ULTIMATE TRUST HOLDINGS vs. LEIPING & 3 ORS. [2019]DLHC10346

Date	2019-03-26
Suit No.	SUIT NO. GJ/0052/2018
Citation No.	[2019]DLHC10346

HER LADYSHIP JUSTICE ANANDA J. AIKINS (MRS.)

REXFORD KOFI FRIMPONG HOLDING BRIEF FOR AGYABEN AKRASI FOR THE PLAINTIFF PRESENT

LAURENCE ASANTE AHENKORAH

COUNSEL FOR THE 2ND & 3RD DEFENDANT ABSENT

KWADWO ASARE KENAH COUNSEL FOR THE 4TH DEFENDANT ABSENT

JACOB ACQUAH SAMPSON COUNSEL FOR THE 1ST DEFENDANT ABSENT

[2019]DLHC10346
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													<main id="main" class="content" style="min-height: 60rem" >ULTIMATE TRUST
HOLDINGS<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>LEIPING &amp; 3
ORS.<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;mso-pagination:none;mso-layout-grid-align:none;text-autospace:
none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;
mso-padding-alt:0cm 0cm 1.0pt 0cm">SUIT NO. GJ/0052/2018&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;DATE:
26TH MARCH, 2019<o:p></o:p>

JACOB ACQUAH SAMPSON,
COUNSEL FOR THE 1ST DEFENDANT ABSENT<o:p></o:p>

</div>CORAM:<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

HER LADYSHIP JUSTICE ANANDA J. AIKINS
(MRS.)<o:p></o:p>

</div>MOTION
ON NOTICE TO SET ASIDE WRIT OF SUMMONS<o:p></o:p>RULING<o:p></o:p>Order
8 rule 1 of the High Court (Civil Procedure) Rules, 2004 states that no writ
shall be served out of the jurisdiction. However sub rule (2) of rule 1 also
states that notice of a writ as in Form 3 in the schedule may be served out of
the jurisdiction with leave of the Court.<o:p></o:p>The
same order 8 rule 3 also lists cases in which service out of the jurisdiction
of notice of a writ may be effected with leave of the Court.&nbsp; Thus in an action to enforce, rescind,
dissolve, annul or otherwise affect a contract or recover damages or obtain
other relief in respect of the breach of a contract, a defendant who is
ordinarily not resident within the jurisdiction may be served with notice of a
writ with leave of the Court.<o:p></o:p>The
present application is a request by the 1st defendant/applicant for
an order setting aside the Writ of Summons and service thereof on the 1st,
2nd and 4th defendants on grounds of nullity and incompetence.<o:p></o:p>It
is the case of the applicant that the writ of the plaintiff which is against 4 defendants
one of whom is not ordinarily resident in Ghana is defective because same was
issued without the leave of the Court as demanded by order 8 rules 1 and 2 of
the High Court (Civil Procedure) Rules, supra.<o:p></o:p>The plaintiff/respondent
has opposed this application on the ground that the applicant has no capacity to
act or speak for the 2nd and 4th defendants. The
respondent however admits that the 3rd defendant is a non-resident
company in Ghana. <o:p></o:p>The
record shows that the Plaintiff originally issued the writ on 17th
January, 2018 and gave the address of the 3rd defendant as “C/o Lei
Ping, Spintex Road Accra”.&nbsp; Lei Ping is
the name of the 1st defendant and the plaintiff in its bid to cure
the defects on its writ, on the 9th day of February, 2018 issued an
amended writ with the address of the 3rd defendant reading as
follows: ‘Thro’ Galice Investment Ltd. Sakumono, Tema.<o:p></o:p>This
new address of the 3rd Defendant is obviously a bid by the plaintiff
to avoid service of the writ out of the jurisdiction.&nbsp; However the rules of procedure do not allow a
party to serve processes on a body corporate through another body corporate.&nbsp; In this instant case, the plaintiff is
seeking to serve the 3rd defendant which is a company resident in
Hong Kong (see Exhibit ‘A’ which is attached to the applicant’s affidavit in
support filed on 14th May, 2018) through another company by name
‘Galice Investment Ltd’. which is resident within the jurisdiction, precisely
at Sakumono, Tema.&nbsp; The rules also do not
allow a writ which is to be served out of the jurisdiction to be issued without
leave of the Court. <o:p></o:p>Nowhere
in the record does it show that the plaintiff sought leave from the Court before
issuing the amended Writ of Summons and Statement of Claim.&nbsp; The tenor of order 8 rules 1 and 2 is very
clear – a plaintiff needs to seek the leave of the Court before issuing a writ
for service out of the jurisdiction where one of the defendants to the suit is
ordinarily not domiciled within the jurisdiction.<o:p></o:p>The plaintiff/respondent
herein needs to do the needful by applying to the Court for leave to issue and
serve its writ out of the jurisdiction because one of the defendants that is
the 3rd defendant is not domiciled in Ghana.<o:p></o:p>In
the light of the foregoing the amended Writ of Summons and Statement of Claim
which were issued out by the plaintiff without the requisite leave of the Court
are a nullity and are therefore struck out by the Court.&nbsp; The Court awards cost of GH₵2,000.00
against the plaintiff in favour of the 1st defendan</main>