Republic v High Court, Tema; Ex parte Owners of MV Essco Spirit (Darya Shipping SA Interested Party). [2003-2004] SCGLR

Material Facts:

The interested party, Darya Shipping SA, had submitted a dispute between itself and the applicants herein, who were the owners of MV Essco Spirit, a vessel. They filed a writ of summons and accompanying statement of claim, by which they claimed:

1. An order directed at the defendants to furnish sufficient security for award to be in favour of the plaintiffs by the arbitration.
2. Costs

They subsequently applied for an order to arrest the MV Essco until the applicants furnish the security to satisfy any arbitral award that may be made in favour of the interest party. The order was granted.

The applicants invoked the supervisory jurisdiction of the Supreme Court for an order of certiorari to quash the orders made by the High Court on, among others, the ground that there is no substantive matter pending before the High Court to warrant the interlocutory order of arrest against the applicant’s vessel.

Issue:

Whether or not the High Court could make an order for the issue of a warrant to arrest the applicant’s vessel.

Argument of the Applicant:

That in the absence of a substantive action pending in the High Court, it lacked jurisdiction to entertain the interest party’s application for an interim order for the issue of a warrant for the arrest of their ship.

Holding:

The High Court could not make the order for the issue of a warrant to arrest the applicant’s vessel.

Ratio Decidendi:

In the opinion of their lordships, the real issue in the present case was whether or not a writ of summons improperly indorsed according to the relevant rules of our High Court, could originate an action and thereby invoke the jurisdiction of the High Court. This is because “if the writ in this case is a nullity, no court can proceed to exercise whatever jurisdiction it has on that void writ of summons.”

Under the High Court (Civil Procedure) Rules, 1954 (LN 140A), a writ of summons ought to be indorsedwith a statement of the nature of the claim made or of the relief or remedy required in the action. A review of the rules reveals that the indorsement must be with the substantive claim, which indicates the general nature of the plaintiff’s cause of action against the defendant. This is to enable the defendant to know, in very general terms, the substantive action being brought against him. Examples of an indorsement of a substantive claim are “damages for breach of contract; an order for a declaration of title; an order for the removal of trustees, etc.” However, merely seeking an injunction is not a substantive claim, but a claim that is ancillary to a substantive claim (such as declaration of title).

In the present case, the plaintiffs’ indorsement claiming an order directed at the defendants to furnish sufficient security for award to be made in favour of the plaintiffs by the arbitration” was not a substantive claim. This is because:

Once that order was made, the High Court, Tema, became functus officio. There was no cause of action to be tried by the court; no dispute, no controversy, nothing.

…

In our view, the writ was not indorsed in accordance with the mandatory provisions of the High Court (Civil Procedure) Rules, 1954. It was therefore a nullity upon which no valid orders could be based; see Mosi v. Bagyina [1963] m1 GLR 337, SC. It was for this reason that we allowed the application for certiorari and quashed the order of the High Court.

Principles in Case:

1. A writ of summons that is not indorsed with a substantive claim is a nullity.
2. A substantive claim is one that indicates the general nature of the plaintiff’s cause of action against the defendant and enables the defendant to know, in very general terms, the substantive action being brought against him.
3. A null writ cannot invoke the jurisdiction of the court.
4. A writ not authenticated by the signature of the plaintiff or his solicitor is a nullity.