IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION),
KUMASI - A.D 2018
FRED KODIE AGENCIES LIMITED -(Plaintiff)
ASUMANA DROBO ALIAS WATARA - (Defendant)
DATE: 17 TH JULY, 2018
SUIT NO: OCC 55/2018
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
SULLEY SAMBIAN FOR PLAINTIFF/RESPONDENT
BARIMA AGYEKUM HINNEH FOR DEFENDANT/APPLICANT
This ruling is in respect of an application for an order referring the instant suit to the Chief Justice for further directives on grounds of lack of geographical jurisdiction.
Counsel for the defendant/applicant herein contends that the action ought to have commenced against the defendant at where he resides or does business. He submits that the defendant resides and does business at Drobo in the Brong Ahafo Region and since there are High Courts in Sunyani, Brong Ahafo Region the action ought to have commenced there rather than in Kumasi, Ashanti. He refers to Order 3 of the High Court (Civil Procedure) Rules 2004 (CI 47) and invited the court to grant the application.
The Plaintiff/Respondent is opposed to the application. Counsel attacked the competence of the application since in his opinion failure to state the rule of law on the face of the motion paper makes the application void. He submitted that under Order 19 rule 4 the applicant is required to state on the face of the motion paper the rule under which the motion is being moved and that when a procedure is provided for instituting an action, failure to follow the procedure is not only a nullity but an issue that goes into jurisdiction. On the merit of the application, counsel submitted that the contract for the sale of the poultry feed (the subject matter of the writ) was entered in Kumasi. He cited Order 3 rule 1(4) of CI 47 and submitted that the court has jurisdiction to try the matter as the action should be commenced in the region where the contract was performed.
Before I go into the merit of the application, I will first deal with the legal issue relating to the competence of the application.
Order 19 rule 4 of CI 47 states:
“Every application shall be supported by affidavit deposed to by the applicant or some person duly authorised by the applicant and stating the facts on which the applicant relies, unless any of these Rules provides that an affidavit shall not be used or unless the application is grounded entirely on matters of law or procedure which shall be stated in the motion paper.”
My understanding of the provision is that in an application relating to matters of law or procedure an affidavit evidence may be dispensed with. However, it is important to state the law or procedure on the face of the motion paper. This is to ensure that the opposing party is notified of the nature of the application. In the instant case the applicant stated on the motion paper the nature of the application as “an order referring the instant suit to the Chief Justice for directives on grounds of lack of geographical jurisdiction”.
Clearly, the applicant is challenging the jurisdiction of the court to entertain the suit. What the applicant failed to do was to state the procedural rule under which the application is grounded. It is, however, my considered opinion that insofar as the applicant has stated the nature of the application on the motion paper, failure to state the rule of law is not fatal to the application. This is a mere irregularity that can be cured by Order 81 rule 1 of CI 47. It provides as follows:
“Rule 1—Non-Compliance with Rules not to Render Proceedings Void
(1) Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it.”
The trend is that the court allows flexibility in the interpretation and application of its rules in order to ensure that justice is done. What counsel for the respondent is pushing for is the mechanical application of the rules of court. It is the contention of learned counsel that since no legal provision was stated on the motion paper the application is incompetent and same must be struck out on that basis. With utmost respect to learned counsel, this contention is a technical legal point which has no merit in the light of Order 81. Our Supreme Court has consistently rejected the use of technicalities in the resolution of cases. In GIHOC Refrigeration & Household Products v. Hanna Assi [2005-2006] SCGLR 458 at page 492, Modibo Ocran JSC in recognition of the flexible approach adopted by the courts stated:
“At any rate, even at the trial level, the High Court Rules have maintained sufficient flexibility both in the old and the new Rules of procedure to allow courts to make such orders dealing with the proceedings as it considers just, or necessary for doing justice to the case.”
The result is that the application is properly before the court and its merit can therefore be ascertained.
Order 3 rule 1(4) of CI 47 provides:
“(4) Every cause or matter for specific performance of a contract or in respect of breach of contract, shall be commenced in the Region in which the contract ought to have been performed or in which the defendant resides or carries on business.”
From the writ of summons, the defendant allegedly bought poultry feed (the subject matter of the suit) from the plaintiff at the latter’s Kumasi branch between 14th July, 2017 and 2nd August, 2017. It was only after the transaction that the poultry feed wastransported to the Defendant at Dormaa Ahenkro in the Brong Ahafo Region. In fact, the whole writ is about breach of contract of sale and the relief sought is for the recovery of the outstanding balance of the sale. The fact that the transaction took place in the Kumasi office of the Plaintiff has not been debunked by the Defendant. It can therefore be concluded that the contract ought to have beenperformed in Kumasi.
Thus, on the strength of Order 3 rule 1(4), the Plaintiff can elect to sue the Defendant in Kumasi. This court, therefore, has the jurisdiction to entertain the suit.
For the above reason, the application is dismissed as same is unmeritorious.