RICHMOND AGGREY (PLAINTIFF/RESPONDENT) vs INVESTCOM CONSORTIUM HOLDING SA & 2 ORS (DEFENDANT/APPLICANT) [2007]DLCA7508

RICHMOND AGGREY (PLAINTIFF/RESPONDENT) vs INVESTCOM CONSORTIUM HOLDING SA & 2 OR... [2007]DLCA7508

Date	2007-03-27
Suit No.	SUIT NO. H3/127/07
Citation No.	[2007]DLCA7508

AKAMBA J. A. PRESIDING

MARFUL-SAU J. A

OSAFO SAMPONG J .A

MR. BENSON NUTSUKPUI WITH NUTIFAFA NUTSUPUI FOR 2ND DEFENDANT/ APPLICANT.

MR. YONNY KULENDI WITH CHARLES PUOZUING FOR THE PLAINTIFF/ RESPONDENT

[2007]DLCA7508
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													<main id="main" class="content" style="min-height: 60rem" >RICHMOND
AGGREY<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs<o:p></o:p>INVESTCOM
CONSORTIUM HOLDING SA &amp; 2 ORS<o:p></o:p>(DEFENDANT/APPLICANT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. H3/127/07&nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 27TH MARCH, 2007<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
BENSON NUTSUKPUI WITH NUTIFAFA NUTSUPUI FOR 2ND DEFENDANT/ APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MR. YONNY KULENDI WITH CHARLES PUOZUING
FOR THE PLAINTIFF/ RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>AKAMBA
J. A. PRESIDING, MARFUL-SAU J. A , OSAFO SAMPONG J .A <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>BY
COURT <o:p></o:p>The application
before this court is for an order to stay proceedings in suit NO. ACC/3/06, now
pending at the High Court (Commercial Division - Accra). The application has
been brought to compel the High Court (Commercial Division) to suspend
proceedings pending the determination of the Interlocutory Appeal against the
ruling of the said Court dated the 20th October 2006. In the said ruling the
Court below had refused Applicant's motion praying that the
Plaintiff/Respondent writ be struck out for non-compliance with Order 2 rule
7(5) of CI 47.<o:p></o:p>&nbsp;The matter in controversy in this application
is the legal effect of non-compliance with Order 2 Rule 7(5) of CI 47. In these
proceedings the 2nd Defendant/Applicant's complaint is that the writ of summons
originating suit No. ACC 3/06 at the High Court was issued out of the court
Registry without leave of the Court, in contravention of Order 2 Rule 7(5),
because the 1st and 3rd Defendants as disclosed on the writ, are legal entities
residing outside the jurisdiction of the Court.<o:p></o:p>&nbsp;Order 2 Rule 7(5) itself provides as follows:<o:p></o:p>&nbsp;"No writ notice of which is to be served
out of the jurisdiction, shall be issued without leave of the Court as provided
in Order 8". <o:p></o:p>The
learned trial Judge in the ruling under appeal indeed made a finding that the
Plaintiff/Respondent, should have sought leave of the Court, before causing the
writ to be issued, since two of the Defendants were resident outside the
jurisdiction, as required under Order 2 Rule 7(5) of CI 47. <o:p></o:p>Counsel
for the 2nd Defendant/Applicant has argued that the learned trial Judge
misdirected himself by not striking out the writ after finding that the
Plaintiff/Respondent should have sought leave of the Court before the issuance
of the writ. Learned Counsel relied heavily on the case of Lokko V. Lokko 1991
2GLR 184 CA, where this court faced with similar circumstance, held that a writ
intended to be served outside the jurisdiction, but issued without the leave of
court was a nullity and of no effect. Learned Counsel further argued that the
trial High Court erred when it relied on a High Court decision namely Shirlstar
Container Transport Ltd. V. Kadas Shipping Co. Ltd. &amp; others 1989 -90 1 GLR
401, as against the Court of Appeal decision in Lokko V. Lokko supra. Counsel
therefore urged this Court to stay proceedings at the High Court pending the
determination of the Appeal.<o:p></o:p>&nbsp;The application has been fiercely opposed by
the Plaintiff/Respondent. Learned Counsel for the Respondent had submitted that
the Court below was right in dismissing the motion, in that the Court
interpreted Order 2 Rule 7(5) taking into account the entirety of the Civil
Procedure Rules CI 47. Learned Counsel citing various authorities argued that the
applicant's motion does not disclose any special circumstance for which the
proceedings at the Court below ought to be stayed. Further, Counsel argued that
the Applicant has not shown any loss that would occasion it, should the trial
proceed at the Court below. With these submissions learned counsel for the
Respondent prayed that the motion be dismissed.<o:p></o:p>&nbsp;It is trite learning that for such an
application to succeed the Applicant ought to demonstrate special circumstance.
Learned Counsel for Applicant has urged on this Court that the trial Judge
misdirected himself on the legal effect of non-compliance with Order 2 Rule
7(5) of CI 47. The law however is that a mountain of misdirections by a Court
will not amount to special circumstance. See Republic V. Committee of Inquiry
(R.T. Briscoe Gh. Ltd.) Exparte R. T. Briscoe Gh Ltd. 1976 1GLR 166.<o:p></o:p>&nbsp;Now in determining the success or otherwise of
the Applicant's motion, we need to consider the legal effect of non-compliance
with Order 2 Rule 7(5), since the controversy in this suit centres around that
Rule. In doing that we do not intend to determine the substantive appeal, which
is yet to be heard. However if we are seen as addressing the substantive appeal
then we will be protected by the decision in Woodford V. Smith 1970 WLR 806,
where Megarry J. concluded at page 817, thus<o:p></o:p>&nbsp;"I do not think that there is anything to
prevent the Court in a proper case from granting on a motion substantially all
the reliefs claimed in the action."<o:p></o:p>&nbsp;This principle of law has found its way to our
case law and sanctioned by this Court in the cases of Interim Executive Council
V. Interim Executive of the Apostolic Divine Church of Ghana 1984 - 86 1 GLR
529 CA and Adjei V. Johnson Complex Gh. Ltd. 1984 - 86 1GLR 644 CA.<o:p></o:p>