LARTEY v. OFORI AND ANOTHER

JUDGMENT OF ANTERKYI J.

This was a motion by the plaintiff-applicant to set aside the order of this court made on 28 February 1972 striking out his action for want of prosecution under Order 62, rr. 1 and 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A).

The writ issued by his solicitor was sealed on 11 June 1970. After respective attempts had been made at Kumasi and Mampase-Bekwai on 15 and 16 July 1970 to serve them, the defendants could not be found. But after these fruitless attempts to serve the defendant on 15 and 16 July 1970 a solicitor signing "for: Agent for Messrs. Lynes Quashie-Idun & Co., Solicitors for the defendants' did file on 28 July 1970 (about twelve days after the fruitless attempts to serve the defendants) a praecipe (for search for appearance) which states: "I hereby apply for search for appearance to the plaintiff's writ of summons by the defendants herein in the above-named suit." And the return by the registrar as endorsed on the praecipe was: "Both defendants, Charles S. Ofori and Kwabena Appiah could not be traced at Kumasi and Mampase-Bekwai for the writ of summons to be served on them."

The defendants so remained unserved with the writ up till 25 January 1972 when the registrar took out a summons for the action to be struck out within the provisions of Order 62; and service of the summons was to be effected on each of the parties to the action, on the solicitor for the plaintiff, and on the solicitor (for the defendants) who filed the praecipe for search for appearance of the defendants. From the returns of service of this summons, the first defendant (Ofori) and the solicitor for the defendant were served at Kumasi on 4 February 1972, but the second defendant (Appiah) could not be found by the serving bailiff who gave the following reasons for non-service: "That there is no street called Mampase at Bekwai, rather we have Nampansa street at Bekwai and there is nobody called Appiah at H/No. 3 Nampansa, Bekwai." On 28 February 1972, the return day of the summons, upon the non-appearance of each party and of the respective solicitors served, the suit was struck out by the court.

Thereafter on 27 September 1972 (about eight months after the order striking out the suit) the solicitor for the plaintiff filed a motion on notice on behalf of the plaintiff, returnable on 23 October 1972,

“praying this honourable court to set aside the order striking out the plaintiff's claim for lack of prosecution made by