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CIVIL PROCEDURE 15 JULY, 2022 (LEAKED)

SUGGESTED SOLUTION

QUESTION 1

The process to draft is a statement of defence.

NB: the contract between ABX & CO Ltd and UPSA Enterprises Ltd cannot be enforced due
to the statute of limitation. Section 4 of NRCD 54 is to the effect that an action founded on
a simple contract cannot be enforced after the expiration of 6 years from the date on
which the cause of action accrued.

In this case, the cause of action to ABX & CO Ltd accrued in June 2010 when UPSA
Enterprises defaulted in payment.

As such, you must particularize statute of limitation in your statement of defence. See:
Order 11 rule 12

NB: THE PORTION ABOUT THE DISMISSAL OF THE MANAGING DIRECTOR OF ABX & CO
LTD is IRRELEVANT and must not be included in your statement of defence.

NB: There is no counterclaim to be included because the damages caused to UPSA

ENTERPRISES by the impounding of their KIA TRUCK is an action arising in torts. This action
is also statute barred under section 4 of NRCD 54.

On this note, draft a simple statement of defence with the other aspects of the facts.

QUESTION 2

a. The proper mode of execution of the judgment obtained by lady sylish will be to
issue a writ of specific delivery with the leave of the court.

This is because the law is that where goods are to be delivered or their assessed
value paid, such judgment may be enforced by any of the following means of
execution.

a. A writ of delivery to recover the goods or their assessed value

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b. A writ of specific delivery with leave of the court.

c. A writ of sequestration where order 45 rule 3 applies.

No leave is required for the issuance of specific delivery or the payment of assessed
value of the goods. However, where the judgment debtor has an option to retain
the goods and pay its value and the judgment creditor is interested in recovering
possession of the goods, then a writ of specific delivery can be made on notice.

b. The process to draft is a motion on notice with a supporting affidavit to amend a

statement of claim. Please see the next page for the draft.
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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE

TEMA-GREATER ACCRA REGION

AD 2022

SUIT No:

JOE MANU PLAINTIFF/APPLICANT

(Residential address)

AND

AKOSUA DONKOR DEFENDANT/RESPONDENT

(Residential address)

MOTION ON NOTICE FOR LEAVE TO AMEND WRIT OF SUMMONS AND STATEMENT OF

CLAIM PURSUANT TO ORDER 16 RULE 5 OF CI 47

PLEASE TAKE NOTICE that this Honourable Court will be moved on the ……….day of
…………………2021 at 9:00 o’clock in the forenoon or so soon thereafter as Counsel for
the Plaintiff /Applicant may be heard praying this Honourable Court for leave to amend
Plaintiff’s Statement of Claim as follows:

A. By inserting a new paragraph 7A to read: “The Plaintiff says that he acquired the
land in dispute from the Nii Odarlai family Mion.”
B. By the insertion of a new paragraph 7B to read: “The Plaintiff says that he was
issued with a receipt to cover the sum of twenty-five thousand Ghana cedis (GH
25,000) paid.”
C. By the insertion of a new paragraph 7C to read: “The Plaintiff says that the receipt
was signed by the head of family, Nii Odartey and witnessed by Nii Ago Tawiah and
Naana Korkoi both of whom are principal members of the family.”
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AND FOR ANY further orders that this Honourable Court may deem fit.

DATED AT SLAYQUEENS @ LAW, THIS 15TH DAY OF JULY 2022

SIGNED

EFIA ODO ESQ.

SOLICITOR FOR PLAINTIFF/APPLICANT

THE REGISTRAR,

HIGH COURT,

TEMA

AND FOR SERVICE ON THE ABOVE-NAMED DEFENDANT/RESPONDENT

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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE

TEMA-GREATER ACCRA REGION

AD 2022

SUIT No:

JOE MANU PLAINTIFF/APPLICANT

(Residential address)

AND

AKOSUA DONKOR DEFENDANT/RESPONDENT

(Residential address)

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE FOR LEAVE TO AMEND WRIT OF

SUMMONS AND STATEMENT OF CLAIM

I, Joe Manu of (residential address) make oath and say as follows:

1. That I am the deponent and plaintiff-applicant herein.

2. That I swear to this affidavit of facts which are in my personal knowledge.
3. That I issued a writ of summons and a statement of claim against the Respondent
herein for reliefs which are endorsed thereon.
4. That I acquired the land in dispute from the Nii Odarlai family Mion.
5. That I was issued with a receipt to cover the sum of twenty-five thousand Ghana
cedis (GH 25,000) paid.
6. That the receipt was signed by the head of family, Nii Odartey and witnessed by Nii
Ago Tawiah and Naana Korkoi both of whom are principal members of the family.
7. That i have been advised and verily believe same to be true that that it has become
necessary for these facts to be included in the statement of claim.
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8. That I could not include these matters because I was not represented by counsel.
9. That I have been informed and verily believe same to be true that no miscarriage of
justice will occasion the Respondent if the present application is granted.
10. That I have been informed and verily believe same to be true that under the present
circumstances, this Honourable Court has jurisdiction to grant the present
application.
11. Wherefore I pray for an order granting leave to amend the writ of summons and
statement of claim.

SWORN AT TEMA THIS 15TH DAY OF JULY 2022 SIGNED

DEPONENT

BEFORE ME

COMMISSIONER OF OATHS

QUESTION 3

a. The process to draft is a writ of summons with a statement of claim. Please

see the next page for the draft.
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WRIT OF SUMMONS

(Order 2 Rule 3(1))

WRIT ISSUED FROM: ……………………… 20… SUIT No: ……………….

IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE

ACCRA- GREATER ACCRA REGION

AD 2022

BETWEEN

YAW MANU PLAINTIFF

No. 10 Krokrobite St. New Aplaku,

Accra.

AND

KUKUA ADDAI DEFENDANT

No. 4 Kofi Annan St. Airport Residential Area,

Accra.

TO: KUKUA ADDAI

AN ACTION having been commenced against you by the issue of this writ by the above-
named Plaintiff.

YOU ARE HEREBY COMMANDED that within EIGHT DAYS after service of this writ on you
inclusive of the day of service you do cause an appearance to be entered for you.

AND TAKE NOTICE that in your default of your so doing, judgment may be given in your
absence without further notice to you.

Dated this 15th day of JULY 2022.

Chief Justice of Ghana.

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STATEMENT OF NATURE OF CLAIM/INDORSEMENT

The Plaintiff’s claim is for:

a. A declaration that the Defendant is in breach of contract for the sale of one 20-
foot container of detergent.
b. Recovery of Fifty thousand US Dollars ($ 50,000.00) being the purchase price of
the said contract.
c. Damages for breach of contract.
d. Costs of litigation.

SIGNED

SUGARTITI ESQ.

COUNSEL FOR PLAINTIFF

This writ was issued by SUGARTITI ESQ

Whose address for service 12 Jericho Street, Adenta-Accra.

Agent for Plaintiff

Address Number and date of lawyer’s current licence: XXXX

Lawyer for the plaintiff SUGARTITI ESQ who resides at No. 12 Abrokyire, Accra.
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IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE

ACCRA- GREATER ACCRA REGION

AD 2022

SUIT No:

BETWEEN

YAW MANU PLAINTIFF

No. 10 Krokrobite St. New Aplaku,

Accra.

AND

KUKUA ADDAI DEFENDANT

No. 4 Kofi Annan St. Airport Residential Area,

Accra.

STATEMENT OF CLAIM

1. The Plaintiff says that he is a citizen of Ghana.

2. The Plaintiff says that the Defendant is his friend and they attended Christ the King
School together before the Defendant left for London to live with her mother.
3. The Plaintiff says that two (2) years ago, he met the Defendant at Bloombar and the
Defendant informed him that she has returned to Ghana to settle for good.
4. The Plaintiff says that the Defendant informed him that the Defendant has a
contract with the manufacturers of a detergent which was very powerful and
effective cleaning agent.
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5. The Plaintiff says that the Defendant told him that if the Plaintiff purchased one 20-
foot container full of the product, he would make a profit of ten thousand US
Dollars ($10,000.00).
6. The Plaintiff says that the cost of a container full of the product was fifty thousand
US Dollars ($50,000.00).
7. The Plaintiff says that he was not ready to enter into this contract because he was
planning to use his savings to build a house at East Legon Hills.
8. The Plaintiff says that despite this, he agreed to order one 20-foot container full of
the products.
9. The Plaintiff says that he agreed with the Defendant that the Plaintiff will pay forty
thousand US Dollars ($40,000.00) before the Defendant ships the container to
arrive at Tema Harbour within 60 days from the date she received the first
instalment.
10. The Plaintiff further says that when the Defendant sends him the Bill of lading, the
Plaintiff would then pay the remaining ten thousand US Dollars ($10,000.00).
11. The Plaintiff says that he has paid the Defendant forty thousand US Dollars
($40,000.00) but the Defendant has refused to deliver the Bill of lading or received
the container.
12. Wherefore the Plaintiff claims against the Defendant as follows:
a. A declaration that the Defendant is in breach of contract for the sale of
one 20-foot container of detergent.
b. Recovery of Fifty thousand US Dollars ($ 50,000.00) being the purchase
price of the said contract.
c. Damages for breach of contract.
d. Costs of litigation.

DATED AT SLAYQUEENS @LAW THIS 15TH DAY OF JULY 2022.

SIGNED

SUGARTITI ESQ.

COUNSEL FOR PLAINTIFF

THE REGISTRAR,
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HIGH COURT,

TEMA.

AND FOR SERVICE ON THE ABOVE-NAMED DEFENDANT.

b. Nobody has a vested right in procedure simply means that any amendment
in the rules of procedure applies retrospectively to any action which may
have commenced prior to the amendment. In Beng v Nyarko, the court held
that
“Although there was a presumption against retrospective operation of
enactments, the general rule of construction was that there were no
vested rights in procedure or costs. Alterations in the form of
procedure were always retrospective, unless there was some good
reason or other why they should not be.”
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QUESTION 4

a. The only similarity between application for substituted service and application for
substitution is that either of them is applied for by an application ex parte with a
supporting affidavit.
That notwithstanding, an application for substituted service is different from an
application for substitution. An application for substituted service is resorted to
where personal service cannot be done. The court must be satisfied that not less
than three (3) attempts of personal service has been made without success and
further attempts will contribute to delay or it is impracticable for any reason for
personal service to be effected. See: Order 7 rule 6
An application for substitution is resorted to where there is the need to change a
party to the action. This may be due to the death of a party or on the bankruptcy of
a party. See: Order 4 rule 6

b. The law is that conditional appearance must be entered where a defendant has a
complaint about the issuance of a writ of summons or the service of the writ of
summons. See: Order 9 rule 8. However, the fact that a writ discloses no cause of
action or that the defendant has a legal defence to the plaintiff’s claim is no ground
to file a conditional appearance. An instance is where the defendant alleges the
defence of estoppel as a basis for entering a conditional appearance. See: Republic
v High Court; ex parte Ayitey.
It stands to reason that the court must dismiss that application and has no power
to grant any order striking out the writ of summons on any of the stated grounds.
My Lords, In the instant case, the plaintiff-appellant (Yaw Sefa) filed a writ of
summons with an accompanying statement of claim at the High Court against the
defendant-respondent (Kofi Manu). The defendant-respondent entered a
conditional appearance and filed a motion to dismiss the writ of summons and
statement of claim. The argument in the main of the defendant-respondent in his
affidavit in support was on the defence of estoppel. That in 1990, Opanin Yeboah
Fordjour (deceased), the grandfather of the defendant-respondent was adjudged
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the owner of the land in dispute in an action instituted by Obaapanin Adwoa

Bediankor (deceased) the grandmother of the Plaintiff-Appellant. My Lords, this
clearly in on the defence of estoppel and cannot be a basis for entering a
conditional appearance.
The High Court Judge struck out the writ of summons and the statement of claim
and awarded cost of GH 5,000 against the Plaintiff-Appellant. My Lords, this order
by the High Court Judge is erroneous. In fact, the court has no power to dismiss a
writ of summons when a defendant enters a conditional appearance with the
defence of estoppel as the basis. On this basis, I pray that my Lords set aside the
order of the High Court as well as the costs awarded. Respectfully submitted.

c. The factors the court takes into consideration in awarding costs in favor of a
successful party after a trial are:
a. The length and complexity of the case.
b. The conduct of the parties and their lawyers during the proceedings
c. The amount of court fees paid by a successful party or his lawyer in relation
to the proceedings
d. The amount of expenses including travelling expenses reasonably incurred
by that party or his lawyer or both in relation to the proceedings.See: Order
74 rule 2(4)
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QUESTION 5

A. The appropriate step to take for Paty-Styles is to apply and set aside the writ of fieri
facias obtained by Abena Flavour and any action flowing therefrom.
The basis for this step is that a writ of execution (including a writ of fieri facias) is
valid for 12 months from the date of issue. See: Order 44 rule 9(1).
The validity of the writ must be extended if execution is incomplete for a period of
not more than 12 months at a time if an application is filed for the purpose before
the date on which the writ of execution is due to expire. See: Order 44 rule 9(2).
The application for renewal is made ex parte with a supporting affidavit with
reasons for its grant.
From this, it means that any action taken after the 12 month period without any
order extending the validity of the writ of execution will also be invalid. For the
avoidance of doubt, such steps taken will be null and void.
In the instant case, since Abena issued a writ of fieri facias on 10 September 2015
but rather caused it to be executed in February 2020, such actions are void.

B. A probate action is one instituted to challenge the validity of a will. It is an action

instituted by a writ of summons for a declaration that a will Is valid or that the will
is not valid. It is also referred to as proof of a will in solemn form. See: Order 66 rule
26.
Where a probate action fails, the will must be revoked. This action is instituted by
the executors of the will upon request by a person interested in the estate of the
deceased testator. See: Order 66 rule 26(2)
The executor has 8 days from the service of the notice on him to indicate whether
he intends to prove the will in solemn form or he renounces probate or his right to
executorship. Within 8 days after the executor’s answer to the notice or request,
he shall issue a writ of summons for a declaration that the will is valid or not valid.
However, where the executor fails to issue the writ, any named beneficiary can
issue the writ against the person who filed the notice or request to pronounce on
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the validity of the writ and for the grant of letters of administration with will
annexed. See: Order 66 rule 27(4)
Where the writ seeks the revocation of a probate or letters of administration which
has been granted and issued, a notice (Citation) shall be served on the grantee of
the probate or letters of administration to deposit the probate to the registry of
the court before the writ is issued.
A person on whom a notice has been served shall comply not later than 4 days from
the date of service of the notice. Where he fails to comply, the plaintiff may apply
to the court for an order directing that the probate or letters of administration shall
be brought and left at the registry of the court within such time as the court may
specify.
After the issuance of a writ in a probate action, any person who claims to have an
interest in the estate of the testator, may by application seek leave of the court to
intervene in the action. The application for leave to intervene shall be made on
notice to the existing parties to the action.
Upon the grant of leave to a person to intervene in a probate action, the court may
give directions as to the service of pleadings and the general management of the
case
A person who is granted leave to intervene in an action or upon whom a notice with
affidavit is served under Order 66 rule 35, shall enter appearance within the time
specified in the order. See: Order 36 rule 1
After the entry of appearance, the parties shall swear to an affidavit showing
whether they have knowledge of the existence of any testamentary script made by
the testator.
The court does not grant judgment in default of appearance or pleadings in probate
actions.
A probate action can only be discontinued with the leave of the court.

C. The rule in Aboawaba v Adeshina is that notwithstanding the fact that a piece of
evidence is a departure from pleadings, where evidence was given of an unpleaded
material fact, without any objection from the opposite side, and that piece of
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evidence finds its way onto the record, the trial judge will not close its eyes to that
evidence in the evaluation of the case unless that piece of evidence is inadmissible
per se i.e. whether or not the defendant raised an objection, that piece of evidence
cannot be admitted as a matter of law.
According to section 6 of the Evidence Act, if a party wishes to raise an objection
on a piece of evidence, the objection must be raised at the time the evidence was
being given.

D. The process to draft is an order to set aside the order for substitution AND strike
out the action. Please see the next page for the draft.
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IN THE CIRCUIT COURT

WINNEBA-CENTRAL REGION

AD 2022

Suit No:

JOOJO PLAINTIFF/RESPONDENT

(Residential address)

ARABA (Deceased)

Substituted by:

MENSIMA DEFENDANT/APPLICANT

(Residential address)

MOTION ON NOTICE TO SET ASIDE AN ORDER OF SUBSTITUTION AND STRIKE OUT THE
ACTION

TAKE NOTICE THAT this Honourable Court will be moved by Counsel for
Defendant/applicant praying for an order to set aside an order of substitution granted in
favour of Plaintiff/respondent and an order striking out the action on grounds stated in the
accompanying affidavit.

And for such further order (s) as this Honourable Court may deem fit.

COURT TO BE MOVED ON THE DAY OF 2018 at 9:O’clock in the forenoon or so

soon thereafter as Counsel may be heard.

DATED AT SLAYQUEENS @LAW THIS 15TH DAY OF JULY 2022

SIGNED

SUGARTITI ESQ
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COUNSEL FOR DEFENDANT/RESPONDENT

THE REGISTRAR,

CIRCUIT COURT,

WINNEBA

AND FOR SERVICE ON THE ABOVE-NAMED PLAINTIFF/RESPONDENT

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IN THE CIRCUIT COURT

WINNEBA-CENTRAL REGION

AD 2022

Suit No:

JOOJO PLAINTIFF/RESPONDENT

(Residential address)

ARABA (Deceased)

Substituted by:

MENSIMA DEFENDANT/APPLICANT

(Residential address)

AFFIDAVIT IN SUPPORT OF MOTION ON NOTICE TO SET ASIDE AN ORDER OF

SUBSTITUTION AND STRIKE OUT THE ACTION

I, Mensima of (residential address) make oath and say as follows:

1. That I am the deponent and defendant-applicant herein.

2. That I swear to this affidavit of facts which are in my personal knowledge.
3. That the Plaintiff/respondent issued a writ against Araba for damages for
defamation.
4. That the said Araba was involved in a motor accident and died out of the injuries
sustained during the pendency of the suit.
5. That the Plaintiff/respondent successfully obtained an order ex parte to substitute
the defendant/applicant herein as a party.
6. That I have been advised and verily believe same to be true that the action against
Araba is a personal action which does not survive upon her death.
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7. That under the circumstances, I have been advised and believe same to be true that
the action ought to be strike out.
8. That the Defendant/applicant ought not to be substituted as a party to this action.
9. That I am advised and verily believe same to be true that this court has the
jurisdiction to set aside the order of substitution and strike out the action.
10. Wherefore I depose to this application for an order setting aside the order of
substitution and seeking an order to strike out the instant action.

SWORN AT WINNEBA SIGNED

THIS 15TH DAY OF JULY, 2022 DEPONENT

BEFORE ME

COMMISSIONER OF OATHS
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QUESTION 6

a. The law is that where a judgment debtor has money in court, a judgment creditor
need not apply for garnishee proceedings, but the judgment creditor may apply
directly to the court for an order that so much of the money held by the court be
released to him in satisfaction of the debt owed to him by the judgment debtor.
Accordingly, as counsel for Stephen, I will make an application to court for an
amount of GH 15,000 to be paid out of the monies held on behalf of Maame Talata.

b. The circumstances under which the court may grant an ex-parte application are:
a. Application for substituted service.
b. Application for substitution.
c. Application to renew a writ of service
d. Application for judgment in default of appearance

c. The effect of order 81 rule 1 is that a failure to observe the rules shall not nullify the
proceedings or steps taken in the action. However, there are exceptions to this
rule. Where the exceptions apply, a breach of the procedural rules will nullify any
action or step taken therein. The exceptions are where a breach of the rules
amounts to a breach of
a. The constitution
b. A statute, other than the rules of court
c. The rules of Natural justice
d. Where the breach deprives the court of jurisdiction.
See: Republic v High Court, Accra; Ex parte Allgate Co. Ltd