THE REGISTRERED TRUSTEES OF KINGSWAY CITY CHAPEL INT. vs CHARLOTTE NYARKO & ORS
2022
HIGH COURT
GHANA
CORAM
- HIS LORDSHIP EMMANUEL AMO YARTEY (J)
Areas of Law
- Civil Procedure
- Conflict of Laws
2022
HIGH COURT
GHANA
CORAM
AI Generated Summary
His Lordship Emmanuel Amo Yartey (J) considered an application by the Defendant/Applicant to set aside a Writ of Summons on the ground that the defendants, both ordinarily resident in the United States at 221-19, 106th Avenue, Queens Village, 11429, New York, had been improperly served. The application contended that under the court rules, service on persons outside Ghana should be effected out of jurisdiction with leave of court. The judge observed that the address in the affidavit confirmed foreign residence and that no record showed the Plaintiff/Respondent obtained leave or properly served out of jurisdiction. Citing Mazama Disco Christo Church v Jahu Appiah and Order 1 Rule 2 of C.I. 47, the court refused to set aside the writ and statement of claim, but set aside the service to require compliance with the rules, given the defendants’ address had been provided.
On the 16th day of September 2012, the Defendant/Applicant filed the instant Application praying the Court for an order setting aside the Writ of Summons.
The nucleus of the Application according to Counsel for the Applicant is that since the Defendants are both ordinarily resident in the United States of America at 221-19, 106th Avenue, Queens Village, 11429, New York, service of the Writ per the rules of Court should have been effected out of jurisdiction with leave of Court.
A look at the Application depicts the Defendants are resident in the United States of America per their address provided in the Affidavit in Support.
The rules of Court demands that they should have been served out of jurisdiction with leave of Court.
There is no evidence on record depicting that this was complied with by the Plaintiff/Respondent.
In Mazama Disco Christo Church v Jahu Appiah [2010] 27 MLRG 56 at 77 Kusi Appiah J. A. held:
“But it is trite law that the Courts have a duty to ensure that justice is done in cases before them and should not let that duty be circumvented by mere technicalities.”
Order 1 R 2 of C. I. 47 also demands the interpretation of the rules such that it will not inflict inconvenience, unnecessary expenses on the parties.
In the circumstance I shall not set aside the Writ of Summons and the Statement of Claim.
I shall however set aside the service thereof for the Plaintiff to comply with the rules of Court since the address of the Defendants has been provided by the Applicant.
(SGD)
EMMANUEL AMO YARTEY (J)