Nyarko v Mensah (C1/192/21) [2024] GHAHC 420 (24 October 2024)

INTHE SUPERIOR COURT OFJUDICATURE INTHEHIGH COURT OFJUSTICE ASHANTI REGION, KUMASI HELDONTHURSDAYTHE24THDAY OFOCTOBER, 2024BEFORE HERLADYSHIP HANNAH TAYLOR(MRS)J. SUIT NO:C1/192/21 ALBERTNYARKO …PLAINTIFF/RESPONDENT NA223, ASAFO –KUMASI, ASHANTI VRS. KWABENAMENSAH …DEFENDANT/APPLICANT APUTUOGYA _____________________________________________________ RUL I NG _____________________________________________________ This ruling is in respect of an application filed by the defendant/ applicant hereinafter referred to as defendant for an order to set aside the judgment of this honourable Court dated the 12th day of October, 2022 and all processes on account of flagrant breaches of mandatory statutory and procedural requirements, for which reason, thejudgement so delivered isanullity. In praying for this order, the defendant in the supporting affidavit to the application states that he is ordinarily resident in Ireland – Europe for the past twenty years and his address is 22 Camlin Meadous Towns Park, Longford – Ireland. With this knowledge, the plaintiff filed a process for leave toserve thedefendant out ofthejurisdiction oftheCourt as per theExhibitIGIT-2. 1 However, the plaintiff did not comply with the mandatory and procedural rules of the Court to invoke its jurisdiction and the defendant was never properly notified of the pendency of this suit, therefore, the Court lacked jurisdiction to entertain the whole suit. With the whole suit being a nullity, thejudgment delivered bytheCourt on12thOctober, 2022be setaside. The plaintiff/respondent hereinafter referred to as the plaintiff is opposed to the application, stating that the deponent to the supporting affidavit to the application is not the defendant in the case and that the application lacks merit. He further deposed that the defendant at all times material during the pendency of the suit was notified and served with all processes when the plaintiffgot to knowthat the defendant has left the jurisdictionas borne out by copies of proof of service attached and marked as Exhibit“A”series. Thereafter, the plaintiff prayed the court to dismiss this application as same has been brought in utmostbad faith justto frustrate theplaintiff from enjoying thejudgment. Before considering the merits of the application, I would want to comment on the affidavit in support to the application. The supporting affidavit has been deposed to by Paul Amponsah of H/No Plot 3 Block B, Atonsu – Agogo, Kumasi. In the paragraph “1” of the supporting affidavit, PaulAmponsah deposed that“Iam thedefendant/applicant anddeponent herein”. It is observable that Paul Amponsah is not the defendant to the case neither is he the applicant herein. However, in the paragraph “3” of the affidavit in support, he deposed “that I have the express mandate, instructions and authority of the applicant to swear to this affidavit on matters of fact that are within my knowledge and also supplied by the applicant”. The foregoing deposition, clarifies that he is not the applicant but deposing to the affidavit on behalf of the applicant. The paragraph “1” of the affidavit ought to have read “that I am the deponent herein”. 2 The description of Paul Amponsah as the defendant/applicant was erroneous and an act of in advertence. As borne out by the judgement, Exhibit “IGIT3” dated 12th of October, 2022, the proceedings progressed without the participation of the defendant. This was as per Exhibit “A” series affidavit ofproof ofservice, the originating process being thewrit of summonswith itsstatement of claim were served, hearing notices were served as the case progressed. The service per the affidavit of service evidently show that they were all served via the Whatsapp number 00353852873130which was presented to thecourt as thedefendant’s number. Now, the defendant states because he lives in Ireland, a claim the plaintiff admits, plaintiff ought to have complied with Order 2 rule 7 of the High Court (Civil Procedure) Rules, 2004 CI 47. With such failure to comply, coupled with the fact that applicant never had notice of the writ, the judgement delivered bytheCourt cannot stand. Order 2rule7(5) ofCI47provides; - “No writ, notice of which is to be served out of the jurisdiction, shall be issued without the leave oftheCourt as provided in order8. As it were, there is no record of leave sought to issue the writ to be served on the defendant. From the statement of claim per the paragraph 2, the plaintiff has acknowledged that the defendant is resident in Ireland, however in the title of the suit, defendant is indicated as being at Aputuogya without more. The address of the defendant at Aputuagya is not disclosed. What I notice is that, the address suggests that defendant is in Ghana, but where in particular at Aputuagya same was not disclosed and neither did the plaintiff suggest that he will direct service as CI 47 provides under Order 2 rule 5 (5) where the address of the defendant after diligent 3 search is not known, the plaintiff shall indicate on the writ that the plaintiff shall direct service. No doubt the address of a defendant is an essential feature of the Writ, for same is necessary for service. In his valuable book, A practical Guide to Civil Procedure in Ghana at page 27, Marful Sau JSC (of blessed memory) noted that “By Order 2 rule 7 (5), a plaintiff can only serve a notice of a writ outside the jurisdiction with leave of the Court. Such a writ, notice of which will be served outside the jurisdiction can only be issued after the Court has granted leave for the writ to be issued in the first place. The rule that a plaintiff must seek leave before issuing a writ notice of which will be served outside the jurisdiction is a condition that must be complied with so long as the address of the defendant endorsed on the writ is outside the jurisdiction of the Court. Where the plaintiff defaults in seeking leave of the court before issuing such a writ, an objection should be taken promptly. The law is that if the objection is not taken and a fresh step is taken after the service of the defective writ, the default becomes a mere irregularity and will not nullify the proceedings. The case of FRIESLAND FRICO DOMO ALIAS FRIESLAND FOODS BV V. DACHEL CO. LTD.[2012] 1SCGLR 41,isinstructive. In this case, the defendant never appeared and states he got to know of the suit only when an attempt was made to access the property in dispute. That the defendant resides in Ireland is disclosed in thestatement ofclaim per theparagraph 2as follows: “The defendant isalso aGhanaian currently resident in Ireland”. Where the plaintiff is aware that defendant at the time of issuing the writ was resident outside then he ought to have sought leave before issuing the writ and also seek to leave to serve the notice of the writ outside the jurisdiction of the Court. With this knowledge the plaintiff failed to 4 disclose the address in the title of the suit and to seek the leave required by the rules of court which ought to beobeyed. In this case, the plaintiff after issuing the writ without leave sought leave to serve notice of the writ on the defendant out of the jurisdiction via Whatsapp and same was granted after, a number was provided as defendant’s number by the Court differently constituted. It has been submitted on behalf of the plaintiff that Order 7 rule 3A of CI 22 provides for electronic service of processes out ofjurisdiction. CI 122, of 2019, an amendment to the High Court (Civil Procedure) Rules of 2004 CI 47 provides as follows among otherthings; 3AElectronic Service ofProcess. (1) A party who initiates an action in a cause or matter, or files an appearance or a response in respect of a cause or matter in Court shall, at the time of the initiation of the action or filing or filing of theappearance or response, clearly state whether the service of any process ordocument inrespect ofthecause or mattershould bebyelectronic means. (5) A process or document required to be served personally, may, subject to subrule (1) be served by electronic means either by a bailiff, a registered process server or the party in the particular cause or matter but where a party serves the process or document by electronic means, that party shall deliver a hard copy of the process or document to the Registrar of the Court for verification only”. No doubt service can be done electronically per the rules. The challenge here is apart from not seeking leave to issue the writ, the defendant also denies the number provided as his contact 5 number. It behoves on the plaintiff to prove that the number provided for service is that of the defendant, but nosuch proof was provided. In RE-YENDI SKIN AFFAIRS; ANDANI V. ABDULAI [1982 – 1983] GLR 1080 at 1084 Adade JSC, held “where the issue of non-service of a document becomes crucial in the determination of a matter, as in the instant case, the party alleging service, or relying on the service for success, assumed theduty to proveit strictly.” There was no proof provided that the number provided for service on the defendant was his contact. The failure of proof that the contact provided is defendant’s contact amount to non- service oftheoriginating process and all thehearing notices. It is well established that non-service of a process where service of same is required, goes to jurisdiction. This implies that audi alteram, the rule of natural justice is breached. The whole proceedings thus, isa nullity. REPUBLIC V. HIGH COURT ACCRA, EX-PARTE SALLOUM (SENYO COKER INTERESTED PARTY) [2011] 1 SCGLR 574 AHINAKWA II (SUBSTITUTED BY) AYIKAI V. OKAIJA [2011] 1SCGLR205. In REPUBLIC V. HIGH COURT, ACCRA, EX-PARTE OSAFO [2011] 2 SCGLR 966, the SupremeCourt held “theconsequence ofa denial of thefundamental right ofhearing was sowell settled that in all cases of proven default, the judgment so entered by the Court could be so fundamentallyflawed”. Having considered the prayer sought as per the foregoing reasoning, the Court’s jurisdiction was not properly invoked. Accordingly, the judgment entered for the plaintiff on 12th day of October, 2022is hereby set aside. 6 [SGD] JUSTICEHANNAH TAYLOR(MRS) JUSTICEOF THEHIGH COURT LAWYERS MATILDA KWARTENGFOR PLAINTIFF RAPHAEL DARKO FOR THE DEFENDANT 7