Mrs. Patience Atta-Afram v. Ablekuma West Municipal Assembly
May 7, 2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP JUSTICE ALEXANDER OSEI TUTU
Areas of Law
- Civil Procedure
- Evidence Law
May 7, 2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
At the High Court of Ghana, Justice Alexander Osei Tutu considered a motion by the Defendant/Applicant to strike out the Plaintiff’s Writ of Summons and Statement of Claim. Although the Plaintiff/Respondent, served on 11 April 2019, filed no affidavit in opposition, the judge emphasized that lack of opposition does not automatically warrant granting the application, citing Republic v. Court of Appeal, Accra, Ex-parte Tsatsu Tsikata and other authorities. The Defendant had entered conditional appearance on 19 March 2019 but filed the instant application on 16 April 2019, outside the 14‑day window contemplated by Order 9. Counsel’s reliance on Order 11 rule 18(1)(a) was undermined by rule 18(2), which bars evidence on such applications. With no defence filed and without identifying specific offending pleadings, the court, mindful of the need for restraint in striking out, declined to treat the suit as frivolous or abusive and refused the motion.
The applicant is seeking to strike out the Plaintiff’s Writ of Summons and Statement of Claim.
The Plaintiff was served with a copy of the application on 11th April, 2019 with the application but has still not filed any affidavit in opposition.
Ideally, the application should have been granted in the absence of any affidavit in opposition to the application.
But it needs stressing here that an applicant is not automatically entitled to his grant where his application is not opposed.
In Republic v. Court of Appeal, Accra, Ex-parte Tastsu Tsikata (2005-06) SCGLR Wood JSC (As she then was) held at page 626 as follows; “An opponent who has not filed any affidavit in opposition to the applicant’s affidavit was deemed to have admitted the facts contained therein, but the default did not debar the applicant from arguing the matter on points of law and is even not entitled to automatic grant of the prayer.
In Assuming & 2Ors v. Charway and 14 others (2014) 75 GMJ 101 at 115, the Respondent failed to file an affidavit in opposition to an application for relistment.
The Court of Appeal, per Dzamfe JA held that: “This is not to say that once there is no opposition, the trial Judge was duty bound to grant the motion”. See also Afode v. Central Insurance Co.
See Order 9 Rule 7 (2) of C. I 47 and the case Ebusuapanyin Kofi Andoh and others v. Ebusuapanyin Asi Yaw (2016) DLCA 141. The Respondent failed to move the Court within the 14 days required by the rules.
The applicant then proceeded to file the instant application on 16/04/19, obviously outside the 14 days.
Counsel is now seeking to bring this application under Order 11 rule 18 (1) of C. I 47. A careful study of the grounds of the application indicates that the applicant is coming under Order 11 rule 18(1) (a) of C. I. 47 having to do with the Plaintiff not having a cause of action against the Defendant.
At paragraph 19 of the supporting affidavit, the deponent to the affidavit in support of the application stated as follows; “That the Plaintiff/Respondent has no cause of action against the Defendant/Applica