F.G. KORBIEH, J.A.

The brief facts of the case leading to this appeal are as follows. The plaintiff/appellant herein sued per his lawful attorney. He averred in his amended statement of claim that he had a sales agreement with one Ehrengried Kojo Mawudeka to buy from the latter his piece or parcel of land at the Airport Residential Area in Accra for the sum of US$180,000.00. The sale agreement was dated 19/6/1997. The plaintiff/appellant’s averment continued as follows: the said land had been leased to one Christo John Philip Pakis by the President of the Republic of Ghana for a term of 50 years and Christo John Philip Pakis had in turn assigned his unexpired interest in the land to the Church of Christ which assignment had received the consent of the Lands Commission. “5.By a deed of assignment made between Christo John Philip Pakis and EHRENGRIED KOJO MAWUDEKA and dated the 20^th day of September 1971 the Church of Christ assigned her interest in the said land for the residue unexpired term. The said EHRENGRIED KOJO MAWUDEKA registered the said deed of Assignment at the Lands Commission with the Land Registry NO 590/1972. 6. Pursuant to the assignment by the said EHRENGRIED KOJO MAWUDEKA to the Plaintiff paid to the assignor EHRENGRIED KOJO MAWUDEKA the Plaintiff paid US$180,000 to the assignor.” (sic) The plaintiff further averred that due to the fact that the plaintiff’s attorney applied to register the deed of assignment at the Lands Commission, the Commission opened a file but the file subsequently disappeared and some staff of the Commission fraudulently tried to sell the plaintiff’s land in collusion with the other defendants. The plaintiff therefore claimed the following reliefs from the defendants jointly and severally:

a) Recovery of possession;

b) Damages for trespass; and

c) “Perpetual injunction to restrain the defendants, whether by themselves, their servants, assigns, agents, workmen or otherwise howsoever from interfering with the Plaintiff’s title and possession of the land.”

It is interesting to note that only the 2^nd and 3^rd defendants filed any statements of defence. In response to the plaintiff’s averments, one of the 3^rd defendant’s averments was to the effect that he did not know the 1^st and 4^th defendants. He also averred that the plaintiff had issued a writ against the 2^nd defendant and that the executors of the will of the late Mawudeku had applied to be joined to that suit. He again averred that until the property in dispute was sold to the 2^nd defendant, it was in the possession of the executors of the will of Mawudeku. He denied that the plaintiff was entitled to the reliefs he was claiming from the court. In her statement of defence and counterclaim, the 2^nd defendant/respondent averred, among other things, as follows: that the plaintiff was an imposter and had planned with the 1^st and 4^th defendants to deprive her of the property she had legally acquired from the executors of the will of Ehrenfried Kojo Mawudeka. She then counterclaimed for House No. Z67, Tsatsa Close, Airport Residential Area, Accra on the grounds that interests in it had been assigned to her by the executors of the will of Ehrenfried Kojo Mawudeka and the 3^rd defendant and that she had been given immediate possession upon payment of a substantial part of the agreed sum. She had averred further that after she took possession of the property, she was sued in the High Court by the 1^st defendant and that the 4^th defendant used to accompany the 1^st defendant to court. She also averred that when the 4^th defendant forcibly entered the property with land-guards claiming to act in the name of the widow of the deceased original owner of the property, she reported the matter to the Police whereupon the 4^th defendant signed an undertaking not to disturb her quiet enjoyment of the property. She continued that the plaintiff had however commenced this action claiming that he acquired the property from the deceased and while the latter suit was still pending, the 4^th defendant, purporting to act in the name of the plaintiff herein, harassed her caretaker and used security men to forcibly take over the property from her caretaker. Wherefore she counterclaimed for the following reliefs”

1. A declaration that the 2^nd defendant is the assignee of House No. Z67, Tsatsa Close, Airport Residential Area, Accra.

2. A further declaration that the plaintiff, 1^st and 4^th defendants do not have any interest in the said property.

3. Another declaration that the plaintiff, 1^st and 4^th defendants are trespassers.

4. An order that the plaintiff, 1^st and 4^th defendants should pay general damages for trespass.

5. An order of perpetual injunction restraining the plaintiff, 1^st and 4^th defendants from disturbing the quiet enjoyment of the 2^nd defendant of House No. Z67, Tsatsa Close, Airport Residential Area, Accra.

After the 2^nd defendant’s said statement of defence and counterclaim, nothing more was done by way of pleadings even though other processes, such as an application for interim injunction, were filed in court. The plaintiff failed to file a reply or for that matter a defence to counterclaim under Order 11 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). He also failed to file an application for directions as required under Order 32 of the same C.I. 47. These anomalies notwithstanding, the case come on for hearing on the 22/1/2014. The trial was adjourned on account of the fact that neither plaintiff’s lawful attorney nor his counsel was in court and had not been served with hearing notice. The trial judge therefore ordered that hearing notice should be served on counsel for the plaintiff. The case was then adjourned to the 5/2/2014. On the 19/3/2014 the trial judge struck out the plaintiff’s case for the reason that “At least from 8^th April, 2013 to today. There had been 13 adjournments and the plaintiff had never been to court. The plaintiff’s case is therefore struck out for want of prosecution. The suit is adjourned to 7^th May, 2014 for hearing.

Hearing notice to be service on the plaintiff’s counsel.” (sic) On the 2/6/2014 the 2^nd defendant was asked to prove her counterclaim, the plaintiff’s counsel having being served with hearing notice. The 2^nd defendant accordingly mounted the witness box and gave evidence as to how she acquired the property in dispute. Thereafter the case was adjourned to the 20/6/2014 for judgment. Surprisingly on the same 20/6/2014 counsel for the 2^nd defendant filed an application for directions with the return date of 27/6/2014. So on the 20/6/2014 the trial court, rather than deliver the judgment, declared that striking out the plaintiff’s case had been improper and therefore restored it. Then on the 27/6/2017 the application for directions was taken and the issues as set out in the 2^nd defendant’s application for directions were set down as the issues for trial in the case. The case was adjourned to the 7/7/2014 for hearing. On the 7/7/2014 it was again adjourned to the 22/7/2014 and that was when the plaintiff’s attorney gave his evidence. A summary of his evidence is that the plaintiff bought the property from “Mawu Deku” for the sum of US$1,500.000.00. He tendered in evidence two documents, exhibits B and C as evidence of the plaintiff’s acquisition of the property. Both exhibits were photocopies. At the end of cross-examination of the plaintiff’s attorney, the case was adjourned to the 29/7/2014 on which date the Court Notes read as follows:

“The plaintiff’s witness is not in but the plaintiff’s attorney says the witness has requested for 31/7/2014 which is not suitable. The suit is adjourned to 20/10/2014, 21/10/2014 and 22/10/2014 at 10am for continuation.”

However the next sitting of the court on the record was the 5/11/2014 when one Owusu Amoako represented the plaintiff in court. The 2^nd defendant was asked to open her defence and to prove her counterclaim. After taking the oath, she said she was going to tender in evidence a certified true copy of the evidence she gave in court previously and to rely on it, including all the exhibits, as her evidence-in-chief. In the absence of counsel for the plaintiff in court, there was no cross-examination and the trial judge ordered that the parties file their addresses by the 8/12/2014. Not surprisingly, only counsel for the 2^nd defendant filed his written address. Judgment was delivered on the 27/1/2015 in favour of the 2^nd defendant on her counterclaim whilst the plaintiff’s claim was dismissed. It is this judgment that the plaintiff has appealed against on the following grounds:

a) The judgment is against the weight of evidence.

b) The learned trial judge erred in not giving the plaintiff/appellant the opportunity to contest the 2^nd defendant’s counterclaim.

c) When the 2^nd defendant gave evidence before directions were taken, the evidence became null and void and therefore the learned trial judge erred in giving judgment to the 2^nd defendant on her counterclaim based on the null and void evidence.

d) Additional grounds will be filed on receipt of the record of appeal.

The relief sought from this Court is that the judgment appealed against should be set aside or in the alternative the case should be remitted to the court below to be tried de novo before a different judge.

When we came to write the judgment we realized that there was a fundamental issue we had to deal with first before tackling the grounds of appeal; if we ever got to tackling them at all. This was the issue of the failure of the plaintiff to indorse his residential and occupational addresses on the writ of summons as required by Order 2 rule 5(1) of the High Court (Civil Procedure) Rules, 2004 (C.I. 47). The said Order 2 rule 5(1) is couched as follows:

“(1) Before a writ is filed by a plaintiff it shall be indorsed

(a) Where the plaintiff sues in person, with the occupational and residential address of the plaintiff or if the plaintiff resides outside the country, the address of a place in the country to which the documents for the plaintiff may be served; or

(b)Where the plaintiff sues by a lawyer the plaintiff shall, in addition to the residential and occupational address of the parties, provide at the back of the writ the lawyer’s firm’s name and business address in Ghana and also, if the lawyer is the agent of another, the firm name and business address of his principle.” (Emphasis supplied)

The plaintiff/appellant had failed to indorse his residential and occupational addresses on the writ of summons in this case. This was in clear breach of Order 2 rule 5(1) of C.I. 47. It required that we consider whether this breach of the rules could nullify the writ of summons that had been used to start the case. If the writ was going to be considered a nullity then the appeal could be decided on the basis of that breach of the rules and not the grounds of appeal filed by the appellant. It is however provided in Rule 8(9) of the Court of Appeal Rules, 1997 (C.I. 19) as follows:

“(9) Despite subrules (4) to (8), the Court in deciding the appeal shall not be confined to the grounds set out by the appellant but the Court shall not rest its decision on a ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground.”

It was in order to afford both the respondent and the appellant himself the opportunity to contest the case on the basis of the plaintiff’s failure to indorse his addresses on the writ as required by Order 2 rule 5(1) of C.I. 47 that we invited counsel for the two sides to address us on the specific issue of the failure of the plaintiff to indorse his residential and occupational addresses on the writ before it was filed.

But before I get to the responses we received from counsel for the parties, I need to set out the legal background to our authority for threading the path we have chosen in the first place. It is provided in Rule 8(1) of the Court of Appeal Rules, 1997 (C.I. 19) as follows:

“(1) An appeal to the Court of Appeal shall be by way of rehearing and shall be brought by a notice of appeal.”

Several decided cases have expatiated on this legal principle of rehearing amongst which is the case of Tuakwa v. Bosom [2001-2002] SCGLR 61 where the Supreme Court held as follows:

An appeal is by way of rehearing particularly when the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case to analyze the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that on a preponderance of probabilities the conclusions of the trial judge are reasonable or amply supported by the evidence.

Since an appeal is by way of rehearing, this Court is in the same position as the trial court and any legal matter that the court below failed to deal with can be dealt with by this Court. In the case of Alawiye v. Agyegum [1984-86] GLR 179 the Court of Appeal (Coram: Edusei, Edward Wiredu and Osei-Hwere JJ.A.) gave meaning to Rule 8(9) of C.I. 19 when it held that:

It was within the complete prerogative of the court to diverge from the grounds of appeal set forth by the appellant and pronounce judgment upon an entirely new ground raised by the court or chartered by the appellant at the hearing of the appeal. The discretion was only subject to the reservation that the respondent should have had sufficient opportunity of contesting the case on that ground.

The condition that the respondent should have had sufficient opportunity of contesting the case on the basis of the ground raised by the Court suo moto has been fulfilled with the filing of supplementary submissions by not only counsel for the respondent but counsel for the appellant as well. I must express my personal disappointment at the quality of legal argument put up by counsel on both sides but especially by counsel for the appellant. One would have thought that counsel would have used more convincing argument than just his plea that we should use our “discretion in the matter and [accept] the Writ”. Indeed counsel undermined his own plea because he had argued earlier that in the case of:

Standard Bank Offshore Trust Company Limited

(Suing on behalf of Certain Investors in Promissory Notes:

1. Spynx Capital Markets PCC Investors &

2. Tricon Trade Management Limited

Substituted By

Dominion Corporate Trustees Limited

47 Esplanade, St. Helier

Jersey, JEI OBD

vs.

1. National Investment Bank

2. Eland International Ghana Limited

3. Daniel Charles Gyimah

(unreported) Civil Appeal No. J4/63/2017 SC dated 21/6/2017 the Supreme Court’s decision seemed to have been based on objections raised by a party to the absence of the plaintiff’s residential address on the latter’s writ whereas in the present case the objection is being raised by this Court itself. My answer to that argument is quite simple. We are interpreting the rules of court just as the Supreme Court did in the case under reference and fortunately for us the Supreme Court case has come to reinforce our position. Under the principle of stare decisis, this Court is bound by the decisions of the Supreme Court. Once the Supreme Court made a decision that is relevant and applicable to the issue before us, we are bound to follow that decision. So even if we were minded to use our discretion as counsel pleaded with us to do, the very case he cited would not allow us to do so. The use of the word “shall” in Order 2 rule 5(1) is very instructive. Several decided cases have emphasized that the word “shall”, when used in a statute, implies that the order, instruction or direction given is compulsory or mandatory and cannot be waived. In the very case cited above, Benin, JSC (delivering the unanimous judgment of the Court) said as follows:

“Where a rule is mandatory by the use of the expression “shall”, it should be so regarded in view of section 42 of the Interpretation Act, 2009 (Act 792). Where a court finds it necessary to express ‘shall’ as directional only, it must be forthcoming with reasons before deciding to exercise discretion to waive non-compliance.”

Even a cursory look at the plaintiff’s writ of summons shows that it did not comply with rule 5(1) of Order 2 of C.I. 47. It is patently clear that the plaintiff’s writ, both in its original and amended form, did not have either his or his lawful attorney’s residential or occupational address indorsed on it as required by Order 2 rule 5(1)(a). It was therefore filed in breach of the mandatory rules of court and is therefore incurably bad. To make matters worse, the addresses that are required to be indorsed on the writ of summons were not even on the statement of claim. This would have gone a long way to cure the defect on the writ for as was said by Gbadegbe, JSC in Opoku (No 2) v. Axes Co. Ltd. (No 2) [2012] SCGLR 1214

“…the writ of summons ought to be read together with the statement of claim in order to determine if there was any cause of action before the court. This is because a statement of claim may, in appropriate cases as provided for in rule 15(2) of Order 11 of C.I.47, amplify or diminish the scope of the writ on which it was founded.”

The plaintiff also had another opportunity or chance to make good his default by providing at least one such address on the power of attorney given to the lawful attorney by the plaintiff but he again he failed to do so. It is as though a conscious effort was being made by the plaintiff and his lawful attorney to avoid being traced to any place of residence or business by the defendants. This is what Benin, JSC said in the case cited supra:

“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 the court is permitted by Order 81 to waive for non-compliance. As decided in NAOS Holding case, supra, non-compliance with this provision renders the writ void. That which is void or a nullity cannot be waived by court under Order 81 of C.I. 47…This ensures that the identity of the real plaintiff is known by the defendant and the court lest an imposter should secure judgment only for the real claimant to surface later and saddle the defendant with another suit.”

In Naos Holdings Inc. v. Ghana Commercial Bank [2005-2006] SCGLR 407 at page 413 this is what Chief Justice Sophia Akuffo, JSC (as she then was said:

“In conclusion, the Court of Appeal committed no error in upholding the High Court’s ruling. The writ was void for failure to state the residence of the plaintiff …”

In Standard Bank Offshore Trust Company Limited (supra) the Supreme Court put the matter to rest when, after making copious references to Naos Holdings Inc. v. Ghana Commercial Bank (supra), it held that where a plaintiff fails to comply with mandatory provisions of the High Court (Civil Procedure) Rules, 2004 (C.I.47) the provision in Order 81(1) of the same C.I. 47 cannot be used to amend the writ and thus save it from being declared a nullity. This is how Benin, JSC put it:

“It has 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 Holdings case, supra, 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…The rule is that these requirements of disclosing the foreign identity of Spynx and Tricon as well as their residential address must be in place prior to the issuance of the writ of summons.”

The Supreme Court held further that the writ can be declared a nullity at any stage of the proceedings even up to appeal at the Supreme Court level. What we have been at pains to point is that the plaintiff’s writ of summons was void for failure to comply with the mandatory requirements of Order 2 rule 5(1)(a) of C.I.47 and that this failure to comply with the rule is a fundamental breach that renders the writ of summons void and therefore a nullity. We therefore hold that the writ of summons filed by the plaintiff/appellant was null and void and of no effect whatsoever. Accordingly we hereby dismiss the plaintiff/appellant’s appeal as being incompetent.

That ought to have brought finality to this matter except that in his supplementary or further written submissions, counsel for the 2^nd defendant/respondent has made the point that his client’s counterclaim, being a different cause of action, ought to survive and that in view of the fact that the 2^nd defendant gave credible evidence, her counterclaim ought to succeed. We cannot help but agree with learned counsel that a counterclaim is a cause of action different from the original action. (See the case of Fosuhene v. Atta Wusu [2011] 1 SCGLR 273, holding (3)) So the fact that the original action has been declared a nullity does not necessarily mean that the counterclaim must go down with it. The problem we have with the 2^nd defendant’s evidence is that it was given at a time when no application for directions had been taken. After directions for trial was taken the case took its normal course, so to speak, and then it got to the turn of the 2^nd defendant to testify. Instead of her repeating her full testimony on oath, she merely said that she stood by the earlier evidence she had given. It is not very clear from the record whether indeed the 2^nd defendant’s previous evidence was actually tendered in evidence as the record seemed to suggest on pages 170 and 171 of the ROA but that is neither here nor there. What is important is that we have her sworn testimony on the record. Even though that testimony was given before the application for directions was taken, it constitutes good testimony going by the authority of Ankumah v. City Investment Co. Ltd. [2007-2008] SCGLR 1067 where the Supreme Court said, per Sophia Adinyira, JSC as follows:

“The failure to take out a summons for directions as required by Order 30, r 1(a) of the old High Court (Civil Procedure) Rules, 1957 (LN 140A), was a mere irregularity and did not go to the root of the jurisdiction of the court to hear the case on the merits.”

We are therefore bound by law to accept the evidence given by the 2^nd defendant in support of her claim even though that evidence was proffered before the application for directions was taken. We have to emphasize this point because of the contention of the plaintiff/appellant and his counsel that the judgment given to the 2^nd defendant by the trial judge was erroneous because the evidence given by the 2^nd defendant was null and void for having been given before the application for directions was taken. The plaintiff/appellant and his counsel however failed to advance one single legal argument in support of their stance that because evidence was given before the application for directions was taken that evidence was thereby rendered null and void. By the way it must be borne in mind that what used to be referred to as “summons for directions” is now the procedure that is known as application for directions. But to go back to the 2^nd defendant’s case; she had made a claim for reliefs that we have already tabulated above. A summary of the evidence of the 2^nd defendant in support of the claim for those reliefs is that she bought the property in dispute from Rosie Ocampo Mawudeka and Thomas Agawu who were the executors of the will of the late Mawudeka and that thereafter she was put in possession of the property. The evidence continued that she did all that was needed to perfect her title to the property but that whilst she was in possession of the house the 4^th defendant was harassing her so she reported the matter to the police but when the police invited the 4^th defendant to the police station he refused to go. She went on in her evidence that the appellant also claimed to have bought the land but that he was not known to Rosie Ocampo Mawudeka. She also said that the 1^st defendant also claimed ownership of the house and even sued her in court but that when Rosie Ocampo Mawudeka and Thomas Agawu applied to be joined to the suit he never came to court again. She tendered a number of exhibits that supported the allegations she made concerning the will, the contract of sale between her and the executors of the will, the deed of assignment, the authorization to enter the property, the consent of the Lands Commission, etc.

Given all that evidence that was not challenged in any way, we are of the view that the 2^nd defendant/respondent was able to prove her case on the preponderance of the probabilities and is therefore entitled to the reliefs claimed in her counterclaim.

Accordingly we hereby uphold the judgment of the trial High Court in granting the 2^nd defendant the reliefs she asked for in her counterclaim.

FRANCIS G. KORBIEH

(JUSTICE OF APPEAL)

ADUAMA OSEI, J.A.             I AGREE         K.N. ADUAMA OSEI

(JUSTICE OF APPEAL)

SUURBAAREH, J.A.           I ALSO AGREE           G.S. SUURBAAREH

(JUSTICE OF APPEAL)