Larbi and Another v Ndego (A9/98/2023) [2024] GHADC 696 (13 December 2024)

IN THE DISTRICT COURT HELD AT KASOA-AKWELEY ON THE 13TH DAY OF DECEMBER, 2024 BEFORE HER WORSHIP ANNIE ADOBOR, THE DISTRICT MAGISTRATE ====================================================== SUIT No: A9/98/2023 ALICE AKUA LARBI & ANR ) PLAINTIFFS/RESPONDENTS VRS MR. & MRS. NDEGO ) RESPONDENT JOSEPH NUER TEYE (ESQ) FOR THE RESPONDENT SENAM KALITSI (ESQ) FOR THE APPLICANTS RULING Plaintiffs/Respondents, (hereinafter called the Respondents) issued a Writ of Summons and Statement of Claim against the Defendants/Applicants,(hereinafter called the Applicants) on the 18th day of April, 2023. It was duly served on the Defendant’s and this was confirmed in an affidavit of service. On 4th May, 2023, counsel for the Applicants sent a letter informing the court that he acts as lawyer for the Applicants but due to the fact that the return date did not suit his schedule, he prayed for an adjournment and the matter was adjourned to the date he proposed. On the 20th day of July, 2024, counsel for the Applicants has again brought a letter praying the court for an adjournment, this time too, it was granted. On 18th September 2024, counsel for the Applicants filed a motion on notice to raise preliminary legal objection and served same on the Respondent’s lawyer at the court premises. He then followed it up with a motion on notice to set aside plaintiff’s Writ of Summons pursuant to order 3 rules 6 and 7 of CI 59. This process too was served on 1 counsel for the Respondent lawyer Eugene A. Boadi at Jei River on the 31st day of October, 2024. Respondent’s lawyer filed their opposition to the motion on notice to set aside plaintiff’s Writ of Summons on 7th November, 2024 and same was duly served on the Applicants on that same 7th personally. On 28th day of November, 2024, counsel for the Applicants moved their motion on legal ground, praying the court to set aside the Writ for failure of the Respondent’s indorsing their address on the Writ as is prescribed in order 2 rules 6 and 7 of the District Court Rules 2009 (CI 59). It is his contention that, per the rules of court, a plaintiff shall state his residential address on the Writ of Summons, however, on the Writ issued on the 16th of April, 2023, Respondents failed and or refused to state their address. He referred the court to the case of Standard Bank Offshore Trust Company Ltd v NIB & 2 ORS CA No. J4/63/2016, delivered on 21st June 2017 where the Supreme Court stated that, failure by plaintiffs to state their residential address rendered the Writ void. Counsel, in response to paragraph 5 of the affidavit in opposition intimated that, the rules of court do not require the address of the subject matter but that of the plaintiffs. To paragraph 6, counsel contends that the rules of CI 59 specifically provides for the plaintiff to indorse his or her residential address on the Writ, however, in this matter, same has not been complied with. On the issue of they not filing conditional appearance to the claim as is deposed in paragraph 7 of the opposition, counsel stated that the rules of the District Court do not provide for entering of conditional appearance and that, what order 16 provides is for setting aside of Writ on grounds of law and no time frame is provided. They then pray for the Writ of Summons to be struck out as sinning against the rules of court. Vehemently opposing the motion, counsel for the Respondent reiterated their deposition in paragraphs 5,6,7 and 8 of affidavit in opposition as well as the case of Appiah & ORS v Progressive Transport Owners Association [2012] ELR 65662, stating that, rules of practice should be treated as maid servants and not mistresses. He continued that, the court must not be bound by the rules as to cause injustice in a case. 2 He also relies on the case of Zako Ltd vs Accra Metropolitan Assembly 2016 JELR 65343 saying that, the rules should not be applied in a fast manner but be applied in all cases to ensure justice. Counsel for the Respondent intimated that, when they served their Writ on the Applicants herein and defendants therein, they took the first step to file some processes hence, they are presumed to have accepted the Writ hence, estopped form turning round to claim it is irregular so as to be struck out. The legal issue to determine is whether or not the Writ of Summons and the Statement of Claim filed by the Respondents on the 18th of April, 2023 is void on grounds of law and must be set aside. Order 2 rule 3 of the District Court Rules 2009 [CI 59] provides that: i. A Writ of Summons is issued on being sealed by the Registrar. Rule 6 provides that, the Writ of Summons shall be set out in form 1 of the First Schedule Rule 7 also provides as follows: A Writ of Summons shall contain the name and place of abode of the plaintiff and of the defendant and to the extent that they can be ascertained, state briefly and clearly a. The subject matter of the claim. b. The relief sought and c. The date of issue, the return date and the place of hearing. A sample of what a Writ of Summons should look like has been provided in Form 1 in the First Schedule to the CI 59. It contains the name of the plaintiff, Residential address of the plaintiff, name of the Defendant, residential address of the defendant and others. It is confidently clear that rules of court are designed to guide civil proceedings in courts they are applicable to and the CI 59 controls the conduct of civil cases and their procedure in the District Court. Though they are to be observed, order 1 of the CI 59 provides for the rules to be applied and interpreted in a manner that helps to achieve speedy and effective justice, avoid delays and unnecessary expenses, ensure that all matters in dispute between parties are completely and effectively determined among others. 3 Order 16 of CI 59 makes provision for a defendant to apply by a motion for the court to dismiss the suit of a plaintiff on grounds of law. Furthermore, order 19 of CI 59 provides for the court, in order to determine the real question in controversy between the parties in a suit may at any stage of the proceeding suo motu or on an application, order a pleading to be amended whether or not the error or defect to be amended is occasioned by the party asking for the amendment. Parties herein quoted case laws in support of their arguments. These case laws are very good and relevant. Yes, it is indeed necessary to state a residential address and the purpose is to ease troubles accompanying service. If the address is provided, it aids service. Yes, rules of court are not masters and must not be applied as though they are. The courts are there to ensure substantial justice. The cases quoted by the lawyers for the parties were determined largely based on the High Court Civil Procedure Rules of 2004 CI 47. The gravamen of the case quoted by counsel for the applicant is about a plaintiff living outside Ghana. Parties herein are all in Ghana. We are in the District Court and per order 19, amendments are allowed so that the real issues in question may be determined. We are in the dispensation of substance over form and as stated above, the Magistrate is obligated to ensure substantial justice. It is of interest to note that, when the Writ was served on the applicant, they have filed and served some processes on the Respondent and also on her lawyer. Counsel for the Respondent has provided his address for service and this is evident on the records. If the law mandates the endorsement of address and the purpose is for service and probably identification, then, this purpose has been served in this current case because the processes filed by the Applicants have all been served on the Respondent without sweat. An irregularity may occur in civil proceedings and the rules of court committee, knowing this, provides for amendments. Analyzing all there is to analyze as regards this case, I rule that this current application is in bad faith, hence, thrown out of the windows of injustice. 4 The Respondents are granted leave to amend their Writ and endorse the residential address of the plaintiff. Costs of GH¢2,000.00 is awarded against the Applicants. H/W ANNIE ADOBOR (MAGISTRATE) 5