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June 1, 2023
HIGH COURT
GHANA
CORAM
This is a Ruling on Preliminary Legal Objection to the Defendant/Applicant’s hereinafter referred to as the Applicant’s Motion to dismiss the Plaintiff/Respondent’s hereinafter referred to as the Respondent’s suit.
The brief facts of the matter is that on 19th January, 2023, the Respondent caused a Writ of Summons and Statement of Claim to be issued against the Applicant for reliefs endorsed thereon.
The Applicant entered appearance and filed an Application to dismiss the Respondent’s suit.
The Respondent filed an Affidavit in Opposition and also filed a notice of intention to raise preliminary legal objection to the Applicant’s Application to dismiss the suit on two main grounds namely: 1. That the Motion is legally and procedurally incompetent.
2. That the Applicant failed to properly invoke the jurisdiction of the Court with respect to the Application.
I have read the Written Submissions in Support of the Respondent’s Preliminary Legal Objection and the Written Submissions of the Applicant in Opposition to the Preliminary Legal Objection.
The issues which this court have been called upon to determine is: Whether or not the Application for an order to dismiss the suit should be dismissed on the grounds stated in the preliminary legal objection? In doing so reference shall be made to the relevant laws and authority.
The purpose of a preliminary legal objection as stated in Ohemaa Fowaah Sarfo vs. Energy Bank Limited and Anor is to demonstrate to the Court "that the application (the subject matter of the objection) is incompetent or fundamentally defective such that it is not worth considering the merits of it. "This view of the law was affirmed by the Court of Appeal in Osei Bonsu II vs. Mensah and Others when the Court of Appeal, quoting with approval the Gambian Case of Kabo Airlines Ltd. vs. The Sheriff held as follows: "Let me say at once that the purpose of a preliminary objection, as I understand it, is to prevent the application in the notice of Motion before the court from being heard on its merit, either on, grounds of irregularity, or for non-compliance with some legal provision, or for some other good and sufficient reason. "S. Kwami Tetteh in his book titled Civil Procedure: A Practical Approach at page 305, an application to strike out a pleading or an averment in a pleading can be made either under the Rules or pursuant to the inherent jurisdiction of the Court or both.
This means that a person seeking to strike out a pleading or di
AI Generated Summary
Justice Richard Apietu of the Ghana High Court ruled on a preliminary legal objection raised by the Plaintiff/Respondent to the Defendant/Applicant’s motion to dismiss a suit filed on 19 January 2023. The Respondent argued the dismissal motion was legally and procedurally incompetent and that jurisdiction was not properly invoked. Surveying authorities including Ohemaa Fowaah Sarfo v Energy Bank, Osei Bonsu II v Mensah, Shardey v Adamtey & Shardey v Martey, Asamoah v Marfo, and Ex-Parte Allgate, the Court clarified that though it is desirable to state the governing order/rule or invoke inherent jurisdiction on the motion paper, omission is not fatal where reliefs are clear. Under Order 81 rule 1(1) of C.I. 47, non-compliance can be cured unless the defect goes to jurisdiction. Concluding the Court is clothed with jurisdiction, the judge overruled the preliminary objection, allowing the Applicant’s motion to dismiss to be considered on its merits.