IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2019
EASY INVESTMENT SERVICES LTD - (Plaintiff/Respondent)
STEPHEN NTIM FRIMPONG & ANOTHER - (Defendant/Appllicant)
DATE: 19TH JUNE, 2019
SUIT NO: RPC/84/2019
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
KWASI AFRIFA WITH AMA ASSENSO FOR THE 2ND DEFENDANT/APPLICANT
PRESENT PRINCE ATTA POKU FOR PLAINTIFF/RESPONDENT
In this motion on notice the 2nd defendant/applicant (hereinafter referred to as the “Applicant”) is praying the court for an order setting aside and/or dismissing the writ in the instant suit on the ground that same disregards mandatory preconditions the non-observance of which is fatal to the suit.
It is the applicant’s case that the residential address of the 1st defendant is 55 Martlesham, Adams Road, London N17 6HT and not Plot 4, Block G, Kwamo-Ashanti as indicated on the writ by the plaintiff. That, the writ does not comply with basic and fundamental requirements of law and thus the jurisdiction of the court has not been properly invoked. Counsel for the applicant in his submissions to the court insisted that at the time the action was instituted the 1st defendant lived in England and that explains why he has not been served. Counsel ended his submission with an invitation to the respondent to do the proper thing, as the address of the 1st defendant has now been provided.
The plaintiff/respondent is opposed to the application. It is the respondent’s case that the address which was provided to them by the 1stdefendant when he contracted the loan was Plot 4, Block G, Kwamo-Ashanti. It is on that basis that it used the Kwamo address. That, the loan agreement was contracted in Ghana by the 1st defendant and guaranteed by the 2nd defendant both of whom were in Ghana on that date. It is the applicant’s case that it never knew the 1st defendant now lives in the UK.
Based on these facts, counsel for the respondent invited the court to dismiss the application.
A writ of summons must among other indorsements indicate the names, residential and occupational addresses of the plaintiff and the defendant. The occupational and residential address of the defendant becomes necessary for the purpose of service. In fact, a writ of summons is meant to give notice to the defendant of the claim brought against him or her. Therefore, where the address of the defendant is not known after diligent search the plaintiff shall indicate on the writ that the plaintiff shall direct service. See Order 2 rule 5(5) of CI 47.
From the affidavit evidence, the 1st defendant used the address Plot 4, Block G, Kwamo-Ashantias his residential address when he entered into the loan agreement with the plaintiff. It is therefore not out of place for the plaintiff to indorse the aforesaid address on the writ of summons. This is because the plaintiff had reasonable cause to believe that the Kwamo address was the address of the 1st defendant.
It had constructive knowledge of this address. If indeed the 1st defendant had changed his address at the time the writ was issued it does not in any way nullify the writ of summons. After all, it was the responsibility of the 1st defendant to notify the plaintiff bank of his new address if indeed he could not be reached at the Kwamo address. The 1st defendant cannot benefit from his failure to do what was thought to be prudent in the circumstance. We must always remember that the rules of court are not applied to cause injustice to parties. It would be tragic if a party who has acted in good faith is victimized by a technical point orchestrated by the inappropriate act of his opponent. This court will certainly not allow that to happen in the instant case. Doing so will be at odds with the noble objectives of the rules of court which are anchored on fundamental principles including substantial and effective justice. I therefore decline the invitation to strike out or set aside the writ of summons. The result is that application is hereby dismissed.
Now that the 1st respondent has provided his new or actual address, it is ordered that the said address, 55 Martlesham, Adams Road, London N17 6HT be substituted for Plot 4, Block G, Kwamo-Ashanti. The 2nd defendant is given 7 days within which to file his Statement of Defence.
There will be no order as to costs.