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July 18, 2025
HIGH COURT
GHANA
CORAM
The Counsel for 7th defendant/applicant has filed this application to set aside the order of the court granted on 27th of March, 2025 for the substitution of Abdul Kader Kalmoni in the place of Subhi Kalmoni (deceased). Subsequently on 23/06/2025 she has filed an application to strike out Subhi Kalmoni from the suit In sum, the gravamen of this instant application is that a writ of summons was issued on the 14th of March, 2023 against three (3) Defendants. On the 22nd February, 2024 this court ordered the joinder of the 4th to 27th Defendants of which Subhi Kalmoni was the 7th Defendant. Prior to the joinder granted on 22nd February, 2024 as per Exhibit ‘JAT2’ the 7th Defendant had passed away on 8th February, 2024. Thereafter, an amended writ was issued dated 4th March, 2024 to include the deceased as 7th Defendant. Suffice to state that at the time the writ was issued the 7th defendant Subhi Kalmoni (deceased) had already died per Exhibit“JA2”. It is an undisputed fact that the writ which was served on all parties by substitution was never served on Subhi Kalmoni (deceased) especially as his name wasnot part of the parties served by substitution. The plaintiff before the court differently constituted filed a notice of discontinuance against the deceased. Subsequently the counsel for 7th defendant made an application to have the 7th defendant, Abdul Kader Kalmoni to be substituted in the place of Subhi Kalmoni (deceased). The counsel for 7th defendant now seeks the court to disjoin and or strike out the suit against the 7th defendant as 7th defendant’s substitution is void on the basis that the substitution was made at the time the suit had already been discontinued against the deceased he sought to substitute. The counsel for plaintiff in an affidavit in opposition is vehemently opposed to both applications. The court heard both parties. The parties opined as follows:
Counsel for 7th Defendant– We have before you a motion on notice for an order to strike out 7th Defendant Subhi Kalmoni from the suit. We move in terms of the motion paper and the supporting affidavit. Very shortly, this action was begun or instituted on the 14th of March, 2023 against three (3) Defendants. On the 22nd February, 2024 this court ordered the joinder of the 4th to 27th Defendants of which Subhi Kalmoni was the 7th Defendant. Prior to the joinder on 8th February, 2024 as per Exhibit ‘JAT2’ the date and hour of 7th Defendant death was on 8th February, 2024 at 16:35 p.m. Th
AI Generated Summary
In the High Court of Ghana, presided over by Justice Ruby Naa Adjeley Quaison (Mrs.), the plaintiff’s 2023 land-related action expanded in February 2024 to include numerous alleged trespassers, naming Subhi Kalmoni as 7th Defendant despite his death on 8 February 2024. An amended writ in March 2024 included the deceased, but substituted service did not cover him, and a notice of discontinuance against Subhi followed. Later, counsel sought to substitute Abdul Kader Kalmoni for Subhi; the plaintiff opposed, invoking Order 4 Rule 6 and arguing the cause of action survived to administrators, while the Second Defendant emphasized service as jurisdictional. Citing Barclays Bank v. Ghana Cable and B.H. Industries v. Adamu, the court held that jurisdiction is triggered by valid service and cannot be cured by substitution. Applying Mcfoy v. UAC, the court declared the substitution order void ab initio and struck out the 7th Defendant, with no order as to costs.