the Record of Appeal.” Why then this unnecessary objection that leave was not sought? A close look at EXHIBIT RAM 1 which is the Order drawn in response to the Motion Ex-Parte has the title ORDER TO SERVE OUTSIDE JURISDICTION. The Motion as titled sought leave to issue Writ Notice of which was to be served outside Jurisdiction. Therefore by inference what was to be served is the Notice of the Writ after the court had heard and granted the application seeking leave to do so. It is a fact that the Order is dated 13th July, 2017 however we will agree with Counsel for the Respondent that this a clerical error which should be laid at the doorstep of the Registry and not visited on the Respondent. From the chronological sequence of events, the Motion, Ex- Parte and when it was heard it cannot be that the Order was made before the motion was taken. It is crystal clear on the Writ itself and the Statement of Claim filed on the 26th of July, 2017 that on 24th July, 2017 leave had been obtained before same was issued. The Court Registry drew up a bad Order and misdated same as well as put out an incomplete title or heading of the Order which did not reflect exactly what was prayed for in the motion paper. We therefore disagree with the trial judge when at page 262 of the ROA in his ruling he states that “It does not appear on record that the Plaintiff sought leave to issue notice of writ to be served outside jurisdiction. Plaintiff appeared to have issued and filed the writ apparently without leave but later secured the court’s order for the writ to be served outside the jurisdiction. 23 Indeed the heading of the process Plaintiff sought to produce as proof in defence of the allegation gives them out”. For crying out loud, this is the learned trial judge making reference to a process emanating from his own Registry which he signed. It was at that stage that he should have taken a careful look at the chronology of events of matters before him to the have the error in the date corrected. Though his finding that leave was not sought was an error his failure to dismiss the Writ was proper hence we dismiss this ground of Appeal. With regard to Ground 2 that the learned trial judge erred in failing to nullify the Writ on the ground that one of the Defendants was resident in Ghana even though he found as a fact that no Statement of Claim was attached to the Notice of Writ served on the 2nd Defendant outside the jurisdiction. The judge at page 263 paragraph 3.6 delivered himself as follows, “Having found that the Plaintiff never sought leave prior to the issue of notice of writ, the issue appears redundant. Plaintiff admits the fact that the notice of issue of writ that they served outside the jurisdiction was without a statement of claim. Despite the admission, I feel obliged to respond to the reasons counsel ascribed to it as same with all respect to the counsel is incorrect.” He goes on to say that his view based on Order 1 rule 1 (2) of the rules is that in the matter under consideration one of the Defendants is within jurisdiction consequently it will be ‘undesirable, unfair and unjust’ to nullify the writ on grounds of failure to abide by Order 2 rule 5 (5) and Order 8 rule 1. On this point we will also agree with the learned trial judge. Even though the Statement of Claim was not served with the Notice of the Writ on the Appellant it is a fact that both were filed together. It is not demonstrated how come the Notice of the Writ came to the attention of the Appellant without the Statement of Claim. However there are two defendants in the suit with one resident in the jurisdiction hence what purpose will 24 it serve to dismiss the suit? We are of the view that this non-compliance with the rules of procedure can be redeemed under Order 81 of C.I.47. See also the case of OPOKU & OTHERS (NO 2) V AXES CO LTD (NO 2)[2012] 2 SCGLR 1214 where the court reiterated that “For the avoidance of doubt however I would emphasize that Order 81 of C.I. 47 is truly a comprehensive insurance policy covering all procedural defects arising from the provisions of C.I. 47 except where the same also have a constitutional pedestal. ” Concerning the final Ground of Appeal that the learned trial judge erred in assuming jurisdiction even though the parties had expressly agreed to submit all disputes arising out of the their agreement to the English Courts for adjudication the learned trial judge found that though the parties had agreed under their Facility Agreement Clause 36 of Exhibit REN 1 which had been variously amended that the governing law to the agreement with regards to “its interpretation and non-contractual obligations arising from or connected with it” shall be English law immediately after this as can be found in Clause 37 of the same they agreed “that any judgment or order in connection with any Finance Document is conclusive and binding on them and may be enforced against them in any courts of any other jurisdiction”. And that though in Exhibit REN 5 the SBLC were subject to English Courts, there is also no doubt that in Exhibit RAMI 3 a Deed of Charge executed by the parties on 3 September, 2010 they agreed that Ghanaian Law and Courts was the choice of law and judicial forum “to settle disputes or proceedings which may arise in connection with this Deed” The learned trial judge was of the view that matters leading to the issuance of this Writ emanate from the Exhibit RAMI 3 and not Exhibit REN series hence based on the Writ and the Pleadings the parties were in the appropriate court as their choice of law and courts in settlement of the dispute at hand is Ghanaian law and Ghanaian Courts. He also considered the reasonableness of our Courts being the correct forum on the grounds that the parties’ Agreement was registered in Ghana likewise the Deed of 25 Charge. Apart from the Appellant the other parties are also within the jurisdiction of the Ghana Courts. Also the Customs Bonded Warehouse where the goods financed under the Agreement were kept is also located in Ghana hence from a reasonable point of view the dispute can be settled here. It is trite learning that parties cannot enter into an Agreement to oust the jurisdiction of a Court because that is a creation of both Statute and the Constitution which even statute cannot derogate from how much less a private agreement between two parties. We are of the view that the trial court took into consideration all the relevant facts and the law in coming to its decision to maintain the suit. See the POLIMEX case supra. As well as the MAGNA INTERNATIONAL TRANSPORT LIMITED case supra. We therefore conclude that on this ground as well, the trial court was not wrong in coming to the conclusion that it had the jurisdiction to determine the matter. We therefore proceed to dismiss the Appeal and hereby do so in its entirety. (Sgd.) JANAPARE A. BARTELS-KODWO (MRS.) (JUSTICE OF APPEAL) (Sgd.) Ackah-Yensu, J.A. I agree BARBARA ACKAH-YENSU (JUSTICE OF APPEAL) 26 (Sgd.) Koomson, J.A. I also agree GEORGE KOOMSON (JUSTICE OF APPEAL) COUNSEL: ❖ Golda Denyo with Grace Mensah Bonsu for 2nd Defendant/Appellant ❖ Lilly Naa Ayaba Ntreh with Mercy Osei-Adda for Plaintiff/Respondent 27