LUGUTERAH vs. MENSA-ETSI [1979]DLHC1083

Date	1979-12-07
Suit No.
Citation No.	[1979]DLHC1083

TAYLOR J.

A. A. LUGUTERAH FOR HIMSELF AS THE PLAINTIFF.

G. K. MENSA-ETSI FOR HIMSELF AS THE DEFENDANT.

[1979]DLHC1083
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													<main id="main" class="content" style="min-height: 60rem" >LUGUTERAH <o:p></o:p>vs. <o:p></o:p>MENSA-ETSI<o:p></o:p>[HIGH COURT, TAMALE] <o:p></o:p>[1978] GLR 856<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
18 JULY 1979<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

A. A. LUGUTERAH FOR HIMSELF AS THE PLAINTIFF.<o:p></o:p>

G. K. MENSA-ETSI FOR HIMSELF AS THE DEFENDANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>This is
an action for libel. It is not necessary to give the facts of the claim
endorsed on the writ of summons. The plaintiff had his writ of summons issued
on 17 January 1979. On the same date he also filed a statement of his claim and
the writ accompanied by the statement of claim was served on the defendant on
the same date.<o:p></o:p><o:p>&nbsp;</o:p>On 22
January 1979, the defendant entered appearance conditionally without prejudice
to an application to set aside the writ of summons and on 26 January 1979, he
filed a motion on notice praying for an order to set aside the writ of summons
and statement of claim on the ground that by serving him with a writ of summons
accompanied by a statement of claim, the plaintiff has breached the provisions
of Order 3, r. 6 (4) of the High Court (Civil Procedure) Rules, 1954 (L.N.
140A). The defendant’s motion on notice following the formula which is now too
familiar in our court was in the following form:<o:p></o:p>“Please
take notice that this honourable court will be moved by the defendant herein
praying for an order to set aside the writ of summons and statement of claim in
this suit on the ground contained in the accompanying affidavit: And for any
other order or orders as to this honourable court may seem meet.”<o:p></o:p><o:p>&nbsp;</o:p>It is in
the aforementioned affidavit in support that the objection was spelled out
shortly that the plaintiff had breached “the mandatory provisions of Order 3,
r. 6 (4) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), and is
therefore in default.”<o:p></o:p><o:p>&nbsp;</o:p>In
arguing the motion, the defendant, a barrister-at-law appearing for himself
drew my attention to the said Order 3, r. 6 (4) of L.N. 140A which provides:<o:p></o:p><o:p>&nbsp;</o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(4) In
all other actions in the Supreme [High] Court (except matrimonial causes,
probate and admiralty actions, actions for libel, slander, malicious prosecution,
false imprisonment, seduction or breach of promise of marriage, and actions in
which fraud is alleged by the plaintiff); the writ of summons may, at the
option of the plaintiff, be specially endorsed with or accompanied by a
statement of his claim, or of the remedy or relief to which he claims to be
entitled.”<o:p></o:p><o:p>&nbsp;</o:p>His
argument, simple to understand is, that on a true construction of the rule, a
statement of claim ought not to accompany a writ of summons in a libel suit and
he submitted therefore that the service of the writ and the statement of claim
should be set aside. Before considering the answer which the plaintiff, a
lawyer in his own right, and who also appeared as counsel for himself, gave to
the defendant’s contention, I think one aspect of the argument needs to be
looked into. There is clearly no argument whatsoever advanced to show any
irregularity or defect in the writ of summons. The main objection seems to be
the circumstance that in serving it, a statement of claim was also at the same
time served, thus giving an impression, admittedly not unreasonable in the
circumstance, that the writ be considered in the nature of a specially endorsed
writ under Order 3, r. 6 (4) of L.N. 140A. Even if the argument is a sound one,
since the overriding motivation of the court is an anxiety that cases be dealt
with on their merit for the purpose of dispensing justice to litigants, I would
have thought the plaintiff would be inclined to ask for the statement of claim
and not the writ of summons to be set aside if his argument is accepted</main>