HASHEM ABUKAF v. AYUM FOREST PRODUCTS LIMITED & ANOTHER
2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
Areas of Law
- Civil Procedure
- Evidence Law
- Commercial Law
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Plaintiff sued the Defendants for salary arrears and costs, leading the Defendants to challenge the inclusion of 'Naja David Group of Companies' as the 2nd Defendant on grounds of its non-existence. The court ruled that the Defendants failed to provide sufficient evidence to disprove the existence of the 2nd Defendant. The burden of proof in civil cases lies with the party asserting a fact, which the applicants did not meet. Consequently, the court denied the application to strike out the 2nd Defendant and awarded costs against the applicants.
RULING
This is an application by the 1st& 2nd Defendants/Applicants, hereinafter referred to as “the
Applicants", praying for an order striking out/non-suiting the 2nd defendant’s name from the instant suit and all other processes relative to the instant suit.
The background to the application is that on 9th November, 2018 the Plaintiff/Respondent, hereinafter referred to as “the Respondent” issued a writ of summons against the Defendants herein seeking the following reliefs:
1. The payment of forty thousand six hundred and sixty-one United States Dollars, Forty-Five Cents (US$40,661.45) being salary arrears and allowances.
2. Interest on the sum of forty thousand six hundred and sixty-one United States Dollars, Forty-Five Cents (US$40,661.45) at the prevailing commercial bank’s rate from 2015 till date of final payment.
3. Costs
On 19th November, 2018, conditional appearance was entered on behalf of the applicants by their lawyer.
The Applicants are unhappy with the inclusion of the name of one of them (Naja David Group of Companies) as a 2nd Defendant to the suit and have in this motion on notice which is backed by a 13-paragraph affidavit in support invited the court to strike out the name of the 2nd defendant as a party to the suit. The affidavit was deposed on the authority of the applicants by a clerk of their lawyers.
The relevant parts of the affidavit in support read as follows:
3. That I have the authority and/or consent of the 1st and 2nd Defendants/Applicants herein to depose to this affidavit the facts of which are within my personal knowledge and belief, by reason of the duties I have been assigned to as a clerk in the conduct of this suit.
4. That the Plaintiff/Respondent herein, by a writ of summons accompanied by a statement of claim, commenced an action against the 1st and 2nd Defendants/Applicants herein and same was served on the 1st and 2nd Defendants.
5. That the 1st and 2nd Defendants/Applicants caused counsel to enter a conditional appearance on their behalf.
6. That there is no such creature both in law and in person known and or described in the plaintiff’s words as Naja David Group of Companies, Kumasi, i.e. 2nd Defendant/Respondent. It simply doesn’t exist in law.
7. That I am advised and verily believe same to be true that a non-existing entity in law, is incapable of incurring liability whatsoever to the Plaintiff.
8. That the 2nd Defendant/Applicant in this matter has no or owe no liability to the Plai