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February 27, 2023
HIGH COURT
GHANA
CORAM
On the 31st of October, 2023, the Plaintiff herein commenced the instant suit against the Defendant for inter alia:
1. Payment of the sum of Two Million Three Hundred and Fifty-Six Thousand Four Hundred and Seventy-Nine Ghana Cedis (GH¢ 2,356,479.00.) being the amount of money resulting from matured investment on the 19th January, 2023 as principal and interest that the Plaintiff realized from its 182 days CMB bond placed through the Defendant on the 19th of August, 2022 but which was unlawfully interfered with by way of reversal on the 20th of January, 2023 and in breach of the agreement between the Plaintiff and the Defendant.
Upon being served with Plaintiff’s Writ, Defendant entered Conditional Appearance and followed up with the present application, which it says is mounted upon Order 9 (8) (a) of the High Court (Civil Procedure) Rules (CI 47) Defendant’s prayer is for an order striking the Plaintiff’s Writ on grounds of misjoinder.
No affidavit was filed by the Plaintiff in opposition to the Application. However, at the hearing, Counsel for Plaintiff opposed same on grounds of law.
Having been mounted on Order 9 Rule 8(a), this instant Application will have to be decided in the backdrop of the said rule.
What then does the rule say? It says:
A Defendant may at any time before filing appearance or if the Defendant has filed a conditional appearance within 14 days after filing appearance apply to the court for an order to
a) Set aside the writ or service of the Writ
To invoke this Court’s jurisdiction under the said Rule therefore, the Applicant’s complaint must relate to the Writ itself i.e. its issuance, service or the jurisdiction of the Court to entertain same. This position was well-articulated by Adade JSC in the case of Ex PARTE AVALDALI [1993-94] 1GLR 561 @ 566 when he said;
“The term “conditional appearance” means an appearance in qualified terms, reserving the right to apply to the Court to set aside a writ, or service thereof, for an alleged informality or irregularity which renders either the writ or service invalid, or for lack of jurisdiction .... the whole purpose of conditional appearance is to stop the case in its tracks; stop it from being gone into at all..”
This position was again emphasized by Kpegah JSC in the case of REPUBLIC V HIGH COURT; EX PARTE ARYEETEY [2003-2004] SCGLR 398 @408 as follows:
“....for the avoidance of doubt, we would like to reiterate that a conditional appearance is to enable the defendant who
AI Generated Summary
The High Court (per Justice Akua Sarpomaa Amoah) addressed a procedural application arising from a suit commenced on 31 October 2023 in which the Plaintiff seeks GH2,356,479 from a matured 182-day CMB bond placed through the Defendant and allegedly reversed on 20 January 2023. The Defendant entered conditional appearance and moved under Order 9 Rule 8(a) of the High Court (Civil Procedure) Rules (C.I. 47) to set aside or strike the writ, claiming misjoinder and that it was not the proper party or responsible for the reversal. The court clarified that Order 9 Rule 8(a) is confined to defects in the writ, its service, or jurisdiction, and cannot be used to attack the merits or assert a defence. The misjoinder argument was rejected, as Order 4 Rule 5 does not apply to a sole defendant and misjoinder cannot defeat a cause. Assuming the pleadings true, and noting the Statement of Claim disclosed allegations entitling relief, the court dismissed the application, directed the Defendant to file a defence within seven days, and awarded costs of GH2,000 to the Plaintiff.