Starcom broadcasting services Vrs : La Chaumierre Restaurant and Others ( HI/238/04) [2007] GHACA 3 (09 March 2007);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL – ACCRA
CORAM: ARYEETEY, J.A. (PRESIDING)
KANYOKE, J.A.
BROWN {MRS}, J.
CA. NO. HI/238/04
FRIDAY – 9TH MARCH, 2007
STARCOM BROADCASTING SERVICES … PLAINTIFF/RESPONDENT
V E R S U S :
LA CHAUMIERE RESTAURANT … DEFENDANT
A N D
1. NANA AMA SERWAA GYASI }
2. OYOKO CONTRACTORS } … CO-DEFENDANT/APPELLANTS
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J U D G M E N T
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IRISMAY BROWN. J - I also agree with the judgment, just read by my brother Mr. Justice Kanyoke, that failure to comply with the mandatory processes of amendment and service after the order for joinder had been made thereby rendered all ensuring processes by the person joined null and void.
I refer particularly to Order 4 rule 5 (6) already cited by my brother
“Where under this rule a person is ordered to be made a
defendant, THE PERSON ON WHOSE APPLICATION THE ORDER
IS MADE SHALL PROCURE IT” TO BE NOTED IN THE CAUSE
BOOK BY THE REGISTRAR”.
6 (a) “the amended writ shall be served on the
person ordered to be made a defendant; and
6 (b) the defendant so served shall thereafter file
an appearance”.
Order 4 rule 5 (7):
“A person ordered under this rule to be added as a party shall not become a party UNTIL THE WRIT IS AMENDED in relation to the person under this rule and, if the person is a defendant, the writ has been served on the person”
The law as it stands now gives aid and comfort to a reluctant plaintiff who is determined to keep out a person from becoming a party. There is no laid down procedure compelling the amendment and service of the writ and there are no sanctions against such a plaintiff.
Rule 5 above merely compels the beneficiary of the order to procure a note to be made in the Cause Book by the Registrar. This is not sufficient and does not facilitate the diligent prosecution of a case.
The Rules Committee I suggest should take a second look at the rules.
IRISMAY BROWN (MRS)
JUSTICE OF THE HIGH COURT
