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May 12, 1980
HIGH COURT
GHANA
CORAM
JUDGMENT OF CECILIA KORANTENG-ADDOW J.
This is an application to set aside the writ of summons specially endorsed with claims for re-instatement of the plaintiff to his former position as a manager of the defendant- company, and payment of his salary or in the alternative damages for breach of contract and other consequential losses.
The defendants have through their solicitors entered conditional appearance to the writ and by this motion, they are seeking to set the writ aside on the grounds that the copy which was served on them was not signed either by the plaintiff or his solicitors. Mr. Akuffo, counsel for the defendants contends that the unsigned writ is a nullity and therefore void ab initio.
In reply Mr. Arthur-Mensah, counsel for the plaintiff, has argued firstly, that the reverse side of the writ bears the name and address of service of the solicitors who issued the writ, and secondly, that the writ was issued together with statement of claim and the two documents were delivered together, so any defect in the writ was cured by the statement of claim which was duly signed by the solicitors who prepared them.
Mr. Akuffo based his argument on Order 5, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), which provides:
"4. The plaintiff or his solicitor shall, on presenting any writ of summons for sealing, leave the Registrar a copy of such writ and all the indorsements thereon, and such copy shall be signed by or for the solicitor leaving the same, or by the plaintiff himself if he sues in person.”
The signature of the person issuing the writ referred to in this rule is not the same as the signature to the statement of claim endorsed on a writ under Order 3, r. 6 of L.N. 140A. The signature envisaged under Order 5, r. 4 must appear at the back page of the writ after the words "THIS WRIT was issued by." But in [p.473] this country the practice has been to print or type the names of the issuing solicitors and their address in the space provided after those words. Order 5, r. 4 must be dealing with the person who is issuing the writ. The signature to the endorsement is regulated by Order 19, r. 4 of L.N. 140A, and not Order 5, r. 4. It means that the signature to the endorsement does not relieve the person issuing the writ to sign as the person issuing the writ and give his particulars for service. In the English Annual Practice (1962 ed.), p. 63 commenting on Order 5, r. 12 of the English rules, which is stated in identical words
AI Generated Summary
Justice Cecilia Koranteng-Addow, sitting in the Ghana High Court, determined an interlocutory application to set aside a specially endorsed writ in a dispute where the plaintiff sought reinstatement as manager of the defendant-company, with salary or damages for breach of contract. The defendants, represented by Mr. Akuffo, had entered conditional appearance and contended that the copy of the writ served was not signed by the plaintiff or his solicitor, rendering it a nullity. Plaintiff’s counsel, Mr. Arthur‑Mensah, argued that the writ bore the issuing solicitors’ particulars and was served with a signed statement of claim, curing any defect. The court distinguished the issuer identification on the back of the writ under Order 5 rule 4 from the requirement that the endorsement be actually signed under Order 19 rule 4, holding that printed names are not sufficient. Relying on authorities including Fick & Fick Ltd v Assimakis, Cassidy & Co v M’Aloon, R v Cowper and France v Dutton, and applying the principle in Hill v Luton Corporation, the court held the defect was fatal, the writ void ab initio, refused to invoke Order 70 rule 1 to save a nullity, and set aside the writ, statement of claim, and motion, awarding nominal costs.