O’sullevan Vrs Dorfe [2022] GHAHC 100 (31 October 2022)

IN THE HIGH COURT OF JUSTICE, GHANA LAND DIVISION (COURT ELEVEN (11)), LAW COURT COMPLEX HELD IN ACCRA ON MONDAY, THE 31ST DAY OF OCTOBER, 2022 BEFORE HIS LORDSHIP JUSTICE AMOS WUNTAH WUNI SUIT NO. LD/0279/2022 MARIA O’SULLIVAN ... … ... PLAINTIFF/RESPONDENT VRS 1. MATHIAS DORFE ... ... ... DEFENDANTS/APPLICANTS 2. DORIS DORFE RULING This ruling is in respect of a preliminary legal objection to an interlocutory application by the Defendants/Applicants (hereafter referred to as the Applicants) and captioned as: “MOTION ON NOTICE APPLICATION FOR STRIKE OUT WRIT OF SUMMONS AND STATEMENT OF CLAIM ORDER 11 (18) OF C. I. 47” Order 11 rule 18 of C. I. 47, which the Applicants seek to invoke to fortify and launch the instant interlocutory application is quoted hereunder in extenso for its full force and effect: “Striking out pleadings - 1 - 18. (1) The Court may at any stage of the proceedings order any pleading or anything in any pleading to be struck out on the grounds that (a) it discloses no reasonable cause of action or defence; or (b) it is scandalous, frivolous or vexatious; or (c) it may prejudice, embarrass, or delay the fair trial of the action; or (d) it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly. (2) No evidence whatsoever shall be admissible on an application under subrule (1)(a).” [Emphasis Added] In an affidavit in support of the application deposed to and filed on 24th March 2022 by Mathias Dorfe of #13 Mariville Homes Community, Accra, the deponent (who is the 1st Defendant herein) asseverates in paragraph 4 (and reaffirms same in paragraph 33) of the affidavit in support as follows: “4. That I am advised and verily believe same to be true that the Plaintiff’s writ of summons and statement of claim discloses no material cause of action and same is frivolous, vexatious and an abuse of the Court’s process.” “33. That under the circumstances, I pray this honourable court to strike out the Writ of Summons and Statement of Claim ...” In response to the application, the Plaintiff/Respondent (hereafter referred to as the Respondent) filed a Notice of Intention to raise a preliminary legal objection to the Applicants’ motion to strike out the Writ of Summons and Statement of Claim on grounds that: 1. The Applicants’ motion to strike out the Respondent’s Writ of Summons and Statement of Claim is procedurally incompetent; and - 2 - 2. That the Applicants having entered Conditional Appearance are not permitted to proceed under Order 11 Rule 18 of C. I. 47 to apply to set aside the Respondent’s Writ of Summons and Statement of Claim. It is the Respondent’s case that the Applicants’ motion to strike out the Writ of Summons and Statement of Claim is procedurally incompetent as same is not permitted under order 11 rule 18 of C. I. 47 – the Applicant having filed a Conditional Appearance to the instant Writ of Summons and Statement of Claim. Learned Counsel for the Respondent contends that, under order 9 rule 8, the Defendant may at any time, before filing appearance or if the Defendant has filed a Conditional Appearance, within fourteen (14) days, the Defendant may apply to the Court to set aside the Writ or service of the Writ; declare that the Writ or Notice of the Writ has not been served on the Defendant or discharge any order that gives leave to serve the notice on the Defendant outside the jurisdiction. The Respondent submits that having entered Conditional Appearance, the Applicant is required to move to set aside the Writ or service of the Writ. Counsel for the Respondent argues that the position is supported by the case of DEDE v. ANSAH [1980] GLR 746; the REPUBLIC v. HIGH COURT, ACCRA; Ex parte Aryeetey (Ankrah interested party) [2003-2004] SCGLR 398 and the case of QUAIKO v. MOBIL OIL [1977] 1 GLR 461 at 466. The learned Counsel strongly submits that the cases cited supra support the principle that a Conditional Appearance is filed by a Defendant who intends to object to the service of the Writ; object to the jurisdiction of the Court or apply to the Court to set aside the Writ. In the instant case, it is contended that having filed a Conditional Appearance, the Applicants have proceeded to apply to strike out the Writ of Summons and Statement of Claim under Order 11 Rule 18 on the bases that the Respondent’s claim “discloses no material cause of action and same is frivolous, vexatious and an abuse of the Court - 3 - process”. The Applicant goes ahead, in his affidavit in Support, deposing to matters which can be inferred as a Defence to the Statement of Claim thereby raising triable issues had a Defence been filed. By an affidavit in opposition, the Applicants are vehemently opposed to the preliminary legal objection and contend that whether they come under a Conditional Appearance or any other process, the jurisdiction of this Court can be invoked under Order 11 Rule 18 to dismiss the suit. It is the contention of the Applicants that the law is clear that the suit cannot be entertained in this Court; for which reason the Applicants pray that the preliminary legal objection be dismissed with punitive costs. The Venerable Jurist, Samuel Marful-Sau (of blessed memory) points out in his “A Practical Guide to CIVIL PROCEDURE in Ghana” (2017) at page 56 that – “When a party applies to strike out a pleading because it discloses no reasonable cause or defence under Order 11 r 18(1)(a), no evidence is admissible. In other words, the court will consider the issue on the face of the pleading and determine whether it discloses a reasonable cause of action or defence or not. No evidence in the form of an affidavit is required.” Although the instant application was firmly anchored on Order 11 r 18(1)(a) which does not admit evidence, the Applicants filed an affidavit in support thereby sinning against Order 11 r 18(2) and rendering the application irregular and incompetent. In the case of GBENARTEY AND GLIE v NETAS PROPERTIES AND INVESTMENTS & ORS [2015-16] 1 SCGLR 605 the Supreme Court cautioned trial Courts on applications that terminate proceedings summarily by referring to the dictum of FLECTHER-MOULTON LJ in the seminal case of DYSON v ATTORNEY GENERAL [1911] 1 KB 410 at page 419: - 4 - “To my mind it is evident that our judicial system would never permit a plaintiff to be driven from the judgment seat in this way without any court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad”. The court in commenting on the dictum above delivered itself as follows: “It therefore follows that this procedure of terminating proceedings by summary process should be applied only in cases where the action is clearly unsustainable, plain and obvious that it is beyond doubt that the case is unarguable, frivolous and vexatious, and even legitimate amendments could not cure the defect”. The Court in the Gbenartey case (supra) in further analysis of applications to strike out pleadings referred to Professor Stuart Sime’s book: A PRACTICAL APPROACH TO CIVIL PROCEDURE (7th Edition) at page 324 where the learned Professor stated: “The jurisdiction to strike out is to be exercised sparingly, because striking out deprives a party of its right to a trial, and its ability to strengthen its case through the process of disclosure and other court procedure such as requests for further information. Further, examination and cross-examination of witnesses often changes the complexion of a case. The result is that striking out is limited to plain and obvious cases where there is no point in having a trial”. CONCLUSION The motion paper and the affidavit in support of the interlocutory application clearly indicate that the Applicants employed and deployed Order 11 rule 18 (1)(a), (1)(b) and (1)(d) as “legal missiles” to pierce and strike down the Writ of Summons and Statement of Claim. However, from the totality of the evidence before this Court, it is my respectful view that the Application as filed is procedurally incorrect and same should not warrant an expulsion of the Respondent from the Temple of Justice. - 5 - On the authorities of GHANA MUSLIMS REPRESENTATIVE COUNCIL v SALIFU [1975] 2 GLR 246 CA, OKOFO ESTATES LTD. v MODERN SIGNS LTD & ORS [1996/97] SCGLR 224, JONAH v KULENDI & KULENDI [2013-14] 1 GLR 272 and the GBENARTEY case (supra), I respectfully sustain the preliminary legal objection and accordingly dismiss the application to strike out the writ of summons and statement of claim. I award costs of Two Thousand Ghana cedis (GH¢2,000.00) in favour of the Plaintiff/Respondent. (SGD.) AMOS WUNTAH WUNI (J) JUSTICE OF THE HIGH COURT COUNSEL: RENE EBO ADU JNR. FOR THE DEFENDANTS/APPLICANTS SIKA ABLA ADDO WITH NANA AMA DOE BADU FOR NII KPAKPO SAMOA ADDO FOR THE PLAINTIFF/RESPONDENT - 6 -