ACCESS BANK (GHANA) LTD. (PLAINTIFF) vs. MANSELL GHANA LIMITED, RAMI EL-ASHKAR AND DR. RADWAN EL-ASHKAR (DEFENDANT) [2018]DLHC7315

ACCESS BANK (GHANA) LTD. (PLAINTIFF) vs. MANSELL GHANA LIMITED, RAMI EL-ASHKAR A... [2018]DLHC7315

Date	2018-10-26
Suit No.	SUIT NO: MISC/0/05/18
Citation No.	[2018]DLHC7315

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

MARGARET MENSAH ESQ. FOR THE PLAINTIFF/APPLICANT.

GEORGIA WEBB ESQ. FOR YVONNEY NYARKO ESQ. DEFENDANTS/RESPONDENTS

[2018]DLHC7315
																																						<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" >ACCESS BANK (GHANA) LTD.<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MANSELL GHANA LIMITED,
RAMI EL-ASHKAR AND DR. RADWAN EL-ASHKAR<o:p></o:p>(DEFENDANT)<o:p></o:p>[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: MISC/0/05/18&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:
26TH OCTOBER, 2018<o:p></o:p>

</div>COUNSEL: <o:p></o:p>MARGARET MENSAH ESQ., FOR
THE PLAINTIFF/APPLICANT.<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">

GEORGIA
WEBB ESQ., FOR YVONNEY NYARKO ESQ., DEFENDANTS/RESPONDENTS<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A.
ASIEDU, J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>On
the 13th June 2018, the applicant in this matter, Access Bank
(Ghana) Limited, caused an originating motion on notice to be filed on its
behalf for an order to exercise a right to possession and to realise security
in properties charged. The respondent filed a conditional appearance on the 27th
June 2018 to the originating motion on notice. As a result, the applicant filed
a motion on the 9th July 2018 for an order to set aside the
conditional appearance filed by the respondent. The only reason advanced by the
applicant for the motion to set aside the conditional appearance is that “the
filing of a conditional appearance to the originating notice of motion is not a
process known to the Rules of court.” The respondent is opposed to the
application.<o:p></o:p>Order
9 rule 1 of the High Court (Civil Procedure) Rules, 2004, CI 47 is very
instructive in determining who may file an appearance. It states that:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; 1.&nbsp;&nbsp;&nbsp;Who
may file appearance<o:p></o:p>(1)&nbsp;&nbsp;Subject to Order 5 rule 1 of these
Rules a defendant to an action may,
whether or not the defendant is sued in a personal capacity or as a trustee or
as a personal representative or in any other representative capacity, file
appearance in the action and defend it in person or through a lawyer.<o:p></o:p>The
understanding that flows naturally from the above rule is that in so far as a
person has been sued and made a defendant to an action before a court of law,
that person has the liberty to file an appearance to the action. The Rules of
civil procedure has defined what an action is in Order 82 rule 3. It states
that:<o:p></o:p>“action”
means a civil proceeding commenced by writ or in such other manner as may be
prescribed by these Rules or by any other enactment”<o:p></o:p>In
the opinion of the court, an action is any lawful civil proceedings instituted
by a person or persons against another person or persons in a court of law
irrespective of the mode by which it was commenced. See Essilfie and Others v. Anafo and Others [1992] 2 GLR 654.<o:p></o:p>It
seems clear to the court that from the above definition it is not only when a
person has been brought to the court per the medium of a writ of summons that
that person is enjoined to file an appearance thereto if he intends to contest
the suit. Thus, notwithstanding the mode by which the court’s jurisdiction is
invoked, the person against whom the jurisdiction is invoked is under a legal
duty to file an appearance. It follows therefore that since the defendant has
been brought to court, al beit, per an originating motion on notice, the
defendant is under a legal obligation to file an appearance so that he can be
heard by the court. The court wishes to point out that the fact that
defendants/respondents to originating processes do not normally file appearance
before they file other processes does not mean that they cannot file
appearance. In fact, they are under a legal duty to do so before they can be
properly recognised as having submitted to the jurisdiction of the court.<o:p></o:p>Under
the practice in England, a person who issues a process to invoke the
jurisdiction of the High Court against another was expected to serve that process
with a form by which to defendant could acknowledge service of the process on
him and also his intention the defend the action or challenge the jurisdiction
of the court. The authors of the Supreme Court Practice, 1995 published by
Sweet and Maxwell, Vol. 1, have the following to say at page 108<o:p></o:p>In 1979 the present procedure was introduced in
order to make the steps to be taken by the defendant clearer to him. In
outline:<o:p></o:p>(a) The Plaintiff when serving the writ or
originating summons, must serve the defendant with the form for acknowledging
service, directions and the Notes for Guidance.<o:p></o:p>(b) If the defendant wishes to contest the
proceedings, either on the merits or on a point of jurisdiction or regularity,
he must return the acknowledgement of service to the court office which issued
the writ and must, by ticking the appropriate box, give notice that he intends
to contest the proceedings … If he fails to do so within the prescribed time,
the Plaintiff may sign judgment in default of notice of intention to defend.<o:p></o:p>(c) If the defendant wishes to challenge the
Jurisdiction or the regularity of the pro</main>