HIGH COURT, ACCRA
Date: 7 JANUARY 1975
ABBAN J
NATURE OF PROCEEDINGS
MOTIONS by the defendant to dismiss the plaintiff ‘s suit and for security for costs. The facts are sufficiently stated in the ruling.
COUNSEL
E. D. Kom for the defendant-applicant.
M. A. F. Ribeiro for the plaintiff-respondent.
JUDGMENT OF ABBAN J.
The defendant filed two motions—a motion to dismiss the suit and a motion for security for costs. At the request of both counsel the two motions were allowed to be argued together.
The motion to dismiss the action was brought under Order 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). The main contention of learned counsel for the defendant-applicant was that the plaintiff-respondent’s address did not appear on the writ of summons as required by Order 4, r. 1 (1) and that the suit should be dismissed. In respect of the motion for security it was argued that the plaintiff-respondent came purposely to this country to prosecute the present action. That is, the plaintiff was temporarily residing in Ghana and that she should be ordered to furnish security in terms of Order 65, r. 5 of L.N. 140A.
Learned counsel for the plaintiff-respondent opposed the two applications. He contended that Order 4, r. 1 (1) had no application since the plaintiff-respondent sued by her solicitor. As regards the motion for security, learned counsel for the plaintiff-respondent did not, in my view, put forward any convincing argument.
Order 4, rr. 1 and 2 (1) read:
“1. (1) The solicitor of a plaintiff suing by a solicitor shall indorse upon the writ of summons the address of the plaintiff and also his own name or firm and his own place of business within the jurisdiction which shall be an address for service where notices, pleadings, orders, summonses, warrants and other documents, proceedings and written communications, if not required to be served personally, may be left for him.
(2) Where any such solicitor is only agent of another solicitor, he shall add to his own name or firm and place of business the name or firm and place of business of the principal solicitor.
2. (1) A plaintiff suing in person shall indorse upon the writ of summons his place of residence and his occupation.”
[p.80] of [1975] 1 GLR 78
Order 4, r. 1 (1) requires the address of the plaintiff, who is suing by a solicitor, to be endorsed on the writ. It also requires that the name and the address of that solicitor should be indicated. The address which was endorsed on the writ as the plaintiff s address is as follows: “C/o Korah Chambers, H/No. 275/3, Ring Road Central, P.O. Box 4335, Accra.” This address is the postal as well as the office or business address of the plaintiff s solicitor.
I think the address of the plaintiff, suing by a solicitor, can either be his postal address or the address of his residence within the jurisdiction. Any of these two addresses, in my opinion, will satisfy the requirements of Order 4, r. 1 (1). I concede that, except by the order of the court, service is not normally effected through postal addresses. But since the plaintiff, who has sued by a solicitor, will have to be served with court processes through the said solicitor, it does not really matter if the postal address of the plaintiff (instead of that of his residence) is endorsed on the writ. The most important address under this rule 1 (1) is that of the solicitor whose said address should be that of his business or office where he (the solicitor) can be found.
It is where the plaintiff sues in person that the plaintiff s address to be endorsed on the writ will have to be that of his place of “residence and his occupation” within the jurisdiction, and not that of his postal address.
In the present case, it is not clear whether the plaintiff is residing at the house indicated on the writ or she used the address of that place, H/No. 275/3, Ring Road Central, as her postal address. The latter seems to be the true position. That is, it appears from her affidavit in opposition and the argument of her counsel that the plaintiff is not residing at that address and that she used the said address of her solicitor merely as her postal address. All the same that address, as I have said, is sufficient to comply with the provisions of Order 4, r. 1 (1). At p. 42 of the Supreme Court Practice, 1967, Vol. 1, is stated as follows: ‘Where the plaintiff sues by a solicitor, his address need not be his place of residence, but where he sues in person, it must be his place of residence, i.e. the place which he occupies as his home, where he lives.” (The emphasis is mine.) In the circumstances, the application to dismiss the suit will be refused.
The application for security was brought under Order 65, r. 5. The said rule states that: “A plaintiff ordinarily resident out of the jurisdiction may be ordered to give security for costs, though he may be temporarily resident within the jurisdiction.” There is no doubt that the plaintiff herein is ordinarily resident out of Ghana. She is staying in this country temporarily and for the sole purpose of prosecuting this action. She will leave this country as soon as the proceedings are over. In the circumstances, I hold that the application for security is well founded and it will be granted.
The plaintiff s claim involves general damages, the quantum of which is yet to be known, and special damages of 2,400,00. It will therefore be reasonable and fair if she is called upon to give security for costs in the sum of 0300.00. Consequently, I order that the plaintiff should deposit in
[p.81] of [1975] 1 GLR 78
this court the sum of 300.00, or in the alternative, she must sign a bond in the like sum with one surety to be justified. This order must be complied with within fourteen days from today.
I will award no costs in both applications.
DECISION
Application to dismiss suit refused.
Application for security for costs granted.
S. E. K.
