ESSUON vs. KWAW [1980]DLHC1578

Date	1980-05-08
Suit No.
Citation No.	[1980]DLHC1578

TWUMASI J.

ACQUAYE FOR THE DEFENDANT-APPLICANT.

FORSON FOR THE PLAINTIFF- RESPONDENT.

[1980]DLHC1578
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													<main id="main" class="content" style="min-height: 60rem" >ESSUON <o:p></o:p>vs. <o:p></o:p>KWAW<o:p></o:p>[HIGH COURT, SEKONDI] <o:p></o:p>[1980] GLR 653<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:
8
MAY 1981<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">

ACQUAYE FOR THE DEFENDANT-APPLICANT.<o:p></o:p>

FORSON FOR THE PLAINTIFF- RESPONDENT.<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 0in 0in">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF TWUMASI J.<o:p></o:p>Upon
receipt of the writ of summons, the defendant herein caused his solicitor to
enter a conditional appearance or appearance under protest. Thereafter, the
solicitor filed a motion on notice praying this court for an order that: (a)
the plaintiff’s statement of claim be set aside as being irregular and (b) the
court has no jurisdiction to entertain the suit. Counsel argued only the second
limb of the relief he sought. He referred to Order 5, r. 1 (6) and (8) of the
High Court (Civil Procedure) Rules, 1954 (L.N. 140A), as substituted by the
High Court (Civil Procedure) (Amendment) Rules, 1979 (L.I. 1107), and submitted
that since the defendant in this case resides and carries on business in
Kumasi, it is the High Court, Kumasi, which has jurisdiction over the matter
and that the action has been instituted in the wrong court.<o:p></o:p>Counsel
for the plaintiff conceded that Order 5, r. 1 (6) was applicable to the case
since it requires that this action ought to have been instituted at the High
Court, Kumasi, because the defendant resides and carries on business in Kumasi.
The concession made by the counsel for the plaintiff implied an admission that
he had sued in the wrong court. He contended, however, that under Order 5, r. 1
(8), this court could still exercise jurisdiction over the matter. Rule 1 (8)
provides that notwithstanding the institution of an action in the wrong court,
the action can still be tried by the court unless the court reports the
pendency of the case to the Chief Justice and the latter orders a transfer or
if the defendant raises an objection to the <o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Counsel’s
arguments were therefore concentrated on the question of whether the applicant
who had entered a conditional appearance and followed it up with a motion
objecting to the jurisdiction, had properly availed himself of the provision.
Counsel for the plaintiff argued that on a proper construction of rule 1 (8),
the time required for pleading commenced right from the time the defendant
files an entry of appearance and that since the defendant filed an appearance,
he had by conduct, submitted to the jurisdiction of the court. He referred to
Straud’s Judicial Dictionary (4th ed.) (Vol. 4), p. 2039 on the definition of
“pleading.” There it is stated:<o:p></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">“Pleading:
In the Judicature Acts ‘pleading’ shall include any petition or summons, and
shall also, include the statements in writing of the claim, or demand of any
plaintiff, and of the defence of any defendant thereto, and of the reply of the
plaintiff to any counter-claim of a defendant.”<o:p></o:p><o:p>&nbsp;</o:p>This
definition of “pleading” has been adopted hook, line and sinker under the
interpretation section, i.e. Order 1 of our High Court (Civil Procedure) Rules,
1954. It therefore becomes obvious that the definition of “pleading” under our
rules does not include the appearance filed by the defendant because an
appearance is not a statement in writing of the defence of the defendant. It
follows, in my view, that the time required of the defendant to plead is when
he is required to file a statement of defence. Counsel’s submission therefore,
unfortunately, carries its own refutation, or still worse, the seeds for its
destruction. Never, throughout the practice of the courts, has a notice of entry
of appearance, conditional or unconditional, been subsumed under the rubric of
pleadings. It is a tribute to the draftsmanship of the High Court (Civil
Procedure) Rules, 1954, that a separate Order (Order 12), is devoted for the
rules relating to “APPEARANCE” distinguishing it from Order 19 which is devoted
to “PLEADING.” If appearance formed part of pleadings, the draftsman would for
convenience sake, if for no other reason, have treated it under Order 19.<o:p></o:p><o:p>&nbsp;</o:p>Counsel
for the plaintiff, still undaunted, argued that the purpose for entering a
conditional appearance was to enable the defendant take out a summons or serve
notice of motion to set aside the service upon him of the writ or notice of the
writ; or to discharge the order authorising such service but not to object to
the jurisdiction of the court. Ther</main>