FRED KODIE AGENCIES LIMITED vs. ASUMANA DROBO ALIAS WATARA [2018]DLHC3978

Date	2018-07-17
Suit No.	SUIT NO.OCC 55/2018
Citation No.	[2018]DLHC3978

DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT

SULLEY SAMBIAN FOR PLAINTIFF/RESPONDENT

BARIMA AGYEKUM HINNEH FOR DEFENDANT/APPLICANT

[2018]DLHC3978
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >FRED KODIE AGENCIES
LIMITED<o:p></o:p>vs.<o:p></o:p>ASUMANA DROBO ALIAS WATARA<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;
padding:0in 0in 1.0pt 0in">

SUIT&nbsp;NO.OCC 55/2018&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:
17TH
JULY, 2018<o:p></o:p>

</div>COUNSEL
<o:p></o:p>SULLEY SAMBIAN FOR
PLAINTIFF/RESPONDENT <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">

</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">

</div><o:p>&nbsp;</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="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;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>This
ruling is in respect of an application for an order referring the instant suit
to the Chief Justice for further directives on grounds of lack of geographical
jurisdiction.<o:p></o:p>Counsel
for the defendant/applicant herein contends that the action ought to have
commenced against the defendant at where he resides or does business. He
submits that the defendant resides and does business at Drobo in the Brong
Ahafo Region and since there are High Courts in Sunyani, Brong Ahafo Region the
action ought to have commenced there rather than in Kumasi, Ashanti. He refers
to Order 3 of the High Court (Civil Procedure) Rules 2004 (CI 47) and invited
the court to grant the application.<o:p></o:p>The
Plaintiff/Respondent is opposed to the application. Counsel attacked the
competence of the application since in his opinion failure to state the rule of
law on the face of the motion paper makes the application void. He submitted
that under Order 19 rule 4 the applicant is required to state on the face of
the motion paper the rule under which the motion is being moved and that when a
procedure is provided for instituting an action, failure to follow the
procedure is not only a nullity but an issue that goes into jurisdiction. On
the merit of the application, counsel submitted that the contract for the sale
of the poultry feed (the subject matter of the writ) was entered in Kumasi. He
cited Order 3 rule 1(4) of CI 47 and submitted that the court has jurisdiction
to try the matter as the action should be commenced in the region where the
contract was performed.<o:p></o:p>Before
I go into the merit of the application, I will first deal with the legal issue
relating to the competence of the application.<o:p></o:p>Order
19 rule 4 of CI 47 states:<o:p></o:p>“Every
application shall be supported by affidavit deposed to by the applicant or some
person duly authorised by the applicant and stating the facts on which the
applicant relies, unless any of these Rules provides that an affidavit shall
not be used or unless the application is grounded entirely on matters of law or
procedure which shall be stated in the motion paper.”<o:p></o:p>My
understanding of the provision is that in an application relating to matters of
law or procedure an affidavit evidence may be dispensed with. However, it is
important to state the law or procedure on the face of the motion paper. This
is to ensure that the opposing party is notified of the nature of the
application. <o:p></o:p>In
the instant case the applicant stated on the motion paper the nature of the
application as “an order referring the instant suit to the Chief Justice for
directives on grounds of lack of geographical jurisdiction”.<o:p></o:p>Clearly,
the applicant is challenging the jurisdiction of the court to entertain the
suit. What the applicant failed to do was to state the procedural rule under
which the application is grounded. It is, however, my considered opinion that
insofar as the applicant has stated the nature of the application on the motion
paper, failure to state the rule of law is not fatal to the application. This
is a mere irregularity that can be cured by Order 81 rule 1 of CI 47. It
provides as follows:<o:p></o:p>“Rule
1—Non-Compliance with Rules not to Render Proceedings Void<o:p></o:p>(1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Where, in beginning or purporting to begin
any proceedings or at any stage in the course of or in connection with any
proceedings, there has, by reason of anything done or left undone, been a
failure to comply with the requirements of these Rules, whether in respect of
time, place, manner, form or content or in any other respect, the failure shall
be treated as an irregularity and shall not nullify the proceedings, any step
taken in the proceedings, or any document, judgment or order in it.”<o:p></o:p></sp</main>