The motion to dismiss the suit has been filed by Counsel for Defendants on 12/02/2019. ORDER 81 Rule 2(a) has been cited as the rule of procedure under which the motion has been filed.
The deposition in support showed that the action has been commenced by an Attorney on behalf of Plaintiffs on 27/03/2017 for Plaintiffs who are residents in France. It has been noted that the requirements of ORDER 2 Rule 4(2) of C. I. 47/04 have not been satisfied. The deposition indicates that the resultant breach of the Rules is of a type that can neither be waived nor amended.
In opposition, it has been averred that much earlier, this same objection had been raised as part of an application for injunction and had been dealt with. EXHIBIT ‘JN1’ has been cited in support. I have perused the same; it is a written submission filed in the injunction application. The issue raised in the present application had been addressed in the submission put before the Court, as alleged.
There is EXHIBIT ‘JN2’, which is the Power of Attorney. This Court has examined it. Furthermore, it has been contended that Plaintiffs are Ghanaians by birth and are residents in Ghana and France, as shown by the Exhibits before the Court. Their permanent address is as shown on the writ, and therefore, the omission to supply an address in France is not fatal.
Finally, it was also argued that the pleadings before the Court will show that Plaintiffs can be identified and that they have a known address in Ghana. When the motion was heard, Counsel for Plaintiffs/Respondents stated that the case: STANDARD BANK OFFSHORE TRUST COMPANY LTD VS NATIONAL INVESTMENT BANK & ORS, which has been cited, should not be applicable to this case because, in that case, the plaintiff who failed to supply their address was a foreign entity. He also stated that there is a distinction drawn between a person being resident and being ordinarily resident at a place. He cited Kwame Tetteh’s book, page 197, on that.
ASSESSMENT OF EVIDENCE: ORDER 2 RULE 4(2), under the heading: Indorsement as to capacity reads: “4(1) Before a writ is filed, it shall be indorsed … (2) Before a writ is filed by a plaintiff who acts by an order or on behalf of a person resident outside Ghana, the writ shall be indorsed with a statement of that fact and with the address of the person so resident.”
In the Standard Bank Offshore case, this is the address as indorsed, which led to the construction of the rule by the Supreme Court: STANDARD BANK OFFSHORE T
