PETER STOBER vs. JOSEPH SAKA AND OTHERS [2015]DLHC3505

Date	2015-12-18
Suit No.	SUIT NO.CM/0003/2015
Citation No.	[2015]DLHC3505

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT

[2015]DLHC3505
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">PETER
STOBER<o:p></o:p></a>vs.<o:p></o:p>JOSEPH SAKA AND OTHERS<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), ACCRA]<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">

SUIT
NO.CM/0003/2015&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: 18TH DECEMBER, 2015 <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 1.0pt 0in">

HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE
OF THE HIGH COURT<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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RULING<o:p></o:p>

</div>The 2nd Defendant/Applicant seeks for an
order to strike out the writ of summons and the service of the processes on the
defendants on the grounds that the 3rd defendant is resident outside
the jurisdiction and leave out to have been sought by the Plaintiff/Respondent
before issuance of the writ and for service of a notice of the writ on the 3rd
defendant.<o:p></o:p>The 2nd Defendant/Applicant and indeed the
rest of the defendants are all resident in Ghana except the 3rd
defendant and the applicant who does not complain that the issuance of the writ
and service on him is irregular has in this application, assumed the role of
the proverbial mourner who wants to mourn more than the bereaved.<o:p></o:p><o:p>&nbsp;</o:p>It is stated under order 2 Rule 7(5) of the High Court
(Civil Procedure) Rules, 2004, C. I 47 that:<o:p></o:p><o:p>&nbsp;</o:p>“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><o:p>&nbsp;</o:p>And Order 8 deals with service out of the jurisdiction
and notes that no notice of a writ shall be served out of the jurisdiction except
only with leave of court.<o:p></o:p>Based on Orders 2 Rule 7(5) and Order 8 the 2nd
Defendant/Applicant has contended that the whole writ issued without leave of
court is incurably bad and the court ought to strike out the writ in its
entirety.<o:p></o:p><o:p>&nbsp;</o:p>Counsel for the 2nd Defendant/Applicant is
gravely mistaken as to the warped interpretation she seems to be placing on
Order 2 Rule 7 not in respect of the 3rd defendant but in respect of
the 1st, 2nd and 4th defendants. The issuance
and service of a writ on a party outside the jurisdiction without first seeking
leave of the court is a nullity. However, with the exception of the 3rd
defendant, all the defendants are resident in Ghana and cannot claim that the
issuance and service of the writ on them is a nullity.<o:p></o:p><o:p>&nbsp;</o:p>It would be absurd to interpret Order 2 Rule 7 of C.I
47 that where there are several defendants in a suit and only one is resident
outside the jurisdiction, the non procurement of leave of court before the issuance
of the writ nullifies the writ and service thereof in relation to the resident
entities. And in this instance the Rule would have to be interpreted “ut res magis valeat quam pereat”, so as
to avoid the absurd result of voiding the whole writ. The better option, as
indeed counsel for the Plaintiff concedes is to strike out the name of 3rd
Defendant. As in respect of the 3rd defendant the condition
precedent in relation to the issuance of the writ has not been complied with by
the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>The non compliance of the condition precedent for the
issuance of the writ in respect of the 3rd defendant cannot have the
conclusive effect of invalidating the whole writ. This position is reinforced
by the decision in REPUBLIC v HIGH
COURT, ACCRA, EXPARTE ALLGATE (AMALGAMATED BANK LTD INTERESTED PARTY)
[2007-2008] SCGLR 1041 and at 1054 wherein his Lordship, Date-Bah JSC noted at
page 1052 as to the scope of non compliance of the rules that can defeat an
action in the following:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “where
there has been non compliance with any of the rules contained in the High Court
(Civil Procedure) Rules, 2004, C. I. 47 such non compliance is to be regarded
as an irregularity that does not result in nullity, unless the non compliance
is a breach of the Constitution or of a statute other than the rules of court
or the rules of natural justice or otherwise goes to jurisdiction”<o:p></o:p>See also the following cases REPUBLIC</main>