ALHASSAN MUSAH TIMBERS LTD vs. FRANKO TIMBERS LTD
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT
    KUMASI - A.D 2019
ALHASSAN MUSAH TIMBERS LIMITED
FRANKO TIMBERS LIMITED

DATE:  16TH MAY, 2019
SUIT NO:  RPC 89/2012
JUDGES:  HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
LAWYERS:  ADJEI BEDIAKO FOR THE DEFENDANT/JUDGMENT DEBTOR/RESPONDENT/APPLICANT
ABASS AMANKWAAH FOR THE RESPONDENT
RULING

In this motion on notice the Defendant/Applicant (hereinafter called the Applicant) is praying this court for the following:

(1)  An order staying the execution and/or further execution of the judgment of the Honourable Court dated February 4, 2014;

(2)  An order setting aside the purported writ of summons and statement of claim filed in the above suit on February 24, 2012 as having been issued in clear breach of statutory and time-honored procedural requirements thus making the writ of summons and statement of claim void;

(3)  An order setting aside all processes, steps taken and proceedings, including the judgment dated February 4, 2014, as having been respectively filed, undertaken or delivered based on a void writ of summons and statement of claim which could not have properly invoked the jurisdiction of the Honorable Court.

(4)  An order setting aside the purported:

(i). ‘Notice of Withdrawal of the Notice of Appeal, filed on the 2nd May, 2014’ filed on 15/11/18;

(ii) Entry of Judgment filed on 15/1/18,

(iii) the order of substituted service granted by Justice Kofi Akrowiah on 15/1/19;

(iv) any, and or all other processes, steps taken or purported to be taken after the order of substituted, as all those steps breached statutory sine qua non and judicial decision binding on the Honorable Court, in terms of the supporting affidavit and annexures attached.

 

Background to the Application

The background to the application is that on 24/2/2012, the Plaintiff/Respondent (hereinafter called the Respondent) issued a Writ of Summons and Statement of Claim against the Applicant herein for the reliefs as endorsed on the writ of summons. The law office, Dwumfour & Dwumfour, indorsed the writ. The Honourable Court presided over by Her Ladyship Justice Angelina Mensah-Homiah (Mrs) sitting at the Commercial Court ‘1’ Kumasi heard the case and rendered a judgment partly in favour of the Applicant and Respondent herein. Aggrieved by that decision, the Respondent caused a notice of appeal to be filed on 2/5/2014 at the registry of the High Court on its behalf by Sulley Sambian, Esq. of Sarpong and Associates. The Respondent in the said appeal prayed the Court of Appeal to set aside the decision of the Honourable Court.

 

Subsequent to the above, Abass Amankwah, Esq. filed Entry of Judgment and Notice of Withdrawal of the Notice of Appeal on 2nd May 2014. Having purportedly withdrawn the Notice of Appeal, Abass Amankwah, Esq. attempted unsuccessfully to serve the Entry of Judgment on the Applicant. He therefore applied to serve the Respondent by means of substituted service. That application was placed before Commercial Court “3” presided over by Justice Kofi Akrowiah, whereas the substantive matter was heard by Her Ladyship Justice Angelina Mensah-Homiah. The applicant is alleging breaches of Acts of Parliament and binding judicial decisions and has brought the present action for the prayers stated on the motion paper.

 

Affidavit Evidence

In this motion on notice which is backed by a 14-paragraph affidavit in support, the applicant has invited the court to set aside its judgment dated 4th February, 2014 and all the subsequent processes of the court, as they are void ab initio.

The Respondent herein is opposed to the instant application and has demonstrated that in an affidavit in opposition to the motion filed on 18th February, 2019. It is the Respondent’s case that the judgment complained of was properly procured and the writ of summons was properly issued. The respondent contends in his affidavit that granted the breaches alleged are true, they are mere irregularities which can be cured as they never touched on the jurisdiction of the court.

 

Legal Submissions

In his written submission, learned counsel for the applicant argued that the law firm, Dwumfour and Dwumfour issued the writ of summons and that a writ issued by a law firm was not competent to invoke the jurisdiction of the court. Counsel cited Order 4 rule 1 of the High Court (Civil Procedure) Rules, 2004 (CI 47) which provides:

‘Subject to these rules, any person may begin and carry on proceedings in person or by a lawyer.’

Counsel also submitted that the writ of summons purportedly issued by the Respondent breached sections 2, 6, 8, 43(1) and 56 of the Legal Profession Act, 1960 (Act 32).

Section 2 of Act 32 defines a lawyer as follows:

“A person whose name is entered on the Roll kept under section 6 (a) is entitled, subject to section 8, [ i.e. obtaining a practising license] to practise as a lawyer, whether as a barrister or solicitor or both, and to sue for and recover the fees, charges and disbursements for services rendered as a lawyer.”

Section 56 of the Act 32 further throws more light on who a lawyer is as follows;

“For the purposes of the recovery of fees, includes a person enrolled at the time the relevant business was done; and, for the purposes of the preparation of legal documents, does not include a lawyer for the time being suspended from practice.”

 

Counsel also relied on the case of Lithur Brew & Co v Ghana Cocoa Board Unreported Suit No.: CM/ RPC/0518/17, HC delivered on 15th December, 2017, where the court held at page 6 as follows:

“In the opinion of the court the word “person” as used in section 2 of the Legal Profession Act means a natural person and it does not include artificial person like the Plaintiff in this suit. According to the Act, it is such natural persons whose names are entered on the roll of lawyers who may, subject to being licensed, practise law, ... It follows therefore that a non-natural person cannot, in the first place render legal services.”

It was counsel’s submission that a lawyer cannot be interchanged with a law firm and vice versa.

Thus, a writ must be declared a nullity if it is issued by a law firm instead of a named lawyer.

 

Learned counsel also argued that the statutory breach complained of is not a mere irregularity but goes to jurisdiction. He cited a plethora of authorities in support of his submission that Order 81 cannot cure the defective nature of the writ. These include the Republic v High Court Accra; Ex parte Allgate Co. Ltd (Amalgamated Bank Ltd Interested Party) [2007-2008] SCGLR 1041 where the Supreme Court held that:

“…where there has been non-compliance with any of the rules contained in the High Court (Civil Procedure Rules) 2004 CI 47, such non-compliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is also a breach of the constitution or of a statute other than rules of court or the rules of natural justice or otherwise goes to jurisdiction.”

 

He invited the court to conclude that the writ of summons has breached statutory provisions, substantive rule of practice and procedure. Consequently, the same is a complete nullity and thus ought to be set aside as well anything predicated upon it.

 

Counsel for the applicant also took aim at the entry of judgment and the notice of the withdrawal of the notice of appeal. He argued that Abass Amankwah, Esq. did not have the right to file the entry of judgment and notice of the withdrawal of the notice of appeal without first, filing Notice of Change of Representation/Lawyer. This is because at the time the processes were filed Sulley Sambian Esq. had appeared as lawyer for the Respondent by virtue of the fact that Lawyer Sambian had filed the Notice of Appeal on behalf of the respondent. He submitted that counsel for the respondent’s act was in violation of section 26(1) and (2) of Act 32 as well as order 75(1) of CI 47. He further submitted that the requirement of filing a notice of change of representation/lawyer has attained the enviable status of mandatory rule of substantive procedure and that the procedure cannot be halted, amended or jettisoned by his learned colleague, Abass Amankwah, Esq. Having failed to comply with statute and established rule of practice, it was counsel’s submission that his learned friend lacked the capacity to file the notice of entry of judgment and any other process in this suit. Thus the notice of entry of judgment he filed on 15/11/2018 at 2:50pm in this suit is a complete nullity and the same ought to be struck out. He also invited the court to strike out the notice of appeal. Counsel argued that per Rule 17(1) of the Court of Appeal Rules, 1997 (CI 19)a withdrawal of appeal can only be filed at the Registry of the Court of Appeal where the Court is properly seized with jurisdiction.

 

On the legality of the substituted service, counsel for the applicant submitted that the placement of the motion for substituted service before Commercial Court “3” was wrong since the substantive case was handled at Commercial Court “1” and as such all post judgment motions must be handled by the latter court unless the Chief Justice directs otherwise. He argued that the movement of the motion to Commercial Court “3” amounts to a transfer of a case that was pending before a court to another court. He cited Section 104(1) of the Courts Act, 1993 (Act 459) [As amended by the Courts (Amendment) Act, 2002 (Act 620), sch. to s.7] and submitted that the judicial power to transfer cases has been vested in one and only one person, the Chief Justice. Thus, the Commercial Court “3” judge was not seized with the power to hear that case, as it is an uncontestable fact that the case had not been transferred to him by the Chief Justice. The order for substituted service is therefore void and ought to be set aside as prayed.

Finally, on the stay of execution counsel for the applicant submitted as follows:

“My Lord from the submissions thus far, there is a lot of matters that have occurred since the date of the judgment – a lot of jurisdictional lapses, breaches of statutes, breaches of binding judicial precedents and fundamental and incurable irregularities – all of which make the execution or enforcement of the judgment delivered practically impossible. Indeed, the judgment is also under attack since it was delivered pursuant to the issuance of an incurably void writ of summons. The best way to salvage any further wrongs from occurring in this case is by granting the instant application for stay of execution in the best interest of justice.”

Learned counsel for the respondent began his written address with a notice that he intends to as much as possible, present his submission along the same line as that of his learned friend so that he can match him “boot for boot”.

On setting aside the writ of summons, counsel for the respondent submitted that the real issue for this Honourable Court’s determination is: Does the mere absence of the Lawyer’s name on the Writ of Summons nullify the writ of summons to the extent that a judgment obtained about five years ago based on that writ can equally be nullified? He contended that Nana Adwoa Koomson of Dwumfour Dwumfour was the lawyer who physically and personally commenced the action on behalf of the Respondent and personally represented the Respondent throughout the trial without any objections to her qualification as a lawyer. He contended that the appropriate section in C.I.47 which is of relevance to this issue is Order 2 which is headed “Commencement of Proceedings” and not Order 4 of C.I. 47 which is headed “Parties and Causes of Action”. He cited CLEMENT OTCHERE vs. DIANA OWUSU, an unreported Court of Appeal decision delivered on the 20th day of February, 2016 per Gertrude Torkornoo, JA and submitted that the case is on all fours with the instant case. He submitted that the endorsement on the writ and in particular the absence of the name of the lawyer on the writ is never in breach of CI 47 or any known statute. That, the endorsements on the Writ is in strict conformity with the rules.

He further submitted that, if even there is any such breach it will not be so fundamental as to lead to the nullification of a judgment duly obtained five years ago. According to counsel, the breach complained of is only procedural and does not go to jurisdiction.

 

Counsel also submitted that the writ of summons now being complained of commenced the action and it was duly served on the Applicant who duly entered appearance, defense and actually participated in the trial up to delivery of the judgment without raising the objection now being raised. This being the case, the Applicant is deemed to have waived its right of objection having taken these fresh steps and in fact, participating in the trial up to judgment. That granted there is any breach, the applicant cannot now raise this objection having participated fully in the trial.

 

In support of the above point, counsel cited the case of ADRYX MINING AND METALS LTD AND OTHERS V. ASHANTI GOLDFIELDS CO LTD (1999-2000) 2GLR 758 where the court stated that:

“Any defective process filed had to be addressed timeously and at the earliest opportunity before steps were taken in the matter. In the instant case however, the respondent company failed to invoke the powers of the court to have the summons set aside for irregularity at the earliest opportunity available and the fact that it proceeded to fight the case by filing an affidavit in opposition constituted a fresh step within the meaning of Order 70, r 2 of LN 140A. In the circumstances, the respondent company could now not be heard to complain.

 

He also cited the case of REPUBLIC V NII ADAMAH-THOMPSON AND OTHERS; EX PARTE AHINAKWAH II (SUBSTITUTED BY) AYIKAI (2012) 1 SCGLR 379 where the Court held that:

“For the avoidance of doubt however I would emphasize that order 81of C.I.47 is truly a comprehensive insurance policy covering all procedural defects arising from the provision of C.I. 47 except where the same also have a constitutional pedestal. - Order 81 of C.I.47, failure to comply with the rules does not nullify proceedings. Under rule 2 (1) a party affected by any proceedings he considers irregular is enjoined to apply by motion to have the said proceeding set aside. However, he is denied such right by rule 2(2) if he has taken any fresh step in the matter. Fresh step will include any step taken to comply with the terms of alleged irregularity.”

 

On the notice of withdrawal of the Notice of Appeal and entry of judgment, counsel submitted that the law does not state that any process filed by the new lawyer shall be a nullity. That, the only consequence for not filing the notice of change of solicitor is that, the former lawyer shall be deemed to be appearing for the party until final judgment. According to him, the rule even states that, the court for special reasons, can cease to consider the former lawyer as acting in the case even though no notice of change of lawyer has been filed. In the estimation of counsel, this demonstrates that, a default in filing a notice of change of Solicitor does not go to the court’s jurisdiction over the suit. For him, it is only procedural under C.I.47 and borders on ethics under Act 32. He submitted that the default can be cured by Order 81, as it does not touch on the jurisdiction of the court.

 

On the legality of the substituted service, counsel submitted that the essence of the order for the substituted service was to bring the two processes to the notice of the Applicant and nothing more. He stated that in the unlikely event that the order for the substituted service is vacated, all that the Respondent needs to do is to serve the Applicant with the same processes. Thus, setting aside the order for the substituted service will not achieve any real or substantial justice. He also argued that the sitting trial judge having delivered her judgment, became functus officio and it cannot be said that at the time the motion for substituted service was filed at the registry of the Court, the matter was pending before the court. It was his contention that the Commercial Court “3” was seized with the jurisdiction to hear the matter.

On the stay of execution learned counsel responded as follows:

“My Lord, it is strange that my learned friend is making an application for stay of execution when there is clearly no appeal pending or better still, when the Appellant therein (the Respondent herein) has indicated that it does not intend to pursue its appeal.

In any case, if the judgment is set aside as prayed, there will not be any execution to be stayed. On the other hand, if the judgment is not set aside as prayed, staying the execution indefinitely will mean denying the Respondent the right to enjoy the fruits of his victory considering the fact that there is no appeal pending. This will mean that the execution will be stayed indefinitely.”

Having highlighted the legal arguments submitted by both counsel on behalf of the parties, I shall now assess the issues and determine the merits of the application.

 

SETTING ASIDE THE WRIT OF SUMMONS

It is axiomatic to state that the courts are servants of statutes. Therefore, in administering justice, judges are enjoined to uphold statutory provisions rather than condoning breaches of the same. Breach of statutory provisions may render a process that flows from it void. This is apparent when the breach complained of is so fundamental that it affects the jurisdiction of the court.

A court has no option than to set aside a writ of summons issued in violation of a mandatory statutory requirement. The Supreme Court amplified the position of the law when it stated in Gaizie Hughes & Co. v Loders Crocklaan BV [2012] 1 SCGLR 363@368-369 as follows:

“Proceedings commenced in clear violation of mandatory statutory requirements might not escape the scrutiny of the law. It seems to us that this is a useful tool in the hands of the court by which we are enabled to strike down proceedings even though the default in complying with mandatory requirements might have escaped notice in the courts below. It is a weapon that enables us to uphold the rule of law as to do otherwise would have the effect of condoning breaches of statutes.”

 

In the instant case, the applicant is alleging that the respondent breached Order 4 rule 1(1) of CI 47 together with Act 32 particularly sections 2, 6, 8, 43(1) and 56. Counsel has spent considerable time and effort in an attempt to convince the court that failure on the part of a lawyer to indorse her name on the writ of summon issued on behalf of the respondent on 24th February, 2012 constitutes a fundamental breach which renders the entire writ a nullity. At the heart of learned counsel’s argument is Order 4 rule 1(1). Order 4 deals with ‘Parties and Causes of Action’ and Order 4 rule 1 specifically deals with a party’s right to take proceedings. My understanding of Order 4 rule 1(1) is that any person who intends to institute and carry on an action in court can do so in his own name or by a lawyer. Thus the person can issue the writ personally or the same can be issued by a lawyer on his behalf. The name of the party beginning the proceeding can be identified in the title to the suit. Order 4 never made provision relating to all the endorsements on a writ of summons. The said provision was made under Order 2 rule 5 which provides:

Rule 5—Indorsement as to Plaintiff

(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 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 name and business address in Ghana and also, if the lawyer is the agent of another, the firm name and business address of his principal.

(2) The address for service of a plaintiff shall be

(a)  where the plaintiff sues by a lawyer, the business address of the plaintiff or the plaintiff's lawyer or the plaintiff's lawyer's agent as indorsed on the writ; or

(b)  where the plaintiff sues in person, the plaintiff's address in the country as indorsed on the writ.

(3) Where a lawyer's name is indorsed on the writ, the lawyer shall declare in writing whether the writ was filed by the lawyer or with the authority or consent of the plaintiff, if any defendant who has been served with or who has filed appearance to the writ, requests the lawyer in writing to do so.

(4) If the lawyer declares in writing that the writ was not filed by the lawyer or with the authority or consent of the plaintiff, the Court may, on application by any defendant who has been served with or who has filed appearance to the writ, strike out the writ.

(5) Where the address of the defendant after diligent search is not known, the plaintiff shall indicate on the writ that the plaintiff shall direct service.

 

Indeed, the Court of Appeal decision of CLEMENT OTCHERE vs. DIANA OWUSU Suit No.H1/27/2015 (delivered on 29th February, 2016) per Gertrude Torkonoo, JA is on all fours with the instant case. In that case the court held that the provisions of Order 2 rule 1 show that the endorsements required to make the writ competent where the writ is issued by a lawyer for a plaintiff who is suing in his own name is the lawyer’s firm name and his business address in Ghana much more than the lawyer’s name. Thus, failure to indorse the name of the lawyer on the writ is not fatal since that is not an expressed requirement under Order 2 rule 1 but an inferred requirement which makes such endorsement permissive. On the question of the competence of the writ issued without the lawyer’s name, Her Ladyship held as follows:

“Declaring a process void is not a fanciful situation. The act complained of must fly in the face of statute. Now in this situation where order 2 rule 5 and order 9 are totally silent on the provision of a lawyer’s name but leave that provision to be inferred as a matter of course, but clearly shows that the mischief the statute intends to prevent is the commencement of an action by a party without address, and an indication that this party is represented by a lawyer without providing the lawyer’s business address. Would it be a proper application of the rules of interpretation and principles of public policy to non-suit such a party because the lawyer who prepared and filed the Writ signed the Writ, provided his license number and provided his address, but failed to provide his name? Clearly, the lawyer who signed this Writ is identifiable through his signature, address and license number.”

 

In the case of Alhaji Abdul Rashid v Misener International Limited & 2 others Suit No. H1/40/2017, CA (delivered on 28th March 2017), the Court of Appeal differently constituted and speaking through Marful Sau JA (as he then was) held thus:

“… we have observed that the writ that originated the action was issued by a legal firm and not a Lawyer. That writ is incompetent and for that matter the amendment of same is also incompetent. The entire process before the court is a nullity so the writ of summons that commenced this action will be struck out and the same is struck out…”

 

Per the twin doctrines of judicial precedent and stare decisis, this court has the liberty choose between the above conflicting decisions of the Court of Appeal. I respectfully rely on the Otchere case (supra) based on the reasons given by the court. The result is that the writ of summons issued by the respondent on 24th February, 2012 was valid and the same cannot be set aside. Consequently, the judgment of the court delivered on … remains valid.

 

Legality of the notice of withdrawal of the notice of appeal and entry of judgment

From the record, Sulley Sambian Esq of George Sarpong & Associates, Esq filed the Notice of Appeal after the judgment was delivered. Abass Amankwah, Esq. subsequently filed Entry of Judgment and Notice of the Withdrawal of the Notice of Appeal.

It is clear that after final judgment in this suit, the Respondent did not reengage Dwumfour & Dwumfour to represent it at the Court of Appeal. In such a situation, because “a notice of appeal is an originating process that may be likened to a writ of summons” a notice of change of representation is not required to be filed under the law. See Tindana v Chief of Defence Staff [2011] 1 SCGLR 732

 

The situation is, however, not the same with regard to Abass Amankwah Esq. He did not have the right to file the entry of judgment and notice of the withdrawal of the notice of appeal without first, filing Notice of Change of Representation/Lawyer. This is because as a general rule, section 26(1) and (2) of Act 32 provides that:

“(1) A party appearing by a lawyer in a case is at liberty to change that lawyer…

(2) Until the notice is filed and a copy of the notice is duly served, the former lawyer shall be considered as appearing for the party until final judgment, unless allowed by the Court for a special reason to cease from acting in that case.”

 

Order 75 rule 1 (1) of CI 47 provides as follows:

“(1) A party represented by a lawyer may, subject to rule 2, change the lawyer at any time.”

Order 75 rule 2 and 3 also provide:

“2. Unless and until a change or a discharge of a lawyer under rule 1 (1) or (2) is notified in accordance with rule 3, the former lawyer shall subject to rule 5 and 6, be considered the lawyer of the party until the conclusion of the cause or matter in the Court.

3. (1) Where a party changes the party's representation under rule 1(1), (2) or (3), the party or the lawyer, if any, (a) shall file a notice of the change at the registry of the appropriate Court; which notice shall indicate the number and the date of the current practising licence of the lawyer; and (b) send a copy of the notice, indorsed with a statement that the notice has been duly filed in the registry, to the former lawyer, if any, and to every other party who is not in default as to filing of appearance.”

 

I agree with counsel for the applicant that the above provisions of Act 32 and CI 47 are not merely procedural prescriptions. Failure on the part of this Court to give effect to the statutory provision in section 26(1) of Act 32 as well as Order 75 rules (1), (2) and (3) of CI 47will amount to undermining an Act of Parliament. These are substantive requirements of civil procedure and practice in Ghanaian courts. The requirement of filing a notice of change of representation/lawyer has therefore attained the enviable status of mandatory rule of substantive procedure. That procedure is applicable to Abass Amankwah, Esq. It was therefore a fatal flaw when he failed to comply with same when he was engaged by the respondent and prior to the filling of those processes. This is a breach of substantive rule of law and procedure and the same cannot be treated as a mere irregularity to be cured by the Order 81.The court as a custodian of the rule of law owes it a duty to reject any act that tends to undermine statute, case law and well-defined practice. In Agyemang (substituted by) Banahene &Others v Anane [2013-2014] 1 SCGLR 241 at 250, Wood CJ held that:

“In any proceedings, where the step taken by a party or parties violates any constitutional or statutory provisions or is not sanctioned by any substantive rule of law or procedure, the court has a duty to reject it …”

It is also my considered opinion that beside the circumstance affecting the lawyer, the notice of withdrawal of the notice of appeal filed on 2nd May, 2014 never terminated the appeal. Rule 17 of the Court of Appeal Rules, CI 19 provides:

“17. Withdrawal of appeal

(1)  Subject to rule 15, if the appellant files with the Registrar a notice of withdrawal of his appeal, the Registrar shall certify that fact to the Court, which may thereupon order that the appeal be dismissed with or without costs.

 

It is palpably clear that an order of the court dismissing the notice of appeal with or without costs is a condition precedent to the termination of the appeal. Thus, a notice of appeal cannot within the meaning of Rule 17(1) be withdrawn without the blessing of the court. Insofar as the notice of appeal has not been properly withdrawn, the appeal is still pending. The effect is that the respondent who has initiated an appeal cannot commence the execution process. This is another reason why the entry of judgment filed on behalf of the respondent remains invalid.

 

Substituted Service

From the foregoing, it is apparent that the order for substituted service of the entry of judgment is invalid since the entry of judgment itself has not passed the test of legality. I am also conscious of the fact that the court that granted the order for substituted service was not seized with the jurisdiction to do so. A court is seized with the power to handle post judgment applications unless same is transferred to another court by the Chief Justice. Indeed, the trial judge has the jurisdiction to entertain post-judgment interlocutory applications or applications aimed at executing the judgment. That is why Osei–Hwere JA (as he then was) held in the case of Ahyia v. Amoa [1987-88] 2 GLR 289 at 294, CA that:

“It cannot be disputed that when an appeal is lodged against a judgment the trial judge becomes functus officio and he cannot, therefore, vary or set aside the said judgment. Before the transmission of the record of appeal the trial judge can only entertain interlocutory applications pending appeal.”

It is, however, the law that it is only the Chief Justice who can transfer a case from one court to another. Section 104(1) of the Courts Act, 1993 (Act 459) provides:

“…the Chief Justice may by order under his hand transfer a case at any stage of the proceedings from any Judge … to any other Judge … and from one court to another court of competent jurisdiction at any time or stage of the proceedings ...”

 

From the evidence on record, the Chief Justice never sanctioned the transfer of the application for substituted service to the Commercial Court 3 and this is another reason why the order for substituted service can be said to be void.

 

Conclusion

For the foregoing reasons it is concluded that the writ of summons and the subsequent judgment of the court are valid. The appeal filed on behalf of the respondent by Sulley Sambian Esq. is by operation of law still pending, as the same has not been successfully withdrawn. Consequently, steps taken by the respondent geared towards execution of the judgment are invalid. The application for stay of execution against the respondent is redundant since the respondent has initiated an appeal.

There will be no order as to costs.

I highly commend the lawyers in this case for the industry shown in the prosecution of the case. Their well-researched submissions have assisted the court in its determination.

 

 

SGD

DR. RICHMOND OSEI-HWERE

 

JUSTICE OF THE HIGH COURT