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February 4, 1963
HIGH COURT
GHANA
CORAM
JUDGMENT OF APALOO J.
By this motion, the defendants seek an order setting aside the service upon them of the writ of summons in this action or in the alternative they ask for an order reporting the pendency of this cause to the Chief Justice with a view to the transfer of the suit to the High Court, Accra.
[p.55]
They say all the defendants except the first live at Larteh in the Eastern Judicial Division, and that on the plaintiff's own showing the cause of action arose at Larteh. They claim that the first defendant, though a native of Ashanti, is resident at Takoradi and has to the knowledge of the plaintiff been resident there for the past eight years. They contend, in any event, that the first defendant is a nominal defendant and was thrown in to justify an action being instituted at Kumasi. Counsel for the appellants relied on Order 5, r. 1 (d) of the Supreme [High] Court (Civil Procedure) Rules, 1954.1 This reads “All other actions shall be commenced in the Judicial Division in which the defendant resides or carries on business. . . .”
The plaintiff resists this application and for his part, claims that the first defendant was resident at Safo at the time of the institution of the suit and, therefore, the writ was issued and served in compliance with Order 5, r. 1 (d). Latterly, counsel for the plaintiff contended that the Courts Act, 1960,2 does not make room for the establishment of separate judicial divisions and that Order 5, r. 1 (d) has no longer any application. He argues, therefore, that the only matter to which consideration should be given is, "what is the forum conveniens for the purpose of this suit?" He also argued that great hardship would be caused to the plaintiff if this application is granted. The reasons for the hardship are embodied in paragraph 11 of the plaintiff's affidavit sworn in opposition to this motion.
As to whether the first defendant was resident at Safo or Takoradi at the time of the institution of the suit, I do not find it possible on the conflicting affidavits to make any finding. In the view that I take of this motion, it is not necessary to make any such finding.
Order 5 of the Supreme [High] Court (Civil Procedure) Rules presupposes the existence of judicial divisions and if counsel for the plaintiff is right in his contention that these no longer exist, then the force of the applicant's argument weakens to the point of collapse. I of course agree with counsel for the applicant that the Supreme [Hig
AI Generated Summary
The defendants moved to set aside service of a writ or to transfer the suit to the High Court in Accra, arguing most defendants lived at Larteh and the cause of action arose there, and that the first defendant—allegedly resident in Takoradi—was nominal. They invoked Order 5 rule 1(d) of the Supreme [High] Court (Civil Procedure) Rules, 1954. The plaintiff contended the Courts Act, 1960 abolished judicial divisions, rendering Order 5 inapplicable, and further swore to severe hardship: he had paid around £G2,300 to the defendants, was ill and nearly bedridden, impoverished, and the defendants maintained a fetish branch near Kumasi. Apaloo J examined the statutory framework, noting section 156 repealed the Courts Ordinance and no comparable authority exists, and held Order 5 is a useless survival. Turning to forum conveniens and English authorities, the judge weighed comparative costs, injustice, and oppression. Finding the balance of hardship favored the plaintiff and transfer would bar him from the courts, while refusal would not oppress the defendants, the court refused the application.