In Pursuit of Justice: What if the Son of Man Has Nowhere to Lay His Head?

In Pursuit of Justice: What if the Son of Man Has Nowhere to Lay His Head?

1.Introduction

It is the dream of every Government for every citizen of that country to have a home or a job. Having a home or a job means that you will either have a residential address or an occupational address. The situation of men being homeless is unfortunately not a new development. Even the Lord Jesus Christ, at a point during his time of earth, faced this problem. He said at a point “Foxes have holes and birds of the air have nests, but the Son of Man has nowhere to lay His head[1]”.

The Courts of law exist to do justice. Justice ought to be dispensed to persons who have come to court seeking same without any form of discrimination in the form of race, gender or economic situation in life. That said, there are substantive laws which determine whether a person seeking justice has a cause of action and there are rules of court which regulate the procedure to be adopted by any person who is seeking justice from the courts. 

Now, there could be a situation where the economic situation of a person who has a cause of action, will not enable the person to have a place of residence or an occupation. For instance, a hawker on a street who sleeps in front of a kiosk at the Kaneshie market at night, could be knocked down by a vehicle due to the negligence of the driver of the vehicle. The courts of law exist to do justice to even such a person. 

This article has been necessitated by two decisions of the Supreme Court of Ghana which have been interpreted by some Judges and lawyers to mean that the absence of an address on the face of the Writ of Summons will deny the Plaintiff access to the Court. I am of the humble opinion that such interpretation is an over-simplification of the issues in those cases and a narrow interpretation of the ratios therein. I will seek to justify my position in the subsequent paragraph. 

2.Who Can Come to Court to Seek Justice?

A very popular politician in Ghana once mooted that “any fool can go to court in Ghana”. Well, that is not exactly the case. Before a person can sustain a court action, that person must satisfy at least two criteria:

First, the person must be a legally recognized natural or an artificial entity. By this, I mean that the person must be a human being capable of managing his affairs or must be a body corporate registered under any enabling Act in any legal system. 

Secondly, the person must have a cause of action. Having a Cause of Action simply means that you have a right which has been infringed upon and thus, you have a reason, justifiable in law, to seek redress in the court of law. 

These two criteria are what is collectively termed as the “Capacity of the Party to bring an action”. 

The capacity of a person to initiate a court action is so fundamental that if at the time of the initiation of the action, either by a Writ of Summons or any of the other known means of commencing an action, the Plaintiff did not have capacity to do so, the Writ of Summons becomes a nullity and the whole action fails. Indeed, the issue of the want of capacity of the Plaintiff to initiate an action can be raised for the first time even on final appeal to the Supreme Court and if successful, it will render the whole proceedings a nullity. 

In the recent case of Nii Tetteh Kpobi Tsuru v Agri Cattle & Ors[2], the Supreme Court succinctly put this contention in the following words 

The law is trite that capacity is a fundamental and crucial matter that affects the very root of a suit and for that matter, it can be raised at any time even after judgment on appeal. The issue is so fundamental that when it is raised at an early stage of the proceedings a court mindful of doing justice ought to determine that issue before further proceedings are taken to determine the merits of the case. Thus, a Plaintiff whose capacity is challenged needs to adduce credible evidence at the earliest opportunity to satisfy the court that it had the requisite capacity to invoke the jurisdiction of the court. If this is not done, the entire proceedings founded on an action by a Plaintiff without capacity would be nullified should the fact of non-capacity be proved.” 

It was further held by the Supreme Court that: 

“The law is trite that a civil action can only be taken by a natural person or a juristic entity created and recognized by statute. If not, a writ issued in the name of a non-existent Plaintiff is a nullity and same void. The law also is that when the legal status of a Plaintiff is challenged and made an issue, as in this case, it was incumbent on the Plaintiff to adduce cogent evidence to satisfy the court that it had the requisite legal capacity to sue and be sued.”

The Supreme Court concluded thus “The law as we have known it to be is that a non- existent person or entity cannot sue as a Plaintiff neither can a non-existent person or entity be sued as a defendant. Parties initiating any civil proceeding must be either natural persons who are alive or personal representatives of such persons and juristic entities recognized by statute.”

It therefore follows that a challenge to capacity puts the validity of a writ in issue, so when the challenge is not displaced, the writ becomes a nullity together with the proceedings and the judgment founded on it.”

The whole concept of “legal capacity” could not have been better explained. 

Now, assuming the party seeking to initiate the action has capacity to do so, that person must comply with the provisions of the rules of court to be able to ventilate his or her grievances to seek legal redress. This is where the rules of court come to play. 

3.The Rules of Court on Commencing Actions

For the purposes of this article, we shall assume that the party will commence the action in the High Court. The High Court has original jurisdiction in all matters.[3] The practice and procedure before the High Court is regulated by the provisions of the High Court, (Civil Procedure Rules), 2004, CI 47 (hereinafter referred to as CI 47). 

Order 2 of CI 47 provides that the means of commencing civil proceedings in the High Court is by a Writ of Summons, unless otherwise provided for by any other law.[4] Order 2 rule (3)(2) provides that the “The occupational and residential address of the parties shall be stated on the Writ and the address of the Plaintiff, rather than the address of the lawyer of the Plaintiff shall be used in the Writ”.[5]

Order 2 rule 4 has the short title of “Indorsement as to Capacity”.  The Order provides as follows:

(1) Before a writ is filed it shall be indorsed: 

(a) where the plaintiff sues in a representative capacity, with a statement of the capacity in which the plaintiff sues; or 

(b) where a defendant is sued in a representative capacity, with a statement of the capacity in which the defendant is sued. 

 (2) Before a writ is filed by a plaintiff who acts by an order or on behalf of a person resident outside Ghana, the writ shall be indorsed with a statement of that fact and with the address of the person so resident. 

Order 2 rule 4 (1) can be applied to mean that where the Plaintiff sues or sues the Defendant in any capacity other than the personal capacity of either party, that fact must be made clear on the face of the Writ of Summons. So for instance, if the Plaintiff is suing in his capacity as the Executor of the estate of a deceased person or the Defendant is being sued in his capacity as a Receiver of a company, that fact must be stated on the face of the Writ of Summons. 

Order 2 rule 4 (2) can also be applied to mean that where the Plaintiff is suing as an attorney or otherwise as a representative of another person who is not resident in Ghana, the address of such a non-resident person must be stated on the face of the Writ of Summons. 

The latter rule has been the subject of interpretation and application by the Supreme Court in the case of Standard Bank Offshore Trust & Others v National Investment Bank Ltd & Others[6].

The decision by the Supreme Court in the Standard Bank Offshore refers to another decision of the Supreme Court in the case of Naos Holding Ltd v Ghana Commercial Bank[7] .  The decision of the Supreme Court in the Naos Holding case was based on the provision of Order 3 rule 4 (1) of the old High Court (Civil Procedure) Rules, 1954 (LN 140A. 

Order 3 rule 4 (1) of LN 140A provided as follows: 

If the plaintiff sues, or the defendant or any of the defendants is sued, in a representative capacity, the indorsement shall show, in manner appearing by such of the forms in Appendix A, Part III, as shall be applicable to the case, or by any other statement to the like effect, in what capacity the plaintiff or defendant sues or is sued.

If an action is brought by or on behalf of a person resident outside Ghana the indorsement shall so state and shall state the residence of such person”.

It will be worthy to note at this stage that even though the provisions in Order 2 rule 4 of the CI 47 are in pari materia with the provisions of Order 3 rule 4 (1) of LN 140A, there are some material changes in the wording of these two provisions and which material changes will be discussed. 

We will at this stage take pains to discuss the effect in the difference in the wording of the provisions in LN140A and the provisions in the CI 47. 

In re-enacting the provision of Order 3 rule 4 of LN140A in the CI 47, the Rules of Court Committee made some changes which are very fundamental. 

Whilst under LN 140 there is no indication when the indorsement of the residential address of the Plaintiff who is resident outside Ghana must be made, under CI 47, the requirement to disclose residential address of a non-resident Plaintiff is to be done before the writ is filed. 

At the time of the enactment of the LN 140A in 1954, the wording in the English provision was as has now been enacted in the CI 47. Ghana had the choice to adopt that formulation or tweak it. The rules of Court Committee in 1954, tweaked the wording in the English rules to what was in our Order 3 r 4 of LN 140A whilst the English rules continued to use the “before the writ is issued requirement.’’ In 2004 when Ghana was re-enacting the provision, the rules of court committee went back to the text of the English provision using the “before the writ is issue”. The authorities under those provisions state clearly that the indorsement required to be provided on the Writ was to be made before the the writ is issued. 

Having set out the difference in the wordings in LN140A and CI 47, we will now discuss the two Supreme Court decisions referred to immediately above. 

4.The Decisions in The Naos Holding and Standard Offshore Cases

4.1 Naos Holdings Inc v Ghana Commercial Bank[8]

The facts of this case are captured at page 407 of the report. We will summarize same as follows:

  1. The Plaintiff, holding itself out as a corporate entity incorporated in Panama, sued the Defendant as guarantors of certain promissory notes which the Plaintiff claimed had been indorsed over to it by a third party.
  2. The Plaintiff purported to sue per an attorney who was resident in Ghana. 
  3. The Writ of Summons however did not disclose the address of the Plaintiff either as a resident or external company in Ghana. 
  4. The Defendant entered conditional appearance to the Writ and filed an application to have the Writ of Summons dismissed on the ground that having failed to disclose its residential address, the Plaintiff did not exist as a legal entity with capacity to sue. 
  5. In paragraph 12 of the affidavit in support of the Defendant’s application, it was deposed as follows “Furthermore I am advised and verily believe that the Plaintiff herein does not exist as a legal entity recognized with the capacity to sue and be sued; accordingly the Plaintiff has declined to disclose its address contrary to the express requirement of the rules of court.”
  6. Paragraph 13 of the affidavit in support of the application deposed to the following facts “I am advised that a foreign Plaintiff is required by the rules to disclose its non-resident status and residence. In total violation of this requirement, the Plaintiff concealed the fact that it is non-resident and has deliberately omitted to state its offshore address.” 
  7. Paragraph 14 of the affidavit in support further stated that “I verily believe from the deliberate omission that the Plaintiff herein does not exist as a legal entity and is not entitled to institute the action herein. Accordingly, the action ought to be dismissed as an abuse of process.” 
  8. The High Court upheld the Defendant’s motion, a decision which was confirmed by the Court of Appeal. Dissatisfied with the decision of the Court of Appeal, the Plaintiff appealed to the Supreme Court.   

The decision of the Supreme Court affirmed the judgment of the High Court. The Supreme Court, speaking through Sophia Akuffo JSC (as she was then) held at page 412 of the report as follows “The real effect of the Defendant-Respondent’s motion in the High Court under Order 3, rule 4 of the old High Court Civil Procedure Rules, 1954, (LN 140A) was to challenge the very existence of the Plaintiff-Appellant as a corporate legal entity and place in issue the Appellant’s capacity to sue.”

The learned Judge went further to state that “Once its legal status was challenged and its corporate capacity was placed in issue, it was incumbent upon the appellant to produce more cogent evidence of its existence (such as its registered office address or a copy of its certificate of incorporation) to satisfy the trial court that it had the requisite legal capacity to sue. Since it failed to do so, the trial court was justified in arriving at the conclusion that the appellant did not exist.”

A careful reading of the relevant paragraphs of the affidavit in support of the motion to dismiss the action filed by the Defendant and the ratio of this case will show that the essence of the defendant’s application was to challenge the very existence of the Plaintiff as a corporate entity with capacity to sue. The Defendant however further contended that it was of the opinion that the reason why the Plaintiff had not indorsed the Writ of Summons with an address was because the Plaintiff was not incorporated under any legal system, not in Ghana and not in Panama. Hence, the indorsement of the Writ of Summons with an address of the Plaintiff, or the lack of, operated as a presumption of the legal existence or otherwise of the Plaintiff. In other words, had the Plaintiff provided a copy of its certificate of incorporation in Panama, the absence of the address on the Writ of Summons, could not have been interpreted to mean that the Plaintiff had not been incorporated as a legal entity in Panama.  

To this extent, the author agrees with the dictum of the learned jurists as same was in sync with the provisions of Order 3 rule 4 of LN 140A and particularly where  the Plaintiff’s attorney admitted that the concealment of the address of the Plaintiff on the face of the Writ of Summons was deliberate .In n the Plaintiff’s affidavit in opposition to the application by the Defendant, deposed to by its Attorney, it was stated as follows:

“17. That should it be necessary to state the Plaintiff’s address, that should not be a ground to dismiss the suit as the Plaintiff’s address can always be stated, but it was a deliberate act not to state the Plaintiff’s address, as the attorney is a resident and has powers to act for and on behalf of the Plaintiff and in its name.”[9]

However, in her concluding statements, the learned judge concluded as follows “The writ was void for failure to state the residence of the Plaintiff in the action and, in any event, there was such serious doubt as to the corporate status of the appellant that the court was justified in its conclusion that the appellant did not exist at all.”  

With all due respect, it is the first part of this concluding sentence which the author disagrees with. From the facts of the case, the essence of the application was to challenge the existence of the Plaintiff as a legal entity and which challenge was buttressed by the failure of the Plaintiff to state its address on the Writ. The absence of the address on the Writ per se did not mean that the Plaintiff did not exist. For it is possible, for the Plaintiff to have actually endorsed the Writ with an address when the Plaintiff did in fact not have any legal personality in Panama. Will the Plaintiff have been deemed to have capacity by merely providing an address when indeed it did not exist? The answer is No! Will the Plaintiff not be deemed not to have capacity to initiate the action merely due to a default in not indorsing the Writ with its address, even if it provides a certificate of incorporation? The answer is No!

Hence, the failure to state the address on the Writ would make the Writ voidable and not void. A voidable Writ in the instant case is one which can be validated once the Plaintiff provides evidence of its incorporation and legal existence. If you declare the Writ void, as was done by the learned Judge, it meant that even if the Plaintiff had provided evidence of its existence at the hearing of the application, the Writ could not be validated. 

The above conclusion notwithstanding, one would not be entirely fair to the learned Supreme Court Judge if the ratio quoted above is not situated in the entire context of the facts leading to the application filed by the Defendant at the High Court and the applicable rules at that time.  It seems to suggest that the deliberate attempt by the Attorney of the Plaintiff to conceal the address of the Plaintiff and his refusal to disclose same even when the existence of the Plaintiff was in issue, left the Court to conclude that the Plaintiff actually did not exist. 

Having analyzed the decision in the Naos Holding case, we will now proceed to look at the decision in the Standard Offshore case. 

4.2 Standard Bank Offshore Trust Company Ltd (suing on behalf of Certain Investors in Promissory Notes) & Ors v National Investment Bank Ltd & Ors[10]

The facts of this case are as follows:

  1. The Plaintiff, who claimed to be representing certain investors in the promissory notes, issued a Writ of Summons at the High Court and sought the reliefs indorsed on the Writ of Summons.  
  2. The title of the action did not disclose who the “certain investors in promissory notes” were.
  3. The Plaintiff subsequently amended the title of the suit by amending the names of the Plaintiff as follows:  

Standard Bank Offshore Trust Company Ltd 

(Suing on behalf of certain Investors in Promissory Notes)

1. Spynx Capital Markets PCC Investors

2. Tricon Trade Management Ltd

  1. The Plaintiff was successful with their claims in the High Court and in the Court of Appeal. 
  2. The Defendant appealed to the Supreme Court and for the first time, raised a technical objection in their statement of case to the entire proceedings on the grounds of non-compliance with the provisions of Order 2 Rule 4 (2) of the High Court (Civil Procedure) Rules, 2004 CI 47 and urged the court to dismiss the action. 
  3. The Defendant/Appellant followed this up with an application to specifically address this question of capacity and non-compliance with the rules. The Appellant raised three issues in respect of the endorsement of the Writ vis:
  4. The first is that it does not disclose the fact that the Plaintiff is suing on behalf of foreign based person/s. 
  5. Secondly, that the foreign residential address of the investors or companies the Plaintiff represents has not been disclosed on the Writ.
  6. Thirdly the persons on whose behalf the Plaintiff issued the Writ were not disclosed or identified with specificity.  

The Supreme Court in upholding the objections of the Defendant held at page 11 of the judgment as follows “It is to be stressed that the provisions of Order 2 rule 4 (2) of CI 47 are obligatory and it is not one of those provisions which the court is permitted by Order 81 to waive for non-compliance. As decided in the NAOS Holding case, supra, non-compliance with this provision renders the writ void. That which is void or a nullity cannot be waived by the court under 81 of CI 47. That rule is to ensure that foreigners, human as well as corporate, are in existence in fact and have an address at which they may be reached by the defendant and by the court, if need be. This ensures that the identity of the real Plaintiff is known by the Defendant and the court lest an imposter should secure judgment only for the real Claimant to surface later and saddle the Defendant with another suit. It also ensures that a judgment or order obtained against a foreigner could be executed against him in his country of residence, through the address supplied on the Writ if need be.”

The Supreme Court concluded as follows “In conclusion we re-state the position of the law that failure to comply with prerequisites  to the issuance of a Writ under Order 2 rule 4 (2) renders the Writ void and it can neither be saved by an amendment nor can it be waived by the Court. Where the Writ of Summons issued by a foreign based firm claims to be suing on behalf of certain investors, it is not an acceptable disclosure of the identity of the “certain investors”, thus it becomes an essential ingredient or prerequisite for the Plaintiff to disclose who the persons are on whose behalf it is suing”.

It is worth noting that the Supreme Court in relying heavily on the decision in the NAOS HOLDING case, failed to discuss the difference in the wordings in the two enactments as espoused above.  It is the opinion of the author that it would have contributed to the jurisprudence on this subject, if the Supreme Court had discussed the difference in the wordings of the two enactments. 

It is the opinion of the author that the decision of the Supreme Court can be put into 2 parts:

  • The first part being that because the Writ of Summons failed to disclose who “certain investors in Promissory Notes” are, the Writ is a nullity for not disclosing who the real Plaintiffs are.[11]
  • The 2nd Part being that the failure of the Plaintiff to indorse the Writ of Summons with the address of the Plaintiffs is a breach of a mandatory provision of the rules of Court which cannot be waived and could render any proceedings thereafter a nullity, even after judgment. 

Whiles the author agrees with the 1st Part of the decision of the Supreme Court, declaring the Writ a nullity for want of disclosure of the identity of the Plaintiffs, the author disagrees with the decision of the Supreme Court relating to the mandatory provisions of the rules of court which cannot be waived. 

 Before I proceed, I must state that the 1st part of the decision is enough to render the Writ a nullity and the author agrees with that. However, the application of the 2nd part of the decision to other cases to render a Writ a nullity, despite the fact that the capacity of such a party has been established, will result in problems in the jurisprudence of our civil practice. The author will seek to justify his contention in the preceding parts of this article. 

5.Is a Breach of Order 2 Rule (4) (2) Curable By Order 81?

We have produced the provisions of Order 2 rule (4) (2) elsewhere in this article.  

Order 81 Rule (1) (1) of CI  47 provides as follows:

“Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it.”[12]

Order 81 rule (1) (2) further provides as follows “The Court may, on the ground that there has been such a failure as stated in subrule (1), and on such terms as to costs or otherwise as it considers just

(a) set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein; or

(b) exercise its powers under these Rules to allow such amendments to be made and to make such order dealing with the proceedings generally as it considers just.

Order 81 rule 2 provides as follows:

“(1) An application may be made by motion to set aside for irregularity any proceedings, any step taken in the proceedings or any document, judgment or order in it, and the grounds of it shall be stated in the notice of the application.

(2) No application to set aside any proceeding for irregularity shall be allowed unless it is made within a reasonable time and the party applying has not taken any fresh step after knowledge of the irregularity.”

The provisions of Order 81 have received a lot of judicial interpretation and application over time. Prior to the decision in the Standard Bank Offshore case under consideration, the position of the Supreme Court in the consequences of a breach of the provisions of the rules of court was fortified in the case of Friesland Frico Domo v Dachel Co. Ltd [2012] 1SCGLR 41 where it was held at page  43 that “We agree with Counsel for Plaintiff on his submissions and authorities cited that the words in Order 70 r.1 of LN140[13] should be given its ordinary meaning in order to serve the ends of justice. In that respect non-compliance with any of the rules does not render the proceedings automatically void.” 

The Supreme Court further held that “…the distinction between void and voidable proceedings cannot be maintained on account of the plain and ordinary meaning of the said Order.”[14]

Now, the decision in the Friesland Domo case obliviates any difference between the “mandatory” provisions of the rules of court which are identified by the use of the word “shall” and the permissible provisions of the rules of court which are identified by the use of the word “may”. Indeed by the ratio in the Friesland Domo case, there was no breach of the rules which could be deemed to be so fundamental that it would be incurable even if the non-defaulting party waives its right by taking a fresh step in the matter. 

Under Order 81 rule (2) (2), a party who has taken a fresh step in the proceedings after knowledge of the irregularity is deemed to have waived any right to complain of a non-compliance with any of the provisions of the rules of Court. In the case of Fah v Bediatuo[15], the learned High Court Judge held that “I consider that the appearance in court of counsel for the plaintiff who had not been duly served with the hearing notices and who actually applied for an adjournment constitutes sufficient fresh steps and that the alleged irregularity of non-service cannot now be complained of.”

In the Friesland Domo case[16], the Supreme Court refused an invitation to set aside the whole proceedings and a judgment on the complaint raised for the first time on appeal that the Plaintiff did not seek leave of the court before issuing a writ of summons, notice of which was to be served outside the jurisdiction. The basis of the judgment of the Supreme Court was that since the Defendant has partaken in the proceedings and submitted to judgment, it is deemed to have waived its right to raise an objection later to a breach of any of the provisions of the rules of court. 

In another reported case which was decided under Order 3 rule 4 of LN 140A, the High Court exercised its discretion to order an amendment of the Writ of Summons to include the address of the non-resident Plaintiff once there was evidence that the Plaintiff actually existed.  Hayfron -BENJAMIN J (as he then was) held Kimon Compania Naviera Sarp & Ors v Volta Lines Ltd [1972] 2GLR 140 @ 143 that:

“The next question is whether failure to state these is fatal and renders the writs null and void or is merely an irregularity which can be waived. It is clear that when a writ is taken out by a nonexistent Plaintiff, it is a nullity and will be set aside. In these cases, there is no dispute that these Plaintiffs actually exist somewhere; it is their whereabouts that have not been disclosed.”

He thus concluded that “I ought to grant him (counsel), the facility to remedy these defects. Any inconvenience or damage suffered by the defendant because as a result of this irregularity can be compensated by an award of costs, which in these cases ought to be on the high side.”

 Now back to the facts of the Standard Bank Offshore case, the breach of the rules complained of was in respect of the failure of the Plaintiff to indorse the Writ of Summons with its address. The Supreme Court held that “It is to be stressed that the provisions of Order 2 rule 4 (2) of CI 47 are obligatory and it is not one of those provisions which the court is permitted by Order 81 to waive for non-compliance”. 

The author is of the opinion that this ratio flies in the face of the previous decisions of the Supreme Court which confirmed that a breach of the rules of any of the provisions of the CI 47 is one which could be waived by the non-defaulting Party, subject to the provisions of Order 81 rules 2 (2) of CI 47. 

 In effect, it is the contention of the author that assuming that the Plaintiff  has capacity (i.e. is a legal or artificial entity which has a cause of action) but the Writ of Summons is not indorsed with the address of the Plaintiff, it behooves on the Defendant to raise the objection to the non-compliance by entering a conditional appearance to the Writ. If the Defendant enters unconditional appearance and proceeds to partake in the trial and judgment is delivered, the Defendant will be deemed to have taken a fresh step and have waived any right to raise this objection again. 

The Defendant cannot partake in the trial, even after knowledge of the non-compliance of the requirement of Order 2 rule 4(2) of CI 47 and only raise the objection on appeal. If this tardiness is indulged by the appellant courts, it will render the provisions in Order 81 rule 2 (2) otiose and unnecessary. 

Again, it is the opinion of the author that the purpose of Order 2 rule 4 (2) is to ensure that parties who are not resident in Ghana actually exist and are clothed with legal personality in the legal system in which it operates. The disclosure of the address of any such party, is one of the ways of confirming the legal existence or otherwise of the Party. So that where the party is legally incorporated in a foreign jurisdiction and begins an action but fails to provide an address, that Writ should not be a nullity if the Party provides evidence of its legal existence. The opposite is that if a party indorses a Writ with an address and evidence is adduced that that party is not clothed with legal personality at the time of the filing of the Writ, the Writ becomes a nullity, the indorsement of the address notwithstanding. 

6.Conclusion 

The Supreme Court was right in  holding that where the Plaintiff is a non-resident Ghanaian,  the indorsement as to the foreign address of that Plaintiff was a pre-requiste to the issuance of the Writ.  Where we opine that the Supreme Court erred is when it concluded that the failure to indorse the Writ with the foreign address of non-resident Plaintiff, was an error which cannot be corrected by amendment after the Writ has been issued.  

The problem this decision creates is one of uncertainty with respect to which breaches of the rules of Court is curable by Order 81 and which are not curable. 

In Conclusion, the author will contend as follows:

  1. The provisions of Order 2 rule 4 (2) are intended to ensure that the Plaintiff who is not resident in Ghana is clothed with capacity to initiate proceedings in Ghana. 
  2. The indorsement of an address on the Writ of Summons is a means of confirming the existence of the Party commencing the action so that if there is evidence of the existence of the Party, the failure to indorse the Writ of Summons with an address does not render the Writ a nullity. 
  3. The non-compliance with the provisions of Order 2 rule 4 (2) like other provisions in the CI 47, though couched in mandatory terms, can be waived by the non-defaulting party who does not raise the objection within a reasonable time and takes a fresh step after its knowledge has been brought to the non-compliance. 
  4. The ratio in the cases of Naos Holding v Ghana Commercial Bank and Standard Bank Offshore Co Ltd & Ors v National Investment Bank & Ors are valid to the extent that they hold that if the Party who issues a Writ does not exist at the time of the issuance of the Writ and does not provide any evidence of its existence when a challenge to its existence is raised, the Writ is a nullity. 
  5. Any interpretation of the ratio in the cases cited immediately above to the effect that the non indorsement of the Writ of Summons with the address of the Plaintiff automatically renders the Writ a nullity, even if the Plaintiff is clothed with legal capacity to initiate the action, defeats the purpose of the subject rule. 

The author will end with the admonition of Atuguba JSC in the review decision of the Standard Bank Offshore case[17]. The learned jurist held at page 19 of the ruling that “That being so, the decision of the ordinary bench in this case in holding the Writ in this case void for non-disclosure of the addresses of the foreign persons on whose behalf the Applicant sued, is with the greatest respect, difficult to support. There has been a long settled judicial attitude in favor of saving actions and other processes from perdition on account of procedural blunders.” 

Despite proceeding to dismiss the review application on other grounds, the learned Jurist concluded with the hope that “the decision of the ordinary bench of this court will soon be departed from in subsequent cases”. A hope which is shared by this author. 


[1] Luke 9: 58 (New King James Version)

[2] (Civil Appeal No: J4/15/2019)

[3] Section 15 of the Courts Act, 1993, Act 459. 

[4] Order 2 rule 3 (1)

[5] Order 2 rule 5 (1) (a) also has similar provisions requiring the indorsement of the Writ with the residential and occupational address of the Plaintiff.

[6] [2017-2018]1SCLRG 707

[7] Reported in the [2005-2006] SCGLR 407

[8] Supra

[9] Naos Holding Ltd v Ghana Commercial Bank (supra)

[10] [2017-2018]1SCLRG 707

[11] This decision follows the ratio in the decision of the Supreme Court in the case of Agbesi v Ghana Ports and Harbour Authority [2007-2008] SCGLR 469

[12] The original text reads: “Where, in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of anything done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall not be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order in it”. However, the Supreme Court in the case of Republic v. High Court, Accra, ex parte Allgate Co. Ltd. (Amalgated Bank) Interested Party [2007-2008] SCGLR 1041 judicially amended this provision to delete the word “not” preceding “be treated as”.

[13] The provisions of Order 81 of CI 47 are similar to the provisions of Order 70 of LN 140A

[14] Cases such as Republic v. High Court, Accra, ex parte Allgate Co. Ltd. (Amalgated Bank) Interested Party [2007-2008] SCGLR 1041  and Boakye v Tutuyehene [2007-2008] 1SGLR 970 also confirmed the position of the Supreme Court on the fact that any and every breach of the provisions of the rules of court is curable if the conditions laid down in Order 81 (2) are met. 

[15] [1964] GLR 468 @ 472

[16] Supra

[17] Review Motion No J77/15/2017 delivered on 14th March 2018

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  • Derick Adu-Gyamfi

    Excellent write up.

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    Mawukoenya Nutekpor 5 months

    Great job!

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