MARY HANSEN SACKEY AND ANOTHER vs EVELYN PALM
2019
HIGH COURT
GHANA
CORAM
- HER LADYSHIP, JUSTICE GIFTY AGYEI ADDO, HIGH COURT JUDGE.
Areas of Law
- Civil Procedure
- Evidence Law
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
The Plaintiffs filed a suit seeking to declare a marriage certificate fraudulent, annul the marriage, and restrain the Defendant from posing as the deceased’s wife. The Defendant sought to dismiss the case for being frivolous, later focusing on the suit's procedural violations under Order 2 Rule 4(2) of C. I. 47. The court agreed with the Defendant, citing issues with the Plaintiff's adherence to necessary legal procedures, and therefore dismissed the suit.
Per the Writ of Summons and Statement of Claim filed on 5th October, 2018, the Plaintiffs seek the following reliefs against the Defendant:
i. An order that the signature of Desmond Addo Biney as appears on the marriage certificate or form of register of customary marriage is not the signature of the deceased and therefore fraudulent.
ii. An order annulling the said marriage certificate.
iii. An order of perpetual injunction restraining the Defendant from holding out as the wife of Desmond Addo Biney (deceased).
iv. Any other reliefs as occasioned by the suit.
The gravamen of the Plaintiffs’ claim is contained paragraphs 3 to 10 of the Plaintiff’s Statement of Claim.
The Defendant, upon service on him of the Writ and Statement of Claim, entered conditional appearance on 12th October, 2018 and filed a motion on notice to dismiss the Plaintiffs’ suit pursuant to Order 11 Rule 18 of the High Court (Civil Procedure)Rules, 2004 (C. I. 47) and the inherent jurisdiction of the Court on the grounds of the suit being frivolous, vexatious and an abuse of the process of Court as well as in violation of Order 2 Rule 4 (2) of C. I. 47.
THE CASE OF THE DEFENDANT/APPLICANT
At the hearing of the application, Counsel for the Applicant sought leave to abandon his grounds premised on Order 11 Rule 18 of C. I. 47 for the dismissal of the suit as being frivolous, vexatious and an abuse of the process of Court.
For this reason, the only grounds upon which the instant application are hinged are as follows: -That the suit is mounted in violation of Order 2 Rule 4 (2) of C. I. 47. -That the 1st Plaintiff having indicated she is the lawful attorney of the 2nd Plaintiff who is ordinarily resident in the United States of America should have indicated on the Writ an executed power of attorney.
GROUND ONE
The Applicant contends that the suit should be dismissed for being void as it sins against the mandatory requirement of Order 2 Rule 4 (2) of C. I. 47, which is that the 1st Plaintiff who states she sues also on behalf of the 2nd Plaintiff resident out of the jurisdiction should have endorsed on the Writ a statement of that fact and also the address of the person on whose behalf she sues.
The Applicant citied in support of her contention, the Supreme Court case of Standard Bank offshore Trust Company Limited& Another vrs. National Investment Bank Limited and Two Others, Civil Appeal No. J4/63/16 dated 20th June, 2017 (Unreported). GROUND TWO It is also the contention of th