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RULING
MRS. J. BAMFORD-ADDO
The Plaintiff purported to
invoke the original jurisdiction
of the Supreme Court under
Articles 2 (1) (b) and 130 of
the 1992 Constitution as well as
under Rule 45 of the Supreme
Court rules 1996 (C.I. 16) by
filing an affidavit verifying
facts and particulars and
statement of plaintiffs case on
the 14/9/99 without a Writ. On
the 30/9/99 he filed a Writ
together with a Supplementary
Affidavit in which he stated in
Par 2 - 4 thereof as follows:
“Par 2. That on the 14th day of
September 1999 I filed an
Affidavit Verifying Facts and
Particulars, together with
Statement of Plaintiffs case but
inadvertently did not attach the
Writ to it.
Par 3. That I am filing the
appropriate Writ attached hereto
to be attached to the said
Affidavit Verifying Facts and
Particulars together with
Statement of Plaintiff’s case.
Par 4.That I pray that the Writ
will be attached to the said
Documents.”
At the hearing the Defendants
raised a preliminary objection
to the Plaintiffs action and
applied for same to be struck
out on the ground that the
Plaintiff did not initiate any
action as required under by the
mandatory provision of Rule 45
(1) C.I. 16.
45(1) of C.I.16 provides that:
“Except as otherwise provided in
these Rules, an action brought
to invoke the original
jurisdiction of this Court shall
be commenced by a writ in the
form 27 set out in Part III of
the Schedule to these Rules
which shall be signed by the
Plaintiff or his Counsel”
The above requirements were not
complied with and therefore no
action having been initiated by
a Writ the other documents filed
on 14/9/99 were of no
consequence and null and void.
The Plaintiff’s request in the
Supplementary Affidavit filed on
30/9/99, that the said invalid
documents to attached to the
Writ filed on 30/9/99 is
misconceived. It is not for the
Registrar of this Court to
rectify any lapses in the filing
of papers for parties who fail
to comply with Rules of
procedure nor has been given any
power to do so. Neither can
invalid and void documents be
resurrected and given life by
attaching same to a later valid
document. The Defendants'
submission that there is no case
before the court is therefore
valid.
Concerning the writ filed on
30/9/99 the Plaintiff should
have complied with Rule 46(1) of
C.I. 16 after filing it. It says
in
"Rule 46(1) The Plaintiff may
file a statement of his case
with the Writ or shall in any
case within 14 days of the
filing of the writ file the
statement of the case.
(2)
X
X X
(3) Where the statement of the
Plaintiff’s case is not filed
within 14 days of the filing of
the Writ the Respondent may
apply to the court to have the
action struck out.”
This means that 14 days from the
date of the filing of Plaintiffs
Writ on 30/9/99 the Writ could
on the application of the
Defendants be struck out, if the
Plaintiffs statement of case in
support his writ is not filed.
But the plaintiff could ask for
extension of time to file the
statement of his case, see the
provisions of Rule 48(4) which
provides that:
"Rule 48(4) Notwithstanding sub
rule (1) to (3) of this rule a
Plaintiff may apply to the court
for an extension of time within
which to fulfil the conditions
to be complied with in
accordance with these Rules and
the court may for good and
sufficient cause shown, grant an
extension of the time subject to
such conditions as the court may
impose”
Plaintiff never took advantage
of Rule 48(4) to ask for time to
rectify his failure to comply
with Rule 46(1). The Defendants
are therefore perfectly entitled
to apply to have the writ of
Plaintiff struck out for
non-compliance with the rules of
procedure in C.I. 16.
Many a time litigants and their
Counsel have taken the rules of
procedure lightly and ignored
them altogether as if those
rules were made in vain and
without any purpose. Rules of
procedure setting time limits
are important in the proper
administration of justice, they
are meant to prevent delay by
keeping the wheels of justice
rolling smoothly. If this were
not so parties would initiate
action in court and thereafter
go to sleep only to wake up at
their own appointed time to
continue with such litigation at
their pleasure. If this were
allowed litigation would grind
to a halt, a sure recipe for
confusion and inordinate delay
in the due administer of
justice.
In Ebusuapanin Kobina Essilfie
v. Nana Anafo IV CM.16/92 dated
28/7/92 Mrs Bamford-Addo J.S.C.
has the opportunity to comment
on this issue thus:
“The power of the courts to
extend time is based on
meritorious grounds and is not a
license for litigants to hold
the machinery of justice in
abeyance for as long as they
desire, and then to commence the
prosecution of their cases on
flimsy grounds. Litigation must
end sometime and the courts
discretion to extend time should
only be used in deserving cases,
in that there must be reasonable
grounds for asking for an
extension of time.”
See Thamboo Ratman v. Thamboo
Gumargsarg and other (1965) 1
W.K.R.. 8 PC..... also Revici v.
Prentice Hall Incorporated
(1969) 1 W.L.R. 157 C.A. relied
on in Darkwa v. Kwabi IV (1992 -
93) G.B.R. p.381”
In the circumstances of this
case the plaintiff having made
no application to the court for
extension of time to file
statement of his case, the
Defendants application to have
the Writ struck has merit and it
succeeds, accordingly the Writ
is struck out.
AMPIAH, J.S.C.:
I agree.
ADJABENG, J.S.C.:
I agree.
ATUGUBA, J.S.C.:
I agree with the Ruling read by
the President in this case but I
desire to add a few words of my
own.
There is no doubt that all the
proceedings filed before a writ
was issued in this case are a
nullity for the simple reason
that they depend upon the
existence of a writ. This means
that the statement of
plaintiff’s case dated the 14th
of September, 1999 and all
subsequent papers including the
statements of defendants' cases
based on the said statement of
case dated the 14th day of
September, 1999 are all null and
void except as to the
preliminary objection raised.
The irregularity in these
circumstances is not a mere
irregularity but a fundamental
defect. A fundamental defect
renders the proceedings null and
void. See MOSI VS. BAGYINA
(1963) 1 G.L.R. 337 S.C..
It is true that rule 79 of the
Rules of this Court empowers
this Court to waive
non-compliance with the rules in
fitting cases. The Rule
provides:
“79. Where a party to any
proceedings before the Court
fails to comply with any
provision of these Rules or with
the terms of any order or
direction given or with any rule
of practice or procedure
directed or determined by the
Court, the failure to comply
shall be a bar to further
prosecution of proceedings
unless the Court considers that
the non-compliance should be
waived.”
The scope of this rule was
extensively considered by this
Court in THE REPUBLIC VS. HIGH
COURT, KUMASI & ORS., EX PARTE
ATUMFUWA KWADWO BI & ANOR., CM
No. 56/97 dated 15th July,
1998. There I said at length
that where the step by a party
to proceedings before this Court
is fundamentally wrong such
error is not within the purview
of the rule and cannot be
waived. One cannot waive a
nullity. Thus in OBENG VS.
BOATENG (1966) G.L.R. 689
Amissah, J.A. held at page 696
as follows:
“I have noticed that the second
defendants filed a statement of
claim in the third party
proceedings to which the third
parties filed a defence,
although there is no record of
their having entered an
appearance to the third party
notice. The filing of pleadings
was premature. I am, therefore,
ignoring the pleadings at this
stage and ordering that
pleadings be properly filed.”
In the circumstances of this
case the 4th defendant (with
whom the others associated
themselves) per his Counsel
contended that there is no writ
pending in this Court. This
obviously is right with regard
to the proceedings based on the
statement of case of the
plaintiff dated the 14th day of
September, 1999.
The plaintiff however filed a
writ in this same case dated the
30th day of September, 1999 but
has not filed any statement of
case pursuant thereto. In the
circumstances the defendants are
entitled to apply under rule 46
(3) of C.I. 16 to have the
action struck out. The
defendants' preliminary
objection that there is no writ
pending in this Court can be
construed to mean also that even
if there is a writ in this case
the same is not properly before
this Court. Obviously there
being only the bare writ dated
the 30th September, 1999 the
Court could not yet embark on
the hearing of the action. This
state of affairs has been
occasioned by the plaintiff’s
failure to file a statement of
his case. Thus understood the
preliminary objection is a
sufficient application within
rule 46 (3) to have the
plaintiff’s action struck out.
After all a preliminary
objection aims at having the
proceeding to which it relates
thrown out of Court. Striking
out a proceeding is one of the
modes of throwing out an
improper proceeding. Rule 46 (3)
of C.I. 16 does not stipulate
any particular procedure for
applying to have an action
struck out. Rule 5 of C.I. 16
provides:
“Where no provision is expressly
made by these Rules regarding
the practice and procedure which
shall apply to any cause or
matter before the Court, the
Court shall prescribe such
practice and procedure as in the
opinion of the Court the justice
of the cause or matter may
require.”
This however does not discount
the well established practices
of the Court, see HARLLEY VS.
EJURA FARMS(GHANA) LTD. (1977) 2
G.L.R. 179 C.A. (Full Bench) at
214 where Taylor, J. (as he then
was) said:
"In these Courts we dispense
justice in accordance with three
and only three yardsticks:
Statute Law, Case Law and the
well-known practice of our
Courts.”(e.s)
Indeed Taylor, J. held that the
practice of filing an omnibus
ground of appeal with an
indication that additional
grounds of appeal would later be
filed, though not based on any
Statute has nonetheless been
accepted by both Bench and Bar
for so long that it would
require a Statute to abolish it.
Indeed rule 17 (1) of C.I. 16
concerning preliminary points in
appeals gives an indication that
the Rules of this Court have
taken statutory notice, if I may
so put it, of and support the
established practice of this
Court. The preliminary objection
argued in this case could be
entertained even if not
previously filed. The nullity of
the parties' statements of case
in this case does not affect the
preliminary point which is
severable therefrom since it
could stand independently on its
own. In any case the same also
had been raised and argued viva
voce before this Court. I would
therefore uphold the same.
I would however observe that
rule 48 (4) of C.I. 16 seems to
have been intended to relate to
the defendant rather than the
plaintiff. This is so because it
opens with “Notwithstanding
subrule (1) to (3) of this rule
a plaintiff ....”(e.s.)
Subrules (1) to (3) of rule 48
however concern the defendant
but not the plaintiff.
MS. S. AKUFFO, J.S.C.:
I also agree.
COUNSEL
Mr. Anim, Chief State Attorney
for 1st and 2nd Defendants.
Mr. Samuel Codjoe for 3rd
Defendant.
Mr. Ambrose Dery with Mr. Tanko
Amadu for 4th Defendant
Mr. Ward-Brew for Plaintiff. |
