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
- Employment Law
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
In this Ghana High Court ruling, the 1st and 2nd Defendants/Applicants sought to remove the 2nd defendant, Naja David Group of Companies, from a suit by the Plaintiff/Respondent claiming US$40,661.45 in salary arrears, interest, and costs. The Applicants argued the 2nd defendant does not exist and is misjoined. The Court reiterated the power to strike out improperly joined parties and framed the central issue as the burden of proof over a party’s existence. Under the Evidence Act (NRCD 323), the Applicants—asserting nonexistence—carried the burden, which was not discharged. The Court noted the presumption of existence upon entry of appearance and found it inconsistent that a supposedly nonexistent entity could instruct counsel and file affidavits. The Respondent’s offer letter signed by Naja David, the 2nd applicant’s Chairman, credibly demonstrated existence. The application was dismissed and costs of GHC 2,000 were awarded 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