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May 5, 2023
HIGH COURT
GHANA
CORAM
This ruling is in respect of a Motion on Notice for an order to Set Aside Writ of Summons under Order 9 R 8 of the High Court (Civil Procedure) Rules, 2004 C I 47.
The mainstay of the 3rd Defendant’s application as contained in the 9-paged Affidavit in Support is that the Writ of Summons issued against the Defendants dated 8th February, 2023 is woefully and incurably defective and that the rules of court makes it mandatory that prior to the issuance of a Writ by Plaintiff/Respondent the residential address of the Plaintiff must be endorsed on the Writ. The Applicant avers that, Abuakwa Tanoso is a town in Kumasi and cannot represent the Plaintiff’s residential address. Counsel for 3rd Defendant/Applicant is praying the court to set aside the Writ of Summons for want of compliance with the mandatory rule on indorsement.
On the other-hand, the Plaintiff/Respondent in his 16-paragraphed Affidavit in Opposition dated 20th March, 2023, deposed to the fact that the residential address of the Plaintiff was provided for in the Writ of Summons and that there is no house numbering system at the place where the Plaintiff resides. That the Plaintiff/Respondent is a well-known artiste whose musical works has gained national fame and can be easily located with the address provided.
Counsel for Plaintiff/Respondent submitted that the Plaintiff has received and continues to receive correspondence through the same address provided in the Writ of Summons and that the Writ as issued should be upheld by the court to achieve speedy resolution of the matter to avoid delay and unnecessary expense.
It is trite that after an unconditional appearance is entered it would be too late to object to any irregularity in the Issue or Service of the Writ which the defendant had knowledge of. A defendant who wishes to object to any irregularity in the service or issue of the Writ can serve a Notice of Motion to set aside a Writ of Summons before entering unconditional appearance; or after entering a conditional appearance without leave of the court as in the present case; or without entering a conditional appearance. See the case of DORYUMU V NANOR-AGBOZO [1981] GLR 311-315; THE REPUBLIC V HIGH COURT, ACCRA EX-PARTE ARYEETEY (ANKRAH INTERESTED PARTY) (2003-2004) SC GLR 398 at 408.
In line with the rules, the 3rd Defendant’s counsel filed a Conditional Appearance on 24th February, 2023 together with the present application upon receipt of the said Writ of Summons and Statement of Clai
AI Generated Summary
This High Court (Commercial Division) ruling by Justice Adelaide Abui Keddey resolves a motion by the 3rd Defendant to set aside a writ of summons issued against the defendants on 8 February 2023. The 3rd Defendant argued that the writ was incurably defective because the plaintiffs residential address endorsement NANA ADDO, ABUAKWA TANOSO, KUMASI identified only a town and did not enable personal service as required by the Civil Procedure Rules (C.I. 47). Nana Addo, described by the plaintiffs counsel as a well-known artiste, opposed, asserting the locality lacks house numbering and that correspondence reaches him at the address. Emphasizing Orders 2, 7 and 1, and the need for precise residential addresses to allow personal service for judgment, appeal and contempt processes, the court found Abuakwa Tanoso too large and densely populated to suffice without house, street or landmark particulars. Concluding that the defect affects substantial justice and is not curable under Order 81, the court set aside the writ.