GHANA CO-OPERATIVE BANK LTD. vs. MANKOADZE FISHERIES LTD. AND ANOTHER [1989]DLHC2020

Date	1989-02-13
Suit No.
Citation No.	[1989]DLHC2020

ASARE KORANG J.

ASARE DARKO (FOR A. B. SAM) FOR THE PLAINTIFFS.

MRS. CELESTINE KRAHENE-WILLIAMS FOR THE DEFENDANTS.

[1989]DLHC2020
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">GHANA CO-OPERATIVE BANK LTD.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">MANKOADZE FISHERIES LTD. AND ANOTHER<o:p></o:p>[HIGH COURT, TEMA]<o:p></o:p>[1992] 1 GLR 130<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 13
FEBRUARY 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>&nbsp;ASARE DARKO (FOR A. B. SAM)
FOR THE PLAINTIFFS.<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">

MRS. CELESTINE KRAHENE-WILLIAMS FOR THE DEFENDANTS. <o:p></o:p>

ASARE KORANG J. <o:p></o:p>

</div>JUDGMENT OF ASARE KORANG J.<o:p></o:p>This is an application by the plaintiffs for summary judgment
under Order 14 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) as
substituted by the Schedule to the High Court (Civil Procedure) (Amendment) (No.
2) Rules, 1977 (L.I. 1129).<o:p></o:p>The plaintiffs commenced this action by a specially indorsed writ
claiming against the defendants jointly and severally the sum of ¢47,587,349.27
being the balance of an overdraft facility they granted to the defendants and interest
on the said sum.<o:p></o:p>To their summons for judgment the plaintiffs annexed a statement
of account marked exhibit A standing in the name of Mankoadze Fisheries Ltd.,
the first defendants herein. The plaintiffs stressed that the defendants have
no defence to the action as they justly and truly owed the plaintiffs the sum
claimed.<o:p></o:p>Opposing the application, Mrs Krahene-Williams for the defendants
contended that Order 14 of L.I. 1129 required that a statement of claim must
accompany the writ of summons and that the case of Adjoe v. Nyakoh [1980]
G.L.R. 58 decides that a statement of claim may be filed later. In any event,
according to Mrs. Krahene-Williams, specially indorsed writs are dealt with
under Order 2, r. 3 of L.N. 140A and not under Order 14 and the writ of summons
should be in the form set out in L.N. 140A, Appendix A, Part I, No. 2 which
refers to a writ supported by particulars. Consequently, the plaintiffs’ motion
and supporting affidavit were grossly misconceived and should be struck out.<o:p></o:p>Learned counsel for the defendants also drew attention to the fact
that whereas the statement of account, exhibit A, is addressed to the first defendants, no explanation had been given as to why the
second defendant was joined to the action.<o:p></o:p>It seems to me that having regard to the only exhibit, exhibit A,
relied on by the plaintiffs to buttress their claim, the joint and several
liability of the defendants to satisfy the sum of money said to be owed the
plaintiffs is a doubtful proposition. I have not been satisfied on the
plaintiffs’ affidavit that the second defendant is in any manner connected with
this action or that he has at any time been indebted to the plaintiffs. The
court, in such a situation, is empowered to strike out the name of the
defendant who has been wrongly joined under Order 16, r. 11 of L.N. 140A 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">“11. No cause or matter shall be defeated by reason of the
misjoinder or non-joinder of parties, and the Court may in every cause or
matter deal with the matter in controversy so far as regards the rights and
interests of the parties actually before it. The Court or a Judge may, at any
stage of the proceedings, either upon or without the application of either
party, and on such terms as may appear to the Court or a Judge to be just, order
that the names of any parties improperly joined, whether as plaintiffs or as
defendants, be struck out . . .”<o:p></o:p>No justifiable reason, indeed no reason at all, has been given why
the second defendant was joined as a party to this action. His name is therefore
struck out on the ground of misjoinder.<o:p></o:p>Turning now to the first limb of the argument of counsel for the
defendants, it is to be noted that Order 2, r. 3 of L.N. 140A deals with the
Form in which a writ taken out under the said rule ought to be framed and this
is set out in Form 2, Appendix A, Part I, as a specially indorsed writ. The
plaintiffs’ writ herein is specially indorsed and it is headed as such, but I
do not think it can be faulted on the mere ground that it does not strictly
conform to Order 2, r. 3 of L.N. 140A because the said rule makes room in a
writ specially indorsed for “such variations as circumstances may require.” It
cannot also be correct that Order 14 does not deal with writs specially
indorsed. Order 14 does not only relate to the form but also the substance of
an application for a judgment taken under the said Order. To demonstrate that
Order 14 encompasses writs of the kind referred to, it appears to me necessary
to set out the old rule together with </main>