OHEMAA AKOSUA FOWAAH SARFO vs. ENERGY BANK GHANA LIMITED AND ANOR [2017]DLHC4161

Date	2017-07-27
Suit No.	SUIT NO. P/OCC 03/1996
Citation No.	[2017]DLHC4161

DR. RICHMOND OSEI-HWERE HIGH COURT JUDGE

TONY MMIEH FOR THE PLAINTIFF/RESPONDENT

[2017]DLHC4161
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													<main id="main" class="content" style="min-height: 60rem" >OHEMAA AKOSUA FOWAAH
SARFO<o:p></o:p>vs.<o:p></o:p>ENERGY BANK GHANA
LIMITED AND ANOR<o:p></o:p>&nbsp;[HIGH COURT
(COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT&nbsp;NO. P/OCC 03/1996&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 JULY, 2017<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>C. A. CHAMBERS FOR THE 2ND
DEFENDANT/APPLICATION<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><p class="MsoNormal" align="center" style="margin-top:1.45pt;margin-right:0in;
margin-bottom:0in;margin-left:0in;margin-bottom:.0001pt;text-align:center;
mso-pagination:none;mso-layout-grid-align:none;text-autospace:none"><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;
mso-padding-alt:0in 0in 1.0pt 0in">RULING<o:p></o:p>

</div>A preliminary legal
objection has been taken in the instant application by counsel for the
plaintiff/respondent on the basis that at the time counsel for the 2nd
defendant/applicant filed the motion to set aside the writ of summons issued
against the 2nd defendant the jurisdiction of the court had not been
properly invoked, as the conditional appearance entered on behalf of the
applicant was irregular. Counsel also submitted that at the time the
application was filed counsel for the applicant had no valid solicitor’s license
to practice law.<o:p></o:p>When counsel for the 2nd
defendant/applicant responded to the legal objection he stated that it was
wrong for plaintiff/respondent counsel to raise the allege breaches of the
rules of court specifically Order 9 rule 1 and Order 4 r 1(2) of the High Court
(Civil Procedure) Rules, 2004 (CI 47) by way of a preliminary legal objection
and that counsel ought to have come by way of motion to give applicant the
opportunity to respond appropriately. He submitted that under Order 19 rule 1
(1) of C.I. 47 every application in a pending proceeding shall be made by
motion.<o:p></o:p>In respect of the
regularity or otherwise of the conditional appearance, counsel submitted that
the Financial Intelligence Centre (FIC) Legal Department is a registered law
firm which has been issued with a certificate of registration of chambers and
therefore competent to enter conditional appearance on behalf of the 2nd
defendant/applicant. Counsel also emphasized that the lawyers at the FIC
including himself are licensed to practice law in Ghana. He submitted that he
is a competent lawyer and that it is very preposterous for counsel to challenge
his competence. <o:p></o:p>Before I go into the
merits of the preliminary objection, let me briefly explain the nature of a
preliminary objection. In the Tanzanian case of Mukisa Biscuit Manufacturing Co. Ltd. v. West End Distributors Ltd.
(1969) EA 696, Law JA stated at page 700 of the report as follows:<o:p></o:p>“So
far as I am aware, a preliminary objection consists of a point of law which has
been pleaded or which arise by clear implication out of the pleadings, and
which if argued as a preliminary point may dispose of the suit.&nbsp; Examples are an objection to the jurisdiction
of the court, or a plea of limitation, or a submission that the parties are
bound by the contract giving rise to the suit to refer the suit to arbitration.”<o:p></o:p>Order 19 of CI 47 dictates
that every application to the court shall be made by motion and supported by
affidavit.<o:p></o:p>The purpose of a preliminary
objection to an application is to contend that the application is incompetent
or fundamentally defective such that it is not worth considering the merits of
it. This contention may be borne out of the motion paper and/or the affidavit
evidence. It is my considered opinion that if the preliminary legal objection
falls within the scope of preliminary objection to hearing of an application
then the grounds of the objection must be apparent on the face of the pending
motion together with the affidavit evidence. In that regard, the party raising
the preliminary objection need not file a fresh motion in respect of the
objection, as the complaint arise out of the pending application itself
particularly the pleadings in the supporting affidavit.<o:p></o:p>In the present case, the
matters which form the basis of the objection are the absence of solicitor’s registration
number on the motion paper and the alleged defect of the notice of conditional
appearance. Thesecontentious matters were part of the processes filed in this
suitand the same were indirectly alluded to by the affidavit evidence. From the
record, both parties indicated in their affidavits that they were relying on
the processes filed in the suit. Counsel for the respondent therefore operated
within the scope of the rules when he raised the preliminary objection in the
way he did – that is without notice to the 2nd defendant/applicant.
This is because the objection was made in a fall out of an existing
application. <o:p></o:p>In the result, I hold that
the preliminary objection was properly made and therefore has to be determined
on its merit.<o:p></o:p>Order 9 rule 1(1) stipulates
that a Defendant sued in any capacity may enter appearance and defend the
action either in person or by a lawyer. The notice of appearance must be signed
by the Defendant act</main>