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June 8, 2023
HIGH COURT
GHANA
CORAM
RULING
1] This is a motion on notice for an order to strike out the names of defendants/applicants as parties to the suit.
The background to the instant application is that on 25th April 2023, the plaintiff caused his lawyer to issue a writ of summons against the defendants herein for a number of reliefs.
2] A notice of entry of conditional appearance was filed on behalf of the defendants on 6th February 2023 in addition to the instant motion to strike out defendant’s names as not being proper parties to the suit.
3] An affidavit in opposition to the instant motion was filed by counsel for the plaintiff respondent in respect of which counsel for the defendant filed a supplementary affidavit in support.
4] After hearing legal arguments from counsel on both sides and considering the affidavits filed, the court decides as follows; 5] Order 9 Rules 7(1) of the High Court (Civil Procedure) Rules, C. I 47, provides that: 7(1) A defendant may file conditional appearance.
Order 9 Rule 8 provides that; 8. A defendant may at any time before filing appearance, or, if the defendant has filed a conditional appearance, within fourteen days after filing appearance, apply to the Court for an order to; a. set aside the writ or service of writ b. declare that the writ or notice of the writ has not been served on the defendant c. discharge any order that gives leave to serve Notice on defendant outside the jurisdiction 6] In the instant case, after the Notice of Conditional Appearance was filed on behalf of the defendants, counsel for the defendants applicants filed a motion for an order to strike out the names of the defendants as parties to the suit.
The basis of this application was that the defendants were not the proper persons to be sued in respect of the plaintiff’s claim.
7] The court notes that the defendant’s application did not attack the plaintiff’s writ on any of the grounds provided for under Order 9 Rules 7 &8. Their sole complaint that they were not the proper persons to be sued was not among the grounds which justified their entering a conditional appearance.
See: Amissah-Abadoo v Abadoo [1973] 1GLR 490, where it was held per Holding 2 that: “A defendant might enter a conditional appearance where he intended to have the writ or the service of the writ set aside on the ground of irregularity in the writ or the service of it or to deny jurisdiction.
Irregularity here included the irregularity in the issue or service of the writ or in the for
AI Generated Summary
Justice Barbara Tetteh-Charway of the High Court ruled on a motion by the defendants/applicants to strike out their names from an ongoing suit, which the plaintiff had commenced by a writ of summons issued on 25 April 2023. The defendants had filed a notice of conditional appearance and, alongside, the instant motion. Applying Order 9 rules 7(1) and 8 of the High Court (Civil Procedure) Rules, C.I. 47, and guided by Amissah‑Abadoo v Abadoo [1973] 1 GLR 490, the Court held that conditional appearance is reserved for impugning jurisdiction or irregularities in the writ or its service, not for challenging the propriety of parties. The Court further observed that the “improper party” contention is a matter of defence to be pleaded; without a statement of defence, deciding that issue would be premature. The application was dismissed, and no costs were awarded.