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June 16, 2023
HIGH COURT
GHANA
CORAM
The Plaintiff/Applicant (hereinafter referred to as “the Applicant”) filed a Writ of Summons (with an accompanying statement of claim) on 7th October 2019 but amended same with leave on 17th June 2020 after a search report from the Registrar-General’s Department had disclosed that the then 1st Defendant, KORLE GONNO EARLY CHILDHOOD CARE AND DEVELOPMENT CENTRE had morphed into a new entity by changing its name to ASHBOND INTERNATIONAL SCHOOL LTD. The Applicant successfully contended that since the New Entity had a number of persons as Directors it was necessary for the amendment to be made to reflect the state of affairs.
Out of the five (5) Defendants, only the 1st and 4th Defendants entered appearance and filed a defence to the Amended Writ of Summons; and in paragraph 2 of their Statement of Defence, they averred positively that, while the 3rd and 5th Defendants had passed away, the 2nd Defendant was the Estate of a deceased person simpliciter.
It is the Applicant’s case that, the instant application to substitute the 2nd, 3rd and 5th Defendants has become imperative as service of court processes on them, personally or by substituted service, has become impracticable and impossible. The Applicant therefore supplicates this Honourable Court for an Order to substitute the 2nd, 3rd and 5th Defendants with the surviving 4th Defendant/Director based on three (3) grounds relative to the rules of court.
GROUND ONE: Pursuant to Order 4 rule 6(2) which provides –
“(2) Where at any stage of the proceedings the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the court may, for the effective and complete determination of the matters in dispute, order that other person to be substituted for that first named party.”
Counsel for the Applicant argues that there is no dispute at all, that the Defendants (as parties) are bound by liabilities and/or interests in rebutting the case of the Applicant as they stand or fall together in fighting the instant case. Therefore, the learned Counsel submits that, “for the effective and complete determination of the matters in dispute, there is an urgent need to substitute the 2nd, 3rd and 5th Defendants with the 4th Defendant”.
Secondly, it is argued that the search report from the Registrar-General’s Department, states clearly that 3rd, 4th and 5th Defendants are all Directors of the 1st Defendant (Ashbond International School Ltd); and section 137(1) of the Companies Act, 19
AI Generated Summary
This High Court ruling by Justice Amos Wuntah Wuni addresses an interlocutory application by the Plaintiff/Applicant to substitute three defendants—the Estate of Mary Aniparte (2nd Defendant) and her deceased children (3rd and 5th Defendants)—with the surviving 4th Defendant, a director and shareholder of Ashbond International School Ltd (the 1st Defendant). The Applicant relied on Order 4 rules 6(2), 11(1)-(2), and 14(1) of C.I. 47 and provisions of the Companies Act, arguing commonality of interests and impossibility of service. The 1st and 4th Defendants opposed, asserting the 2nd Defendant was not a juristic person as sued and that suits against deceased persons are nullities ab initio. The court refused the substitution and struck out the 2nd, 3rd, and 5th Defendants, allowing the case to proceed against the remaining parties.