CIVIL PROCEDURE CASE BRIEFS

PRELIMINARY ISSUES: HIERARCHY OF COURTS AND JURISDICTION

BADU V BOAKYE

● FACTS: The plaintiff sued the defendant for damages for an alleged breach of promise to marry at customary
law, damages for assault and battery and an order directing the defendant to pay her an amount as medical
expenses. The plaintiff alleged that she was married to the defendant after she had conceived by him. They
lived together thereafter as man and wife until when she was asked to leave the matrimonial home by the
defendant because he no longer wanted to continue the marriage. The defendant in his evidence admitted
that he had been living with the plaintiff, but however denied that it was a husband and wife relationship. He
alleged that two months after meeting the plaintiff, he presented some drinks and money to the plaintiff’s
parents and family as akotoagyan to enable him to consort freely with the plaintiff, with the hope that if he
found the conduct of the plaintiff suitable he would marry her. On realizing that the plaintiff would not be a
suitable wife, he again presented drinks to the family of the plaintiff to terminate the akotoagyan relationship.
● ISSUE: Whether the payment of akotoagyan constituted a valid marriage or an unconditional promise to marry
at customary law? and whether a woman staying with a man under the akotoagyan custom was entitled to sue
for maintenance or a breach of promise to marry?
● HOLDING: akotoagyan was the drink provided by a man to inform the parents of a woman with whom he was
cohabiting about the fact of their concubinage. The drink provided might be either one half bottle or a full-size
bottle of Schnapps and, as the name implied, it meant “bottle [taken] for nothing” or “drink [taken] for
nothing.” The providing of akotoagyan created no legal relationship between the man and the woman as the
drink was not refundable if the woman decided to bring to an end their concubinage, and the woman could
not claim any damages for breach of promise if the man decided to break their relationship as it did not serve
as a token of a promise to marry. Neither could a woman living in concubinage sue the man with whom she
was so living for any maintenance.

ANARFI V ARTHUR

Victims of an action which constitutes both a crime and also ground an action of a civil nature must not have any
fetter on their hands as to the initiation of a civil action. Any attempt to link the institution of a civil claim on the
success or otherwise of a criminal action would be an attempt to whittle down the fundamental rights of the
individual as has been enshrined in the Constitution, 1992. It will be dangerous to have this linkage especially so
when the power to prosecute and order stoppage of criminal prosecution by the process of nolle prosequi has
been vested solely in the Attorney-General. Since an acquittal on a criminal charge cannot absolve one from civil
liability, the victim could successfully mount a civil action against the same person and succeed. – Badu v Boakye
not followed.

NANA ADJEI AMPOFO V AG

● FACTS: The plaintiff wished the SC to clarify the extent of certain rights and obligations of chiefs enacted by the
Chieftaincy Act, 2008 (Act 759) and to determine whether those rights and obligations as currently formulated
in that statute are constitutional. He contended that most of the crimes created by Section 63 of Act 759 are
unconstitutional for the reasons that they infringe a person’s freedom of movement as enshrined in the
constitution and the word “issue” is too vague which means the chiefs could abuse this power.
● HOLDING: Though Edusei v Attorney-General [1996-97] SCGLR 1 held that the cumulative effect of articles
33(1), 130(1) and 140(2) was to vest the High Court, as a court of first instance, with an exclusive jurisdiction in
the enforcement of the fundamental human rights and freedoms of the individual contained in Chapter 5 of
the 1992 Constitution, in effect Ghana’s Bill of Rights, nevertheless when an action raises a genuine issue for
interpretation of any provision of the Constitution or requires a decision as to whether an enactment is
inconsistent with any provision of the Constitution, the Supreme Court has jurisdiction over it, pursuant to
article 130 of the 1992 Constitution. This case raises a legitimate justiciable constitutional issue as to the
consistency of the provisions of s. 63 of Act 759 with articles 14 and 21 of the 1992 Constitution.

BIGUZZI V RANK LEISURE PLC

● UNDERLYING PRINCIPLE: Order 1 Rule 1(2) - These Rules shall be interpreted and applied so as to achieve
speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all
matters in dispute between parties may be completely, effectively and finally determined and multiplicity of
proceedings concerning any of such matters avoided.
● FACTS: Plaintiff brought an action for damages against the defendant. The court fixed a trial date for but the
solicitors for the plaintiff were not ready and solicitors for the defendant agreed that the case should be taken
out of the list. The court granted the application to adjourn the trial and ordered the case to be relisted, with
both solicitors filing certificates of readiness no later than a specified date. The parties failed to comply with
the order and the court notified them that the proceedings would be heard between anyways. Before the
implementation of the Civil Procedure Rules 1998 (CPR), the defendant applied for the claim to be struck out.
The judge, basing himself on the authorities under the old rules of procedure, concluded that it was right to
strike out the claim since there had been a wholesale disregard of the rules amounting to an abuse of process.
The plaintiff’s appeal, heard after the introduction of the CPR, was allowed by the judge who held that the
 authorities decided under the old procedure were no longer relevant, that both sides had been in default and
that there was nothing unfair in letting the case go to trial. The defendant appealed, contending in particular
that the judge had been wrong to disregard the old authorities.
● HOLDING: Where the CPR applied, earlier authorities on matters of civil procedure were no longer generally of
any relevance. Thus, although a judge should not ignore the fact that parties had previously been operating
under a different regime, he did not have to make the same decision as would have been made previously.
Under the CPR, although it was more important than before those parties did not disregard time limits, the
court had alternative powers to striking out which could be exercised to make it clear those delays would not
be tolerated. In many situations, those alternative powers would be the appropriate ones to adopt because
they produced a more just result. Moreover, in considering whether a result was just, the courts were not
confined to considering the relative positions of the parties. Rather, they had to take into account the effect of
what had happened on the administration of justice generally, including the effect on the court's ability to hear
other cases if such defaults were allowed to occur and the need for the courts to show, by their conduct, that
they would not tolerate non-compliance with time limits by parties. Furthermore, judges had to be trusted to
exercise their wide discretions under the CPR fairly and justly in all the circumstances, while recognising their
responsibilities to litigants in general not to allow the same defaults to occur as had occurred in the past.
When judges sought to do that, the Court of Appeal should not interfere unless they could be shown to have
exercised their powers in some way which contravened the relevant principles. In the instant case, the judge's
approach could not be criticised, and accordingly the appeal would be dismissed
● The court’s powers under the new CPR to deal with non-compliance with time limits were wide enough to
allow the court to allow re-instatement of an action previously struck out. The court could find alternative
ways of dealing with any delay which could recompense the other party and seek to achieve justice as
between the parties. The new Civil Procedure Rules had ushered in a new regime. Decisions as to the pre-CPR
regime are no longer binding, though they may be helpful used with caution. Lord Woolf pointed out the array
of sanctions made available under the CPR which might enable a court to do justice to the parties, after delay
had occurred, without resorting to the draconian measure of a strike out order. Lord Woolf MR said: ‘it is also
essential that parties do not disregard timetables laid down. If they do, then the court must make sure that the
default does not go unmarked. If the court were to ignore delays which occur, then undoubtedly there will be a
return to the previous culture of regarding time limits as unimportant.’

IN RE COLES AND RAVENSHEAR

● PRINCIPLE: Order 37 Rule 2 and Order 81

If justice requires that the severity of a rule should be relaxed, then it is of extreme importance that the court
should relax it. Lord Esher MR said: ‘a Court cannot conduct its business without a code of procedure, I think that
the relation of rules of practice to the work of justice is intended to be that of handmaid rather than mistress, and
the Court ought not to be so far bound and tied by rules, which are after all only intended as general rules of
procedure, as to be compelled to do what will cause injustice in the particular case.’

REPUBLIC V HIGH COURT, KOFORIDUA, EX PARTE EASTERN REGIONAL DEVELOPMENT CORPORATION

Per Sophia Akuffo JSC, In its complementary character, civil procedure functions as a vehicle for the actualization of
substantive law and this role has been likened to that of ‘a handmaid rather than a mistress’ which must not be
applied in such a hard and fast manner as to cause injustice in any particular case… In its protective character,
rules of procedure promote order, regularity, predictability and transparency which are essential for the assurance
of due process in the delivery of justice and judicial effectiveness. It is these basic characteristics of civil procedure
rules that facilitate the realization of the overall objective of the judiciary, which is to assure access to justice for all.
Consequently, in the application of any procedural rule (or set of rules) it is often necessary for the court to take
into account the function of that particular rule, and the objective it is intended to serve.

REPULBIC V HIGH COURT, KOFORIDUA, EX PARTE ANSAH OTU

● AREA: Non Compliance

● FACTS: The applicants applied for an order of certiorari to quash a ruling. The ground for the application was
that: “There was an error of law apparent on the face of the record. There has been a contract of hire or
purchase between the interested party and the applicant. This was in respect of a piece of land for farming.
However, the first applicant defaulted with respect to this contract and offered to reimburse him. Later the
interested party sued the applicants for specific performance of the contract and prayed for an order of
interlocutory injunction. This was granted. It was the case of the applicants that there was an error of law
apparent on the face of the exhibit for it was not warranted by the rules of court. The ground of the
application in a nutshell was that the rule of court which governed the order of interlocutory injunction gave
the court the discretion not only to grant the order sought but also to attach conditions to it. Where the
application was opposed, then the rule had the effect of fettering the discretion of the court as provided in
rule 1(1) of Order 25 of CI 47. By imposing a precondition for the exercise rule 9(1) and (2) of the same Order
25 of CI 47. The plaintiff’s aver that the court, before making the grant, should have ordered the interested
party to give an undertaking to the applicants to pay damages if it turned out that the interested party was not
entitled to the granting of the order sought. The failure by the court to comply with the mandatory terms in
Order 25, r 9(1) and (2) constituted an error apparent on the face of the record, entitling the applicants to have
the offending ruling to be brought up to this court for same to be quashed
● HOLDING: The High Court (Civil Procedure) Rules, 2004 (C I 47) must be studied for the effect of
non-compliance with the rules of court. It is provided by rules 1(2) and (2) of Order 81 of CI 47. And as further
stated by rule 2(2) of Order 81 of CI 47, the party affected by the non-compliance with the rules of court, may
apply to the trial court to set aside the proceedings for irregularity, provided an application was made
 timeously and without taking any fresh step in the matter after knowledge of the irregularity. Indeed, the
provisions in Order 81 of the High Court (Civil Procedure) Rules, 2004 (CI 47), are not new in our rules of court
procedure for they had existed as Order 70 under LN 140A. Both rules provide in clear terms that
non-compliance with the rules do not render the proceedings null and void but is a mere irregularity, a
voidable but not a void act which may be set aside on terms. The error complained of was non-compliance
with the mandatory rules of court in not ensuring that the party who succeeded in obtaining the order in his
favour in the teeth of opposition by the losing side, was made to give an undertaking to pay damages in the
event of losing the suit. I would maintain that the trial judge erred in not complying with the mandatory terms
of rule 9(1) and (2) of Order 25 of CI 47, which error of law was also apparent on the face of the record.
Beyond that, the error did not go to the jurisdiction of the court in the sense that it did not emanate from a
wrongful assumption of jurisdiction or in violation of a constitutional provision; nor was it a nullity by any
standard. It was a mere irregularity curable under Order 81

REPUBLIC V HIGH COURT, ACCRA; EX PARTE ALLGATE CO. LTD (AMALGAMATED BANK, INTERESTED
PARTY)

● AREA: Non Compliance

● FACTS: A bank, the second respondent, brought action against the applicant in this case and two others to
recover a debt owed it. After the defendants had been served with the writ and they had entered appearance,
the bank filed a motion for summary judgment against them. The motion was fixed for hearing on 18th
December, 2007 and the applicant was served with it on Wednesday 12th December, 2007. On 18th
December, 2007, the bank moved its motion, in the absence of the applicant. The trial High Court, the first
respondent in this case, granted the application and granted judgment in favour of the applicant bank 10 days
after. The applicant’s complaint is that the bank did not comply with the mandatory rule of procedure that
there should be four clear days between the date of service of the motion for summary judgment and the
return date. The plaintiff bank filed a motion on notice for summary judgment against the defendant on 6
December 2007. The defendant was served with the motion on Wednesday 12 December 2007. The plaintiff
moved the application for summary judgment on 18 December 2007 and same was granted. The contention of
the defendant was that under the relevant rules on summary judgment, there should be four (4) clear days
interval between the date the motion was served on it and the date the motion was moved. As a result,
because the motion was served on the defendant on Wednesday December 12, the four clear days (excluding
Saturday and Sunday) was on December 18 so the motion for summary judgment should have been moved
from 19 December 2007. On these facts, there had been short-service.
● HOLDING: The critical issue in this case, then, is whether the non-compliance complained of on the facts of the
case goes to jurisdiction or is a mere irregularity. The short service is to be regarded as an irregularity which
does not cause an automatic nullity.
 ● REASONS: There is authority in this jurisdiction for the proposition that where proceedings are taken by a
plaintiff in the absence of the defendant, there should be strict compliance with the rules of procedure. It has
been held that if there is non-compliance with a mandatory rule in the default procedure, such
non-compliance cannot be waived. A judgment taken after such non-compliance is void. The enactment of a
successor to the old Order 70 has raised the issue whether this received learning remains as true today as
before. The new provision, Order 81(1) of CI 47. In the Statement of Case filed by the Second Respondent
bank, it failed to address the effect of this rule directly. However, it impliedly argued that its non-compliance
with the rule on service should make the summary judgment it had obtained voidable, and not void. This
argument of the Second Respondent raises the issue of how to distinguish between a non-compliance which
can be saved by the invocation of Order 81 and a non-compliance which cannot. Clearly, the language of Order
81(1) is intended to prevent non-compliance with the rules of procedure resulting automatically in the
invalidity of proceedings. The rule gives the court the discretion to waive the non-compliance or to set aside
the proceedings which follow from the non-compliance. In spite of the absolute nature of the statement in
Order 81(1) that the non-compliance shall not nullify the non-compliant proceedings, is there still, even after
the commencement of the new rules, some non-compliance that will result in the nullity of the proceedings?
Acquah JSC (as he then was) gave an answer to the question posed above, although he was considering the
Supreme Court Rules, rather than the new High Court rules. In Frimpong v Nyarko, he said, in relation to
non-compliance with a rule of civil procedure that: “Again where the error is fundamental or goes to the
jurisdiction of the court, thereby exposing the court’s incompetence or lack of jurisdiction in the matter in
which the said error was committed, the court is incompetent to correct or waive such an error, as a court of
law has no authority to grant itself jurisdiction in matters where the relevant statute does not confer such
power. A concept of Order 81 as an omnibus provision that cures deficiencies in jurisdiction is impossible to
accept and is unlikely to have been the intent of the Rules of Court Committee.
What are probably intended to be covered by Order 81 are irregularities; short of situations of want of jurisdiction or
infringements of statutes other the High Court Rules. Such irregularities are not to nullify automatically the
proceedings that follow them. In this connection, it should be pointed out that the word “not” in the clause
“the failure shall not be treated as an irregularity” in Order 81(1) is probably an error in drafting or a
typographical mistake. For the reasons eloquently articulated by Taylor JSC in Amoakoh v Hansen, non-service
of process whose service is required, in my view, goes to jurisdiction. Non-service implies that audi alterem
partem, the rule of natural justice, is breached. This is fundamental and goes to jurisdiction. Thus, the reason
why, even after the coming into effect of Order 81 of our Rules, non-service results in nullity is not because of
non-compliance with a rule of procedure, but rather because it is an infringement of a fundamental principle
of natural justice, as recognized by the common law. Similarly, breach of the principle of nemo iudex causae
suae would result in nullity. In contrast, short-service need not be treated as fundamental enough to go to
jurisdiction. It appears to me to be the kind of omission or mistake in practice. It should thus be regarded as
 an irregularity that may serve as a ground for setting aside the proceedings following it, but it does not make
those proceedings null and void.
To summarise then, where there has been non-compliance with any of the rules contained in CI 47, such
non-compliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is
also a breach of the Constitution or of a statute other than the Rules of Court or the rules of natural justice or
otherwise goes to jurisdiction.

STANDARD BANK OFFSHORE TRUST COMPANY LIMITED V NIB

● AREA: Non Compliance

● FACTS: This case involved the issuance of promissory notes which had been guaranteed by the defendant bank.
The plaintiff sued in its capacity as the holder in due course of the promissory notes. The defendant entered
conditional appearance and applied to have the writ dismissed on this relevant ground that the existence of
the plaintiff as a foreign entity was not disclosed and so too was its address not provided in the endorsement.
The appellant thus raised in the statement of case, what appears to be a technical but profound legal objection
to the entire proceedings on ground of non-compliance with the provisions of Order 2 Rule 4(2) of CI 47. The
appellants thus argued that the writ also failed to disclose the fact that the plaintiff was suing on behalf of
person’s resident outside the jurisdiction. Therefore on the strength of the authority of the NAOS Holding
case, the court should dismiss the writ and with it all the proceedings emanating therefrom.
● HOLDING: It must be emphasized that the capacity to sue must be present before the writ is issued; such
authority must appear in the endorsement and/or statement of claim accompanying the writ; it cannot be
acquired whilst the case is pending; and an amendment cannot be sought to introduce it for the first time. A
writ that does not meet the requirement of capacity is null and void. Nullity may be raised at any time in the
course of the proceedings, even on a second or third appeal. It is to be stressed that the provisions of Order 2
rule 4(2) of C.I. 47 are obligatory, and it is not one of those provisions which the court is permitted by Order 81
to waive for non-compliance. As decided in the NAOS Holding case, non-compliance with this provision renders
the writ void. That which is void or a nullity cannot be waived by the court under Order 81 of C. I. 47. That rule
is there to ensure that foreigners, human as well as corporate, are in existence in fact and have an address at
which they may be reached by the defendant and by the court, if need be. This ensures that the identity of the
real plaintiff is known by the defendant and the court lest an impostor should secure judgment only for the
real claimant to surface later and saddle the defendant with another suit. It also ensures that a judgment or
order obtained against a foreigner could be executed against him in his country of residence, through the
address supplied on the writ, if need be. Lack of authority to sue amounts to contempt of court by virtue of
Order 1 r. 4 of C.I. 47, therefore this provision affords the only avenue whereby the defendant may cross check
with the real claimant whether or not he has authorized the plaintiff to sue, and if not to bring a charge of
contempt against the plaintiff. These are clear legal as well as policy considerations that justify the construction
 placed on this rule by this court in the NAOS Holding case. The writ cannot be amended after it has been
issued to comply with the requirements as that will be contrary to the express terms of the rule. In the NAOS
case the argument that the plaintiff's address had been disclosed in the power of attorney did not find favour
with the Court. The authority of NAOS Holding is clear that if the writ is issued without satisfying the
requirements imposed by the rule, it is void. The court cannot grant an amendment to cure that which is void.
If the writ is void it gives the defendant a right to have it set aside wholly in accordance with Order 81 rule 2(a).
It may be likened to allowing a plaintiff to amend his case which has the effect of defeating a defence which
has, since the issuance of the writ, inured to the benefit of the defendant, the court will not allow it. More
importantly, since the writ is void it cannot be amended.
This situation is clearly distinguishable from that in OBENG v. ASSEMBLIES OF GOD. In that case, the plaintiff had sued
in its corporate name which was correct but had added the words “Executive Presbytery”. The court only
deleted the additional words by the amendment. It is instructive to note that the amendment was not what
conferred capacity on the plaintiff. In the AKRONG v. BULLEY case, the Supreme Court was minded to allow
the case to stand if they had found something on the writ and statement of claim to show that the plaintiff had
also sued in her capacity as a dependent, meaning they would not have dismissed the writ if another legal
capacity had been disclosed, besides the one which was found to be illegal. In other words, the addition of
improper title to a proper one will be cured by amendment as in the OBENG v. ASSEMBLIES OF GOD case, as
the writ has already disclosed a valid capacity in law. But where the amendment is to enable the plaintiff to
acquire capacity for the first time, it cannot be granted.
Before winding down, it must be noted that in all the cases cited whereby this court had declared non-compliance with
a rule of practice to be fatal to the proceedings, it has been based on mandatory provisions of the rules. In
conclusion we re-state the position of the law that failure to comply with prerequisites to the issuance of a writ
under Order 2 rule 4(2) renders the writ void and it can neither be saved by an amendment, nor can it be
waived by the court. Where the writ of summons issued by a foreign based firm claims to be suing on behalf of
certain investors, it is not an acceptable disclosure of the identity of the “certain investors”, thus it becomes an
essential ingredient or prerequisite for the plaintiff to disclose who the persons are on whose behalf it is suing.
And if they happen to be foreigners this fact must be disclosed as well as their address and both must appear
on the face of the writ of summons as endorsement, else the writ would be void. In this case since (i) the fact
that Sphynx and Tricon are foreign based companies and (ii) their foreign address were not disclosed on the
endorsement of the writ, the prerequisites for the issuance of a writ of summons under Order 2 r 4(2) of C. I.
47 had not been met and this non-compliance rendered the writ void. And it is repeated for emphasis that
being void, the writ could neither be perfected by a waiver under Order 81 nor by an amendment. And as long
as the matter is still pending before court in proceedings which are valid according to law and rules of practice,
the nullity could be raised at any stage of the proceedings.

CHRAJ V EP CHURCH
● FACTS: After investigating a petition made to it by some former employees of the respondent-church, the
applicant-commission ordered the respondent to pay the complainants additional severance award. The
respondent, however, failed to comply with the order. The applicant therefore brought an application by an
originating motion on notice before the HC to enforce the award against the respondent. The respondent
however raised a preliminary objection to the application on grounds that under Article 218 (d) (iii) of the 1992
Constitution and Section 18(1) (ii) of the CHRAJ Act, it was the complainants and not the applicant who
acquired rights under the award and therefore the applicant had no cause of action against them. Also, since
the applicant was not seeking a prerogative writ under Order 59 of LN 140A, his application by originating
motion on notice was not maintainable. The court observed that in previous actions before the courts to
enforce awards, the applicant had commenced proceedings either by a writ of summons or originating motion
on notice.
● HOLDING: Neither Act 456 nor CI 7 provided for the procedure by which the commissioner might bring an
action in court under sections 9 and 18(2) of Act 456 and regulation 11 of CI 7. And the LN 140A did not also
provide for any special procedure. However, where more than one originating process was open to a party to
seek redress as in the instant case, he might choose one of them to suit his purpose and would be estopped
from having recourse to the other after judgment had been pronounced in the earlier action. In the
circumstances, the commissioner had discretion as to how he might initiate proceedings to compel compliance
with his recommendations. Accordingly, the commissioner properly commenced his action by originating
motion on notice.

REPUBLIC V HIGH COURT, ACCRA, EX PARTE YALLEY

● PRINCIPLE: Venue of Action; Order 2 Rules 1 & 2, Sections 104 to 106 of Act 459
● FACTS: The SC was invited to intervene by issuing an order of certiorari to quash an order of the High Court.
The grounds for application are that the High Court acted without or in excess of jurisdiction by hearing the
said suit which has been transferred from another High Court without the seal and authorisation of His
Lordship the Chief Justice, there was a patent error on the face of the record when the said High Court
assumed it had jurisdiction and ordered a bench warrant for the arrest of the applicant, that the orders of the
High Court, Accra were made without jurisdiction and as such are null and void.
● ISSUE: whether the judge who purported to hear the contempt application and issued the order of arrest and
re-arrest, had power to do so without the express authorisation of the Chief Justice acting under S. 104 of the
Act 459 as amended?
● Given that this application calls for an interpretation of the statutory provision under reference, the subsidiary
crucial question is this: should the word "case" as appears in the provision lend itself to a dictionary, strict and
narrow interpretation so that it applies to purely substantive actions proper, begun by either a writ or some
other legal mode of initiating substantive actions properly so called? Or, do we give it a liberal, or broad
 purposive oriented construction so that all proceedings, without exception, whether simple ordinary
applications or motions or otherwise, are subject to the rule? The question is whether or not a motion deriving
from a substantive action and which is pending before one judge may be transferred by a registrar to another
judge without the express authorisation of the Chief Justice as provided for under S. 104 of the Act 459 as
amended. As already noted, the answer lies in the interpretation we give to the above legislation.
● HOLDING: It is provided under section 104(1)-(3) of the Courts Act, 1993 (Act 459) as amended by the Courts
(Amendment) Act, 2002 (Act 620), s 7 and sched. In my opinion, read as a whole, which is the proper approach
to interpreting statutes, this statutory provision applies to all matters pending in the courts, whether motions
or applications, whether standing on their own or arising or flowing from a substantive action. I would
interpret the word "case" broadly to include committal proceedings, which in reality are serious substantive
quasi-criminal matters carrying custodial punishment. The subsection (2) buttresses the point that the
legislation is not intended to be limited to substantive actions only. The subsection makes reference to general
or special transfers and mandates the transferor to state the nature and extent of the transfer. This
presupposes that a transfer need not necessarily cover an entire substantive case, but parts or segments of it
dealing with particular matters. I explain further. As we know too well, a case may be made up of not only the
substantive action, i.e. writ, together with the pleadings, but also interlocutory applications such as motion for
bail, stay of proceedings or execution, injunction, appointment of a manager receiver, or for the recall of a
witness; indeed all the other well-known interim applications associated generally with criminal or civil trials.
All of these interlocutory applications also, provided they emanate from the main substantive action, can
Judgments of the Superior Courts properly be described as forming part of or constituting the case. A pending
substantive action may contain a number of motions or applications; the Chief Justice has authority to transfer
to another judge or court, the entire case together with all the motions, or only one or more of the motions. In
my opinion then, a motion or an application is a case within the meaning and intendment of S. 104 of Act 459.
A motion does not fall outside the ambit of this law on the sole ground that it did not commence by way of a
writ. The position of contempt applications is even plainer, it being a substantive matter standing on its own as
a separate cause or matter. A contempt application is therefore a case within the meaning of the above
legislation. None of these, when pending, may be transferred from one court to the other, or from one judge
to another, without the express authorisation of the Chief Justice and in the manner described under the Act.
Thus, once any matter as explained above has been placed before a judge, in the absence of an order of
transfer from the Chief Justice or the Supervising High Court Judge under S.104 of Act 459 as the case may be,
it is only that judge who has exclusive jurisdiction to deal with the matter or any part thereof. It follows rather
emphatically that no registrar, and this extends to Magistrates and Judges, has power to remove matters
pending before a judge or court to another judge or court without the express authorisation of the Chief
Justice or the Supervising High Court Judge or Chairman of the Regional Tribunal as the case may be and, in the
 manner subscribed under the law. Any such purported transfer by a registrar is unlawful and a complete
nullity.

VOLDEN & OTHERS V GHANA GOLDFIELDS

● PRINCIPLE: Venue
● FACTS: There were two HCs in the Western Region – at Sekondi and Tarkwa. The defendant was a mining
company resident at Tarkwa. The plaintiff’s, former employees of the defendant, claiming to have
contracted diseases in the course of their employment brought an action against the defendant at the HC,
Sekondi for inter alia payments of 12 month’s salary each for the sickness. The defendant then applied to
the court to transfer the suit to the HC, Tarkwa for hearing on the ground that all the parties and their
witnesses as well as counsel for the defendant resided at Tarkwa.
● HOLDING: The rationale for the creation of multiple High Courts within one region was to let the parties
litigate in the High Court nearest to them and thereby save them time, energy and expenses. Accordingly,
although no provision in the High Court (Civil Procedure) (Amendment) Rules governed the situation
where there are more than one HC in a region with jurisdiction to hear a matter, and a defendant against
whom an action had been brought in one High Court applied to that court to transfer the suit to the other,
it was within the discretion of that High Court to determine the application. The test to be applied in each
case was whether the defendant would suffer injustice if the action was heard in the court where he did
not reside or carry on business. On the facts, it would be more expeditious, proper and convenient to have
the suit heard at the High Court, Tarkwa since on the balance of hardship more hardship would be caused
to the defendant than the plaintiffs, if the suit was heard in the High Court, Sekondi. Accordingly, a report
would be made to the Chief Justice to exercise his power of transfer accordingly.

AGBESI V GHANA PORTS AND HARBOURS AUTHORITY

● AREA: Requirements of Writ (Title). Order 2 Rule 1

● FACTS: The writ of summons of the plaintiffs showed the names of five persons and ‘others’ were typed out as
those who sued as plaintiffs. The names, identities and the exact number of persons constituting the ‘others’
were not disclosed on the writ, the statement of claim or the pleadings by the appellants. The plaintiffs filed an
‘addendum to writ’ stating that “a full and comprehensive detailed list of all the plaintiffs will be supplied to
the Court subsequently.” The plaintiffs filed a list of persons numbering about 3839 (a very impressive number
in itself), attached to a piece of paper (of no description). There was no indication whatsoever as to how the
list came to be filed; that was, as following an order of the court upon an application by the plaintiffs. The filing
was however done after the statement of defence and reply had been filed. 356 persons also applied to the HC
to join as plaintiffs and their application was granted with a directive that the title of the suit should include
the names of the applicants as plaintiffs and each applicant was to be served with copies of the processes filed
 thus far. They however did not take any steps to implement the order by the court to join them as parties. The
HC granted the plaintiffs their reliefs but on appeal, the CA, by majority decision, held that the ‘others’ were
not properly joined hence the reliefs only applied to the first plaintiff who led evidence of his employment and
terms of his contract.
● ISSUE: were the 4194 plaintiffs properly before the court according to the rules of court governing civil
procedure in the High Court?
● HOLDING: the title of a writ of summons must have the name/s of all plaintiff(s) or as many as it can contain
on its face, or on a piece of paper attached to the writ (if the writ cannot contain all the names). It was after
this that the heading of subsequent processes can be headed the plaintiffs “and others”. It was of a vital
importance the identity and number of the parties in any suit was known at any given stage of the
proceedings. The real necessity to do so was for the plaintiffs or defendant to know who their adversaries were
so that they could raise issues of estoppel and mount real defenses, etc, against each other should it become
necessary so to do, at any stage of the proceedings or in the future, or for the plaintiffs’ claim/s or defendant’s
liabilities fought on the merits. It would also make service of court processes easier, for the parties would know
who to serve with any process. In this case the question is how were the “others” in the writ served with any
of the processes filed by the defendant? Where it becomes necessary to supplement the list of plaintiffs, this
should be with the leave of court for in this case the full list was provided after the statement of defence and
reply had been filed. In fact summons for directions had been filed and under the rules of court pleadings had
closed. At that stage a party could only amend with the leave of court. Apparently, no leave had been applied
for or granted for the filing of the full list of 3839 persons as plaintiffs. The majority opinion on the point was
more correct than that of the minority.
An amendment of a writ as to parties must correspond to the names and number of the parties – Konadu v Ntoah
affirmed.

GHANA MUSLIMS REPRESENTATIVE COUNSEL V SALIFA

● AREA: Capacity
● FACTS: The plaintiffs instituted an action against the defendants for (a) a declaration that they were the rightful
officers of the G.M.R.C. and the only persons entitled to use the name “G.M.R.C.”; (b) permanent injunction to
restrain the defendants from describing themselves as representatives of the G.M.R.C. or engaging in any
financial transaction on behalf of the association and (c) an order for the refund of all moneys collected by the
first defendant purporting to act on behalf of the association. Though the plaintiffs were suing in their own
names and in a representative capacity to enforce the rights of members of the association they failed to
endorse such capacity in their writ and statement of claim. Shortly after filing their statement of claim the
second plaintiffs brought an application for an order of interim injunction to restrain the defendants from
 acting as representatives of the G.M.R.C. The defendants did not file a defence but instead filed affidavits
resisting the application on the grounds that:
a. as the first plaintiff was not incorporated under the Trustees (Incorporation) Act, 1962 (Act 106), it had no
capacity to sue;
b. the plaintiffs’ writ and pleadings did not disclose a reasonable cause of action and
c. as the second plaintiffs failed to endorse their representative capacity in their writ and statement of claim,
the pleadings offended the provisions of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 3,
r. 4.
After hearing arguments by counsel for the parties the trial judge dismissed the application on the grounds as the
G.M.R.C. was not so incorporated it could sue only by its trustees and consequently the second plaintiffs who
claimed to represent the G.M.R.C. could not be in a better position.
● HOLDING
a. In law a voluntary association was a sum of individuals without any collective capacity to sue or be sued as
such. But all the members might join to sue as plaintiffs provided they had the same or some common
interest in the cause or matter; for the law was that a body of persons having a common interest in a
subject-matter might, when that interest was threatened or had been violated, be represented by one or
more on behalf of the whole group. Likewise, trustees or members of an unincorporated association might
sue or be sued where there was property vested in them without joining any of the beneficiaries whom
the trustees or members represented. These forms of action were known as representative actions and
were permissible under Order 16, r. 1, 8 or 9. In this case the second plaintiffs had shown that they all had
a common interest in the subject-matter of the suit and they had indicated with sufficient clarity that they
were seeking to enforce the rights of the members of the G.M.R.C. in a representative action. They were
entitled in a proper form of proceedings to vindicate or assert their rights on behalf of the G.M.R.C.
whether or not the latter was incorporated. There was no need therefore for the G.M.R.C. to sue through
its trustees.
b. In a representative action it was necessary, both in the writ and in all subsequent pleadings, to state
clearly that the parties were suing or were being sued in their representative capacity, on behalf of the
members of a defined class. The representative capacity should also be stated in the title of both the writ
and the statement of claim and not merely in the endorsement of the writ on the body of the pleading.
However, where it appeared in the trial in a representative action that the plaintiff had failed to state the
representative capacity of the parties, as in the instant case, the court would give leave even at this late
stage to amend either the writ or subsequent pleadings by adding a statement that the plaintiff was suing
on behalf of himself and all others of the defined class and the capacity in which the plaintiffs sued and
the defendants were sued.
c. It was a matter within the judicial discretion of a judge whether or not to strike out pleadings or stay
proceedings on the ground that the pleadings disclosed no reasonable cause of action or defence or that
 the action had no reasonable chance of success. The jurisdiction of the court must, however, be exercised
with extreme caution. A pleading would only be struck out where it was apparent that even if the facts
were proved the plaintiff was not entitled to the relief he sought. In any case affidavit evidence was
inadmissible on an application to strike out pleadings on the ground that the action had no reasonable
chance of success.

AFUA NKUAH V YAA KONADU

● Area: Capacity – Order 2 Rule 4

● The judgment of the CA was seriously attacked under a ground which stated that the CA erred in holding that
the plaintiff did not have the requisite capacity to sue at the court below in view of the fact that the court did
not have any factual evidence to support its holding, particularly as the issue of capacity raised at the court
below and the Court of Appeal related to the plaintiff’s lack of vesting assent and not as to her lack of capacity
as the head of family.
● Per Anin Yeboah JSC, in civil actions, usually commenced by writ of summons, if a party to the suit initiated an
action in a representative capacity, such capacity ought to be fully endorsed on the writ and appear in
subsequent processes filed. The action which has culminated in this appeal was commenced when LN 140A
was in force. Order 3 Rule 4 of the operative rule states as follows: If the plaintiff sues or the defendant or any
of the defendants is sued in a representative capacity, the endorsement shall show in the manner appearing by
such of the forms in appendix A, part II, as shall be applicable to the case or by any other statement to the like
effect in which capacity the plaintiff or defendant sues or is sued”
In this appeal before us it is obvious from the proceedings, specifically the writ of summons that the appellant as
plaintiff did not sue in any representative capacity whatsoever. Her case was simple. Both in her evidence and
statement of claim it was her case that the house formed part of the estate of one Yaw Mensah, and that after
his death one Kwame Adum Atta obtained letters of administration and administered the estate. It was her
case that as Yaw Mensah had another landed property, his estate was distributed and one at Amakom of which
the room in dispute forms a part was given to her by the family. She was obviously not suing as the head of her
family. Both the pleadings and the evidence did not disclose so. It was therefore not proper for the defendant
and co-defendant to plead that she had not capacity to institute the suit. In my respectful view, the learned
judges of the Court of Appeal did not consider the procedural requirement of suing in a representative
capacity as laid down in the applicable rules of court as it then stood at the time the writ was issued. Order 3
Rule 4 of LN 140 A of 1954 has been subsequently repeated in Order 2 Rule 4 of CI 47 and nothing turns on the
difference. In my opinion the Court of Appeal erred in raising the issue of capacity against the appellant in the
manner it did.

EX PARTE ARYEETEY
● AREA: Capacity and conditional appearance
● FACTS: The land in dispute was owned by the father of the respondent. Sometime the applicant obtained a
fifteen years’ lease of the land from the owner for use as a mechanical workshop. By the time the lease
expired the lessor had died but the applicant asked for and was given a year’s extension by the respondent and
his family to enable him relocate his workshop. When the extension expired the applicant continued to stay on
the land without paying rent. Later, the respondent in his capacity as beneficiary and customary successor of
his deceased father sued the applicant for, recovery of possession of the land and arrears of rent. The applicant
submitted to judgment and he was given one year by the tribunal to give up vacant possession of the land. He
however defaulted and the respondent initiated proceedings to execute the judgment. The applicant then
brought an application for, stay of execution and an order setting aside the judgment on the ground of fraud. In
support of his application he contended that even though the respondent’s father had died testate and he was
one of the executors named in the will, he had failed to disclose that to the court and had held himself as the
customary successor of his father in both the title of the suit and the statement of claim. When the application
was dismissed by the trial tribunal, the applicant appealed from that decision to the High Court and also
repeated his application in that court for both the judgment and the ruling of the trial tribunal dismissing his
application to be set aside as void ab initio on the grounds of lack of capacity and locus standi of the
respondent. The High Court dismissed the application and ordered the applicant to vacate the land. His appeal
from that decision to the CA was dismissed. Subsequently, the applicant bought an action in the High Court to
set aside the judgment of the trial tribunal and all the subsequent proceedings consequential to that judgment
on the ground of fraud. The particulars of the fraud were the same as he had canvassed before the trial
tribunal, the High Court and the Court of Appeal in the earlier proceedings. The respondent entered
conditional appearance and then moved the court to strike out the applicant’s writ and the statement of claim
on the ground that they were “vexatious, abuse of process, scandalous and not disclosing any reasonable
cause of action.” The High Court allowed the respondent’s application and dismissed the applicant’s action on
the ground that the issue in the case had been amply dealt with by the trial tribunal, the High Court and the
Court of Appeal in the earlier proceedings and the allegation of fraud was unfounded; and therefore the
issuing of the writ was a serious abuse of the court’s process. The applicant appealed from that decision to the
Court of Appeal and then brought an application before the Supreme Court for an order of certiorari to quash
the decision of the High Court on the ground of lack of jurisdiction and error of law on the face of the record or
both. In support of his application, the applicant submitted that when a judgment was impeached for fraud, its
legitimacy was put in issue and it could not therefore operate as an estoppel per rem judicatam.
● HOLDING
a. Whether a person who sued in a representative capacity indeed had the capacity he claimed was a
question of fact and if challenged he had to prove same to avoid his suit being dismissed. However, if the
representative capacity he claimed was not challenged, the plaintiff would assume no such burden. On the
 evidence, at the trial before the tribunal, not only did the applicant not question the capacity of the
respondent but he submitted to judgment. By his submission to judgment, the applicant would be taken
to have admitted or accepted that the respondent had the capacity in which he had sued. Accordingly, the
applicant was estopped from subsequently denying the capacity of the respondent to sue.
b. A judgment could be impeached on grounds of fraud only by a fresh action where the necessary
particulars of fraud had to be distinctly stated in the pleadings and strictly proved because it was not
permissible to infer fraud from general situations or facts. Accordingly, in the instant case, the applicant
not only adopted the wrong procedure in filing the motion to set aside the judgment of the Community
Tribunal, but also failed in giving any distinct facts of the alleged fraud. Since the issue of whether the
respondent had deliberately misled the trial tribunal about his capacity had not been raised by the
applicant and also that fact was incapable of being sufficiently determined on affidavit evidence, the trial
tribunal, the High Court and the Court of Appeal were all justified in dismissing the motion of the
applicant.
c. A conditional appearance was to enable a defendant who intended to object to the issue or service of a
writ or notice of a writ on him, or the jurisdiction of the court, to apply to the court to set aside the writ or
notice of the writ or the service thereof on him. Such an application might encompass any irregularity or
defect in the issue or service of the writ, or notice of the writ. Thus, it was not permissible for a defendant
who had entered a conditional appearance to move the court to have the writ set aside because he had a
legal defence, even if unimpeachable, to the action. Accordingly, such an application was not available to
the respondent who after entering a conditional appearance to the applicant’s writ at the High Court
sought to rely on a plea of res judicata since that plea, to be successful, had to satisfy certain requirements
which could only be revealed through evidence. Moreover, the respondent had no right to apply to set the
applicant’s writ aside because he had a good defence to the action.
d. Although a defendant could not apply, after entry of conditional appearance to have the writ set aside on
grounds that the action was either frivolous, vexatious or an abuse of the process of the court, the court
had power under Order 25, Rule 4 of LN 140A to summarily stay proceedings before it on those grounds.
That power, however, was governed by certain principles, e.g. only the pleadings had to be looked at and
affidavit evidence was inadmissible. And the discretion of the court would be exercised under Order 25, r
4 of LN 140A only in plain and obvious cases, i.e. where it could be clearly seen, that a claim or answer
was, on the face of it, certainly unsustainable. Furthermore, the court had an inherent jurisdiction to stay
an action it considered as frivolous, vexatious or an abuse of its process. However, unlike its power under
Order 25, r 4 of LN 140A the court in the exercise of the power under its inherent jurisdiction could
consider all the facts, including affidavit evidence. Accordingly, although in the instant case the respondent
might not be entitled after entry of his conditional appearance to ask the court to strike the applicant’s
writ and statement of claim on the ground that his action was vexatious, scandalous and an abuse of the
process of the court, since the trial High Court justice found the applicant’s application “a serious abuse of
 the court”, she was justified in exercising the court’s inherent jurisdiction in summarily terminating the
proceedings.

GBOGBOLULU V HODO

● FACTS: A writ was issued in Kpandu Magistrate Court. Although the writ does not specifically so state, it was
abundantly clear from the proceeding in the Magistrate's Court that the action was brought by Chief
Gbogbolulu in a representative capacity and also that he was suing Chief Hodo in his representative capacity.
The Magistrate begins his careful and well-reasoned judgment with a statement making reference to their
divisional status. The Acting Deputy Commissioner of the Eastern Province, to whose Court the defendant
appealed, stated in his judgment that the proceedings make it perfectly clear that the plaintiff - respondent
Chief Gbogbolulu II is in fact suing on behalf of " his division'." Nevertheless the Acting Deputy Commissioner
held that, inasmuch as the respective representative capacities were not expressed in the writ, the decision of
the Magistrate in favour of the plaintiff could not be upheld and he allowed the defendant's appeal.
● HOLDING: We are of opinion that he was wrong to do so. It is the duty of Courts to aim at doing substantial
justice between the parties and not to let that aim be turned aside by technicalities especially when, as in this
case, the parties are unrepresented by counsel and unversed in the procedure of the Courts. As soon as any
question arose as to the capacities of the respective parties it was, in our view, the duty of the Court to make
any formal amendment in the claim which would make clear the capacity in which the plaintiff sued and the
defendant was sued and the real point of controversy between them, provided that that could be done
with­out any hardship to either party. This Court has full powers to take this course and since it appeared that
no hardship would accrue to either party by the heading of the suit being amended, even at this late stage, so
as to make clear the representative capacities of the parties, we ordered in the course of the hearing of the
appeal that the title of the suit be altered to read as now appears as the heading of this judgment.

LOKKO V LOKKO

● FACTS: The parties had a dispute over a piece of land. The defendant-respondent was resident in the US at the
time the plaintiff appellant issued the writ of summons against her. In spite of the fact that the respondent had
a foreign address, the appellant issued the writ without the leave of the court to serve the writ out of the
jurisdiction. The respondent, however, entered appearance without protest and filed a statement of defense.
Meanwhile one P declared that he was the respondent’s lawful attorney and at his own request was served all
papers connected with the case. The respondent having questioned the competence of the writ, the trial court
ruled that as the writ to be served outside the jurisdiction was issued without leave contrary to Order 2, Rule 4
of LN 140A, it lacked validity and accordingly declared it a nullity and set it aside. On appeal, the appellant
 contended, inter alia, that even if the issuing of the writ was irregular, the respondent was aware of the
irregularity when she entered appearance and went through with her statement of defence which amounted
to fresh steps being taken after knowledge of an irregularity. Therefore by Order 70, Rule 2 of LN 140A, the
application should not have been countenanced.
● HOLDING: A writ of summons intended for service out of the jurisdiction if issued without leave, would be a
violation of Order 2, Rule 4 of LN 140A. Such a fundamental error would result in the writ being declared null
and void and it could not be saved by Order 70, Rules 1 and 2. However, if the writ of summons was not
intended for service out of the jurisdiction, then Order 2, Rule 4 of L.N. 140A did not apply. If the defendant
had a foreign address, it was a strong indication that the writ of summons was intended for service out of the
jurisdiction. But a foreign address per se was not a conclusive indication that the writ would be served outside
the jurisdiction. Where there was evidence of solicitors and attorneys within the jurisdiction ready to accept
service of the writ and conduct litigation on behalf of the defendant, as in the instant case, in spite of the
foreign address, it was a clear indication that the writ was not the type intended for service out of the
jurisdiction. In such a situation, Order 2, Rule 4 did not apply as the defendant would be deemed to have
agreed to waive the necessity of leave; for his representatives would be presumed to have agreed to do all he
would have done as if he was within the jurisdiction.

TROW V IND. COOPE

● PRINCIPLE: Period for service of writs

● FACTS: The plaintiff claimed damages against the occupiers and the manager of public house premises for
personal injuries sustained on September 11, 1962, alleging negligence or breach of duty by them. The writs
were not issued until September 10, 1965, the time stamped on them at the district registry being 3.05 p.m.
They were served on the defendants on September 10, 1966, at 11.59 a.m. and 12.49 respectively. The
defendants entered conditional appearances and applied to the district registrar for an order to set aside the
service of the writs and all subsequent proceedings on the ground that they were not served within the period
of “12 months beginning with the date of” their issue within the meaning of the Rules as revised, which came
into force on October 1, 1964. The registrar dismissed the applications, but on appeal, it was held that the
service was out of time and that the note on the form namely: “This writ may not be served more than 12
calendar months after the above date [the date on the face of the writ] unless renewed by order of the court,”
was wrong.
● HOLDING: No support for the validity of the writs could be derived from the fact that they were served at an
earlier time of the day on September 10, 1966, than the time of day on which they were issued on September
10, 1965, for despite its dictionary definition the word “date” as used in the Order meant the whole period of
24 hours and not any particular time of the day. The law did not take account of fractions of the day unless
some special reason required it and, in any event, the relevant Rules of Court used “date” and “time” to
 denote different things. Also, the writs were served out of time, for on the ordinary meaning of the words of
the Order, the period of 12 months “beginning with the date of its issue” included the date of issue of the writ,
so that a writ issued on September 10, 1965, expired on September 9, 1966. That construction accorded with
the clear, if inelegant form of the rule in force from 1875 to 1962 and the framer of the revised rule could not
have intended and did not effect a change of the law by altering the language of the rule.

NKUAH V KONADU BOATENG

Anin Yeboah JSC

In civil actions, usually commenced by writ of summons, if a party to the suit initiated an action in a representative
capacity, such capacity ought to be fully endorsed on the writ and appear in subsequent processes filed. The action
which has culminated in this appeal was commenced when LN 140A was in force. Order 3 Rule 4 of the operative
rule states as follows: “If the plaintiff sues or the defendant or any of the defendants is sued in a representative
capacity, the endorsement shall show in the manner appearing by such of the forms in appendix A, part II, as shall
be applicable to the case or by any other statement to the like effect in which capacity the plaintiff or defendant
sues or is sued”

In this appeal before us it is obvious from the proceedings, specifically the writ of summons that the appellant as
plaintiff did not sue in any representative capacity whatsoever. Her case was simple. Both in her evidence and
statement of claim it was her case that the house formed part of the estate of one Yaw Mensah, and that after his
death one Kwame Adum Atta obtained letters of administration and administered the estate. It was her case that
as Yaw Mensah had another landed property his estate was distributed and the House at Old Amakom of which the
room in dispute form a part was given to her by the family. She was obviously not suing as the head of her family.
Both the pleadings and the evidence did not disclose so. It was therefore not proper for the defendant and
co-defendant to plead that she had not capacity to institute the suit. In my respectful view, the learned judges of
the Court of Appeal did not consider the procedural requirement of suing in a representative capacity as laid down
in the applicable rules of court as it then stood at the time the writ was issued. Order 3 Rule 4 of LN 140 A has
been subsequently repeated in Order 2 Rule 4 of the new High Court (Civil Procedure) Rules, 2004 CI 47 and
nothing turns on the difference. In my opinion the Court of Appeal erred in raising the issue of capacity against the
appellant in the manner it did.

FRIESLAND FRISCO DEMO V DACHEL COMPANY

● AREA: Service of Writ outside and Non-Compliance

● FACTS: The plaintiff was an agent of a Foreign based company. The defendant company, also foreign based
took over and retained the plaintiff’s as their agents in Ghana. Both parties agreed to varied terms of the
original contract and based on these varied terms, the defendant sought to terminate the agency and offered
 to compensate the plaintiff. The Plaintiff refused as they averred that they had seen to the progress and
success of the business and hence demanded more than the current compensation. After attempts at
settlement have failed, the plaintiff filed a writ of summons and statement of claim at the Accra High Court.
The writ bore the Defendant’s foreign address to wit: Leeuwarden Holland. The Plaintiff further filed a notice
of writ of summons to be served out of the jurisdiction under Order 11 rules 6 and 8. This notice was directed
to the Defendant’s address in Holland. There is no record that leave was granted to serve the notice of the
writ. The defendant entered appearance by the same counsel in this case on 26/5/94 and filed a statement of
defence and counterclaim. Judgment was given in favour of the plaintiff and was awarded damages. The
defendant appealed. One of the grounds of appeal was that the learned Justices of Appeal wrongly held that
the Solicitors and Counsel of the Defendant were served within the jurisdiction thereby making it unnecessary
for the Plaintiff to comply with the rule that required it to obtain leave not only to issue but also to serve the
Defendant out of the jurisdiction. At the SC, the Defendant submitted that the Plaintiff did not comply with the
rule of procedure that an intended plaintiff must first obtain leave of the court before issuing a writ out of the
jurisdiction. Similarly the intended plaintiff must seek leave to serve notice of the writ out of jurisdiction as
required by Oder 11.rr.6 and 7. He complained that the plaintiff filed a notice of a writ of summons to be
served outside the jurisdiction of the court; he never obtained the mandatory leave as required by LN140A. He
argued that the jurisdiction of the High Court was therefore not properly invoked and as a result the writ of
summons and the whole proceedings based on it are null and void. The defendants further submitted that the
Learned Justices of Appeal based their evaluation of the validity of the trial entirely on Order 70 of the High
Court (Civil Procedure) Rules, 1954 LN 140A without drawing a distinction between fundamental error and
irregularity.
● We note that Order 81 of CI 47 and the extinct Order 70 of LN140A both provide in clear terms that
non-compliance with the rules of procedure shall not render any proceedings void but be regarded as a mere
irregularity which might be allowed, amended or set aside on terms at the discretion of the court upon an
application brought within a reasonable time and the person applying has not taken a fresh step after
becoming aware of the irregularity - Republic v. High Court, Accra, ex parte Allgate Co. Ltd. (Amalgated Bank)
Interested Party . This Court has since then taken a radical attitude to arguments claiming nullity in respect of
procedural lapses. In Boakye v. Tutuyehene and Ankumah v City Investment Co. Ltd. failure to take summons
for direction under Order 30 r.1 was held to be mere irregularity and not vitiating the proceedings. In The
Republic v. High Court, Koforidua, Ex parte Ansah-Otu, the High Court in breach of Order 25 r. 9(1) and (2)
failed to order the successful party to give an undertaking to damages in a contested application for interim
injunction before granting the application. In an application for the order of certiorari to quash the decision of
the High Court, this Court held that even though the trial judge erred by not complying with the mandatory
rule of procedure as specified under Order 25 r 9(1) and (2) of C.I 47, before making the order, the
non-compliance was a mere irregularity that was curable under Order 81.
In summary, non-compliance with the rules of procedure or any existing practice is a mere irregularity that does not
automatically render proceedings following the non-compliance void. A party who becomes aware of the
non-compliance is at liberty to bring an application to the Court and have the proceedings set aside. However
we wish to stress that the language in Order 70 of LN140A or for that matter Order 81 of C.I.47 cannot be
interpreted to overcome or waive a High Court’s actual lack of jurisdiction.

The subject matter of the action begun by the writ issued by the plaintiff for compensation for the termination of an
agency agreement executed by her in Ghana on behalf of the defendant is manifestly within the jurisdiction of
the court. Accordingly we hold that the non-compliance of Order2 r.4 of LN140A in this case was a mere
irregularity which did not derail the jurisdiction of the court. The rules require that no application to set aside
any proceedings for irregularity shall be allowed unless it is made within a reasonable time and the party
applying has not taken any fresh step after knowledge of the irregularity. The Court of Appeal held that counsel
received service of the writ in Ghana and fully participated in the proceedings till judgment and so the
defendant can be said to have waived its objection to the jurisdiction of the court. We do not think Counsel’s
failure to discover the non-compliance in time should render the whole proceedings, in which the defendant
actively participated and pursued a counterclaim, a nullity. We consider the objection at this time trifle and
highly unreasonable, more so, as the subject matter of the action began by the writ falls within the jurisdiction
of the court.

SPOKESMAN PUBLICATION V AG

● AREA: Cause of Action

● FACTS: The plaintiffs filed a writ in the Supreme Court established under the Constitution, 1969, against the
defendant for, inter alia, a declaration that certain provisions of Act 29, were inconsistent with and in
contravention of certain entrenched provisions of the Constitution relating to fundamental human rights.
Before the action could be heard and determined, the 1969 Constitution was suspended and the SC abolished.
Its functions were transferred to the full bench of the CA. The plaintiffs’ action came before the full bench of
the Court of Appeal for hearing. An issue arose as to the jurisdiction of the court to entertain the action,
● HOLDING: It was plain that the jurisdiction conferred on the full bench of the Court of Appeal was purely
appellate in nature; the Decree did not either directly or indirectly vest the court with original jurisdiction to
hear and determine any action, suit or other original proceedings such as the instant case, pending
immediately before the Supreme Court before its abolition. Consequently, the plaintiffs’ action would be
dismissed for want of jurisdiction.

AMPRATWUM V DIVESTITURE INVESTMENT COMMITTEE (DIC)

● AREA: Cause of Action

 ● FACTS: The appellant entered into a tenancy agreement with a company, the landlord. Subsequently the
appellant demanded additional space, wherefore with the consent of the landlord he erected additional space
to the one already acquired. The tenancy was extended when the initial lease came to an end. Before the
second lease lapsed the landlord company was taken over by the respondents who upon requests by the
appellant for compensation for the additional space have refused. On appeal the CA set aside the decision of
the High Court on a very fundamental issue of whether the Respondent was the proper party to have been
sued.
● HOLDING: It is fundamental in litigation that parties must commence action against relevant parties to the suit.
To institute an action against a party, one must have a cause of action against the defendant. Per Diplock L.J. in
Letang v. Cooper, "A cause of action is simply a factual situation the existence of which entitles one person to
obtain from the court a remedy against another person." It is worthy of note that the respondent has from the
onset contested the propriety of being made parties in this case.
The Respondent is an agency of the government set up by DIVESTITURE OF STATE INTERESTS (IMPLEMENTATION) LAW.
The Object and functions of the Respondent as found in Section 3(1)“……is to implement and execute all
Government policies in respect of divestiture programmes.” There is nowhere in the law that states that the
Respondent is in “the business of taking over distressed companies belonging to the government” as pleaded.
The Respondent’s role in the divestiture process is therefore purely advisory. This was exactly the role of the
Respondent in the Divestiture of the Landlord Company acting through its consultants. As an appeal is by way
of rehearing the Court of Appeal, in our respectful view, was wrong to have given a judgment that sought to
defeat the entire proceedings by reason of a misjoinder. It should have gone ahead to exercise its power
granted under Order 4 Rule 5(2) when it realized that the Attorney-General was the proper party to have been
sued. We would therefore order that Attorney General be substituted for the respondent and the case decided
on its merits.

DAKAR V INDUSTRIAL CHEMICAL AND PHARMACEUTICAL

● PRINCIPLE: Service of writs. Note with care that this case has been criticized by the SC in the case below
● FACTS: The defendant-company was a limited liability company registered under the Companies Code, with a
registered office in the country. The plaintiffs brought an action to recover a sum being the balance of the price
of goods sold and delivered by the plaintiff to the defendant company On failing to get any employee of the
defendant company to accept service, the plaintiff brought the instant ex parte application under the LN 140A,
Order 10 for an order of substituted service against the defendant company.
● HOLDING: The courts would order substituted service only where it appeared to the court that for any reason
personal service could not be conveniently effected. Personal service under L. N. 140A, Order 10 meant service
 on the person of the defendant. That mode of service was thus applicable only to service on human beings as
parties in whatever capacity, whether as plaintiffs or defendants or the human agents and servants of such
parties; not on dehumanized, artificial entities like governments or companies like the defendant-company.
Where at the date of issue of a writ, personal service could not be made, and then substituted service would as a
general rule is refused. The jurisdiction to order substituted service therefore depended on failure of the
prescribed process of personal service in the circumstances. If the prescribed procedure was not personal
service but another mode of service then prima facie there would be no jurisdiction to order substituted
service in terms of L.N. 140A, Order 10. Consequently, the present application for substituted service on the
defendant-company founded on Order 10 was misconceived.
● PER CURIAM: In so holding, I do not wish to be understood as saying categorically that substituted service can
never in any circumstance whatsoever be ordered against a company ... I think perhaps in appropriate cases ...
substituted service may very well be prayed in aid by the courts even against a company, but then that will be
under the inherent jurisdiction, not under Order 10 of L.N. 140A. Nevertheless, the circumstances that would
justify a court in ordering substituted service on a company must be rare indeed.
I suppose in cases where a company has no registered office and where the directors and the members endeavour to
evade service, a court may very well consider substituted service as an appropriate mode of effecting service
where personal service cannot be effected on the directors and members ... In my opinion, for substituted
service of the nature envisaged by the plaintiffs to be ordered against the defendants, if indeed such a
procedure is feasible, then all other available normal processes pertaining to service on a company ought to
have been exhausted.

BARCLAYS BANK V GHANA CABLE

● PRINCIPLE/AREA: Mode of Service. A process to be served on a body corporate must be served on the
chairman, president or the head- managing director, treasurer or secretary
● FACTS: The plaintiff bank issued a writ of summons against the defendants for, inter alia, a sum with interest,
being the loan granted to the first defendant and guaranteed by the other five defendants, three of whom
were limited liability companies. The endorsement by the bailiff on the writ of summons only indicated that
the writ was served “on the defendants through their company secretary Madam Alice (MA) at their office;”
and a notice of appearance was purportedly entered on behalf of the defendants by a firm of solicitors.
Subsequently the plaintiff bank took out summons for final judgment. At the hearing of the summons, a lawyer
from the firm of solicitors appeared for the defendants; and the court, with the consent of this lawyer, entered
judgment for the plaintiff bank for the sum claimed with costs. Almost five years after this judgment, the
defendants filed a motion at the High Court, Accra for an order to set aside the final judgment entered on the
ground that none of them was served with the writ of summons and consequently that the court had no
jurisdiction to enter judgment against them.
● HOLDING:
a. Under the rules of procedure, every writ of summons or any process initiating a legal action had to be
personally served on the defendants in accordance with law unless the solicitors of the defendants
undertook in writing to accept service on behalf of the defendants or the court, taking into account the
exigencies of the case, directed otherwise. Proceedings against a party were therefore deemed to
commence only after the service of a writ or notice on that party; and when personal service proved
unsuccessful, substituted service might be resorted to. Furthermore, unless a defendant had been served,
no process could be taken to obtain judgment against him for, until such service, the court was generally
not seized with jurisdiction to proceed against the unserved defendant. In respect of a company with a
registered office or registered address, the Companies Act provided that a document might be served by
leaving it at or sending it by post to such an office; and, on account of the provisions of Act 179, the letter
containing the document should be addressed either to the registered office or the latest office registered
as the registered address of the company, prepaid and posted early enough to ensure that the letter was
received in such time as to enable the company file the relevant papers within the time provided by the
procedural rules of court. However, where the service of the document was not by post but by leaving it at
the registered office or registered address as provided in Act 179, the bailiff, even though the Act talked of
“leaving it at” had to leave the document with some responsible person who was in a position to bring it
to the attention of the company. Thus, taking a cue from the provisions of Act 179 as to the categories of
persons on whom service was deemed to be good service, a document left with a director or the
managing director or the secretary or a member of the company at the registered office or address should
be sufficient service on the company within the expression “leaving it at” in Act 179. On the evidence in
the instant case, there was no dispute that the sixth defendant, a human being, was not at all personally
served with the writ of summons as he was then in detention and that there was no order for substituted
service through MA. And in the case of the other defendants who were limited liability companies, the
endorsement by the bailiff on the writ of the summons showed that the writ was served in Accra “on the
defendants through their company secretary Madam Alice at their office;” yet the unchallenged evidence
on record clearly showed that Lenap & Co was the secretary of the defendants, not MA. Hence, the
service on MA was clearly unauthorised and void, as in clear violation of the provisions of Act 179. In
effect, the defendants were all not served in law and the person on whom the writ was served had no
vestige of authority to accept same.
b. The entry of appearance by a solicitor could only raise a rebuttable presumption, not a conclusive
presumption that the defendant had been served with the writ of summons. Besides, the general principle
was that where a solicitor entered appearance on behalf of a defendant without authority neither the
court nor the solicitor on the other side had the obligation to inquire whether his authority to so act
indeed existed. However the defendant had the right to set aside any subsequent judicial process taken
against him upon the representation of the said solicitor. In the instant case, it was clear on the evidence
 that the law firm which entered appearance on behalf of the defendants did so without proper authority.
Hence, the purported appearance was a nullity and the defendants had the right to set aside the final
judgment based on the unauthorised entry of appearance. In the circumstances, the purported entry of
appearance could not be deemed to be service in law on the defendants.

GHANA COMMERCIAL BANK V TABURY

● PRINCIPLE/AREA: Same as above

● FACTS: The plaintiff issued a writ of summons claiming damages for unlawful seizure of his goods and also for
unlawful imprisonment. The writ was served on a clerk at the head office of the defendants, a banking
institution, established under the Ghana Commercial Bank Decree which provided that: “A document may be
served on the Bank by leaving it at or sending it by post to the Head Office of the Bank.” The defendants failed
to enter appearance and the plaintiff therefore applied and obtained an interlocutory judgment in default. The
defendants applied to set this judgment aside.
● HOLDING: Order 9, r. 8 of L.N. 140A (dealing with service on corporations) drew a distinction between cases
where a statute provided modes of service and where it did not so provide. All statutory modes of service must
be strictly adhered to and this obviously would exclude service of process on the defendants under Order 9, r.
8. Service therefore must be effected in the manner provided by the Decree, which provided that a document
could be served on the bank by leaving it or sending it by post to the head office of the bank. Even though the
decree was silent as to the person with whom the document or writ should be left, it would be proper to serve
somebody who could represent the bank or some other responsible officer who must accept service in the
normal course of his business. In the circumstances, the service effected on the defendants’ clerk was
improper and the defendants therefore had no notice of the writ. That failure to serve the writ as required by
law was a fundamental defect affecting the very root of the proceedings.

EX PARTE KUSADA

● PRINCIPLE/AREA: Service of writ

● FACTS: The chief of Hausa community in Kumasi brought an action in the Asantehene’s Divisional court against
one Mallam Sallow for a declaration of title to some buildings in old zongo, Kumasi and an injunction to
restrain him from dealing with the said property. At the time the action was instituted, the said Mallam sallow
had been deported out of the country and was represented for the litigation by one Larnyo, his agent.
Judgment was given for the plaintiff. Subsequently, mallam was permitted to return to Ghana for 6 years within
which 2 of it was spent in Kumasi and later on, he died. Before his death he never objected to the judgment.
The chief of the Hausa community was succeeded by Mutawakiliu who applied to a magistrate court in Kumasi
to remove personal attendants of his predecessor in title from the building in order to make room for his own
retinue.
At the hearing of the appeal in the Supreme Court, counsel for the respondent raised certain objections in limine. He
argued that the application for the extension of time was not properly before the High Court in that such
application could only be made upon motion on notice, and that no application for leave to apply for an order
of certiorari could be filed until the extension of time had been granted. He contended that since the appellant
did not give reasons for the delay in applying for the writ, the learned judge should not have granted an
extension of time and that in granting leave, he did not exercise his discretion judicially. He maintained that the
purpose of filing an affidavit in support of an application was to enable the court to verify the facts alleged as
reasons for delay. He further contended that the application for leave was not in proper form, because it was
not accompanied by a statement setting out the name and description of the applicant, the relief sought, and
the grounds on which the relief was sought and also an affidavit testifying the facts relied on. He stated that
leave was wrongly granted contrary to LN 140A, Order 59, r. 3.
● HOLDINGS:
a. The High Court should not have entertained the application for the writ of certiorari, for, the applicant had
not complied with the conditions precedent for applying for an extension of time and for leave to apply for
the writ. Although a judge has an unfettered discretion under Order 64, r. 6 of LN 140A to grant an
extension of time, such a discretion must however be exercised judicially. The discretion had not been
properly exercised in this case. An applicant applying for an extension of time must give good reasons why
the application should be granted. He must also give notice to the person who would be affected if the
order challenged were quashed. Neither of these conditions had been fulfilled by the applicant.
b. The object of a service of a writ is to give notice to the defendant so as to give him the opportunity of
defending his rights. Where personal service is not possible because the defendant is abroad, service is
allowed to be effected on the agent of the defendant who is within the jurisdiction and who is in regular
communication with the defendant and has also been managing the particular matter involved in the suit.
Such an agent becomes the alter ego of the principal and service of process upon him becomes an
effective service upon the principal creating the agency. Personal service is not required in these
circumstances except when a person is to be made criminally responsible. Since Larnyo was the alter ego
of Mallam Sallow and had defended the suit at the Asantehene’s Divisional Court B1 he must be deemed
to have admitted service of the writ of summons.

AKRONG V BULLEY

● PRINCIPLE: Capacity. Order 2 Rule 4(1), Order 4 Rule 11

● FACTS: The plaintiff was the mother of a man negligently killed in June 1961 by a tipper truck owned by the
second defendant and driven by the first defendant. The plaintiff brought an action under the Fatal Accidents
Acts. In her writ, she professed to sue as “successor and next-of-kin.” Subsequently, the plaintiff was granted
leave to amend the title of her suit by prefixing to the words “successor and next-of-kin” the words “personal
 representative.” The plaintiff did not, however, take out letters of administration till later. The trial judge found
a case of negligence proved against the defendants. To the defendants’ argument that as at the time the action
was commenced, the plaintiff had not taken out letters of administration, she did not disclose any legal
capacity to sue, the trial judge’s response was that the plaintiff herself was a “beneficiary” and therefore
entitled to sue under the Fatal Accidents (Amendment) Act.
● HOLDING: Since at the time the plaintiff issued her writ she had not taken out letters of administration, she
lacked capacity to sue under the Fatal Accidents Acts, 1846-64. This lack of capacity was not cured by the fact
that she eventually took out letters of administration, since this took place after the period of limitation of
twelve calendar months, prescribed by section 3 of the Fatal Accidents Acts, had run out. The plaintiff’s writ
was thus a nullity and so were the proceedings and the judgment founded upon it. Although by virtue of
section 1 of the Fatal Accidents (Amendment) Act, 1864, the plaintiff could have sued as a dependent of the
deceased, there was nothing on the record to suggest that she did in fact sue in such capacity. The
endorsement on the writ that the plaintiff sued as successor could not be interpreted to be equivalent to an
endorsement that the plaintiff sued as “dependant.”

OFORI V LARTEY

● PRINCIPLE/AREA: duration of validity for a writ

● FACTS: The respondent sued the appellants for damages under the Civil Liability Act. The appellants were
however not served with the writ. Consequently the writ was struck out on a registrar’s summons. The
respondent thereupon applied for reinstatement of the writ on the ground, among others, that ill-health
prevented his pursuing his action with diligence. The judge struck out the registrar’s summons on the ground
that it was a nullity and claiming an unfettered discretion under Order 64, r. 6 he enlarged the time for the
renewal and reinstated the writ. On appeal counsel for the appellants contended that whether the registrar’s
summons was effective or not a whole year had elapsed since the writ was issued and since it had not been
renewed, it was dead within the terms of Order 8, r. 1. Counsel further submitted that since the three-year
period limited by the Civil Liability Act had also lapsed at the time the learned judge made his orders the court
could not exercise its discretion for renewal because it would erode the appellants’ defence under the statute
of limitation.
● HOLDING: Order 8, r. 1 expressly required that applications for renewal of writs should be made before the
expiry of twelve months after the writ had been issued. Consequently since a whole year had elapsed after the
issuance of the respondent’s writ and it had not meanwhile been renewed, the writ was dead in terms of the
Order. The subsequent restoration of the suit to the list following upon the order discharging the striking out
could not cure that fatal defect. As Order 8, r, 1 restricted application for renewal of a writ to a period before
the end of twelve months, time could not be enlarged to overreach vested or accrued rights. Unlike in England,
in Ghana the old principle prohibiting enlargement of time to effect renewal of a writ to defeat vested rights
 remained in full force, notwithstanding the court’s discretionary intercession contained in Order 64, r. 6. The
power to enlarge time could not apply to the renewal of a writ when by virtue of a statute the cause of action
was gone.

DEDE II V ANSAH

● FACTS: The plaintiff filed a writ of summons which was not accompanied by a statement of claim, against the
defendants. An appearance under protest was entered for and on behalf of all the defendants. The plaintiff
filed and moved an ex parte motion for an order against the defendants restraining the first defendant from
acting in any way as the Yamfohene and the two others from doing anything that would promote the
proclamation of the first defendant as Yamfohene. The application was granted until it could be heard on
notice. The motion of notice was filed more than fourteen days after the order was made. The defendants
therefore applied to have it set aside for the reasons, inter alia, that the facts on which it was made were false
and unmeritorious and that the plaintiff had failed to comply with the court’s order. Counsel for the plaintiff
attributed the delay to three causes, namely: that he required more facts to enable him file a more
comprehensive affidavit; that the defendants had entered appearance under protest and that the application
for setting aside the order was filed and served on the plaintiff as she was about to comply with the court’s
order. In view of the two latter situations, he felt that any further step or move by the plaintiff would have
been stultified by the defendants’ application. He therefore decided to wait until the application had been
decided on.
● HOLDING: the effect of Order 12, Rule 24 of LN 140A was that the defendant who had an objection to the
issue or service of the writ was required to apply to the court to set aside the writ or service on him. The
burden was on the defendant to make his objection in due time, otherwise, his appearance, if conditional,
would become unconditional, or if he had not entered appearance he would be in default of appearance.
There was no time limit within which the application could be made, but by necessary implication of the
English Court Rules, it had to be made within fourteen days after the entering of conditional appearance or
within such other time as might be limited by the court. Since no time had been fixed by the court the
defendants should have moved the court to set aside the writ or the service on them within fourteen days.
Although the time had expired, it could be subsequently enlarged in a proper case, and the defendants’
objection heard and determined. Up to 18 October 1979, fourteen days after conditional appearance was
entered, the defendants had not moved the court to set aside the writ on its service. Nothing therefore
prevented the plaintiff from proceeding with her case if she was desirous of doing so.

CONCA ENGINEERING V MOSES

● FACTS: The plaintiff had obtained a customary law grant of land from a caretaker of the Osu stool. The
defendant had also acquired the land through a conveyance the root of which was one person who obtained it
 from the Osu stool and had subsequently registered it, the defendants also registering their conveyance. The
plaintiff thus sued for declaration of title wherefore he raised the defense that previously he had brought the
matter of ownership before a circuit court judge who had ruled in his favour. Based on res judicta, the plaintiff
was granted judgment. In the instant appeal by the defendants against that decision, the court having found,
inter alia, that the predecessor-in-title of the second defendant, had, in fact, sought unsuccessfully to have the
default judgment against him set aside for want of service on him of the writ of summons.
● HOLDING: Since ownership and possession were reliefs indorsed by the plaintiff on the writ and the trial judge
gave him a global judgment, it stood to reason that the judgment had granted both the claim for ownership
and possession. But the court had no power on an application for judgment in default of appearance under
Order 13, Rule 8 of LN 140A to make more than an order for recovery of possession in the plaintiff’s favour.
And since no express provision was made by the other rules of Order 13 where title as distinct from possession
could be granted, the proper applicable rule was Order 13, r. 12. Under that rule, if a party defaulted in
entering appearance, the action might proceed as if such party had appeared. That was another way of stating
that the case should take its normal course. And in our adversary system, the plaintiff who sought a declaration
of title had to establish that by clear and acceptable evidence whether or not the defendant against whom he
sought the relief was present or absent. Since the plaintiff admittedly led no evidence of title in the 1968 suit,
the circuit judge at that trial had no jurisdiction either under Order 13, Rule 8 or Rule 12 to adjudge title in the
plaintiffs’ favour. The default judgment would accordingly be set aside as void. It could not be a valid
foundation for a plea of estoppel on an issue of ownership in the present action.

JONAH V KULENDI & KULENDI

● FACTS: The appellant issued a writ of summons against the defendants. Subsequently, the plaintiff by a motion
ex parte sought leave to issue the writ of summons and serve notice thereof out of the jurisdiction. This was
granted. The other defendants were resided in Ghana. After service of the writ and the accompanying
statement of claim on the defendant’s resident in Ghana, they entered conditional appearance and filed a
motion on notice praying the trial court for an order to dismiss the action against them. This motion was
brought under Order 11 Rule 18(1) of CI 47. This application was granted and dismissed the action. The trial
judge was of the opinion that the action against the Ghanaian resident defendants was speculative, frivolous
and vexatious on the ground of the lack of capacity on the part of the plaintiff to sue and to breach the
privilege between them and the first def. and lastly the action was flawed for want of jurisdiction i.e. for want
of compliance with the procedure provided for under the Legal Profession Act. The plaintiff appealed and it
was dismissed but reserved that the appeal was allowed to the extent that the process taken by the plaintiff by
way of writ was not wrongful.
● HOLDING;
 a. The trial court was enjoined to look at the pleadings without resort to other extrinsic evidence outside the
pleadings and therefore, ought to assume that the pleadings sought to be struck out were not only true
but on the face of it was obviously unsustainable, clear beyond doubt and unarguable. The court ought to
be satisfied that there is no reasonable cause of action raised by the pleadings and that the proceedings
are frivolous or vexatious.
b. In these proceedings, the right to a relief against the 2nd and 3rd defendants as solicitors is provided for in a
substantive statute i.e. the Legal Profession Act. It is therefore inappropriate to utilize the ordinary mode
of initiating actions under Order 2 Rule 2 of CI 47 in respect of causes of Action therein. The plaintiff’s right
of joining two separate causes of action in one writ against the parties under Rule 2(1) (c) of Order 4 to an
action of this nature, with two distinct causes of action, ought to have been initiated with the prior leave
of the court under Rule 2(2) of Order 4 by a motion ex parte before the writ was issued, assuming the two
distinct causes of actions would be grounded in one action. In the circumstances the joinder of two
distinct causes of action was clearly contrary to the rules above.
c. In the instant case, an application to the trial HC must be made by motion as stated clearly under Section
41 of Act 32 and it does not call for any statutory interpretation in view of its plain and unambiguous
language. To place any interpretation on Section 41 to extend it to cover writ of summons would thus be
improper under the circumstances. A statute like the Legal Profession Act could be both procedural and
substantive. It confers rights to be exercised and regulates the procedural steps for taking reliefs for
violations of those rights. In our respectful opinion as the Act itself regulates its own procedure for
redressing any cause of action arising from it, this court should not resort to any statute for assistance.

DAM V JK ADDO

● FACTS: The appellant sued the respondents in the High Court, Kumasi, for accounts and for money due and
owing to him. Simpson, J. after due consideration of the respective cases of the parties, resolved the issues as
set out in the summons for directions and thereby rejected the respondents’ case. He did not however give
judgment for the appellant but gave judgment for the respondents, basing himself on details on which no
evidence had been adduced since they did not form part of the respondents’ case as disclosed by the
pleadings.
● HOLDING:
a. A court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with, that
which the party himself puts forward, whether he be the plaintiff or the defendant.
b. The function of pleadings is to give fair notice of a case which has to be met, so that the opposing party
may direct his evidence to the issue disclosed by them. To condemn a person on a ground of which no fair
notice has been given may be as great a denial of justice as to condemn him on a ground on which his
evidence has been improperly excluded.
HAMMOND V ODOI

● FACTS: The plaintiff noticed that the defendants had started building operations on a plot of land at Kotobabi
in Accra which he alleged belonged to him. Thereafter he instituted an action in the High Court, claiming, inter
alia, for a declaration of title to the land. In his statement of claim he averred that the land was conveyed to
him under a customary grant by the Nii We family, the owners of the land. The defendants in their defence
denied that the land in dispute belonged to the Nii We family. They stated that under the mistaken belief that
the land belonged to the Nii We family they had obtained a grant from that family. However, when the
Supreme Court held in Akwei v. Awuletey that OSU rural lands, including the land in dispute, belonged to the
OSU stool, they had in compliance obtained the appropriate grant. The plaintiff in his reply deposed that in
response to a similar publication he had had his original grant confirmed. He further contended that the
ancestors of the Nii We family had occupied the Kotobabi lands as subjects of the OSU stool and therefore the
stool could not alienate lands in their possession without their consent.
● ISSUE: whether the plaintiff departed from his pleadings in the statement of claim?
● HOLDING: Nowhere in the statement of claim did the plaintiff aver that his ancestors, being Osu subjects,
settled on the disputed land as of customary right. The plaintiff’s pleading in the statement of claim only
conveyed the impression that he and his brother were owners of the land in dispute because they took their
grant from the Nii We family of the OSU Blohum quarter. Consequently, when he subsequently pleaded in his
reply that he and his ancestors occupied the land in dispute as OSU subjects he committed a decessus by
changing his radical title and making new allegations of fact. He thus raised a new matter which was not
intended to be a set-off nor did it controvert anything pleaded in the statement of defence. On the contrary,
the reply raised a new matter and abandoned the earlier stand and that amounted to a departure from his
pleadings contrary to Order 19, r. 17 of LN 140A.
● Per Crabbe JSC, All the parties claim that they acquired confirmatory grants from the Osu Mantse after the
decision of the Supreme Court in Akwei v. Awuletey. As a result of this decision all the parties to the present
dispute felt that their respective titles to the land in dispute based upon the grants from the Nii We family of
Osu needed perfection. This they sought from the Osu stool in the form of a confirmation of their respective
grants. It would appear, however, that the Osu stool had confirmed to the plaintiff a larger piece of land and a
piece of that larger land to the first defendant who later devised it to the second defendant. All these were in
the pleadings. That is not the end of the pleadings. The plaintiff replies to the statement of defence. If the
plaintiff does not serve a reply, “all the material facts alleged in the defence will be deemed to be denied by
virtue of the implied joinder of issue.” Where the plaintiff serves a reply he is again required to plead any
matter which might take the defendant by surprise or which “raises issues of fact not arising out of the
defence.” After the reply there are subsequent pleadings, with the leave of the court. It is not necessary, for
the purpose of this appeal, to go into all the details. It is sufficient only to mention that the next step after the
reply is the serving of the rejoinder. This may be followed by the surrejoinder. The surrejoinder may be
 followed by the rebutter. This in turn is followed by the surrebutter. The rejoinder is the defendant’s answer to
the reply. In this case there was no rejoinder. And for that the defendants cannot be held responsible. Nor
should the trial judge. The function of pleadings as indicating the role of the court is thus described by Master
I. H. Jacob: “The Present Importance of Pleadings” in Current Legal Problems (1960).

Pleadings are the nucleus around which the case - the whole case — revolves. Their very nature and character thus
demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can
only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the
respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the
evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus
manifest the true and substantive merits of the case. And the reply is very much a part of the pleadings. And in this
case the party most affected did not complain.

ARMAH V ADOOQUAYE

● PRINCIPLE: parties are required to specifically deny allegations of fact contained in their adversaries pleading
and not to rely on a general denial, Order 11 rule 13
● FACTS: The plaintiff claimed a declaration of title to land and other consequential reliefs in the High Court.
Judgment was given for the defendant on the ground that the plaintiff had failed to discharge the burden of
proof upon him. The plaintiff appealed to the Court of Appeal and during the hearing counsel drew the court’s
attention to the fact that that part of the plaintiff‘s statement of claim (paragraph (2)) which recited his root of
title had not been traversed either specifically or generally in the statement of defence.
● HOLDING: Order 19, Rules 14, 18 and 20 have one common object, namely, to compel each party in turn to
admit fully or deny fully each allegation of fact in the pleading of his opponent

YEBOA V BOFUOR

● FACTS: The plaintiff alleged that he obtained a loan with an interest from the first defendant, a moneylender,
and he mortgaged his house and a farm as securities for the loan. He repaid part of the loan and thereafter the
first defendant charged an interest on the balance. A new mortgage deed was prepared which appeared as if
the defendant were advancing the plaintiff a loan free of interest. When the plaintiff was unable to repay the
loan on due date, the second defendant on the instructions of the first defendant sold the house at a public
auction to the third defendant. The plaintiff instituted proceedings in the circuit court against the three
defendants for inter alia a declaration that the mortgage deed under which the house was sold was null and
void on the ground that the loan transaction was oppressive and unconscionable as offending the provisions of
the Loans Recovery. Judgment was granted the plaintiff wherefore the defendants appealed. The plaintiff also
cross-appealed. A preliminary objection was raised against the cross-appeal on the ground that it was
 carelessly stated, vague and utterly unintelligible and also that it did not conform to the mandatory provisions
of the Supreme Court Rules.
● HOLDING: An application for an amendment (which is governed by Order 28 of LN 140A) may be made as soon
as the necessity arises, and as a general rule the court will allow an amendment even up to the last moment,
provided that
a. No surprise results
b. It does not enable a party to set up an entirely new case or to change completely the nature of his case
c. It is not sought to add new parties
d. It will not do any injury to the opponent’s case or prejudice him in some way which cannot be
compensated by costs or otherwise.
e. The application be made bona fide
f. The proposed amendment will not cause undue delay or is irrelevant or useless or would merely raise a
technical point. However a court will not grant leave to amend the pleadings after final decree or entry of
judgment.
The granting or refusal of an application for leave to amend pleadings, even at the last moment in the proceedings, is a
matter entirely within the discretion of the trial judge. And the discretion to allow an amendment will be
exercised in order that the real issues between the parties may be finally determined. The Court of Appeal will
not interfere with the exercise of that discretion unless it is satisfied that the judge applied a wrong principle or
can be said to have reached a conclusion which would work a manifest injustice between parties. In this case
the trial judge exercised his discretion properly in allowing the plaintiff to amend his claim or enable the court
to award such damages as would fully compensate the plaintiff for the loss of his house.

HASNEM V ECG

● FACTS: The defendant-corporation was a supplier of electricity to consumers under contract. The plaintiffs
were customers of the defendants. Sometime when power was switched on in the premises of the plaintiffs
some of the company’s electronic gadgets and appliances got damaged. Subsequently employees of the
defendants in tracing the problem found out that the underground cable supplying power to the plaintiffs’
premises had cut into two as a result of a fault on the line. The plaintiffs brought action against the defendants
for special and general damages. The value of the items damaged was put in as at the time of the incident.
After the hearing but before the addresses, the plaintiffs brought an application to amend their writ of
summons to reflect the current values of the items that they alleged had been damaged. The defendants
opposed the application on the ground that the plaintiffs had not filed an affidavit explaining their delay in
seeking the amendment.
● HOLDING: The plaintiffs’ application to amend their writ of summons to show the new values of the damaged
items as at the time of judgment would be dismissed because: the application did not seek to amend the
 plaintiffs’ statement of claim. However, the principle was that a relief which was not repeated in the statement
of claim was to be treated as abandoned. Besides, if the amendment was granted, the statement of claim
would show the value of the items at the time the cause of action accrued whilst the writ of summons would
show the new value. The amendment would therefore be useless. Accordingly, it would be dismissed with
costs. Also, an amendment that would raise a case that would necessarily fail should not be allowed. Since the
plaintiffs’ claim was for damages for breach of contract and/or negligence, the guiding principle was restitutio
in integrum. Accordingly, the court would have to decide the value of the items damaged or destroyed to the
owner at the time and place of the damage or destruction. Since the amendment sought to claim the current
value of the items damaged, the claim would necessarily fail at the trial if the amendment was granted.
Although Order 28 of LN 140A did not expressly require an affidavit in support of an application for amendment that
practice had almost crystallized into a rule because it enabled the applicant to explain the reason for the delay
and the respondent to reply to it or rebut same where the reasons were reasons of facts and not law. The
court could then in appropriate cases invoke the provisions of Order 38, Rule 1 of L.N. 140A. to order the
deponent to be cross-examined on his affidavit to ascertain the truth. However, the court could not reject the
application solely on account of lack of affidavit. Where it was found necessary the court could call on the
applicant to file an affidavit and bear the costs that would be occasioned by any delay in ordering the filing of
the affidavit. In the instant case, the fact that the prices of the damaged items had increased since 1981 was
common knowledge. Accordingly, the absence of an affidavit stating that fact would not prima facie do any
injustice to the defendants. But since the defendants were entitled to challenge the prices quoted, an affidavit
was necessary in order that the deponent be cross-examined on it. Thus, in the circumstances, the lack of an
affidavit would work to prejudice the defendants unfairly. Accordingly, the application would be dismissed.

MOSI V BAGYINA

● FACTS: The respondent who had obtained judgment in the native court for possession of certain land, applied
to the High Court on a motion ex parte “for an order of this court for writ of possession to be issued for the
enforcement of the [native court] judgment.” A writ of possession was subsequently issued out of the High
Court and executed. In December 1960, the appellant applied to High Court by motion on notice asking that
the writ of possession be set aside on the grounds that under Order 47 it was irregular because it was obtained
ex parte and the High Court had no jurisdiction to order issue of the writ because the decree for possession
was made by the native court. Crabbe J. refused the application. The appellant appealed.
● HOLDING: Learned counsel’s contention in this court that the reasons assigned by the learned judge of the
court below for refusing the application are untenable appears to me to be well-founded, but his further
contention that the order for the issue of the writ was irregular by reason of its having been obtained ex parte
and in alleged contravention of the rules of Order 47 is wholly wrong. The irregularity of the proceedings for
the order complained of does not emanate from the fact of the order having been obtained ex parte, for Order
 47, r. 1 specifically gives the High Court the power in an appropriate case to make an order on an ex parte
application, and reference in the rules of Order 47 to the service of “notice of the proceedings” are references
to the proceedings which culminated in the judgment or order for possession and not to the proceedings
relating to the application for leave to issue out a writ of possession. Whereas in this case the party against
whom the writ was sought did appear at the trial and defended the suit, there was no question of serving him
with notice of the proceedings (that is the proceedings of the trial) the object of such notice being to bring to
the knowledge of the party affected the existence of the judgment or order for possession. Such a notice is
only called for where the party affected, although sued, did not appear at the trial and therefore did not know
of the result of the action, or where a third party is in possession of land in the right of the party against whom
an order for possession has been made. If therefore the court below had jurisdiction to make the order for the
issue of the writ of possession then the procedure followed in this case would be regular as one sanctioned by
Order 47, and the most important point which counsel has raised for consideration is whether the High Court
had power or jurisdiction in the circumstances of this case to act under Order 47?
● The High Court acts under Order 47 only where, either in its original or in its appellate jurisdiction, it has itself
made an order or given a judgment for the recovery or delivery up of possession. The High Court does not
decree or order possession or give judgment for the recovery or delivery up of possession where it, in its
appellate jurisdiction, merely affirms a decree or order or judgment for possession made by a lower court. It
follows therefore that Mr. Commissioner Christian sitting in the High Court, Sunyani, had no jurisdiction to
order the issue of the writ of possession, and the order was therefore void.

MUSSEY V DARKO

● FACTS: The respondent, R. A. Darko, the sole owner of a business that operated under the name of Okofoh
Enterprises, issued a writ in the name of Okofoh Enterprises against the appellant in the High Court to recover
a debt owed to the firm. Although the appellant disputed the capacity of the respondent, the issue was not
pursued and judgment in the action was given for the respondent. After judgment, counsel for the respondent
applied for an amendment of the title by substituting his name for the name of the firm. The appellant raised
an objection to the amendment on the ground that the court had no power to grant it. The court however
overruled the objection and granted leave for the title to be amended.
● HOLDING: where the sole proprietor of a business mistakenly sued in the firm’s name, and later gave a
reasonable explanation for his mistake, the court could treat the mistake as a mere misnomer and grant an
application to have the title to the writ amended.
● Per Francois J.A, the High Court was not functus officio when it allowed the plaintiff to amend the title of the
suit. If it had jurisdiction at that stage to allow the plaintiff to go into execution, it had jurisdiction to amend
the title. Such amendments have been allowed where the purposes of justice require, or where it is necessary
 to put right something which is incorrectly stated and to keep its records in line with the real position... the
court below had the power to correct a misnomer or a misdescription in title to do substantial justice.

GIHOC V VICENTA PUBLICATION

● FACTS: One O. was the sole proprietor of a business that operated under the name Vincenta Publications. The
appellants were sued by O., who used the business name, and the circuit court awarded judgment in favour of
the respondent. On appeal the appellants submitted that a person who carries on business in a name or style
other than his own name cannot sue under the business name. Counsel for the respondent submitted that it
was not proper to have raised such an objection on appeal and that the parties were bound by their pleadings.
He then applied to amend the name of the respondent to read “Vincent Alisa Onuku trading under the firm
name and style of Vincenta Publications.”
● HOLDING: Order 16, r. 2 gives the court the power to add or substitute a plaintiff where the action has been
taken in the name of the wrong person. However, the respondent’s application was to substitute an existing
person for a business name that was not a person and therefore there was no plaintiff before the court.

AKRONG V BULLEY

● FACTS: The plaintiff was the mother of a man negligently killed by a tipper truck of the defendants. The
plaintiff brought an action under the Fatal Accidents Act. In her writ, she professed to sue as “successor and
next-of-kin”. The writ was issued subsequently and she was granted leave to amend the title of her suit by
prefixing to the words “successor and next-of-kin” the words “personal representative”. The plaintiff did not,
however, take out letters of admin until later. A case of negligence was found. The defendants then argued that
as at the time the action commenced, the plaintiff had not taken out letters of administration, she did not
disclose any legal capacity to sue, the trial judge’s response was that the plaintiff herself was a “beneficiary”
and therefore entitled to sue under the Act.
● HOLDING: As the plaintiff was suing in a representative capacity she was obliged by the mandatory provisions
of Order Rule 4 of the Supreme (High) Court (Civil Procedure) Rules, to show in the endorsement to the writ in
what capacity she brought the action. Whether or not the endorsement on the writ discloses a valid capacity
to sue depends solely on the provisions of the Fatal Accidents Acts and such interpretation as is given to those
Acts by judicial decisions. The only persons statutorily clothed with capacity to sue under those Acts are
executors and administrators and latterly, in certain circumstances, the dependents. At the date when the
plaintiff issued her writ, she was neither an executrix not administratrix. No cause of action was therefore
vested in her and she could not and did not commence a competent action. The plaintiff was granted leave to
amend the title of the suit to include a claim by her as a personal representative. As the endorsement on the
 writ was not similarly amended, it is a debatable point whether she could properly be deemed, in whatever
capacities else she began the action, to have sued as a personal representative. But if the writ was void ab
initio for want of capacity, then the purported amendment amounts to nought. Since at the time the plaintiff
issued her writ she had not taken out letters of admin, she lacked capacity to sue under the Fatal Accidents
Acts. This lack of capacity was not cured by the fact that she eventually took out letters of admin, since this
took place after the period of limitation of 12 calendar months, prescribed by the Fatal Accidents Act had run
out. The plaintiff’s writ was thus a nullity and so were the proceedings and the judgment founded upon it.
Although by the Act, the plaintiff could have sued as a dependant of the deceased, there was nothing on the
record to suggest that she did in fact sue in such capacity. The endorsement on the writ that the plaintiff sued
as successor could not be interpreted to be equivalent to an endorsement that the plaintiff sued as dependant.

MAHAMA HAUSA V BAAKO HAUSA

● Where an amendment is being sought in order to bring the pleadings in line with the evidence adduced, it is a
guiding principle of cardinal importance that generally speaking, all such amendments ought to be made and
Order 28 Rule 1 in fact provides mandatorily that “all such amendments shall be made as may be necessary for
the purpose of determining the real questions in controversy between the parties.” The real issue between the
parties in the present case was the question whether or not Salifu had made such a disposition of the said
property to Mahama as would vest the latter with title to sell the property. Mahama had pleaded and led
evidence regarding a certain transaction at the sick bed of Salifu and in the presence of witnesses. Whether
this evidence proved the transaction to be an oral gift inter vivos or a nuncupative will would be essentially a
conclusion of law from the evidence already adduced. The amendment sought to be made in the pleadings
was thus to enable the defence to argue that the transaction so evidenced amounted to a nuncupative will as
originally pleaded and not an oral gift inter vivos as later amended. In the circumstances the amendment
should have been allowed.
● If a court in granting an application for amendment confines itself to granting leave to amend, the failure to file
the amendments within the time limited must result in their becoming ipso facto void as laid down in Order
28, r. 7. But this failure to file the amendments within the time limited is not irremediable. Order 28, r. 7
expressly leaves room for the court to grant an extension of time. The amendments in this case were however
effectuated by the court in the terms sought and Order 28, r. 12 mandatorily requires the court or a judge to
make “all necessary amendments” for the purpose of determining the real issues raised and further that any
defects or errors in any proceedings may be amended by the court “at any time.”

AKUFO-ADDO V CATHLEEN

● FACTS: A testator by his will devised his estate to his children. Included in the estate were a house and shares
in a company. The sister of the deceased, the plaintiff, brought an action against the defendants, executors of
 the testator’s will, seeking a declaration that the shares were held in trust for her late husband or for his
estate. The defendants denied and counterclaimed for similar relief. During the course of the trial, the plaintiff
twice applied for and was granted leave to amend her statement of claim to include an order that the shares
held be registered in her name and that she be declared the owner of the legal estate in the house. Judgment
was given in her favour. On appeal by the defendants from that decision, the Court of Appeal found that
contrary to the provisions of Rules 7-10 of Order 28 of LN 140A, the plaintiff did not file any amendment
pursuant to the leave granted her, and accordingly held, suo motu, that there had been no amendment of the
statement of claim and therefore the order decreeing title in the house in the plaintiff was a nullity. The
plaintiff thus appealed
● HOLDING: By the provisions of Order 28 Rules 7-10 of LN 140A, where a party sought and obtained leave to
amend his pleadings but failed to do so, the order lapsed and the prices became ipso facto void. On the
evidence, on two occasions the plaintiff sought and obtained leave to amend, she never took any
implementary steps as required by the rules to effect the amendment. Accordingly, there was no such
amendment pursuant to the leave. There was therefore a misapprehension of the position by the trial judge
when he assumed that there had been an effective amendment of the writ of summons and statement of
claim to include a claim for the house. Since that claim was never before the court or was not submitted to it
by the parties for adjudication, the trial judge had no jurisdiction to pronounce on same. Accordingly in so far
as the judgment of the HC sought to decree title in the plaintiff in respect of the house on the basis of a void
and non-existent amendment, that decree was a nullity.

KAI V AMARKYE

● FACTS: The plaintiff brought an action for declaration of title to a piece of land and damages for trespass
against the defendant. The plaintiff therefore contended that the defendant was estopped from denying his
title to land and that by felling palm trees on the land the defendant had committed trespass. The defendant in
his defense traversed those allegations. However, after pleadings had closed, but before trial, the defendant
applied for and was granted leave to amend his defense. Subsequently, the defendant filed a defence which
was not only substantially different from the original one but also ignored the other plaintiff’s statement of
claim. He however attached to his new defence a counterclaim for damages on original defence for which he
had been granted the leave. In his new defense, he failed to deny certain paragraphs of the ground that the
plaintiff had caused his arrest and detention by the police.
● HOLDING:
● Order 28 of the LN 140A did not mean that an order might be made in general terms, but it gave a general
power to make proper orders in all cases for determining the real questions in issue; a party could not
amend generally and the order giving leave to amend was binding on the party making the application. He
was not entitled to introduce in his pleadings amendments which would not have been allowed if he had
 stated in writing the exact amendment he was seeking. In the instant case, even though the defendant by
his notice of amendment intended to amend only a certain paragraph of his statement of defence yet he
failed to confine his amendment to that paragraph only but included allegation of fact for which he had
not obtained leave. He thereby failed to comply with the court’s order. His conduct therefore amounted to
an abuse of the process of the court. Per Sarkodee J. Where one party applies for leave to amend his
pleadings it is very important that the precise terms of the amendment should be formulated not only for
the information of the court but also to enable the other party to know exactly what it is that is being
asked for and to raise objection if any; for leave to amend ought to be given only when and to the extent
that the proposed amendment had been properly formulated... It is therefore the duty of every counsel
who applies for leave to amend his pleadings to formulate and state in writing the exact amendment for
which he asks.
● The whole object of pleadings was to bring the parties to an issue. Once pleadings were amended, what
stood before the amendment was no longer material before the court and no longer defined the issues to
be tried. Order 19, Rules. 14, 18 and 20 of LN 140A had the common object to compel each party in his
turn to admit or deny fully each allegation of fact in the pleadings of his opponent: Failure to deny either
specifically or by implication allegations of facts amounted to admission of them and no further proof of
that was required. In the instant case, the defendant should have repeated his denials of paragraphs (8) -
(10) in his amended defence if he was relying on them. Since there was neither a specific denial of
paragraphs (8) - (10) of the statement of claim nor was there even a general traverse of either the whole
or any part of those allegations of fact in the amended statement of defence, the trial judge rightly held
that the issues as to the pledge and the plea of estoppel per rem judicatam had been admitted by K and
that A did not need to have led evidence in proof of them.

NKUM V ANDOH

● PRINCIPLE: Joinder of parties; Where there is conterminous interests (grantor/grantee, purchaser/purchasee)

you don’t sue both of them i.e. the grantee for e.g. need not be joined in the action.
● FACTS: The defendant was in possession of certain land. He said that it had been in the possession of his family
for some 80 years. The plaintiff laid claim to this land, saying that the virgin forest of all that area had been
cleared by his ancestors. The plaintiff admitted that the disputed land had been in the defendant’s possession
for 15 years without action taken by the plaintiff’s family. The plaintiff as head of his family issued proceedings
against Andoh in the Cape Coast Municipal Court “B,” claiming recovery of possession. That Court found that
the plaintiff had not proved his title. The defendant appealed to the Land Court.

SAM V AG
● Application for joinder as co-defendants in a case in which plaintiff had invoked the original jurisdiction of the
Supreme Court for a declaration that section 15 of the Divestiture of State Interests (Implementation) Law,
1993 (PNDCL 326) was inconsistent with or in contravention of the provisions of article 140(1) and 293(2) and
(3) of the Constitution, 1992 and was to that extent void.
● Generally speaking the court would make all such changes in respect of parties as might be necessary to
enable an effectual adjudication to be made concerning all the matters in dispute. In other words, the court
would add all persons whose presence before the court was necessary in order to enable it effectually and
completely adjudicate upon and settle all the questions involved in the course or matter before it. The purpose
of the joinder was therefore to enable all matters in controversy to be completely and effectually determined
once and for all; but that would depend upon the issue before the court, i.e. the nature of the claim. In the
instant case the issue before the court was the determination of whether or not section 15 of the Divestiture
of State Interests (Implementation) Law, 1993 (PNDCL 326) was consistent with or in contravention of the
provisions of article 140(1) and 293(2) and (3) of the Constitution, 1992 and, if so, to what extent it be declared
null and void. No specific allegation was being made against any of the applicants for any part they played in
the implementation of the divestiture programme for which an indemnity might be sought. The situation
might have been different if a claim had been made against the government in respect of the implementation
of its divestiture programmes. That would have called for a different consideration.

GANDAA V GANDAA

● PRINCIPLE: Joinder applications and stipulated time for amendments

● FACTS: The plaintiff, as the customary successor and administrator of the estate of the deceased Gandaa, sued
the defendant, an elder of the Gandaa family, who is also a chief, on the principal contention that the latter
was interfering with his management of the deceased’s estate. The children and wife of the deceased were, on
their own application, joined to the suit as the first to seventh and eighth co-defendants respectively. It
appears from the case docket that since being joined to the suit no pleadings were filed on behalf of the
co-defendants. If I understood their counsel rightly, the statement of defence adequately covered the children
(the first seven co-defendants) herein. The amendment thus sought was just to restate their position in line
with the existing statute law, and then to state the interest the eighth co-defendant claims in this case. Two
applications were therefore brought before the court both of which are seeking to amend portions of the
pleadings. The first one was put in by the co-defendants, and the second by the plaintiff. The applications were
dismissed.
● HOLDING:
a. The Court of Appeal order granting the joinder of the co-defendants to the writ in the instant case did not
stipulate any conditions. However, by Order 15, Rule 8 (1) (b) as substituted by the High Court (Civil
Procedure) (Amendment) (No 2) Rules, 1977 (LI 1129), r 1, the writ had to be amended within fourteen
 days from the date of the order. And under Order 28, Rule 7 of LN 140A, failure to amend within the
proper time would result in the order ceasing to have effect unless further extended. In the instant case,
the time within which the writ had to be amended had long expired. And the effect of Order 15, Rule 8 (3)
was that since the writ had not been amended the co-defendants were not parties to the suit and
therefore had no pleadings to amend.
b. Although the order for joinder was made in favour of the co-defendants it was the duty of the plaintiff to
amend the writ and have it served on them as stipulated by Order 15, Rule 8 (3) as substituted by LI 1129,
r 1. Before the registry could effect the service of the amended writ it had to ensure that the
co-defendants had caused an entry (that they had been joined to the suit as co-defendants) to be made in
the cause book of the High Court’s registry because the action was proceeding there. No such entry had
been made in the registry by the co-defendants. But since the first step of filing an amended writ had not
been complied with by the plaintiff, the co-defendants could not be said to be in default.
c. The purpose of an amendment under Order 28, r 1 of LN 140A was to enable the court determine the real
question in controversy between the parties. All the factors considered by the courts had been devised to
deal with the justice of the cases before them. Therefore the facts and circumstances of each case must be
examined closely in deciding whether or not an amendment ought to be allowed. Thus if a party knew of
some facts right from the commencement of an action but failed to plead them, he might not be allowed
to plead them at a later stage in the proceedings as it would unduly delay the trial or prejudice the other
party’s case. But if he was not aware of the same facts when he pleaded at first, it might afford a sufficient
reason to allow him to amend since he would be said to have acted in good faith. However, an
amendment which would alter or contradict the evidence already given, instead of bringing the pleadings
in line with evidence already led, must not be allowed.