EASY INVESTMENT SERVICES LTD vs. STEPHEN NTIM FRIMPONG AND ANOTHER [2019]DLHC6887

Date	2019-06-19
Suit No.	SUIT NO: RPC/84/2019
Citation No.	[2019]DLHC6887

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

KWASI AFRIFA WITH AMA ASSENSO FOR THE 2ND DEFENDANT/APPLICANT PRESENT

PRINCE ATTA POKU FOR PLAINTIFF/RESPONDENT PRESENT

[2019]DLHC6887
																																						<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" >EASY
INVESTMENT SERVICES LTD<o:p></o:p>vs.<o:p></o:p>STEPHEN NTIM
FRIMPONG AND ANOTHER<o:p></o:p>[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
NO: RPC/84/2019&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: 19TH
JUNE, 2019<o:p></o:p>

</div>COUNSEL:
<o:p></o:p>KWASI
AFRIFA WITH AMA ASSENSO FOR THE 2ND DEFENDANT/APPLICANT, PRESENT<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">

PRINCE
ATTA POKU FOR PLAINTIFF/RESPONDENT, PRESENT<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">

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;line-height:
115%;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">HIS LORDSHIP JUSTICE DR.
RICHMOND OSEI-HWERE<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;
padding:0in 0in 1.0pt 0in">

</div>In
this motion on notice the 2nd defendant/applicant (hereinafter
referred to as the “Applicant”) is praying the court for an order setting aside
and/or dismissing the writ in the instant suit on the ground that same
disregards mandatory preconditions the non-observance of which is fatal to the
suit.<o:p></o:p>It
is the applicant’s case that the residential address of the 1st
defendant is 55 Martlesham, Adams Road, London N17 6HT and not Plot 4, Block G,
Kwamo-Ashanti as indicated on the writ by the plaintiff. That, the writ does
not comply with basic and fundamental requirements of law and thus the
jurisdiction of the court has not been properly invoked. Counsel for the
applicant in his submissions to the court insisted that at the time the action
was instituted the 1st defendant lived in England and that explains
why he has not been served. Counsel ended his submission with an invitation to
the respondent to do the proper thing, as the address of the 1st
defendant has now been provided.<o:p></o:p>The
plaintiff/respondent is opposed to the application. It is the respondent’s case
that the address which was provided to them by the 1stdefendant when
he contracted the loan was Plot 4, Block G, Kwamo-Ashanti. It is on that basis
that it used the Kwamo address. That, the loan agreement was contracted in
Ghana by the 1st defendant and guaranteed by the 2nd
defendant both of whom were in Ghana on that date. It is the applicant’s case
that it never knew the 1st defendant now lives in the UK. Based on
these facts, counsel for the respondent invited the court to dismiss the
application.<o:p></o:p>A
writ of summons must among other indorsements indicate the names, residential
and occupational addresses of the plaintiff and the defendant. The occupational
and residential address of the defendant becomes necessary for the purpose of
service. In fact, a writ of summons is meant to give notice to the defendant of
the claim brought against him or her. Therefore, where the address of the
defendant is not known after diligent search the plaintiff shall indicate on
the writ that the plaintiff shall direct service. See Order 2 rule 5(5) of CI
47.<o:p></o:p>From
the affidavit evidence, the 1st defendant used the address Plot 4,
Block G, Kwamo-Ashantias his residential address when he entered into the loan
agreement with the plaintiff. It is therefore not out of place for the
plaintiff to indorse the aforesaid address on the writ of summons. This is
because the plaintiff had reasonable cause to believe that the Kwamo address
was the address of the 1st defendant. It had constructive knowledge
of this address. If indeed the 1st defendant had changed his address
at the time the writ was issued it does not in any way nullify the writ of
summons. After all, it was the responsibility of the 1st defendant
to notify the plaintiff bank of his new address if indeed he could not be
reached at the Kwamo address. The 1st defendant cannot benefit from
his failure to do what was thought to be prudent in the circumstance. We must
always remember that the rules of court are not applied to cause injustice to
parties. It would be tragic if a party who has acted in good faith is
victimized by a technical point orchestrated by the inappropriate act of his
opponent. This court will certainly not allow that to happen in the instant
case. Doing so will be at odds with the noble objectives of the rules of court
which are anchored on fundamental principles including substantial and
effective justice. I therefore decline the invitation to strike out or set
aside the writ of summons. The result is that application is hereby dismissed.<o:p></o:p>Now
that the 1st respondent has provided his new or actual address, it
is ordered that the said address, 55 Martlesham, Adams Road, London N17 6HT be
substituted for Plot 4, Block G, Kwamo-Ashanti. The 2nd defendant is
given 7 days within which to file his Statement of Defence.<o:p></o:p>There
will be no order as to costs.<o:p></o:p>

<o:p>&nbsp;</o:p></main>