IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
ACCRA - A.D 2015
PETER STOBER - (Plaintiff)
JOSEPH SAKA AND OTHERS - (Defendants)
DATE: 18TH DECEMBER, 2015
SUIT NO: CM/0003/2015
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
The 2nd Defendant/Applicant seeks for an order to strike out the writ of summons and the service of the processes on the defendants on the grounds that the 3rd defendant is resident outside the jurisdiction and leave out to have been sought by the Plaintiff/Respondent before issuance of the writ and for service of a notice of the writ on the 3rd defendant.
The 2nd Defendant/Applicant and indeed the rest of the defendants are all resident in Ghana except the 3rd defendant and the applicant who does not complain that the issuance of the writ and service on him is irregular has in this application, assumed the role of the proverbial mourner who wants to mourn more than the bereaved.
It is stated under order 2 Rule 7(5) of the High Court (Civil Procedure) Rules, 2004, C. I 47 that:
“No writ, notice of which is to be served out of the jurisdiction, shall be issued without leave of the Court as provided in Order 8”.
And Order 8 deals with service out of the jurisdiction and notes that no notice of a writ shall be served out of the jurisdiction except only with leave of court.
Based on Orders 2 Rule 7(5) and Order 8 the 2nd Defendant/Applicant has contended that the whole writ issued without leave of court is incurably bad and the court ought to strike out the writ in its entirety.
Counsel for the 2nd Defendant/Applicant is gravely mistaken as to the warped interpretation she seems to be placing on Order 2 Rule 7 not in respect of the 3rd defendant but in respect of the 1st, 2nd and 4th defendants. The issuance and service of a writ on a party outside the jurisdiction without first seeking leave of the court is a nullity. However, with the exception of the 3rd defendant, all the defendants are resident in Ghana and cannot claim that the issuance and service of the writ on them is a nullity.
It would be absurd to interpret Order 2 Rule 7 of C.I 47 that where there are several defendants in a suit and only one is resident outside the jurisdiction, the non-procurement of leave of court before the issuance of the writ nullifies the writ and service thereof in relation to the resident entities. And in this instance the Rule would have to be interpreted “ut res magis valeat quam pereat”, so as to avoid the absurd result of voiding the whole writ. The better option, as indeed counsel for the Plaintiff concedes is to strike out the name of 3rd Defendant. As in respect of the 3rd defendant the condition precedent in relation to the issuance of the writ has not been complied with by the plaintiff.
The non-compliance of the condition precedent for the issuance of the writ in respect of the 3rd defendant cannot have the conclusive effect of invalidating the whole writ. This position is reinforced by the decision in REPUBLIC v HIGH COURT, ACCRA, EXPARTE ALLGATE (AMALGAMATED BANK LTD INTERESTED PARTY) [2007-2008] SCGLR 1041 and at 1054 wherein his Lordship, Date-Bah JSC noted at page 1052 as to the scope of non compliance of the rules that can defeat an action in the following:
“where there has been non compliance with any of the rules contained in the High Court (Civil Procedure) Rules, 2004, C. I. 47 such non compliance is to be regarded as an irregularity that does not result in nullity, unless the non compliance is 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”
See also the following cases REPUBLIC v HIGH COURT, KOFIRIDUA, EXPARTE KOFI ASARE (BABA JAMAL INTERESTED PARTY),  SCGLR 460, ABDILMASIN v AMARH  2 GLR 414; NIKOI OLAI AMONTIA 1V (SUBSTITUTED BY TAFO AMON 11 v AKOTIA OWORSIKA III (SUBSITUTED BY LARYEA AYIKU III [2005-2006] SCGLR 637
Therefore for a step taken by a party which does not conform to the rules to amount to a defeat of his action it must be a violation that deprives the court of jurisdiction, two it must be a breach of one or more of the provisions of the Constitution and three it must be a breach of some statutory provision or enactment but not the rules of court. Regarding the last point the same Date-Bah JSC expatiated on it when he said that no court within the jurisdiction has the authority or power to grant immunity to a party or his counsel from the consequences of the breach of any enactment or Act of Parliament. See the dictum of Date – Bah JSC in the case of REPUBLIC v HIGH COURT (FAST TRACT DIVISION) ACCRA, EX PARTE OPERATION ASSOCIATION & OTHRS INTERESTED PARTIES.
The court is satisfied that the breach complained does not fall within any of the three categories of exceptions which when taken makes a step incurably bad in law.
With the exception of 3rd defendant the rest of the defendants have validly been sued in this court and do not have any legitimate protest for the setting aside of the writ. Save striking out the name of the
3rd defendant, the application is dismissed as unmeritorious.
I make no order as to cost.