National Trust Holding Company v. OFS Microfinance Limited and 3 Ors
2019
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP GEORGE K. KOOMSON ‘J’.
Areas of Law
- Civil Procedure
- Tort Law
2019
HIGH COURT
GHANA
CORAM
AI Generated Summary
The court addressed an application by the 2nd Defendant to dismiss the Plaintiff's suit for being frivolous and an abuse of process. The Plaintiff's preliminary objection, grounded on the timing of the application, was upheld. The court found that the application was improperly timed and emphasized that specific legal procedures should not be circumvented. The application was dismissed and costs awarded to the Plaintiff, while allowing the 2nd Defendant to proceed with filing a Witness Statement.
In this application the 2nd Defendant/Applicant (hereinafter referred to as 2nd Defendant)prays the Court to dismiss the suit for being frivolous, vexatious and for being an abuse of the process being a matter the subject matter of which has been conclusively ruled upon in a Court of competent jurisdiction.
The Plaintiff/Respondent (hereinafter referred to as the Plaintiff) raised a preliminary objection to the propriety of the present application on the grounds that the present application has been brought too late in the day as the 2nd Defendant has filed a statement of defence and participated in the process till the time when parties have been referred to trial.
It is observed that a preliminary objection is a special procedure whereby a process filed by a party to the said process, which if upheld by the Court has the effect of terminating the life of the said process, be it the substantive suit or an application, by being struck out.
In such situations the Court not only has the authority, but also the duty to determine the application or the suit in limine where the lack of competence is established.
This is because the competence of an action or application rubs on the jurisdiction of the Court to hear the said application or suit.
I have read the application filed by the 2nd Defendant.
I have also read all the affidavits and supplementary affidavit filed by the 2nd Defendant and Plaintiff.
Regard has also been given to the written submissions filed by both Counsel for the 2nd Defendant and the Plaintiff.
Thoughtful consideration has been given to the rules governing applications to dismiss or strike out suits.
It is however useful for me to place emphasis on Order 9 rule 8 of the High Court (Civil Procedure) Rules, 2004, as amended (C. I. 47), which provides that: “8. A Defendant may at any time before filing appearance, or, if the Defendant has filed a conditional appearance, within fourteen days after filing appearance, apply to the Court for an order to(a) Set aside the writ or service of the writ.
b) Declare the writ or notice of it has not been served on the Defendant; or(c) Discharge any order that gives leave to serve the notice on the Defendant outside the country.
It is noted that where there are specific procedures, a Court’s inherent jurisdiction should not be invoked.
The Supreme Court in AZORBLIE v ANKRAH IV [1984-1986] 1 GLR 561 held that “where specific rules of law exists to cater for a specific situation, we think th