FRED KODIE AGENCIES LIMITED v. ASUMANA DROBO ALIAS WATARA
2018
HIGH COURT
GHANA
CORAM
- DR. RICHMOND OSEI-HWERE
Areas of Law
- Civil Procedure
- Contract Law
2018
HIGH COURT
GHANA
CORAM
AI Generated Summary
The ruling addressed an application challenging the High Court in Kumasi's geographical jurisdiction over a contract dispute. The defendant argued the case should be transferred to Brong Ahafo Region where he resides. Plaintiff countered both procedurally and substantively, emphasizing the contract was made in Kumasi. The court ruled that not stating the procedural rule on the motion paper was a curable irregularity and held that the High Court in Kumasi had jurisdiction because the contract was performed there.
RULING
This ruling is in respect of an application for an order referring the instant suit to the Chief Justice for further directives on grounds of lack of geographical jurisdiction.
Counsel for the defendant/applicant herein contends that the action ought to have commenced against the defendant at where he resides or does business. He submits that the defendant resides and does business at Drobo in the Brong Ahafo Region and since there are High Courts in Sunyani, Brong Ahafo Region the action ought to have commenced there rather than in Kumasi, Ashanti. He refers to Order 3 of the High Court (Civil Procedure) Rules 2004 (CI 47) and invited the court to grant the application.
The Plaintiff/Respondent is opposed to the application. Counsel attacked the competence of the application since in his opinion failure to state the rule of law on the face of the motion paper makes the application void. He submitted that under Order 19 rule 4 the applicant is required to state on the face of the motion paper the rule under which the motion is being moved and that when a procedure is provided for instituting an action, failure to follow the procedure is not only a nullity but an issue that goes into jurisdiction. On the merit of the application, counsel submitted that the contract for the sale of the poultry feed (the subject matter of the writ) was entered in Kumasi. He cited Order 3 rule 1(4) of CI 47 and submitted that the court has jurisdiction to try the matter as the action should be commenced in the region where the contract was performed.
Before I go into the merit of the application, I will first deal with the legal issue relating to the competence of the application.
Order 19 rule 4 of CI 47 states:
“Every application shall be supported by affidavit deposed to by the applicant or some person duly authorised by the applicant and stating the facts on which the applicant relies, unless any of these Rules provides that an affidavit shall not be used or unless the application is grounded entirely on matters of law or procedure which shall be stated in the motion paper.”
My understanding of the provision is that in an application relating to matters of law or procedure an affidavit evidence may be dispensed with. However, it is important to state the law or procedure on the face of the motion paper. This is to ensure that the opposing party is notified of the nature of the application. In the instant case the applicant stated on the motion paper the natur