This ruling is in respect of a preliminary legal objection to an interlocutory application by the Defendants/Applicants (hereafter referred to as the Applicants) and captioned as:
“MOTION ON NOTICE
APPLICATION FOR STRIKE OUT WRIT OF SUMMONS AND STATEMENT OF CLAIM ORDER 11 (18) OF C.I. 47”
Order 11 rule 18 of C.I. 47, which the Applicants seek to invoke to fortify and launch the instant interlocutory application is quoted hereunder in extenso for its full force and effect:
“Striking out pleadings
18. (1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that
(a) it discloses no reasonable cause of action or defence; or
(b) it is scandalous, frivolous or vexatious; or
(c) it may prejudice, embarrass, or delay the fair trial of the action; or
(d) it is otherwise an abuse of the process of the Court,
and may order the action to be stayed or dismissed or judgment to be entered accordingly.
(2) No evidence whatsoever shall be admissible on an application under subrule (1)(a).” [Emphasis Added]
In an affidavit in support of the application deposed to and filed on 24th March 2022 by Mathias Dorfe of #13 Mariville Homes Community, Accra, the deponent (who is the 1st Defendant herein) asseverates in paragraph 4 (and reaffirms same in paragraph 33) of the affidavit in support as follows:
“4. That I am advised and verily believe same to be true that the Plaintiff’s writ of summons and statement of claim discloses no material cause of action and same is frivolous, vexatious and an abuse of the Court’s process.”
“33. That under the circumstances, I pray this honourable court to strike out the Writ of Summons and Statement of Claim ...”
In response to the application, the Plaintiff/Respondent (hereafter referred to as the Respondent) filed a Notice of Intention to raise a preliminary legal objection to the Applicants’ motion to strike out the Writ of Summons and Statement of Claim on grounds that:
1. The Applicants’ motion to strike out the Respondent’s Writ of Summons and Statement of Claim is procedurally incompetent; and
2. That the Applicants having entered Conditional Appearance are not permitted to proceed under Order 11 Rule 18 of C.I. 47 to apply to set aside the Respondent’s Writ of Summons and Statement of Claim.
It is the Respondent’s case that the Applicants’ motion to strike out the Writ of Summons and Statement of Claim is procedurally incompetent as same is no
