Levandowsky & Anor. v. A-G [1971] 1 GLR 38.



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Abban J. On 11 August 1970, when the court was about to hear the application of the plaintiffs- judgment creditors (hereinafter referred to as the plaintiffs) asking for leave to go into execution, the learned Solicitor-General, Dr. S. K. B. Asante who appeared as counsel for the defendants-judgment (debtors hereinafter referred to as the defendants) raised very important preliminary objections. The arguments put forward in support of these objections are also very interesting and I will like to discuss the same in full. His objections, in a nutshell, were that the plaintiffs not having been registered as a company under the Companies Code, 1963 (Act 179) or not having been registered as a firm of partnership under the Incorporated Private Partnerships Act, 1962 (Act 152) are hindered or prevented by what the learned counsel described as “fundamental legal impediments” from instituting any legal proceedings (including the present application) for the purpose of enforcing any of the rights which the plaintiffs may have under the agreement dated 13 March 1962. I must remark that a copy of the said agreement mentioned herein was never filed, either in the present application or in the substantive case which is now on appeal.

However, the learned Solicitor-General maintained that the plaintiffs never registered their company or firm and they have still not done so. They have therefore defaulted in complying with sections 4, 5, 7 and 8 of Act 152 and, consequently, they are caught by section 9 (1) (b) of Act 152. Learned counsel further submitted that the plaintiffs, if they are a company, are similarly caught by section 313 (2) of Act 179. Counsel contended that so long as the plaintiffs continued being in default in not registering their company or firm under any of the two acts referred to herein, they are not competent to institute any action or legal proceedings to enforce the judgment. The learned Solicitor-General also referred to Order 48A, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A/54), and argued that the plaintiffs, by instituting their action in this court and obtaining judgment in respect thereof, must be taken to have carried on business in Ghana and they cannot now be heard to say that they never carried on business in this country.

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It must be said at this stage that Order 48A, r. 1 only lays down the procedure as to how any firm carrying on business in this country can sue and be sued. It does not say that only the firms carrying on business in Ghana are entitled to sue and be sued in our courts. It will therefore be untenable to contend that once a firm is a plaintiff in a case before our courts, then that firm must be presumed to have carried on business in Ghana. In my view the fact that a foreign firm merely institutes an action in our courts will not in itself be evidence of its having carried on business in this country.

However the learned Solicitor-General seriously submitted that the plaintiffs during the time they were complying with the terms of the said agreement by drawing the building plan, were in effect carrying on business in this country within the meaning of section 4 of Act 152.

In answer to these submissions, learned counsel for the plaintiffs contended that the argument of the learned Solicitor-General, if carried to its logical conclusion, would mean that if anybody in this country orders goods from a company or a firm overseas and that company wants to sue for the cost of the goods so ordered, that foreign firm or company cannot do so, unless it is registered in Ghana under Act 179 or Act 152. Learned counsel for the plaintiffs maintained that such a situation will ultimately bring business in this country to a stand-still.

Counsel therefore argued that the provisions of Act 152 make it clear, that for section 9 (1) (b) of Act 152 to apply, the firm or company must be one which is liable to be registered in this country or it should be a company which has been registered but has failed to give full particulars to the Registrar-General. Consequently section 9 (1) of Act 152 cannot apply to partnership firms overseas. Learned counsel for the plaintiffs further submitted that reading through Act 179 from section 302 onwards, it could be seen that section 313 (2) of Act 179 concerns only external companies, but does not apply to foreign companies which have no established place of business in Ghana. Counsel finally submitted that the plaintiffs, a foreign firm, never carried on business in this country and that all the drawings were made abroad. Consequently they are neither prevented by section 312 (2) of Act 179 nor section 9 (1) (b) of Act 152 from suing for their debts in Ghana.

Be it observed that after counsel for the plaintiffs had concluded his submissions, the learned Solicitor-General made a short reply in which he categorically stated that the plaintiffs are a firm of partnership and therefore the provisions of Act 179 are not applicable to the plaintiffs. In the circumstances, I take it that the learned Solicitor-General, now being positively sure that the plaintiffs are a firm of partnership, is abandoning his argument in respect of Act 179. In any case, it is quite clear that the plaintiffs are not an external company as defined in sections 302 (2) and (3) of Act 179 and so they are not caught by section 313 (2) of Act 179.

The question now to be considered is whether the plaintiffs, a foreign firm of partnership, ever carried on business in this country so as to make

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section 4 of Act 152 applicable to them. Section 4 of Act 152 which came into operation on 1 January 1963 reads as follows:

“4. (1) After the expiration of three months from the commencement of this Act, it shall not be lawful for a partnership to carry on business unless the firm shall have been duly registered in accordance with section 5 of this Act and not struck off the register undersection 51, 52 or 53 of this Act.”

(The emphasis is mine.)

Section 5 of this Act lays down the procedure for registration. Section 7 provides for what should be done by the registered firm of partnership, if changes are made or otherwise occur in the particulars already registered with the Registrar-General; and section 8 mainly deals with the annual renewal of the registration. As a result the disabilities and the sanctions spelt out in section 9 (1) of Act 152 for breach of sections 4, 7 or 8 of Act 152 will apply only to partnership firms which are in fact carrying on business in this country. Foreign partnership firms which are not or have not been carrying on business in Ghana are not affected in any way by section 9 (1) of Act 152.

Learned Solicitor-General having appreciated, rightly in my view, that the success of his objections depended on the meaning of the expression “to carry on business” as appearing in section 4 of Act 152, devoted a considerable length of time trying to explain and interpret this expression. It appears this term “to carry on business” is not defined in Act 152. The Act only defines the word “business” as including “every trade or profession.” But it is silent as to what activities will constitute “carrying on business” within the meaning of the Act. It also appears that there is not yet a decision by our courts as to what section 4 meant by the term “to carry on business.”

Learned Solicitor-General therefore cited three English cases on what is meant by “carrying on business.” He referred to Re A Debtor (No. 335 of 1947); Ex parte R. v. The Debtor [1948] 2 All E.R. 533. In this case it was held inter alia that. since the debtor when leaving England left debts unpaid, he was carrying on business within the meaning of section 1 (2) (c) of the Bankruptcy Act, 1914 (4 & 5 Geo.5, c. 59), despite the fact that he had ceased doing actual business. It must be noted that in this case there was clear evidence that the debtor, who was a foreigner, actually lived in England, had a place of business in
England and later left for Eire when the debt (which was the unpaid excess profits tax in connection with his business) was already due and payable in England; and despite the fact that he was no longer living in England he sent a power of attorney to his wife in England and this power of attorney enabled the wife to dispose of his business in England.

The next case cited was Dunlop Pneumatic Tyre Co. v. Actien-Gesellschaft fur Motor und Motorfahrzeugbau Vorm. Cudell & Co. [1902] 1 K.B. 342, C.A. The defendants, a German company, hired premises termed a “Stand” at the Crystal Palace, London, during the National Cycle Show

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held in England on 22 November to 30 November 1901. They exhibited their wares at the said premises and had exclusive use of the premises upon which their name was fixed. They sent two of their employees from Germany to England. The company stationed these gentlemen at the “Stand,” charged them with the duty of explaining the working of the articles exhibited, and to take orders and press for sale of the defendants’ goods at the said “Stand.” On these facts the Court of Appeal in England, affirming the decision of Channel J. (which decision refused to set aside the writ and service of the writ on the defendants) held that during the continuance of the said show at the premises, the defendants were carrying on business so as to be resident at a place within the jurisdiction of the English courts; and
therefore the defendants could be served in England through their representative at the said premises, with a writ issued by the plaintiffs for infringing the plaintiffs’ patent.

In the case of Actiesselskabet Damskib “Hercules” v. Grand Trunk Pacific Ry. [1912] 1 K.B. 222, C.A., the facts clearly show that four of the directors of the Canadian company (the defendants in that case), who were resident in England, formed a London committee of the defendant company, in accordance with article 5 of the defendants’ by-laws to raise money in England. This London committee had an office in the City of London, kept minute-books, ledgers, and passbooks of the committee in that office. The committee had a secretary and staff working at this office; and this secretary happened to be also the secretary for the defendant. The chairman of this London committee was also the chairman of the defendant company. On these facts the Court of Appeal in England, held (see the headnote) that the defendants were “carrying on business at the office used by the London committee so as to be resident ata place within the jurisdiction and that the secretary could therefore be properly served” in England with a writ issued against the defendant company.

I have examined carefully these cases referred to by the learned Solicitor-General on what is meant by “to carry on business,” and the result is that those cases are distinguishable from the case now before me. The facts in these cases are quite different from the facts so far available in the present case. In all the three cases cited above, the foreigner or the foreign companies concerned had employees or staff residing in England whether temporarily or not; and the most important of all the companies had an established place or office in England where their agents or their employees were supposed to have conducted the business of the companies concerned.

I am therefore of the opinion that before a foreign partnership firm can be said to have “carried on business” in this country, it must be clearly proved by evidence that, that firm did set up an office or use particular premises in this country for its business and then have employees or staff working for that company in those premises or that office. In other words, “to carry on business” in this country means the firm concerned possesses within this country a place of business held in the name of the firm or company and where the firm’s business transactions are carried out by

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persons in the employment of the firm. Consequently, I am of the view that if a firm has not got in this country, a place of business or an office held in the firm’s name and where its employees work, it cannot be said to have carried on business by the mere presence of its representatives in this country to enter into business transactions. See Singleton v. Roberts, Stocks & Co. (1894) 70 L.T. 687.

In the present case, the defendants never suggested in any of their affidavits filed herein, that the plaintiffs had a fixed place or office in this country. Neither did they suggest that the plaintiffs had staff or employees resident in this country, temporarily or otherwise, to carry out the work of the plaintiffs. Learned Solicitor-General said the drawings were made in this country. But he could not tell the court the office or other fixed place in Ghana where the drawings were supposed to have been made.

On the contrary, paragraph 7 of the defendants’ affidavit filed on 10 August 1970, says the “plaintiffs are neither resident nor do they have any physical or visible assets in Ghana.” I also refer to exhibit JEKA 3 filed on 21 July 1970 in this case. This exhibit is a letter dated 26 November 1968 addressed to the Ministry of Economic Affairs and paragraph 2 of that letter says, inter alia:

“We have always been led to believe that payment for our work would be in sterling, and we have in all our arrangements with others acted with this in mind. We met with your Deputy Tax Commissioner during our visit and believe we satisfied him that we were not liable to tax as all our work had been done outside Ghana. Only principals have visited your country to receive instructions from Ministers or officials, as necessary. We therefore ask for your official confirmation that no tax is liable, nor will any deductions be made for any purpose whatsoever from the full amount of (£370,000) still owing to us.”

This exhibit JEKA 3 was replied to by the Ministry of Economic Affairs. (See exhibit JEKA 4 also filed in this case on 21 July 1970.) The first two paragraphs of this exhibit JEKA 4 dated 2 January 1969 read as follows:

“It is only now that we have been able to study fully the implications of the contents of your letter dated 26th November, 1968. We are arranging to pay to the Bank of Ghana the sum of £125,000 as agreed, but we are still not satisfied with other terms of payment proposed by you.

We have examined very carefully our foreign debt service burden and it seems we cannot easily accommodate the balance of the debt within 3 years. We therefore propose a repayment period of 5 years, with interest at the rate of 10% above the prevailing Bank Rate as originally agreed at our meeting in Accra.”

It is significant to note that in this letter the Ministry of Economic Affairs never refuted the plaintiffs’ assertion in exhibit JEKA 3 that the work was done outside Ghana.

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At any rate, if it is true that the plaintiffs “carried on business” in Ghana as is being alleged by the defendants, and therefore they are caught by section 9 (1) of Act 152, why then was this point not raised at the very beginning when the substantive case was before the court but was withheld from the court until this time when judgment had already been entered and the matter is now on appeal before the Court of Appeal. Again if it is true that the plaintiff “carried on business” in this country, contrary to section 4 of Act 152, why is it that the defendants or the Registrar-General never took steps to have the partners constituting the firm fined in terms of section 9 (1) (a) of Act 152. There is not even any allegation or suggestion that such a step is being considered. In all probability, the defendants must have been aware that the plaintiffs never had any fixed place of business in this country and never executed their part of the agreement in Ghana.

For the above reasons, I hold that the plaintiffs have never “carried on business” in this country within the meaning of section 4 of Act 152. It was therefore not necessary for the plaintiffs to have their partnership firm registered in compliance with the said section 4 of Act 152 before they will be entitled to take legal proceedings to recover their professional fees. In the circumstances, the plaintiffs are not caught by the provisions of section 9 (1) (b) of Act 152, and their rights arising out of the said agreement are enforceable by action or by any other legal proceedings. The objection is therefore overruled. The application of the plaintiffs for leave to go into execution will now be heard on its merits.

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