CLEMENT OTCHERE HOUSE NO. PLOT 11 BLOCK A MPATASIE v. DIANA OWUSU P. O. BOX 2147, SUAME-KUMASI
2016
COURT OF APPEAL
GHANA
CORAM
- AYEBI J.A. (PRESIDING)
- TORKORNOO (MRS), J. A.
- DOMAKYAAREH (MRS), J. A.
Areas of Law
- Civil Procedure
- Contract Law
2016
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Plaintiff sued for specific performance or return of payment for a contract for the sale of two properties, damages, and interest. Defendant filed to strike out the writ as it was issued by a law firm which he claimed was void. The High Court dismissed this and the decision was appealed. The Court of Appeal considered the regulations and definitions concerning who may issue writs and found that as long as the lawyer’s firm name and address are endorsed, the writ is valid. The appeal was dismissed.
TORKORNOO (MRS), J.A.
The Plaintiff respondent sued the defendant Appellant for:
a. An order for Specific Performance of the contract for the sale of House No.Plot 18 Block ‘P’ Aburaso, Kumasi and Plot No.10 Block ‘A’ Kenyase Krotia, Kumasi entered into between the Plaintiff and the Defendant on 13th September, 2012 or in the alternative Payment of the sum of One Hundred and Twenty Thousand Ghana cedis (GH¢120,000.00) being part payment of purchase price of Two Hundred and Twenty Thousand Ghana cedis (GH¢220,000.00) of the two properties described above which Plaintiff advanced to the Defendant towards the purchase of these properties.
b. General damages for breach of contract.
c. Interest at the prevailing bank rate from 24th October, 2012 till date of final payment.
After being served with the Writ in this suit, the defendant Appellant entered conditional appearance through her lawyer.
She then filed an application to strike out the Writ of summons and statement of claim.
Her complaint was that the Writ of summons was issued by a law firm or chambers Messrs Afrifa & Co and as such, could not invoke the jurisdiction of the high court.
It was her case that the issue of the Writ by a law firm rendered the Writ incompetent and void.
The high court dismissed this application and its supporting arguments leading to this appeal.
Although there were four grounds of appeal filed, they coalesced around one legal position and were thus argued together.
The grounds of appeal are that
a. The Honourable Trial Court erred in law when it held that a Law firm or Chambers was competent to issue out a Writ of summons on behalf of a party.
b. That the Honourable Trial Court was wrong in law as the ruling is contrary to clear statutory provision and binding judicial dicta.
c. That the Honourable Trial Court’s ruling was given per incuriam.
d. That the ruling of the Honourable Court is against the weight of the evidence on Record.
It was indicated that additional grounds of appeal but would be filed upon receipt to the Record of appeal, this was not done.
In arguing that the Writ issued by a law firm was not competent to invoke the jurisdiction of the high court, Appellant counsel pointed at a number of legislative provisions.
The first was Order 4 rule 1 of the High Court Civil Procedure Rules 2004 CI 47 which provides ‘Subject to these rules, any person may begin and carry on proceedings in person or by a lawyer.’ The second was Order 82 rule 3 of CI 47 wh