EASY INVESTMENT SERVICES LTD v. STEPHEN NTIM FRIMPONG & ANOTHER
June 19, 2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
Areas of Law
- Civil Procedure
June 19, 2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
Justice Dr. Richmond Osei-Hwere ruled on a motion by the second defendant (the applicant) to set aside or dismiss a writ on the basis that it disregarded mandatory preconditions, focusing on the accuracy of the first defendant’s address indorsed on the writ. The applicant argued the correct address was 55 Martlesham, Adams Road, London N17 6HT, not Plot 4, Block G, Kwamo-Ashanti, and claimed the court’s jurisdiction had been improperly invoked because the first defendant lived in England and had not been served. The plaintiff bank opposed, explaining it used the Kwamo-Ashanti address the first defendant provided when the loan was contracted in Ghana and the second defendant guaranteed. The court held that reliance on that address was reasonable and constructive, rejected technical objections, dismissed the application, ordered substitution of the London address on the writ, granted seven days for the second defendant to file a defence, and made no order as to costs.
RULING
In this motion on notice the 2nd defendant/applicant (hereinafter referred to as the “Applicant”) is praying the court for an order setting aside and/or dismissing the writ in the instant suit on the ground that same disregards mandatory preconditions the non-observance of which is fatal to the suit.
It is the applicant’s case that the residential address of the 1st defendant is 55 Martlesham, Adams Road, London N17 6HT and not Plot 4, Block G, Kwamo-Ashanti as indicated on the writ by the plaintiff. That, the writ does not comply with basic and fundamental requirements of law and thus the jurisdiction of the court has not been properly invoked. Counsel for the applicant in his submissions to the court insisted that at the time the action was instituted the 1st defendant lived in England and that explains why he has not been served. Counsel ended his submission with an invitation to the respondent to do the proper thing, as the address of the 1st defendant has now been provided.
The plaintiff/respondent is opposed to the application. It is the respondent’s case that the address which was provided to them by the 1stdefendant when he contracted the loan was Plot 4, Block G, Kwamo-Ashanti. It is on that basis that it used the Kwamo address. That, the loan agreement was contracted in Ghana by the 1st defendant and guaranteed by the 2nd defendant both of whom were in Ghana on that date. It is the applicant’s case that it never knew the 1st defendant now lives in the UK.
Based on these facts, counsel for the respondent invited the court to dismiss the application.
A writ of summons must among other indorsements indicate the names, residential and occupational addresses of the plaintiff and the defendant. The occupational and residential address of the defendant becomes necessary for the purpose of service. In fact, a writ of summons is meant to give notice to the defendant of the claim brought against him or her. Therefore, where the address of the defendant is not known after diligent search the plaintiff shall indicate on the writ that the plaintiff shall direct service. See Order 2 rule 5(5) of CI 47.
From the affidavit evidence, the 1st defendant used the address Plot 4, Block G, Kwamo-Ashantias his residential address when he entered into the loan agreement with the plaintiff. It is therefore not out of place for the plaintiff to indorse the aforesaid address on the writ of summons. This is because the plaintiff had reasonable cause to believe