JUDGMENT OF ARCHER J.
This is an application by the defendants under Order 12, r. 24 and Order 70, r. 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L. N. 140A), to set aside the writ of summons or alternatively service of the writ of summons issued by the plaintiff on the ground that the Attorney-General's fiat was not obtained before the writ was issued as required by paragraph 1 of the Newspapers Decree, 1966 (N.L.C.D. 107).
Before I consider the merits of the application I propose to deal with certain procedural points which have become glaring in this matter. Order 12, r. 24 provides:
"A defendant before appearing shall be at liberty, without obtaining an order to enter or entering a conditional appearance, to take out a summons or serve notice of motion to set aside the service upon him of the writ or of notice of the writ, or to discharge the order authorising such service."
Order 70, r. 2 also provides:
"No application to set aside any proceeding for irregularity shall be allowed unless made within reasonable time, nor if the party applying has taken any fresh step after knowledge of the irregularity."
I understand these two Orders and rules to mean that a defendant must make his application before he enters unconditional appearance or takes any fresh step after the irregularity has come to his notice. The behaviour of the defendants, before the present application was filed, bewilders my intellect. The plaintiff issued his writ of summons at this High Court in Sekondi on 28 August 1967 and it appears, from the affidavit filed by the bailiff entrusted with service of copy of the writ, that the defendants were served at Accra on 2 September 1967. On 23 September 1967, the defendants entered an appearance, which, from the face of the memorandum of appearance filed, seems to be unconditional. However in the notice of entry of appearance filed on the same 23 September 1967, the appearance is stated to be "under protest." There is no indication that this notice and the earlier appearance were served on the plaintiff. On 28 September 1967, another appearance, this time expressly described as conditional was entered by the defendants with notice to the plaintiff. The appearances and the notices were entered by the Solicitor-General [p.641] who is a member of the Attorney-General's Department and it is difficult to know on what documents they rely as there appears to be duplication in entering appearance on behalf of the defendants.
