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April 12, 2019
HIGH COURT
GHANA
CORAM
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
AI Generated Summary
In a ruling of the High Court of Ghana, Justice George K. Koomson considered an application by the second defendant to dismiss the suit as frivolous, vexatious, and an abuse of process on the basis that the subject matter had already been conclusively determined by a competent court. The plaintiff raised a preliminary objection, arguing the application was brought too late because the second defendant had filed a defence and participated in pre-trial, with issues settled and the matter referred to trial. Emphasizing Order 9 rule 8 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), and the principle that where specific procedures exist courts should not resort to inherent jurisdiction, the court also noted that only jurisdictional objections may be raised at any time. Citing authorities including Azorblie v Ankrah IV, Kwaframoah III v Sakrayie II, and Dyson v Attorney-General, the court upheld the preliminary objection, dismissed the application, awarded GH¢2,000 costs against the second defendant, and granted leave to file a witness statement within five days to proceed with case management.