PETER STOBER v. JOSEPH SAKA & OTHERS
2015
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
Areas of Law
- Civil Procedure
- Jurisdiction
- Statutory Interpretation
2015
HIGH COURT
GHANA
CORAM
AI Generated Summary
The court dismissed the application by the 2nd Defendant/Applicant to strike out the writ for all defendants due to one defendant being outside the jurisdiction. The court interpreted the rules to avoid absurd results and struck out the name of the 3rd Defendant only, while the rest of the defendants validly remain in the suit.
JUDGMENT
The 2nd Defendant/Applicant seeks for an order to strike out the writ of summons and the service of the processes on the defendants on the grounds that the 3rd defendant is resident outside the jurisdiction and leave out to have been sought by the Plaintiff/Respondent before issuance of the writ and for service of a notice of the writ on the 3rd defendant.
The 2nd Defendant/Applicant and indeed the rest of the defendants are all resident in Ghana except the 3rd defendant and the applicant who does not complain that the issuance of the writ and service on him is irregular has in this application, assumed the role of the proverbial mourner who wants to mourn more than the bereaved.
It is stated under order 2 Rule 7(5) of the High Court (Civil Procedure) Rules, 2004, C. I 47 that:
“No writ, notice of which is to be served out of the jurisdiction, shall be issued without leave of the Court as provided in Order 8”.
And Order 8 deals with service out of the jurisdiction and notes that no notice of a writ shall be served out of the jurisdiction except only with leave of court.
Based on Orders 2 Rule 7(5) and Order 8 the 2nd Defendant/Applicant has contended that the whole writ issued without leave of court is incurably bad and the court ought to strike out the writ in its entirety.
Counsel for the 2nd Defendant/Applicant is gravely mistaken as to the warped interpretation she seems to be placing on Order 2 Rule 7 not in respect of the 3rd defendant but in respect of the 1st, 2nd and 4th defendants. The issuance and service of a writ on a party outside the jurisdiction without first seeking leave of the court is a nullity. However, with the exception of the 3rd defendant, all the defendants are resident in Ghana and cannot claim that the issuance and service of the writ on them is a nullity.
It would be absurd to interpret Order 2 Rule 7 of C.I 47 that where there are several defendants in a suit and only one is resident outside the jurisdiction, the non-procurement of leave of court before the issuance of the writ nullifies the writ and service thereof in relation to the resident entities. And in this instance the Rule would have to be interpreted “ut res magis valeat quam pereat”, so as to avoid the absurd result of voiding the whole writ. The better option, as indeed counsel for the Plaintiff concedes is to strike out the name of 3rd Defendant. As in respect of the 3rd defendant the condition precedent in relation to the issuance of the writ ha