JUDGMENT OF BAIDOO J.
This motion was filed on 5 December 1970 by the defendant under Order 27, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.A. 140A), praying for an order dismissing the action for want of prosecution. The plaintiff instituted her action on 28 October 1970 by filing an ordinary writ of summons unaccompanied by any statement of claim. The writ was duly served on the defendant on 18 November 1970 and two days later the plaintiff filed a motion praying for an interim injunction to restrain the defendant. On 23 November 1970 the defendant, acting through her solicitor, Mr. Yaw Attakora-Amo, entered an appearance which was served in course of time on plaintiff's solicitor, Dr. I. L. Ohene-Djan.
The endorsement on the writ indicated all along that the plaintiff was suing in her own right (not in any representative capacity) and suing only one defendant, Akua Konadu. Although Dr. Ohene-Djan is the person who has been acting as the plaintiff's solicitor all along and is fully aware that no application of any sort has at any time been submitted to the court for amendment of the capacity in which plaintiff is suing or for joinder of any person as the second defendant, yet he filed on 4 December 1970 another writ of summons with an accompanying statement of claim in both of which the title of the action was stated to be between Yaa Ntoah, customary successor of the late Kwasi Buor for herself and on behalf of the estate of the said late Kwasi Buor as plaintiff and Akua Konadu as the first defendant with Abena Temah as the second defendant. In the circumstances, learned counsel for the defendant, contends that the second writ of summons filed on 4 December 1970 is in law a new and different action and its accompanying statement of claim cannot under the rules be treated as a statement of claim filed in the original suit between Yaa Ntoah and Akua Konadu. Consequently he wants the original action dismissed for failure to file a statement of claim.
The second writ, which was filed on 4 December 1970 stated on the top of it that it was an "amended writ" and it is clear from the circumstances that the plaintiff's solicitor has misconceived the true scope of Order 28, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954, which allows a plaintiff to amend his statement of claim without [p.320] leave "once at any time before the expiration of the time limited for reply and before replying, or, where no defence is deliv
