NANA AKOSUA AGYEMANG v. THE TRUSTEES SYNAGOGUE CHURCH OF ALL NATIONS
March 24, 2010
SUPREME COURT
GHANA
CORAM
- ATUGUBA, J.S.C. (PRESIDING)
- DATE-BAH (DR), J.S.C.
- ANIN YEBOAH, J.S.C.
- BAFFOE-BONNIE, J.S.C.
- ARYEETEY, J.S.C
Areas of Law
- Civil Procedure
March 24, 2010
SUPREME COURT
GHANA
CORAM
AI Generated Summary
This Supreme Court ruling, authored by Justice W. A. Atuguba, addresses whether the Court should entertain a preliminary objection raised by the Plaintiff/Respondent in opposition to a repeat motion for stay of execution pending appeal filed by the Defendants/Appellants/Applicants. At the hearing on 16 March 2010, applicants’ counsel, Eric Agbolosu of K-San Chambers, objected to the Respondent being heard, claiming lack of personal service; the Court’s records showed service of the opposing affidavit on his clerk, Joseph Osei. The Court invoked settled practice that service on counsel’s clerk is valid service on counsel and emphasized the enduring force of court-declared practice under r.5 of C.I.16 and related authorities. It further held that jurisdictional preliminary objections may be entertained notwithstanding reliance on affidavit depositions and any procedural non-compliance may be waived under r.79 and r.17(5). Observing the motion’s wording—seeking a stay of the High Court judgment rather than the appealed decision under r.20—the Court overruled counsel’s objections and allowed the preliminary objection to proceed.
ATUGUBA, JSC:
The Defendants/Appellants/Applicants brought before this court a repeat motion for stay of execution pending appeal.
In an affidavit in opposition, deposed to on her behalf, the Plaintiff/Respondent stated in paragraph 5 thereof thus:
“That at the hearing of this application Counsel for the Plaintiff/Respondent will raise a preliminary objection that the instant application is not properly before this Honourable Court”
The Respondent then proceeded in subsequent paragraphs to state further and better particulars of her objection.
When on 16/3/2010 the motion was called counsel for the applicants, Eric Agbolosu, of K-San Chambers objected that the respondent could not be heard as to her preliminary objection since the same had not been served on him. This court drew his attention to the proof of service before the court which states that the affidavit in opposition wherein the preliminary objection was raised has been served on K-San Chambers “through Joseph Osei (the clerk)” on 4/3/2010.
Nonetheless counsel insisted that since the document did not in fact reach him he cannot be said to have been served. We impressed on counsel that in practice service on his clerk is service on him but he stuck to his guns.
Perceiving that there is no readily available authority on the issue we decided to have a written Ruling on it.
The Supreme Court Rules, 1996 C.1.16 do not state how service of a court process can be effected on counsel. However r.5 of C.1.16 provides thus:
“Where no provision is expressly made by these Rules regarding the practice and procedure which shall apply to any cause or matter before the Court, the Court shall prescribe such practice and procedure as in the opinion of the Court the justice of the cause or matter may require.”
It has sometimes been held in this court that where there is casus omissus in C.1.16 the only course possible is for this court to direct under r.5 what the practice or procedure should be and until that is done, no step is warranted. Nonetheless it is always necessary to bear in mind that the legislature legislates with the existing law in view and is not deemed to alter the same except to the extent provided expressly or by very necessary implication. In this regard the established practices of the courts cannot be discounted in applying the law. Such practices by their very nature may often be reflected by communis opnio or by contemporanea expositio in the legal profession, both as to civil and