JUDGMENT OF OFORI-BOATENG J.A.
The plaintiff-appellant (hereinafter referred to as the appellant) and the defendant-respondent (hereinafter referred to as the respondent) used to be husband and wife. After they had divorced, they locked horns over the ownership of a piece of land with a house on it.
[p.186]
The respondent was resident in the United States when the appellant issued a writ against her. Her address was: c/o Head of Mission, Ghana Permanent Mission to the United Nations, New York, USA. In spite of the fact that the respondent had a foreign address indicating that when the writ was issued it would be served outside the jurisdiction, the appellant issued the writ without the usual leave of the court, contrary to Order 2, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N.140A). He however applied for leave to serve the writ out of the jurisdiction.
Before this application for service out of the jurisdiction could be dealt with, the respondent, by her solicitors, entered appearance sealed on 1 August 1986 indicating that the respondent's address for service was: "Jonathan Arthur & Co., 28 Sobukwe Road (formerly 47 Farrar Avenue), Adabraka, Accra."
On the same day, the solicitor of the respondent filed a motion to set aside an order of interim injunction that had been granted on 23 July 1986 by Ampiah J.A., sitting as an additional High Court judge. In the supporting affidavit of the motion, one Pitri Victor Magnussen had sworn to a long affidavit; the first two paragraphs read:
“(1) That I am the lawful attorney of the first defendant in the above-named suit pending in this honourable court.
(2) That on 28 July 1986, at my own request I was served with the following papers:
1. Writ of summons.
2. Statement of claim.
3. Certified copy of the order of interim injunction dated 23 July 1986."
In his statement of defence the respondent made the violation of Order 2, r. 4 of L.N. 140A a specific issue. In paragraph (12) of the statement of defence, it was stated:
"The first defendant will contend in point of law that the writ of summons was issued without the leave of the court as sanctioned by Order 2, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) and is consequently contrary to law and procedure and the same is void and of no effect whatsoever and the said writ of summons should be wholly set aside as null and void, ex debito justitiae.”
During the summons for directions, this same issue was raised as one o
