ACCRA- A.D 2018

SUIT NO:  BC 599/2015

i. Introduction:

[1] This is an application by Defendant/Applicant herein praying for “an Order to set aside the Plaintiff’s Writ and Statement of Claim, the reply and the application for directions upon the grounds stated in the accompanying affidavit”. The application according to Counsel is “for lack of compliance with our laws and under the inherent jurisdiction of the Honourable Court”.


ii. Background:

[2] It recalls that on the 1st day of June, 2015 the Plaintiff herein commenced this instant action by issuing a writ of summons against the named Defendant herein endorsed with certain judicial reliefs.


[3] After been served with the Plaintiff’s Writ of Summons and Statement of Claim, the Defendant entered appearance through George Kofi Bekai of De-Georges Law Consult. Mr. Bekai filed a Statement of Defence for the Defendant on July 14, 2015. The Plaintiff filed a Reply to rebut the contentions contained in the Statement of Defence filed. The Plaintiff/Respondent consequently filed an Application for Directions on November 19, 2015 and set out about six issues for the Court’s consideration. The Defendant’s Counsel also filed six Additional issues on November 30, 2015 for the Courts determination. The Court on July 26, 2016 set down all the issues as issues for trial in this matter. The Court ordered the parties to file their Witness Statements together with their pretrial checklists simultaneously.


[4] The Plaintiff filed its Witness Statement on February 2, 2017 together with its exhibits and the Defendants also filed its Witness Statement on January 6, 2017. The Court held a mandatory Case Management Conference with representatives of Counsel. Mr. Joel Annor-Afari held the brief of Benson Nutsukpui and Lawrence Asante Ahenkorah held the brief of Mr. George Bekai on February 23, 2017. Trial dates of May 2 and 4, 2017 were set. Due to scheduling challenges the trial did not proceed in May 2017 and new dates were set for July 18 and 19, 2017. The trial in July 2017 also did not proceed because Defendant’s Counsel failed to attend Court. New trial dates of October 16 and 19, 2017 were again set. When the matter was called on October 16, 2017 Mr. Benson Nutsukpui informed the Court that he inadvertently failed to serve the Hearing Notice ordered by the Court and therefore he prayed the Court to adjourn the matter to November 6, 2017.


[5] The Court on November 6, 2017 set November 21, 2017 as the new trial date but that date was also adjourned due to scheduling challenges for the Court. The Court once again set new dates for trial and they were March 21, 22 and 23, 2018. The Court notes that on November 21, 2017 Mr. Bekai filed a Notice of Withdrawal as Lawyer for the Defendant after Mr. Ben Sevor had filed a Notice of Change of Solicitor on November 14, 2017. Mr. Sevor together with Ms. Jemima Dei holding the brief of Benson Nutuskpui prayed the Court on March 20, 2018 to adjourn the matter to April 19, 2018 on the grounds that the parties were engaged in settlement talks.


[6] On April 19, 2018 Ms. Dei informed the Court that her instructions are that the settlement had broken down and therefore a new date should be set for trial. Consequently, new dates of 3, 9 and 16 July 2018 were set for trial. The instant application was filed on July 3, 2018 and it is supported by a 9 paragraph affidavit. The Plaintiff/Respondent has also filed an 18 paragraph affidavit in opposition to the motion in which it has been averred that the application has been brought in utter bad faith and calculated to delay the prosecution of the suit.


iii. The Applicants Case:

[7] The thrust of the application is that on the 1st day of June 2015, the Plaintiff herein invoked the original jurisdiction of this court by filing a Writ if Summons and its accompanying statement of claim which was served on the Defendant. A copy of the Writ of Summons is attached as Exhibit “WAC 1” The Defendant/Applicant has further deposed that “on the 21st day of October 2015, the Plaintiff filed its reply to the statement of defence of the Defendant. Attached is a copy of the said Reply and it is marked as Exhibit “WAC 2”


[8] The further deposition of the Applicant is that “on the 19th day of November 2015, Plaintiff again filed application for directions. Attached is a copy of the said Application for Directions and it is marked as Exhibit “WAC 3”. The deponent further says that all the aforesaid processes were issues by a law firm, Messrs Kueyehia & Nutsukpui which is not a Natural Person and as a Chamber or Company cannot practice as a Lawyer. It is further deposed by the Applicant that “this makes all the processes enumerated above incompetent, void and all are nullities before this Honourable Court”.


[9] The Applicant contends that “in the circumstance, I pray this Honourable Court to set aside the Plaintiff’s writ of summons and its accompanying statement of claim, the Reply and the Application for Directions as incompetent”.


iv. Legal Submission of Counsel:

[10] In speaking to the application, Learned Counsel referred to the affidavit depositions and submitted that in so far as the processes were issued by a law firm and not a natural person, all the processes issued are incompetent and a nullity and should therefore be struck out. . Counsel relied on the old case of MACFOY v. UAC LIMITED [1962] AC 152 and ACHEAMPONG v. REPUBLIC (1996-1997) SCGLR 566 for the submission.


[11] Counsel further quoted the Legal Profession Act, Act 32 Section 2 and the definition of who is a lawyer and he submitted that it does not include a law firm. In this case according to Learned Counsel the Writ of Summons was issued by ‘Kuenyehia and Nutsukpui” Solicitors and not a lawyer. Counsel further submitted that the signature was by one “Romana” but whenever Counsel attend Court they announced themselves as appearing and holding the brief of Benson Nutsukpui. Counsel further submitted that there is nowhere in the rules where reference is made to a law firm. Only a lawyer is authorised by law to issue a writ of summons according to Counsel.


[12] Learned Counsel further cited the unreported cases of LITHUR BREW AND COMPANY v. GHANA COCOA BOARD Suit No: CM/RPC/0518/17 delivered on Friday December 5, 2017 by Samuel K.A. Asiedu J sitting at the Commercial Division of the High Court and NANA KWASI AFREH II & 2 OTHERS v. ASSOCIATION OF VOLTA LAND COMPENSATION & 12 OTHERS AHR4/2012 delivered by Dennis Adjei JA (sitting as an additional High Court Judge and prayed the Court to grant the application accordingly.


v. The Respondent’s Case:

[13] In an Affidavit in Opposition sworn to by Manasseh Nartey, the Plaintiff/Respondent has given a historical narration of what transpired with regards to this suit and submitted that the Plaintiff commenced the instant action against the Defendant by a writ of summons and statement of claim filed on 1st June, 2015. Further, the Defendant entered unconditional appearance to the writ through its lawyer Mr. George Kofi Bekai Esq. on 23rd June, 2015. A copy of the Notice of Entry of Appearance is attached as Exhibit “MN 1” The Plaintiff has further averred that the action was eventually set down on the 19th of July, 2017 for trial to commence in October 2017 but the trial did not commence due to the persistent absence of the Defendant in Court. It is also the case of the Plaintiff that Mr. Sevor who is presently acting for the Defendant was appointed by a notice of “Appointment of Solicitor filed on 14th November, 2017” a copy of which is attached as Exhibit “MN 2”.


[14] The Applicant’s further case is that on his appointment, Counsel indicated to the Court that the Defendant was willing to explore an amicable settlement of the matter and that he needed time to study the file in order to properly advise the Defendant. The Deponent has further stated that the suit was thus adjourned for three (3) clear months to the 20th of March, 2018 but nothing happened until 19th April, 2018 when the Court fixed the suit for trial on the 3rd, 9th and 16th of July, 2018 in the absence of a conclusion of the settlement attempts by the 1st date of trial.


[15] According to the Applicant, after the unsuccessful attempt at settlement, the Defendant filed the present application on 3rd July, 2018 with a return date of 16th July, 2018. According to the deponent “I am advised by Counsel and I verily believe same to be true that the present Application is misconceived as it is not supported by law”. It is further deposed that “I am again advised by Counsel and verily believe same to be true that the writ of summons and statement of claim as well as other processes filed by the Plaintiff bore the Practising License Number of an individual lawyer in the firm of lawyers acting for the Plaintiff and was signed by that lawyer”.


[16] It is also averred that “I am further advised by Counsel and I verily believe same to be true that the Defendant’s new Counsel has been in the matter and taken steps in it since November 2017 and therefore had the opportunity to bring the present application for what it was worth at an earlier date but failed to do so”. Consequently, it is the case of the Plaintiff/Respondent that the Application is brought in utter bad faith and calculated to delay the prosecution of the suit.


vi. Respondent’s Counsel Legal Submission:

[17] In responding to the Counsel for the Applicant, the Plaintiff/Respondent’s counsel rehashed the facts as contained in the affidavit in opposition and submitted that when the present Counsel assumed carriage of his brief and prayed for an adjournment for settlement of the matter, he made no serious attempt to move the settlement forward until he brought the instant application.


[18] Counsel submitted that by Order 9 (8) of C.I. 47 an application to set aside a writ should be filed after unconditional appearance. According to Ms. Dei who spoke to the matter, timelines for bringing such applications are set in the rules and therefore where a lawyer acts in a way that affects the writ of summons, the law is that the client is bound by the lawyer’s action. Counsel relied on the unreported Court of Appeal case of XIN BIN ZHANG & ANOR v. NKRUMAH KOBY JONES (TRADING UNDER THE NAME AND STYLE: KOBY JONES ENT. KUMASI CIVIL APPEAL NO. H1/76/2016 delivered on April 12, 2017.


[19] The further argument of Counsel for the Respondent is also that the above Court of Appeal decision supports the Plaintiff’s contention that the instant application is misconceived. Ms. Dei submitted that though on the writ of summons, Kuenyehia and Nutsukpui issued the writ same was signed by Ramona Abugabe, a lawyer with a Solicitor’s number and she appeared in Court as Counsel on many occasions until she left the firm. Counsel referred to Section 8(1) of Act 32 to submit that Ms. Abugabe by providing the Solicitor’s number showed that she had a license to practice because the Solicitor’s number is traceable to only a person and not a firm.


[20] Finally, Counsel submitted that the cause of action has been pending for over three years with the participation of the Defendant and therefore the application is brought in utter bad faith. Based on all of the above, learned Counsel submitted that because of the issues raised and set down this Court ought to hear same on the merits and make a determination. He therefore urged on the Court to dismiss the application.


vii. Analysis and Opinion of the Court:

[21] I start my analysis by posing the question, can a law firm sign a process? In NANA KWASI

AFREH 11 & 2 OTHERS V ASSOCIATION OF VOLTA LAND COMPENSATION AND 12 OTHERS Supra the High Court presided over by Dennis Adjei JA sitting as an additional High Court decided that …a law firm (Legal Ink) could not properly issue a writ, not being a lawyer’ as prescribed by law, and so the relevant writ was a nullity. The Court Appeal in an unreported case of SOLKROCK LIMITED v. ANGLOGOLD ASHANTI (GHANA) LIMITED Civil Appeal No. H1/50/2016 Coram: Ayebi, J.A. (Presiding), Torkornoo (Mrs), J. A., Domakyaareh (Mrs), J. A. delivered on 16th February, 2017 approved of the reasoning by His Lordship Dennis Adjei.


[22] However, in the case of XIN BIN ZHANG & ANOR v. NKRUMAH KOBY JONES SUPRA with the same panel as above took a different path. In that case the writ was issued by ‘Poku & Associates’. The High Court granted the Defendant’s motion to set aside the writ on the grounds that the writ was not issued by a lawyer. On appeal the Court of appeal held per Torkornoo (Mrs.) JA after analysing the relevant rules as follows:

“It is my clear holding that the judgment that the writ was issued by a law firm called Poku & Associates, when Order 4 Rule 1 of CI 47 had directed that actions should be commenced by either a party or a lawyer, thereby making the Writ of Summons incompetent and unable to ground jurisdiction in the court, is totally against the weight of evidence.

The proper time to attack a writ or commencing processes which are alleged to be defective is at the time of their issue. An application alleging defect in a writ that is brought in good faith ought to raised under Order 9 rule 8 which reads:

Application to set aside writ

8. A Defendant may at any time before filing appearance, or, if the Defendant has filed a conditional appearance, within fourteen days after filing appearance, apply to the court for an order to

a. set aside the writ or service of the writ.


It is at this stage that a Defendant who genuinely sees that a writ is defective ought to speak up. When such an application is presented to the court at that time, the court’s decision would be premised on the narrow evidence of the process that lies before it. However, where as in this case, the Defendant throws in one paragraph about defects in the writ in his Statement of Defence, yet chooses not to present this issue as a preliminary point for decision by the courts and fully participates in the trial to the end only to spring the technical argument that the Writ is defective, a court is duty bound to carry a deep consideration of doing substantial justice in the heart when considering such an issue.


The court must therefore examine all the facts and evidence presented in the case, and arrive at an appropriate decision not based on just the process before him – in this case – the Writ, but the entire evidence that supports a proper understanding of the process. What does it mean to do substantial justice? We have not been left without guidance in determining what this means. Hanna Assi (No 2) v Gihoc Refrigeration and Household Products Ltd (No 2) [2007-2008] SCGLR 16, can properly pass as the seminal case. In this case, the Supreme Court sitting in its review jurisdiction was faced with whether or not to uphold the decisions of the court of Appeal and the Supreme Court which set aside reliefs granted by the High Court to a Defendant, on the ground that that relief was not claimed for in a counterclaim. The Court reviewed and set aside its own earlier decision and held that the trial court was entitled to grant a relief to the Defendant even though he had not filed a counterclaim for that relief because first, Order 28 Rule 12 of the then High Court (Civil Procedure) Rules, 1954 (LN 140A), allowed a court to amend any defect in the proceeding for the purpose of determining the real question or issue raised. Further Order 63 Rule 6 also allowed a court to make any orders it considers necessary for doing justice, whether such order has been expressly asked for or not. Thirdly, the evidence on the record justified the reliefs granted by the High Court. In arriving at this decision, we must glean the guideline as that, it is imperative not to allow any specific rule of court to take a Court into a decision that will wreak injustice especially where, when all the rules are interpreted purposively, they will give a court the mandate to do justice in accordance with the evidence on record”.


[23] After speaking to other decisions by the Supreme Court by which the apex Court interpreted the rules of Court to do substantial justice, Her Ladyship further stated:

“I could go on citing cases but suffice it to say that I believe that the need to do substantial justice should have compelled the honourable trial court to examine all the evidence before him in determining who issued the Writ that he was invited to find incompetent and especially because the trial had ended. He should look at the evidence as well as the rules of court and not just the rules.

It is true that the Writ is recorded as having been issued by ‘Poku & Associates’, but it is to be noticed that there is a signature over the words ‘Lawyers for the Plaintiff.’ Now if the application to strike out the Writ had been presented timeously as expected under Order 9 Rule 8, the only evidence the court would have had would be the Writ, and the court would be in no error to have confined himself only to the Writ in determining who actually issued this Writ. Again, if an application had been made immediately after the filing of the defence alleging incompetence of the Writ, the court would be confined to the Writ and the pleadings in determining who issued the Writ for the Plaintiff. However, having waited till Addresses to raise the matter of the person who issued the Writ, the honourable court had more than adequate evidence to appreciate who the ‘Poku’ in ‘Poku & Associates’ was. And this is why I am satisfied that the learned judge failed to consider principles of substantial justice when he confined himself to a consideration of the Writ only and concluded that the Writ was not issued by a lawyer”.


[24] From the above analysis, I understand the Court of Appeal to say that the earlier decision in NANA KWASI AFREH II and SOLKROCK LIMITED are good law in so far as the application to strike out the writ of summons on the grounds that it is not maintainable in law is brought timeously when no evidence is on the record save the pleading being the writ of summons and the statement of claim. However, the Court takes the position that where there is evidence before the Court then the Court ought to look at that in addition to the rules of Court in order to do substantial justice.


[25] I have critically studied the motion and considered the arguments canvassed by both Counsel. To my mind, while creativity and ingenuity in law must be encouraged, disingenuousness must be discouraged and based on the evidence the instant application must fail because with all respect to Applicant’s Counsel it is disingenuous and brought in utter bad faith. Based on the law, I am not persuaded that the Applicant has demonstrated that Plaintiff’s action is a nullity. A lot has happened since the writ of summons was filed including the filing of witness statements after the Court convened the Mandatory Case Management and present Counsel prayed the Court for over three months adjournment to attempt settlement discussions. To file the instant application after the so-called breakdown in negotiation is clearly ill-motivated.


[26] Further, like the Xin Bin Xhang case, though the instant writ of summons was filed by ‘Kuenyehia & Nutsukpui’, it is clear that a lawyer signed the writ of summons and provided Solicitor Number “GAR 10762/15”. That number can be traced to a lawyer and not the firm Kuenyehia & Nutsukpui. That accords with the contemporary accountability regime in regulating legal practitioners. To that extent, it is my holding that it is a defect which is a mere irregularity that can be cured because it does not go to the rest of the action.


[27] To my mind it is curious that the Defendant in both the statement of defence filed and the additional issues filed did not raise the alleged incompetence of the writ of summons based on the grounds canvassed in this application. Even though the Applicant did not state any specific rule under which the application to set aside is premised, I am of the respectful opinion that under C.I. 47 the applicable rule is Order 11 Rule 18 and the Supreme Court has laid down the ambit of that rule in clear terms for trial courts. In the recent case of GBENARTEY & GLE v. NETAS PROPERTIES & INVESTMENTS & OTHERS [2015-2016] 1 SCGR 605, the unanimous Court speaking through Anin-Yeboah JSC stated as follows at holding 1 and 2:

“Under Order 11, r 18 of the High Court (Civil Procedure) Rules, 2004 (CI47), the defendants’ motion or application to strike out the plaintiffs’ action could be brought “at any stage of the proceedings.” However, the settled practice was that, when the offending pleading had been served, the party invoking the jurisdiction to strike out the action must promptly apply to have the pleading struck out. It was clear that the court had discretion to hear the application after the case had been set down for hearing. However, like every judicial discretion, it must not be exercised unfairly, without taking all the circumstances of the case into consideration….


The procedure for terminating proceedings by summary process should be applied only in cases where the action was clearly unsustainable, plain and obvious that it was beyond doubt that the case was unarguably frivolous and vexatious, and even legitimate amendments could not cure the defect. At the stage where the proceedings had reached, the trial judge and the Court of Appeal for that matter, were enjoined to ask what exceptional circumstances existed to warrant the application at that stage when application for directions had already been taken? In the view of the court, there was nothing on record showing that any exceptional circumstance had existed for the court to entertain the application at that stage. Order 11, r 18 of CI 47 must be purposively interpreted to avoid resort to it at that advanced stage of proceedings.”


The Court further stated as Per Curiam that:

“The jurisdiction to strike out pleadings should therefore be sparingly exercised with extreme care and circumspection in plain and obvious cases. As the case has been listed for hearing on the merits, there is a subsisting order for a plenary trial, and the trial judge ought to have exercised extreme care and circumspection in dealing with the application…if the trial Court had itself set down the case for hearing, there was no point in entertaining the application when no exceptional circumstances existed. The two lower Courts with due respect, were clearly in error”.


viii. Conclusion & Disposition:

[28] In my opinion that facts before me are similar to the above-stated and referenced case and therefore I apply the ratio of the case as it is binding on me. To use the words of the Supreme Court having set the case down for hearing, there is a subsisting order for plenary trial, there is no valid legal reason for me to grant the instant application at this stage. The Defendant is certainly using the rules of court as a sword to prevent the Court from doing substantial justice to the parties and this Court should not be it witting accomplice.


[29] In the light of the above reasons, I cannot agree more with learned Counsel for the Plaintiff/Respondent that this instant application is misconceived and unmeritorious and ought to be dismissed. I therefore uphold the submissions of learned counsel for the Plaintiff/Respondent and the application therefore fails and it is so DISMISSED. Cost of GH¢ 3,000.00 is awarded in favour of the Plaintiff/Respondent.