DR. DAVID MENSAH & ANOTHER v. ALHAJI ZAKARIA SUB BY KASSIM ABDUL RASHID & ANOTHER

The Court of Appeal of Ghana, per Ofoe JA with Bartels-Kodwo JA and Bernasko Essah JA concurring, allowed the appeal of Kassim Abdulai Rashid from the High Court. The case arose from a property dispute over House No. 11, Block A, North Kanvilli, Tamale, in which the deceased, Alhaji Kassim Zakaria, had been a defendant. After his death, the High Court ordered Kassim’s substitution in his presence. However, the substitution order was never served on Kassim nor procured to be noted in the Cause Book, as required by Order 4 rule 6. The court instead ordered substituted service of hearing notices, which were posted but did not secure Kassim’s attendance. The High Court proceeded to judgment against Kassim and refused his application to set it aside, treating omissions as curable under Order 81. On appeal, the Court of Appeal held that Kassim never became a party under Order 4 rule 6(8); hearing notices could not replace service of the substitution order; and the judgment against him was void. The appeal was upheld.