LOKKO AND ANOTHER vs. LOKKO [1987]DLSC635

Date	1987-12-17
Suit No.
Citation No.	[1987]DLSC635

LUTTERODT J.

JONATHAN ARTHUR FOR THE FIRST DEFENDANT-APPLICANT.

J. K. AGYEMAN FOR THE SECOND DEFENDANT.

AMARKAI AMARTEIFIO FOR THE PLAINTIFF-RESPONDENT.

[1987]DLSC635
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													<main id="main" class="content" style="min-height: 60rem" >LOKKO AND ANOTHER<o:p></o:p>vs.<o:p></o:p>LOKKO<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1989-90] 2 GLR 96<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:
17
DECEMBER 1987<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">

JONATHAN ARTHUR FOR THE FIRST DEFENDANT-APPLICANT.<o:p></o:p>

J. K. AGYEMAN FOR THE SECOND DEFENDANT.<o:p></o:p>

AMARKAI AMARTEIFIO 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF LUTTERODT J.<o:p></o:p>On 18
July 1986, the plaintiff-respondent issued a writ against the
defendant-applicant claiming four reliefs. By the address for service, which
was set out on the writ, and on the plaintiff’s own showing the defendant was
as a matter of fact not resident in the jurisdiction. She was clearly out of
the jurisdiction at the time of the issue of the writ. The record shows that
the writ was served on a Petri Magnussen. At the close of the pleadings and by
the summons for directions filed on 5 November 1986, the following issue was
formulated: whether the writ of summons was issued in violation of the law and
is therefore null and void. This issue is unavoidable in view of paragraph 12
of the statement of defence which reads:<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">“(12) The
first defendant will contend in point of law that the writ of summons was
issued without the leave of the court as sanctioned by Order 2, r. 4 of the
High Court (Civil Procedure) Rules, 1954 (L.N. 140A) and is consequently
contrary to law and procedure and the same is void and of no effect whatsoever
and the writ of summons shall be wholly set aside as null and void ex debitio
justitiae”<o:p></o:p><o:p>&nbsp;</o:p>Again,
the records show that on 20 November 1986 counsel for the first defendant
requested that the issue be set down for argument. I think the court duly
granted the prayer. While it is true that the court made no express order to
this effect, I think it can be implied from the notes of the day for after
counsel for the first defendant had put in his application, the plaintiff’s
counsel said that he had “no objection.” Thereupon, the learned judge recorded
the following: “Let the issues set down in the summons for directions be the
issues for trial.” My duty therefore is to find out whether the writ of summons
was issued in violation of law and is therefore null and void.<o:p></o:p><o:p>&nbsp;</o:p>However,
before addressing myself to this issue, I would like to determine whether this
very issue now under consideration has already been determined by his Lordship
Mr. Justice Ampiah. This is because it is the plaintiff counsel’s contention
that by a ruling of that court dated 16 October 1986 his lordship sitting as an
additional High<o:p></o:p>Court
judge ruled on the issue. I have read the ruling in question and came to the
following conclusion: The court never dealt with this issue.<o:p></o:p><o:p>&nbsp;</o:p>I have
read the submission made on 11 September 1986 and which led to the ruling dated
16 October 1986. As far as the first defendant is concerned, after counsel’s
lengthy submission he concluded: “I submit that on the strength of the above,
the interim injunction be set aside.” In my view, the application was for the
setting aside of an interim injunction. Though I find that one of the strongest
points counsel for the first defendant relied on in support of his argument is
this fact that the writ was basically illegal and hence all orders emanating
from this writ were also consequently illegal, the court never made any
pronouncement on the legality or otherwise of the issue of the writ. This
question was therefore never resolved and considered in determining the issues
before the court when the application was considered.<o:p></o:p><o:p>&nbsp;</o:p>In my
view therefore this matter before me now is not res judicata and I now proceed
to deal with it. The first important point made by the first defendant’s
counsel is that under our rules, by Order 2, r. 4 of the High Court (Civil
Procedure) Rules, 1954 (L.N. 140A), where a plaintiff intends to proceed
against a defendant who is outside the jurisdiction, the intended plaintiff
must first obtain the leave of the court before issuing the writ. Counsel
contends that in this particular case where the address for service clearly
shows that the defendant is resident in New York, since the plaintiff never
obtained the requisite</main>