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RULING
BY COURT
1. The order directed at 14th Defendant/Applicant to file a supplementary affidavit is vacated herewith.
2. Whereupon Counsel for the 14th Defendant/Applicant moved the Court, on his motion on notice filed on 18/01/2018, under ORDER 9 RULE 8 of C. I. 47/04. As reasons for the order to be made, he stated:
1. This action has been commenced against a non-existent legal entity that is MTN per its Managing Director.
He cited KOWOS MOTORS, VS CHECK POINT GHANA LTD [2009] SCGLR 230.
2. A company under Act 179 can be sued and can also sue.
Scancom PLC is the Company as in Exhibit ‘1’ annexed.
3. That an amendment cannot be permitted because that will amount to putting something on nothing.
He cited AQUATIC BIOLOGY INSTITUTE. VS ABOKUMA [1978] GLR.
REPLY: Plaintiff submits that MTN is a known entity.
And the writ has been duly served on it and there is proof of service on that.
And when judgment is given MTN can be identified.
1. This is a proper case in which the motion to set aside service of the writ against 14th Defendant must be granted.
Where the challenge is that there is some defect, or irregularity in the issue, and service of the writ or notice of the writ, and irregularity in the indorsement, or irregularity affecting the claim or subject matter as well as a challenge relating a condition precedent to the assumption of jurisdiction by the Court, upon service of the writ, an application of this kind can be made.
This is the type of application before the Court.
When it is filed applicant is serving notice about one or more of the matters stated above.
The application has been filed within time prescribed.
The submission that the 14th Defendant is not a legal entity that can sue and be sued is proven.
I have examined the Exhibit annexed, a Writ taken against a non-existent party is a nullity.
In this case the Plaintiff cannot be permitted to amend the writ.
In AHINAKWA VS OKAIDJA [2011] SCGLR the Supreme Court speaking through GBADEGBE JSC, stated that an order or ruling cannot be given to defeat an objection which has already been taken in respect of the relief sought.
The case cited by Counsel for the applicant namely AQUATIC BIOLOGY INSTITUTE VS ABOKUMA is apposite.
Given the fact that there are other Defendants, the writ cannot be set aside.
The 14th Defendant/MNT so described shall be struck out as a party to this action.
2. No cost is awarded.
3. Case is adjourned to 20/03/2019. Hearing Notice be served