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February 1, 2023
HIGH COURT
GHANA
CORAM
MOTION ON NOTICE FOR AN ORDER TO SET ASIDE PLAINTIFF’S AMENDED WRIT OF SUMMONS AND STATEMENT OF CLAIM
This is a Motion on Notice filed on behalf of Defendant/Applicant (Applicant) for an order to set aside the amended Writ of Summons and Statement of Claim of the Plaintiff/Respondent (Respondent) filed on 7th February 2022.
The grounds for the instant application is that the said amended Writ of Summons and Statement of Claim was not signed by Respondent’s Lawyer contrary to Order 2 Rule 7 of C.I. 47.
That this is not a mere irregularity which is curable by an amendment because it goes to the root of the action. Respondent opposed the instant application and duly signed an Affidavit in Opposition.
Both Counsel whilst on their feet made their respective submissions in moving and in opposing the instant application.
It is apparent on the face of the amended Writ of Summons and Statement of Claim filed on 9th September 2021 that the stamp of the Law Firm of the Lawyer for Respondent at the time appeared as Kpatsa & Associates
In fact the name of the lawyer for Respondent also appeared in the amended Writ of Summon and Statement of Claim as Robertson Kpatsa with a License Number indicated as eGRA02545/21
In the case of Samuel Aboagye & Anor v. Frank Otchere Baidoo Civil Appeal No. HI/53/2016 (delivered on 16th March 2017), the Court of Appeal speaking through Torkornoo JA (as she then was) held that the stamp of a lawyer’s Law Firm and the name of the lawyer on a Writ satisfies the requirement of a signature on a Writ; as its purpose is to ascertain who issued a Writ.
This was upheld in the High Court case of Starchys Savadogo v. John Asumah in Suit No. E12/4/22 per Dr. Osei-Hwere, J.
Although this Court is not obliged to be bound by the decision of another High Court, the said High Court in its decision upheld the decision of the Court of Appeal in the Aboagye v. Baidoo (supra) case.
In the amended Writ Summons and Statement of Claim which is the subject matter of the instant application, this Court is of the opinion that the marks made by the stamp of the Lawyer of the Respondent’s Law Firm passes the requirement of the rules of Court (i.e. Order 2 Rule 7 (2) of C.I. 47 especially as the name of Respondent’s Lawyer and his license number are clearly is identified on the amended Writ.
The lawyer for Respondent at the time the amended Writ of Summons and Statement of Claim was filed is clearly identifiable and is authenticated as the one who issued
AI Generated Summary
Justice Afi Agbanu Kudomor (High Court) determined a motion by the Defendant/Applicant seeking to set aside the Plaintiff/Respondent’s amended writ of summons and statement of claim. The application alleged that the pleadings were invalid because they were not signed by the Respondent’s lawyer in accordance with Order 2 Rule 7 of C.I. 47. Examining the process, the court observed it bore the law firm stamp of Kpatsa & Associates and identified the issuing counsel, Robertson Kpatsa, together with his license number (eGRA02545/21). Relying on the Court of Appeal’s decision in Samuel Aboagye & Anor v. Frank Otchere Baidoo and a reinforcing High Court decision in Starchys Savadogo v. John Asumah, and guided by the Supreme Court’s admonition in Okafo Estate v. Meton Signs Ltd. to avoid undue technicalities, the court held that these identifying marks satisfy the signature requirement’s purpose. The motion was dismissed, and costs of GH¢4,000 were awarded against the Applicant.