RICHARD OWUSU NYARKO VS ABU ZEIN & ANOR

This Ruling shall address 2 applications – one filed by the Plaintiff and the other by the 1st Defendant. This is for the sake of judicial expediency and because the issues arising in both applications are in my considered opinion, intertwined.

On 12th of December, 2022 the 1st Defendant filed a Motion seeking the following orders from this Court:

1. An order Striking out the Notice of Conditional Appearance filed by the Defendants on the 11th of May, 2022 on the ground that it is incompetent

2. An order setting aside Plaintiff/ Respondent’s writ of summons on grounds of irregularity for want of endorsement of the true or proper capacity in which Plaintiff/ Respondent has instituted the suit.

3. A further order striking out paragraphs 5-17 of the statement Of claim as well as the reliefs endorsed on the writ of summons and statement of claim, for non-disclosure of cause of action and for being frivolous and vexatious and accordingly dismissing the Action before this Court.

The Plaintiff, even before filing an affidavit in opposition to the said Motion, on the 19th of December, 2022, filed a Motion

“FOR AN ORDER FOR ATTENDANCE FOR CROSS-EXAMINATION OF FIRST DEFENDANT / APPLICANT AND THE DEPONENT TO AFFIDAVIT IN SUPPORT OF MOTION TO STRIKE OUT APPEARANCE AND WRIT OF SUMMONS”

I propose to deal first with the issues raised by the 1st Defendant’s Motion since that was first in time and because the Plaintiff’s afore-mentioned motion was launched in reaction to same.

A reading of the1st Defendant’s Motion will reveal that it rests its application mainly on the following grounds;

1. That the writ of summons filed on the 17th of May, 2022 is incompetent for want of endorsement of the true and proper capacity in which Plaintiff institutes the instant suit.

2. That Plaintiff neither has a cause of action against the 1st Defendant nor a cause of action to seek the reliefs endorsed on his writ.

3. That the Defendants had no knowledge of the Entry of Conditional Appearance filed on their behalf on the 11th of May, 2022 and did not authorize the filing of same.

4. That the said Entry of Appearance is void as the 2nd Defendant is an infant as confirmed by Exhibit B and is therefore prohibited by the rules from acting for himself.

I propose to deal with these grounds ad seriatim.

1. The writ of summons filed on the 17th of May, 2022 is incompetent for want of endorsement of the true and proper capacity in which Plaintiff institutes the instant suit.