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March 23, 2023
HIGH COURT
GHANA
CORAM
On the 27th of July 2022, an application for an order(s) was filed by the Defendants/Applicants (hereinafter known as the Applicants) to set aside the Plaintiff’s/ Respondent’s (hereinafter referred to as the Respondent) Writ of Summons for want of endorsement of capacity and address of the parties to the suit and or strike out/nonsuit the 2nd Defendant as being an unnecessary party to the suit pursuant to Order 4 Rule 2 of C.I. 47 and inherent jurisdiction of the Court. An 18 paragraph Affidavit supported this application and was deposed to by one George Boateng. The summary of the Affidavit in Support is that the genesis of this application is in response to a Writ of Summons and Statement of Claim filed by the Respondent on the 27th of April 2022, against the Applicants claiming the following reliefs:
· An order of specific performance of the agreement between Nana Kwabena Gyau (Deceased) and 1st Defendant
· Or in the alternative an order directed at the defendants to make a one-time payment of two million USD to the Plaintiff
· An order directed at the defendants to pay the balance of the payment of the 1st phase to plaintiff
· Cost including legal fees pegged at 10%
· Any other orders(s) that this honorable court may deem fit
The gravamen of the Respondent’s case in the said suit is contained in paragraph 5 of her Statement of Claim, which is that her late husband, one Nana Kwabena Gyau was engaged by the late Solomon Adiyiah the Managing Director of 1st Defendant to lobby and or solicit for business contracts for 1st Defendant under a profit sharing arrangement of 50/50 basis after verifiable deductions. That it is based on the said agreement her late husband became a strategic developer to the 1st Defendant and used his expertise and connections in high places to secure a contract from the Government of Ghana but the 1st Defendant failed to pay his late husband his alleged 50% share of the profit hence, the suit and the reliefs sought.
The Applicants contend that the Respondent failed to endorse the capacity in which she sues the Applicants on the Writ that she issued as required by Law and also failed to provide her address or that of the Defendants contrary to Law. Therefore, the Writ is void and same ought to be set aside by this Court. Again, since the Respondent admits that the 2nd Defendant/Applicant is the Managing Director of the 1st Defendant Company, joining the 2nd Defendant/Applicant to the suit is without legal basis when no part
AI Generated Summary
In the Ghana High Court, the Defendants/Applicants sought to set aside the Plaintiff/Respondent’s Writ of Summons for failing to endorse the Plaintiff’s capacity and the parties’ addresses, and to strike out the Second Defendant as unnecessary. The Plaintiff’s underlying claim sought specific performance and a 50/50 profit share from the First Defendant, allegedly derived from a business arrangement between her late husband, Nana Kwabena Gyau, and the First Defendant’s then Managing Director, the late Solomon Adiyiah, after securing a Government of Ghana contract. Despite a conditional appearance maturing into an unconditional appearance and subsequent defensive steps, the Court emphasized that capacity is a fundamental jurisdictional matter that can be raised at any time. Applying Supreme Court precedents, the Court held that Order 4’s mandatory endorsement and address requirements go to jurisdiction; such a defective writ is a nullity and cannot be amended. Consequently, the Writ and Statement of Claim were set aside, rendering all subsequent applications, including striking out the Second Defendant, moot.