2000
SUPREME COURT
CORAM
AI Generated Summary
Presided over by Mrs. J. Bamford-Addo J.S.C., the Supreme Court of Ghana addressed an attempt to invoke its original jurisdiction under Articles 2(1)(b) and 130 of the 1992 Constitution. The litigant filed an affidavit verifying facts and a statement of case on 14 September 1999, but crucially failed to commence the action by writ as required by the Supreme Court Rules, 1996 (C.I. 16). After filing a writ on 30 September 1999, he asked that the earlier papers be attached. The Court held that filings preceding any writ were nullities, the Registrar lacked power to cure such lapses, and the invalid documents could not be resurrected by later attachment. With no statement of case filed within 14 days of the writ and no extension sought under Rule 48(4), the defendants’ preliminary objection succeeded and the writ was struck out. Justice Atuguba concurred, emphasizing that fundamental defects cannot be waived and that a preliminary objection suffices under Rule 46(3).
MRS. J. BAMFORD-ADDO
The Plaintiff purported to invoke the original jurisdiction of the Supreme Court under Articles 2 (1) (b) and 130 of the 1992 Constitution as well as under Rule 45 of the Supreme Court rules 1996 (C.I. 16) by filing an affidavit verifying facts and particulars and statement of plaintiffs case on the 14/9/99 without a Writ. On the 30/9/99 he filed a Writ together with a Supplementary Affidavit in which he stated in Par 2 - 4 thereof as follows:
“Par 2. That on the 14th day of September 1999 I filed an Affidavit Verifying Facts and Particulars, together with Statement of Plaintiffs case but inadvertently did not attach the Writ to it.
Par 3. That I am filing the appropriate Writ attached hereto to be attached to the said Affidavit Verifying Facts and Particulars together with Statement of Plaintiff’s case.
Par 4.That I pray that the Writ will be attached to the said Documents.”
At the hearing the Defendants raised a preliminary objection to the Plaintiffs action and applied for same to be struck out on the ground that the Plaintiff did not initiate any action as required under by the mandatory provision of Rule 45 (1) C.I. 16.
45(1) of C.I.16 provides that:
“Except as otherwise provided in these Rules, an action brought to invoke the original jurisdiction of this Court shall be commenced by a writ in the form 27 set out in Part III of the Schedule to these Rules which shall be signed by the Plaintiff or his Counsel”
The above requirements were not complied with and therefore no action having been initiated by a Writ the other documents filed on 14/9/99 were of no consequence and null and void. The Plaintiff’s request in the Supplementary Affidavit filed on 30/9/99, that the said invalid documents to attached to the Writ filed on 30/9/99 is misconceived. It is not for the Registrar of this Court to rectify any lapses in the filing of papers for parties who fail to comply with Rules of procedure nor has been given any power to do so. Neither can invalid and void documents be resurrected and given life by attaching same to a later valid document. The Defendants' submission that there is no case before the court is therefore valid.
Concerning the writ filed on 30/9/99 the Plaintiff should have complied with Rule 46(1) of C.I. 16 after filing it. It says in
"Rule 46(1) The Plaintiff may file a statement of his case with the Writ or shall in any case within 14 days of the filing of the writ file the statement of the case.
(2) X X X