KORSAH AND OTHERS v. NKRUMAH [1968] GLR 81

DIVISION: HIGH COURT, CAPE COAST

DATE: 24 JANUARY 1968

BEFORE: ARCHER J.

NATURE OF PROCEEDINGS

RULING on objection raised by defendant to the service on him of a writ accompanied by a statement of claim and a motion for interim injunction on the same day. The facts are sufficiently stated in the ruling.

COUNSEL

G. Carson for the plaintiffs.

K. A. Sarpong for the defendant.

JUDGMENT OF ARCHER J.

The plaintiffs by their solicitors issued a writ of summons accompanied by a statement of claim on 16 December 1967. The writ of summons was served on the defendant on 20 December 1967, and she entered appearance on the same day. Before the writ was [p.82] of [1968] GLR 81 served, the plaintiffs, on 19 December 1967 filed a motion on notice applying for an interim injunction against the defendant. When the motion came up for hearing, the defendant raised an objection to the procedure adopted by the plaintiffs because both the writ of summons and the motion for interim injunction were served together on her on the same day, 20 December 1967, whereas the plaintiffs had not first sought the leave of the court under the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), Order 52, r. 9 before serving the motion along with the writ. The plaintiffs maintained that no such leave was required because their motion was filed under Order 50, r. 7 of L.N. 140A and no such leave was necessary. The plaintiffs relied on Order 50, r. 8 which provides as follows:

“8. An application for an order under Rules 4, 5, or 7 of this Order may be made to the Court or a Judge by any party. If the application be by the plaintiff for an order of mandamus or for an injunction or the appointment of a receiver, it may be made either ex parte or with notice, and if for an order under Rules 4, 5 or 7 of this Order, it may be made after notice to the defendant at any time after the issue of the writ of summons, and if it be by any other party then on notice to the plaintiff and at any time after appearance by the party making the application.” When I was stationed in Accra, a similar point arose and I held the view now being propounded by the defendant. But some counsel as amici curiae in this court expressed their agreement with the argument of the plaintiffs during the hearing of the motion. I therefore reserved my ruling to enable me to reconsider the earlier view I held. As Order 50, r. 8 is based on the equivalent English rule, that is the Rules of Supreme Court, Order 50, r. 6 (see the marginal note) I have decided to rely on what the English White Book says because so far as practice and procedure in England are concerned the White Book always speaks the “gospel truth,” if not the absolute truth. Unfortunately, my task was not rendered easy because I had to decide which of the White Books I should consult. The White Book is published annually with amendments. The Ghana Supreme [High] Court (Civil Procedure) Rules came into force in 1954 and therefore I assumed that any reference to R.S.C. in the marginal note must refer to R.S.C. in force prior to 1954. I therefore consulted the White Book for 1953 and I am delighted to say, that book has assisted me immensely and has saved the mental energy I was going to spend in construing Order 50, r. 8. I have read carefully through all the notes appearing under Order 50, r. 6 in the 1953 White Book and the [p.83] of [1968] GLR 81 following appears at the bottom of p. 886:

“Practice as to Injunction-Application-In Ch.D., and P.D. an application for an interlocutory injunction, whether ex parte or on notice (except in cases of equitable execution, see rule 16 Equitable Execution infra) is made by motion (D.C.F. 739, Section 507, 511) but in a very urgent case the application may be made ex parte on affidavit or even on production of a telegram (to be verified by affidavit) as soon as the writ is issued. In Q.B.D. the application is made to a Judge at Chambers. If an immediate injunction is asked for, the application is ex parte on affidavit. If granted, the usual practice is to grant an interim injunction for about five days, with leave to apply to continue the injunction until the trial. If an immediate injunction is not needed, a summons for an interlocutory injunction until the trial can, after service of writ and after the time limited for appearance be issued without leave. If the writ has not been served, leave should be asked (see Order 52 rule 9) to serve the summons for injunction with the writ. This leave, when no immediate injunction is asked is usually granted on production of the writ without an affidavit. The copy summons should contain an intimation that such leave has been granted.” The above was the practice in England prior to 1954 and the wording of the English Order 50, r. 6 is similar in almost all respects to the wording of the Ghana Order 50, r. 8. It follows therefore that a plaintiff can only serve a motion for interim injunction without leave, after the time limited for appearance has expired. If the plaintiff wishes to serve the motion along with the writ of summons or before the time for appearance expires, then he must obtain leave as provided for by Order 52, r. 9 as follows: “The plaintiff may, by leave of the Court or a Judge to be obtained ex parte, serve any notice of motion upon any defendant along with the writ of summons, or at any time after service of the writ of summons and before the time limited for the appearance of such defendant.”

It appears that in Ghana, Order 50, r. 8 and Order 52, r. 9 have not been amended in any slight degree since they were brought into force in 1954. However, it appears that the English Order 52, r. 9 has been amended by the Rules of the Supreme Court (Chancery Provisions), 1954, by substituting the words “without leave” for the words “by leave of the Court or a Judge to be obtained ex parte.” The Ghana equivalent rule, that is Order 50, r. 9 has not been amended. I have [p.84] of [1968] GLR 81 endeavoured in vain to trace the English White Books from 1954 onwards. The earliest one after 1953 available in the court library is the White Book for 1958, and I have observed at p. 1204 of this edition in the notes under “Practice as to Injunction” that “Leave to serve a summons for an injunction together with a writ is not now required.”

As we are all aware, the English rules have been thoroughly revised and re-arranged and it appears from the 1967 White Book that the former Order 52, r. 9 is now the new Order 8, r. 4-this new rule incorporates the provisions of both rules 8 and 9 of the former Order 52 as amended and the new rule simply reads:

“Notice of a motion to be made in an action may be served by the plaintiff on the defendant with the writ of summons or originating summons or at any time after service of such writ or summons whether or not the defendant has entered appearance in the action.”

This is the practice now in England so far as motions for interim injunctions are concerned (see also the note numbered 29/1/16 at p.406 of Vol. 1 of the 1967 White Book where it is stated that leave is no longer required), but I cannot say that it is also now the practice in Ghana. Order 74 of the Ghana rules provides:

“Where no provision is made by these Rules the procedure, practice and forms in force for the time being in the High Court of Justice in England shall, so far as they can be conveniently applied, be in force in the Supreme Court of Ghana.”

It seems to me that the point is one in which express provision has been made by the Ghana rules and therefore the procedure and practice now in force in England cannot apply automatically. Until the Ghana Rules Committee amends these rules, the express words of the rules apply and the practice and procedure in force in England at the time when the Ghana rules came into force, in my view, should be the best guide. I therefore rule that Order 50, r. 8 must always be read subject to the provisions of Order 52, r. 9. Where the plaintiff wishes to serve his motion for any of the remedies in rules 4, 5 or 7 of Order 50 together with the writ of summons before the time allowed for appearance, then he must comply with Order 52, r. 9 and obtain leave of court first before serving the motion.

In the present application, the motion was served before the expiry of the time limited for appearance and was served along with the writ without leave of court. The procedure adopted is therefore

[p.85] of [1968] GLR 81 irregular. Nevertheless, as there have been two schools of thought all along, I shall excuse the irregularity by virtue of Order 70 and allow the motion to be heard subject to the payment of N¢12.00 costs to the defendant.

DECISION

Objection overruled.

F. S. T.