UNIVERSAL MERCHANT BANK LTD vs MORGAN INTERNATIONAL SCHOOL & ANOTHER

By the present Application, the Defendants / Applicants (Defendants) seek an order setting aside Plaintiff’s Writ of summons and Statement of Claim pursuant to Order 2 Rule 2, 3 and Order 7 of the High Court Civil Procedure Rules, 2004, (CI 47).

A reading of the Affidavit in support reveals that the Application rests on the following grounds:

That the Writ of Summons and Statement of Claim meant for service of the 1st Defendant was served on the 2nd Defendant.

That the Writ of Summons was not endorsed with the reliefs sought by the Plaintiff.

That even though the action was a claim for a liquidated demand the writ is not indorsed with a statement that further proceedings will be stayed if the Defendants paid the amount claimed.

Defendants contend that the said breaches are fatal to the Plaintiff’s suit as they render same a nullity. It is for this reason that Defendant prays that the Writ be set aside.

Contesting the Application, Counsel for Plaintiff takes issue with the Defendants’ contention that the breaches alleged (if at all) should nullify the Writ. Plaintiff’s case in sum, is that, the Defendants’ Application is without merit and is simply a delay tactic.

Before I proceed to deal with the grounds relied on by the Defendants, it is important to address certain legal points raised in the written submissions filed on their behalf.

Paragraphs 11 and 12 of Plaintiff’s affidavit should be struck out as irrelevant as they relate to matters of law instead of fact

Defendants’ case is that the matters deposed to in paragraphs 11 and 12 of the Plaintiff’s affidavit in opposition are matters of law which this Court must strike out as irrelevant since depositions in an affidavit must only relate to facts.

I agree with that position of the law however, I fail to see how the inclusion of the said paragraphs in Plaintiff’s affidavit has prejudiced or resulted in injustice to the Defendant. Not surprisingly, the Defendant has failed to point me to any.

In any event Order 20 (9) of CI 47, (erroneously referred to as Order 9 by Defendants) states that:

“The Court “may” order any matter which is scandalous, offensive, irrelevant or otherwise oppressive to be struck out of an affidavit.”

The word used here is “may”, which (as rightly pointed out by the Defendant) is, by Section 42 of the Interpretation Act, 2009 (Act 792) construed as empowering or permissive and therefore allows the Court to waive non-compliance in appropriate cases. I am not satisfied th