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January 24, 1968
HIGH COURT
GHANA
CORAM
JUDGMENT OF ARCHER J.
The plaintiffs by their solicitors issued a writ of summons accompanied by a statement of claim on 16 December 1967. The writ of summons was served on the defendant on 20 December 1967, and she entered appearance on the same day. Before the writ was [p.82] served, the plaintiffs, on 19 December 1967 filed a motion on notice applying for an interim injunction against the defendant. When the motion came up for hearing, the defendant raised an objection to the procedure adopted by the plaintiffs because both the writ of summons and the motion for interim injunction were served together on her on the same day, 20 December 1967, whereas the plaintiffs had not first sought the leave of the court under the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 52, r. 9 before serving the motion along with the writ.
The plaintiffs maintained that no such leave was required because their motion was filed under Order 50, r. 7 of L.N. 140A and no such leave was necessary. The plaintiffs relied on Order 50, r. 8 which provides as follows:
"8. An application for an order under Rules 4, 5, or 7 of this Order may be made to the Court or a Judge by any party. If the application be by the plaintiff for an order of mandamus or for an injunction or the appointment of a receiver, it may be made either ex parte or with notice, and if for an order under Rules 4, 5 or 7 of this Order, it may be made after notice to the defendant at any time after the issue of the writ of summons, and if it be by any other party then on notice to the plaintiff and at any time after appearance by the party making the application."
When I was stationed in Accra, a similar point arose and I held the view now being propounded by the defendant. But some counsel as amici curiae in this court expressed their agreement with the argument of the plaintiffs during the hearing of the motion. I therefore reserved my ruling to enable me to reconsider the earlier view I held. As Order 50, r. 8 is based on the equivalent English rule, that is the Rules of Supreme Court, Order 50, r. 6 (see the marginal note) I have decided to rely on what the English White Book says because so far as practice and procedure in England are concerned the White Book always speaks the "gospel truth," if not the absolute truth.
Unfortunately, my task was not rendered easy because I had to decide which of the White Books I should consult. The White Book is published annually with amendments
AI Generated Summary
In the Ghana Supreme [High] Court, Archer J addressed a procedural objection arising during an interlocutory application for an interim injunction. Plaintiffs had issued a writ of summons on 16 December 1967 and served both the writ and a motion on notice on the defendant on 20 December 1967. The defendant contended that simultaneous service of the motion with the writ was irregular absent prior leave under Order 52, rule 9 of the Ghana Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). Plaintiffs argued that Order 50, rules 7 and 8 permitted service after issue of the writ. After reviewing the English White Books of 1953, 1958, and 1967, and the relationship between Ghana’s Orders 50, 52, 70, and 74, the court held that Order 50, rule 8 must be read subject to Order 52, rule 9; thus leave is required if the motion is served with the writ or before the time for appearance. Although the procedure adopted was irregular, Archer J excused it under Order 70 and overruled the objection, allowing the motion to be heard on payment of N a212.00 costs.