Kormi Vrs. Adzinai And Another (E1/23/2022) [2024] GHAHC 298 (30 July 2024)

INTHESUPERIOR COURT OF JUDICATURE INTHEHIGH COURT OF JUSTICE HELDATHOHOE ONTUESDAYTHE 30THDAY OF JULY 2024BEFORE HERLADYSHIP JUSTICEJOAN EYIKING, HIGH COURT JUDGE SUITNO. E1/23/2022 ADZINAIKORMI - PLAINTIFF/APPLICANT VRS 1.SALOMEYADZINAI - DEFENDANTS/RESPONDENTS 2.VINCENTIATSWASAM RULING–STRIKING OUT PLAINTIFF’S NAME This is an application for and on behalf of the plaintiff/applicant hereinafter referred to as applicant praying the court to strike out his name as plaintiff in the matter. I shall quotethe relevantparagraphs asfollow: 3.That my attentionhas been drawntoa Suit No. E1/23/2022 which I am theplaintiff inthe matter. 4.That Idid notissue that writ ofsummons and statement ofclaim. 5. That I am not the Head and lawful representative of Brahene Adzinae Family of Gbi-Wegbe. 6. That as a member of Brahene-Adzinai family, I do not know that the family own a largetractofland at Dzenana in Gbi-Wegbe. 7. That the lawyer who filed the writ of summons and statement of claim and using my name as plaintiff and head and lawful representative of Brahene Adzinae family should be thoroughlyinvestigated. 1 8. That I never appeared before any lawyer to issue any writ and al cost incurred in the case directed to me should the lawyer who filed the writ or the one who authorised the lawyer todoso. The defendants/respondents hereinafter referred to as respondents, did not file any affidavit inopposition. SUMMARY OF SUBMISSIONBY APPLICANT In moving the application, the applicant relied on the motion paper and the supporting affidavit. In his submission, applicant repeated the averments in the affidavit insupport asabove. As stated earlier that the respondents did not file any affidavit in opposition, in response to the application, Counsel for the respondents submitted that the respondentshaveno objectiontothe instant application. ANALYSISANDEVALUATION The applicant by himself has brought this instant application to have his name struck out of the suit as plaintiff. Although counsel for the plaintiff (as he has represented the applicant as plaintiff in the suit) has been served and is aware of the instant application, counsel for the plaintiff failed toappear in court when the matter wasfixed forhearing. According to the applicant his attention has been drawn to a Suit No. E1/23/2022 which he is the plaintiff in the matter. That he did not issue that writ of summons and statement of claim and he is not the Head and lawful representative of Brahene Adzinae Family of Gbi-Wegbe. That as a member of Brahene-Adzinai family, he does not know that the family own a large tract of land at Dzenana in Gbi-Wegbe. That the lawyer who filed the writ of summons and statement of claim and using his name as plaintiff and head and lawful representative of Brahene Adzinae family 2 should be thoroughly investigated as he has never appeared before any lawyer to issue any writ. The applicant contends that all cost incurred in the case be directed at the lawyer who filed the writ or the one who authorised the lawyer to do so, to pay accordingly. PerOrder2Rules 1,2and 5ofCI47,proceedings arecommenced asfollows: Rule 1–Title of Parties “Subject to any existing enactment to the contrary, the party who commences civil proceedings shall be described as “plaintiff” and the opposing party shall be described as “defendant”. Rule 2–Commencement of Proceedings “Subject to any existing enactment to the contrary all civil proceedings shall be commenced by the filing ofawrit ofsummons.” Rule 5–Indorsement asto Plaintiff (1) Beforeawrit is filed by aplaintiffit 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 forservice ofaplaintiffshall be 3 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 onthe 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 hasfiled appearance tothe writ, requeststhe lawyer inwriting to doso. (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 outthe writ. (5) Where the address of the defendant after diligent search is not known, the plaintiff shallindicate onthewrit thatthe plaintiff shall directservice.” As stated earlier, according to the applicant, he does not have any cause of action against the respondentsas he did not authorise the issuance ofthe writ against them. To say that a party has a cause of action means that, from the pleadings, a factual situation exists which entitles the party to seek a relief from the court. In the case of SPOKESMAN (PUBLICATION) LTD. v ATTORNEY GENERAL [1974] 1 GLR 88 at 91, the Court of Appeal explained what is meant by cause of action as follows: “A party has a cause of action when he is able to allege all the facts or combination of facts which arenecessary toestablish his rightto sue.” Under Order 11 rule 18(1)(a) of CI 47 the court at any stage of the proceedings may order any pleadings or anything in any pleadings to be struck out on the grounds that it discloses no reasonable cause of action or defence. Where it is alleged that the pleading does not disclose any reasonable cause, and should be struck out, it is only thepleadings whichwill be considered inits determination. 4 However, it was further stated in the SPOKESMAN (PUBLICATION) LTD. v ATTORNEY GENERAL (supra) that it must be ascertained whether the plaintiff is vested with a present cause of action and that if the plaintiff does not have any presentcause ofaction, his writ willbe set aside. It is trite that where a party who has been joined in a suit want the court to strike out his name on the grounds of misjoinder, such a party is enjoined to approach the court with an application by way of motion. The person who feels that he has been improperly joined to the suit has the legal right to pray the court to have his name struck out. It has been held by the authorities that an application seeking to strike out the name of a party from a suit must be made timeously before the hearing commenced. In other words a party who is joined in a suit and who allows the same to go into the hearing cannot properly file an application seeking to have his name struck out. It is therefore proper that the applicant has filed the instant application as hearing hasnot commenced. A strike out application is a useful legal strategy that can be used to try to obtain an early end to a dispute without the need for a hearing. If successful it avoids a lengthycourt case and wasted costs. Ifthe court determines that the applicant has no reasonable grounds for bringing the case or an abuse of process, the court will grant thestrike outapplication. Moving forward, it is on record that the writ was issued by a lawyer. As stated earlier by the Rules, 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. Further, the address for service of a plaintiff shall be where the plaintiff sues by a lawyer, the business address of the plaintiff or the plaintiff’s lawyer or the 5 plaintiff’s lawyer’s agent as indorsed on the writ; or 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. 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 thewrit. However, in the instant case, it is clear per the writ of summons that the writ was issued by the lawyer and he has declared in writing that the writ was filed by him and withthe authority and consent ofthe plaintiff. It is trite knowledge that alawyer who intends to issue a writ in the name of a party must take the necessary steps to ensure that onlythe properand necessary parties arebeforethe court. In the instant case, it is on record that the applicant has filed the instant motion and also raised the issue in open court that he did not issue the writ against the defendants. It is without doubt that the applicant was indeed not aware of the suit till his attention was drawn as he has averred in his affidavit in support. Per the record of proceedings, the applicant was not attending court. On the days listed below, when the matter came before the court, the applicant was absent. On 30/11/22, 17/1/23, 16/2/23, 16/6/23, 30/10/23, 15/12/23, 31/1/24, 14/2/24, 13/3/24 and 27/6/24. It is clear that it was only when the applicant’s attention was drawn to the suit that the applicant appeared in court on 24/4/2024, 24/5/2024, 31/5/2024 and 27/6/2024 when he filed the instant application and moved same on27/6/2024. The applicant filed the instant applicationon24/5/2024 and same was heardon27/6/2024. Counsel for the plaintiff has been aware of this application but however failed to respond tosame. 6 In the case of JULIUS SYLVESTER BORTEY ALABI vs PARESH DEE JAY, B5 PLUS COMPANY LIMITED [2018] DLSC 214 dated 21/02/2018, where Dotse JSC stated as follows: “Ordinarily where a court has taken a decision without due regard to a party who was absent at a trial because he was unaware of the hearing date that decision is a nullity for lack of jurisdiction on the part of the court. However, where the party affected was sufficiently aware of the hearing date or was sufficiently offered the opportunity to appear but he refused or failed to avail himself, the court was entitled to proceed and determine the case on the basis of evidence adduced atthe trial.” The case ofIN RE WEST COAST DYEING IND. LTD; ADAMS v TANDOH [1987- 88]2GLR561is also applicable. Also in the case of REPUBLIC v HIGH COURT (HUMAN RIGHTS DIVISION) ACCRA, EX PARTE JOSEPHINE AKITA, (MANCELL-EGALA, ATTORNEY GENERAL INTERESTED PARTY) [2010] SCGLR 374 the Supreme Court stated that “A person who has been given the opportunity to be heard but deliberately spurned the opportunity to satisfy his own decision to boycott proceedings cannot later complain that the proceedings have proceeded without hearing him and then plead in aid the audi alteram partem rule” Counsel for the plaintiff cannot therefore complain that he was not given the opportunitytorespond tothe applicant’s allegationorbe heard inresponse. It is on record, that being aware of the pending application by the applicant, counsel prayedthe court thathe willput his house in order.Counsel for the plaintiff failed to take steps to address the issue raised by the applicant only for him to file a notice of withdrawal of service on 27/6/2024, which I believe he did, without informing the applicant or without the knowledge of the applicant. This in my view is so disingenuous on the part of the lawyer who claimed he had authority to issue the writ in the name of the applicant. As stated earlier, it is required that before a writ is 7 issued, the lawyer who issues the writ on behalf of the plaintiff, should have the authority of the plaintiff to do so. From the above this shows that the lawyer who filed the suit against the defendants wasacting without authority. Ordinarily, one may ask, why issue a writ to sue the defendants when the alleged plaintiff did not authorise you to do so? It is on record too that on the above mentioned dates stated earlier, that the applicant was absent in court, there was one Ezekiel Brahen representing him. The further question is, is counsel for the plaintiff awareofthe said EzekielBrahenand his rolein the action? Moving forward, in the case of TENGEY v DOE [1962] 1 GLR 361, the Court explained the role of lawyers in the service of court processes as follows: “A Solicitor having filed a writ of summons on behalf of the plaintiff or having entered appearance on behalf of the defendant unless and until notice of change of solicitor has been filed and copies thereof served in the manner as prescribed by the rules of court, or unless leave to withdraw from the case is granted, or unless the said solicitor has in the meantime, been struck off the roll or suspended by the General Legal Council, the court will continue to consider that solicitor as actingfor the defendantor plaintiff, asthe case may be, until after the hearing and the final determination of that particular suit. The said solicitor becomes functus officio only after the final judgment in the suit has been delivered. See Order 7 rule 2 of the Supreme (High Court (civil Procedure) Rules 1964 (LN 140A) which comprehensively deals with the different circumstances in which a change in representation ofa party by asolicitor can be made. I am therefore of the view that so long as a solicitor of a party in an action remains on record service on that solicitor ofthe hearing notice in the suit is good service.” Per the above authority, it is my view that so far as the records are concerned, there had been no change of representation or solicitor as at the time the applicant filed the instant application. Counsel is on record to represent the applicant on several occasions before the court. It is therefore my view that it will be unreasonable to 8 grant counsel who issued the writ leave to withdraw from the case at this time. If indeed the notice for withdrawal of representation is not an afterthought, counsel wouldhave reactedaggressively tothe instant application. It is my furtherview that counsel is liable for contempt of court because he acted without authority of the applicant to issue a writ of summons in his name as same is against the Rules of Courtand the LegalProfessionAct, Act32. Moving forward, it is trite law that where an action is commenced without authority the court shall either dismiss the action or require the plaintiff to indemnify the personin whose name theactionwas unlawfully commenced. For the above reasons, I find it prudent to grant the application. The application is hereby granted. The writ is hereby struck out. Cost of Three Thousand Ghana Cedis is awarded in favour of the applicant. Further cost of Three Thousand Ghana Cedis is awarded in favour of the defendants, all against counsel who issued the writ without authority of the applicant, Togbe Ayim IV. All other costs awarded in the course ofthis actionis tobe charged against thelawyer, TogbeAyim IVaccordingly. H/LJOAN E.KING JUSTICEOF THE HIGH COURT APPLICANTINPERSON ERNESTDELAAKATEY FORRESPONDENTS 9