JUDGMENT OF TWUMASI J.
Upon receipt of the writ of summons, the defendant herein caused his solicitor to enter a conditional appearance or appearance under protest. Thereafter, the solicitor filed a motion on notice praying this court for an order that: (a) the plaintiff's statement of claim be set aside as being irregular and (b) the court has no jurisdiction to entertain the suit. Counsel argued only the second limb of the relief he sought. He referred to Order 5, r. 1 (6) and (8) of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), as substituted by the High Court (Civil Procedure) (Amendment) Rules, 1979 (L.I. 1107), and submitted that since the defendant in this case resides and carries on business in Kumasi, it is the High Court, Kumasi, which has jurisdiction over the matter and that the action has been instituted in the wrong court.
Counsel for the plaintiff conceded that Order 5, r. 1 (6) was applicable to the case since it requires that this action ought to have been instituted at the High Court, Kumasi, because the defendant resides and carries on business in Kumasi. The concession made by the counsel for the plaintiff implied an admission that he had sued in the wrong court. He contended, however, that under Order 5, r. 1 (8), this court could still exercise jurisdiction over the matter. Rule 1 (8) provides that notwithstanding the institution of an action in the wrong court, the action can still be tried by the court unless the court reports the pendency of the case to the Chief Justice and the latter orders a transfer or if the defendant raises an objection to the jurisdiction of the court before or at the time he is required to plead in the action.
[p.656]
Counsel's arguments were therefore concentrated on the question of whether the applicant who had entered a conditional appearance and followed it up with a motion objecting to the jurisdiction, had properly availed himself of the provision. Counsel for the plaintiff argued that on a proper construction of rule 1 (8), the time required for pleading commenced right from the time the defendant files an entry of appearance and that since the defendant filed an appearance, he had by conduct, submitted to the jurisdiction of the court. He referred to Straud's Judicial Dictionary (4th ed.) (Vol. 4), p. 2039 on the definition of "pleading." There it is stated:
"Pleading: In the Judicature Acts 'pleading' shall include any petition or summons, and shall also, include the statements i
