COMMISSIONER, CUSTOMS, EXCISE AND PREVENTIVE SERVICE AND ANOTHER vs. MAHOGANY FURNITURE LTD AND ANOTHER [2001]DLCA1185

COMMISSIONER, CUSTOMS, EXCISE AND PREVENTIVE SERVICE AND ANOTHER vs. MAHOGANY FU... [2001]DLCA1185

Date	2001-01-21
Suit No.
Citation No.	[2001]DLCA1185

FARKYE JA

GBADEGBE JA

OWUSU-ANSAH JA

FIFI YANKSON FOR THE DEFENDANT-APPELLANTS.

SOLOMON QUANDZIE FOR THE PLAINTIFF-RESPONDENT.

[2001]DLCA1185
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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">COMMISSIONER, CUSTOMS, EXCISE AND PREVENTIVE SERVICE AND ANOTHER<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">MAHOGANY FURNITURE LTD AND ANOTHER<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>[2001-2002]
2 GLR 476<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: 21 JANUARY 2001<o:p></o:p>

</div>COUNSEL:<o:p></o:p>FIFI
YANKSON FOR THE DEFENDANT-APPELLANTS.<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">

SOLOMON
QUANDZIE FOR THE PLAINTIFF-RESPONDENT.
<o:p></o:p>

FARKYE,
GBADEGBE AND OWUSU-ANSAH JJA<o:p></o:p>

</div>JUDGEMENT<o:p></o:p>Gbadegbe JA. <o:p></o:p>This
is an interlocutory appeal from the ruling of the High Court, Accra dismissing
the several objections taken by the defendant-appellant (hereinafter referred
to as the defendants) to the action of the plaintiff-respondent (hereinafter
referred to as the plaintiff). It appears from the proceedings that both
objections were based on Order 12, r 24 of the High Court (Civil Procedure)
Rules, 1954 (LN 140A) which provides:<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">“24.
A defendant before appearing shall be at liberty, without obtaining an order to
enter or entering a conditional appearance, to take out a summons or serve
notice of motion to set aside the service upon him of the writ or of notice of
the writ, or to discharge the order authorising such service.”<o:p></o:p>It
is important to state that the said provision has been decided upon in several
cases as lawfully entitling an applicant to enter conditional appearance where
he seeks to deny jurisdiction in the court or to raise an irregularity in the
writ or service thereof: see Amissah-Abadoo v Abadoo [1973] 1 GLR 490. So
settled is the position that when a defendant who proposes to rely on the said
rule indicates objection on a ground other than those lawfully available to
him, the application is dismissed in limine with the conditional appearance
being treated as an unqualified or absolute appearance: see Amissah-Abadoo v
Abadoo (supra) at 498 wherein Edward Wiredu J (as he then was) expressed
himself on the correct position as follows:<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">“Turning
now to the circumstances under which a party is entitled to enter a conditional
appearance, the authorities are all agreed that a defendant may enter a
conditional appearance where he intends to have the writ or the service of the
writ set aside on the ground of irregularity of the writ or the service of it
or to deny jurisdiction. Irregularity here includes the irregularity in the
issue or service of the writ or in the form of the writ. The defendant’s
application does not attack the plaintiff’s writ on any of the above grounds.
Her sole complaint is that the writ did not disclose any reasonable cause of
action against her. Her grievance is not among those which justify her entering
a conditional appearance, the conditional appearance therefore is out of place
and will be treated as unconditional appearance which would entitle her to
present her application under Order 25, r. 4.”<o:p></o:p>In
my view, the said statement of the law is a correct exposition of the practice,
but I wish by way of comment to say that considering the application under
Order 25, r 4 of LN 140A, the learned judge was quite benevolent to the
applicant and that if he had taken a stricter view of the rules, the
application would have been dismissed in limine. Since the grounds on which the
application were planked were clearly outside Order 12, r 24 of LN 140A, in my
view, its effect is that the applications were incompetent and were rightly
refused by the learned trial judge, although I must confess that his reasons for
refusing them were quite dissimilar from the opinion I have taken of the
application.</main>