SHIRLSTAR CONTAINER TRANSPORT LTD v. KADAS SHIPPING CO. LTD. AND OTHERS

JUDGMENT OF LAMPTEY J.

On 4 September 1986 Opanin Osafo Buabeng, counsel for the plaintiff-applicant, filed an ex parte motion "praying for leave to serve [the writ of summons] on the third, fourth and fifth defendants in [p.403] the above stated suit outside the jurisdiction of this court as per the grounds set forth in the affidavit attached hereto . . ."

On that same date, i.e. 4 September 1986, Opanin Osafo Buabeng filed an ex parte motion and in that application sought an order of interim injunction "restraining the third, fourth and fifth defendants their agents, e.t.c. from removing and or shipping or transferring any one of the containers belonging to the third, fourth and fifth defendants already stacked at and, or coming to the Port of Tema outside the jurisdiction of this court on the grounds set forth in the affidavit attached hereto . . ."

The application seeking leave to serve the writ of summons on the three defendants out of the jurisdiction came on for hearing before Brobbey J. on 8 September 1986. Brobbey J. made the following order: “application to serve writ of summons and the statement of claim outside the jurisdiction is hereby granted.”

Mr. E. S. Aidoo, the solicitor for the defendants, entered conditional appearance for and on behalf of the third, fourth and fifth defendants and applied to have the service of the writ of summons on the said three defendants set aside. The reasons in support of this application were contained in an affidavit sworn to by the said Mr. Aidoo. In due course a comprehensive supplementary affidavit sworn to by the third defendant, Victor G. Alexander, was filed to support the application to set aside the service of the writ of summons on the three defendants. The reasons in support of the application were stated at paragraphs 5-12 of Mr. Aidoo's affidavit as follows:

“5. That I am advised and verily believe the same to be correct that this honourable court which made the order for service of the writ outside the jurisdiction was misled into making the same.

6. That this honourable court did not have jurisdiction under the relevant rules of court to make the order to serve the writ outside the jurisdiction.

7. That, in addition, the said writ does not show any cause of action, especially as against the third and fourth defendants herein.

8. That the defendants are not resident nor do they do business in Ghana.

9. That contrary to what is alleged in paragraph 13 of the statement of claim her