Defects in a Writ of Summons: Mere Irregularity and Nullity
Introduction:
This note will discuss acts and omissions that render a writ of summons defective. In the discussion, two types of defects will be examined: those that render a writ null and those that are considered mere irregularities.
1. Defects that render a writ of summons a nullity:
A. Meaning of Defects that Render a Writ of Summons a Nullity
These are defects that are not or cannot be cured by:
Once any of these defects exists, it is considered fatal and renders the writ of summons a nullity and thus, all proceedings and judgments founded upon it. Essentially, the court cannot waive these defects or invoke Order 81 of C.I. 47 to save the writ and the proceedings founded upon it. Order 81 is similar to Order 70 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) , and the courts have severally held that it cannot operate to save a null writ of summons. In the case of Craig v. Kanssen [1943] 1 All E.R. 108 , for instance, Lord Green M.R. delivered himself as follows:
It seems to me that Order 70, r. 1 applies only to the situation where the non-compliance with any of the rules of court merely makes the proceedings irregular and not where it renders them null and void. In the former case, the proceedings are valid, though irregular, and the court has unlimited discretion, under the said rule, as to what order it will make in the circumstances ... But the court cannot exercise its discretion under Order 70, r. 1 to save the proceedings, if the failure to comply with the rules makes the said proceedings null and void. . .
In the Ghanaian case of Mosi v. Bagyina [1963] 1 G.L.R. 337 , the court similarly advanced that:
Order 70, it should be noted, is headed “Effect of non-compliance,” and the provisions thereof are applicable only to a case of irregularity, often called “a mere irregularity,” arising out of failure on the part of a party to comply with some specific rule as opposed to an irregularity in the court doing something which has no warrant in law or in the rules of procedure. The former irregularity which does not render void any proceedings based thereon, but which is merely voidable, is capable of being waived, and setting aside any order arising out of such an irregularity is a matter for the court’s discretion, whereas the latter class of irregularity renders void any order or judgment emanating therefrom, and setting aside such an order or judgment being ex debito justitiae a court or a judge has no discretion in the matter
Finally, in the more recent case of Republic v. High Court, Accra, Ex-parte Aryeetey (2003-2004) SCGLR 398, the Supreme Court of Ghana similarly recognised that certain defects in a writ of summons cannot be cured by an invocation of Order 81 of C.I. 47 .
B. Examples of Defects that Render a Writ of Summons a Nullity:
I. The Plaintiff Lacks the Capacity to Issue the Writ of Summons:
It has been severally established that if a writ was issued by a plaintiff at a time when he had no capacity to issue the writ, the writ would be a nullity.
In the case of Standard Bank Offshore Trust Co. Ltd. v. National Investment Bank and 2 Others [2017-2018] 1 SCLGR 707 , the Supreme Court stated that:
A person’s capacity to sue, whether under a statute or rule of practice, must be present and valid before the issuance of the writ of summons, else the writ is a nullity. The capacity to sue must be present before the writ is issued out and must be stated in the endorsement and/or statement of claim accompanying the writ.
Similarly, in the case Republic v. High Court, Accra; Ex Parte Aryeetey [2003-2005] 1 GLR 537 , the Supreme Court of Ghana stated that:
…if a party brings an action in a capacity he does not have, the writ is a nullity and so are the proceedings and judgment founded on it. Any challenge to capacity therefore puts the validity of the writ in issue. It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with merits so that if the axe falls, then a defendant who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist upon his rights: see the case of Akrong v Bulley [1965] GLR 469, SC
ii. The Writ is Issued and Signed by a Lawyer without a Valid Licence:
In Order 2 Rule 7 of C.I. 47, it is provided that:
(1) The issue of a writ shall take place upon being sealed by the Registrar.
(2) No writ shall be sealed unless at the time it is filed for sealing, the person filing it leaves with the Registrar a copy signed by the plaintiff , if the plaintiff sues in person or by, or on behalf of the plaintiff's lawyer
The effect of the above provision is that if the plaintiff does not sue in person and sues by his lawyer, his lawyer is supposed to sign the writ, leave a signed copy with the Registrar, and eventually represent the plaintiff in court.
Essentially, if the person who signs the writ as a lawyer or represents the plaintiff as a lawyer does not have a valid license to practice as a lawyer, yet issues a writ or appears as the lawyer for the plaintiff, the writ will be invalid. In Section 8(1) of the Legal Profession Act, 1960 (Act 32) , it is provided that
(1) A person other than the Attorney-General or an officer of his department shall not practise as a solicitor unless he has in respect of such practice a valid annual licence issued by the General Legal Council to be known as "a Solicitor's Licence" in the form set out in the Second Schedule to this Act.
The effect of this provision is that a lawyer without a solicitor’s licence cannot issue or sign a writ, cannot represent the plaintiff in court as a lawyer, and any writ issued by such a lawyer is a nullity. This position was unanimously held by the Supreme Court in the case of The Republic v. High Court (Fast Track Div.) Accra Ex Parte: Justin Pwavra Teriwajah and Henry Nuertey Korboe Civil Appeal No. J5/7/2013 and by the majority in the case of Amosa (No. 1) v. Korboe (No.1) [2015-2016] 2 SCGLR 1516 .
In the case of Amosa (No. 1) v Korboe (No.1), Dotse JSC, in analysing the effect of a lawyer not having a solicitor’s licence, stated that:
… whenever a Lawyer by his own acts of default finds himself or herself in breach of section 8 (1) of Act 32, then it follows that he automatically loses his license to practice as a Solicitor or Lawyer. The consequence thereof is that, such a lawyer must be deemed not to have any authority whatsoever to prepare an originating process in any court process or legal document on behalf of any client or represent any such client in his capacity as a lawyer.
…
In essence, once Justin Pwavra Teriwajah lost his license at the material time to practice as a lawyer when he prepared and filed the process for and on behalf of the Respondent, the said processes and appearance of the said lawyer must be deemed to be invalid for all purposes. As a matter of fact, courts of law have no option other than to hold that any such defaulting lawyer should not be permitted to practice law because of the mandatory shall used therein.
The rationale for the above conclusion stems from the fact that, having lost his right to practice law pursuant to section 8 (1) of Act 32, it is apparent that no validity flows from any process or appearance that such a lawyer will offer any client. It is unfortunate that a client, through no fault of his, would have to suffer the consequences of his defaulting lawyer.
…
In that respect, the writ of summons filed by Justin Pwavra Teriwajah for the Respondent herein initiating the suit in the High Court is accordingly struck out as having been filed without authority or license.
In this particular instance, I have formed the opinion that the Respondent with full knowledge of the disabilities that attach to his lawyer decided to cling to him nonetheless. He appears to me to be the architect of this whole drama. I will accordingly mulct him and his lawyer in very punitive costs.
Summarily, a lawyer without a solicitor’s licence has no capacity to practice as a lawyer, hence cannot issue a writ or represent another in court. This lack of capacity cannot be cured by an invocation of Order 81 because it contravenes Section 8 (1) of Act 32 and per the decision in The Republic v. The High Court and Amalgamated Bank Limited Ex Parte: Allgate Company Ltd Civil Motion No. J5/22/2008 , cannot be cured.
iii. The Writ is Issued by a Non-Existent Plaintiff:
In the case of Nii Kpobi Tetteh Tsuru III & 2 Ors v. Agric Cattle & 4 Ors [2020]158 GMJ 1 , the Supreme Court of Ghana, speaking through Marful Sau, JSC advanced 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.
Similarly, in the case of Kimon Compania Naviera S.A.R.P. and Others v. Volt [1973] 1 GLR 140 , Hayfron-Benjamin, J (as he then was) said that “a writ taken out by a non-existent plaintiff was a nullity and would be set aside.”
Situations of non-existent plaintiffs often arise when a sole proprietorship with a business name sues in the name of the business rather than that of the proprietor. In the case of Ghana Industrial Holding Corporation v. Vincenta Publications [1971] 2 GLR 24 the plaintiff-respondent, Vincenta Publications, instituted an action in the Circuit Court against the defendant-appellant, Ghana Industrial Holding Corporation, and succeeded. The defendant appealed to the Court of Appeal, where it contended that Vincenta Publications was merely a business name, a sole proprietorship, and had no legal status to institute an action as a plaintiff. Counsel for Vincenta Publications then applied to the Court of Appeal for leave to amend the name of Vincenta Publications to read “Vincent Alisa Onuku trading under the firm name and style of Vincenta Publications." Their lordships of the Court of Appeal explained that before an application to substitute a party in a suit can be granted, there must be an existing party to serve as the subject for substitution. In previous cases where an amendment was allowed, the name of the plaintiff or respondent contained the name of an existing person plus other suffixes (e.g., W. Hill & Son.) and it was easier for the court to just cancel out the suffix (& son). In the present case, however, particularly in light of the non-existence of Vincenta Publications because it was merely a business name, their lordships believed that the application could not be granted because “there is no plaintiff before the court and there is nothing to substitute or amend.”
Note, however, that if the business name is added to the name of the proprietor, the court will often order that the business name be struck out, as was the case in S. A. Turqui & Bros v. Dahabieh [1987-88] 2 GLR 486-514 .
iv. The Writ is Issued against a Non-Existent Defendant:
In the case of Benyarko v Mensah [1992] 2 GLR 404, it was held that:
Litigation, by its very nature presupposes the existence of a dispute between two persons or parties. It is therefore natural that there must be before the court two persons or parties to enable an adjudication of the matter to be effectively carried out. The class of persons so recognised in this context are natural persons, corporations and firms. In short, the parties must either be natural persons or juristic persons.
…
…in this jurisdiction a person can sue or be sued only if he is either a natural person, or a juristic person.
In light of the above, if a writ is issued against a non-existent defendant, the writ is a nullity. Thus, it cannot be saved by substituting a non-existent defendant for an existent defendant.
v. The Writ is Filed in a Court with no Jurisdiction:
In the case of Frimpong v Nyarko [1999-2000] SCGLR 429 , the Supreme Court, speaking on when non-compliance with the rules of civil procedure cannot be waived, said:
Again, where the error is fundamental or goes to the jurisdiction of the court, thereby exposing the court's incompetence or lack of jurisdiction in the matter in which the said error was committed, the court is incompetent to correct or waive such an error, as a court of law has no authority to grant itself jurisdiction in matters where the relevant statute does not confer such power.
This holding was cited with approval in the case of The Republic v. The High Court and Amalgamated Bank Limited Ex Parte: Allgate Company Ltd (supra), where the Supreme Court, again, held that:
It is difficult to see how any language in a civil procedure rule can be interpreted to overcome or waive a High Court's actual lack of jurisdiction. That would imply giving the court the right to roam, jurisdictionally, like a mid-field “libero” in footballing terms, unconstrained by the fetters of jurisdiction, doing as it pleases. That is inconceivable and would be potentially unconstitutional! A concept of Order 81 as an omnibus provision that cures deficiencies in jurisdiction is impossible to accept and is unlikely to have been the intent of the Rules of Court Committee.
In light of the above, if a writ is filed in a High Court or a Circuit Court, and it is established that the court does not have jurisdiction, the writ may be struck out for failing to properly invoke the court’s jurisdiction.
vi. The Writ is not Accompanied by a Statement of Claim:
In Order 2 Rule 6 of C.I. 47, it is provided that:
Every writ shall be filed together with a statement of claim as provided for in Order II and no writ shall be issued unless a statement of claim is filed with it.
In Order 11 Rule 1(2), it is provided that if a plaintiff fails to serve a statement of claim on a defendant, the defendant may apply to the Court for an order to dismiss the action.
2. Defects that are merely irregular:
A. Meaning of Defects that are Merely Irregular
These are defects that can be saved by an invocation of Order 81 of C.I. 47 . Generally, these defects are considered mere irregularities and are, therefore, voidable, not void.
B. Examples of Defects that Do Not Render a Writ of Summons a Nullity:
i. Failure to Indorse the Writ of Summons as to Capacity, but Doing so on the Statement of Claim:
Per Order 2 Rule 4 of C.I. 47, a plaintiff who sues in a representative capacity is required to make a statement of the capacity in which he sues. The need for this was explained by the Supreme Court in the case of Republic v. High Court, Accra; Ex Parte Aryeetey (supra) :
The requirement that a party indorses on the writ the capacity in which he sues, is to ensure that a person suing in a representative capacity is actually invested with that capacity and therefore has the legal right to sue. This includes the submission that the requirement also enables a defendant, if he is so minded, to challenge the capacity the plaintiff claims he has, and such a challenge may be taken as a preliminary issue. This is because if a party brings an action in a capacity he does not have, the writ is a nullity and so are the proceedings and judgment founded on it. Any challenge to capacity therefore puts the validity of the writ in issue. It is a proposition familiar to all lawyers that the question of capacity, like the plea of limitation, is not concerned with merits so that if the axe falls, then a defendant who is lucky enough to have the advantage of the unimpeachable defence of lack of capacity in his opponent, is entitled to insist upon his rights: see the case of Akrong v Bulley [1965] GLR 469, SC.
Similarly, in the case of Living Faith World Outreach Centre & 2 Ors v. The Registrar-general &4 Ors [2023] GHASC 27 (17 May 2023) , the Supreme Court of Ghana stated that:
If a Plaintiff, in fact, sues in a representative capacity but fails to indorse that fact on his writ of summons and his capacity is, as a result, challenged at the trial, then the whole action risks being thrown out by the court if the Plaintiff is unable to prove his capacity after the challenge. [emphasis added]
What is clear in this ratio is that the statement as to the plaintiff’s representative capacity is placed on the writ of summons. Their lordships added that a plaintiff suing in a representative capacity is “required to indorse that fact on his writ of summon.” In that case, the 3 rd to 8 th plaintiffs did not indorse their capacity on the writ of summons but did so on the statement of claim. Their lordships considered this a defect, but held that since a writ is defined to include a writ of summons and a statement of claim under Order 82 Rule 3 of C.I. 47 , the defects in the writ of summons were cured by the statement of claim, as the two are seen as one. They delivered themselves as follows:
In the instant matter, not only have the 3 to 8 Plaintiffs pleaded that their action is instituted in their personal capacity but have gone ahead to aver that they also sue on behalf of the other individual church members of the Winners’ Chapel. The 3 to 8 Plaintiffs cannot, therefore, be said to have flouted the rules on the need for one to plead his capacity. Admittedly, the indorsement as to capacity of the 3 to 8 Plaintiffs was not made on the writ of summons as required by Order 2 rule 4(1)(a) but rather at paragraph 8 of the statement of claim. Nonetheless, a writ is defined under Order 82 rule 3 to “include a writ of summons and a statement of claim or a petition in a cause or matter”. Thus, defects in a writ are presumed to be cured by the statement of claim since the two are seen as one. See Unilever Ghana Ltd. vs. Kama Health Services Ltd. [2013-2014] 2 SCGLR 861 and Opoku & Others (No.2) vs. Axes Co. Ltd. (No.2) [2012] 2 SCGLR 1214.
What is important to note is that while failing to indorse as to capacity on the writ of summons is not fatal, if there is an indorsement as to capacity on the statement of claim, the failure to indorse on the writ of summons still renders the writ defective, albeit non-fatal. The failure only becomes fatal if the representative capacity is neither indorsed on the writ of summons nor the statement of claim.
ii. Failure to Indorse the Writ of Summons with a Substantive Claim, but Doing so in the Statement of Claim:
In Order 2 Rule 3(1) of C.I. 47, it is provided that:
(1) Every writ shall be as in Form 1 in the Schedule and shall be endorsed with a statement of the nature of the claim, relief or remedy sought in the action. [emphasis added]
In the cases of Republic v High Court, Tema; Ex parte Owners of MV Essco Spirit (Darya Shipping SA Interested Party) [2003-2004] SCGLR and Rockson v. Ilios Shipping Co SA & Wiltex Ltd (2010) SCGLR 341 the Supreme Court of Ghana has clarified that the effect of this provision is that the plaintiff must indorse his substantive claim on the writ of summons.
A substantive claim, per the case of Republic v High Court, Tema; Ex parte Owners of MV Essco Spirit (Darya Shipping SA Interested Party) (supra) , is a claim 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. An example of such a claim is damages for breach of contract, an order for a declaration of title to land, among others. On the other hand, a claim seeking only “costs” or “perpetual” injunction is not a substantive claim. These are, at best, ancillary claims that are attached to a substantive claim. Therefore, in land actions, for instance, it is common to see the following:
If a plaintiff omits the substantive claim in bullet point A and only indorses claims B and C in his writ of summons, the writ of summons will be a nullity.
In the case of Rockson v. Ilios Shipping Co SA & Wiltex Ltd (supra) , the plaintiff endorsed his writ of summons as follows:
(i) Order that the Cyprus affiliate F T PAW, settles the Plaintiff’s claim per the Collective Insurance Policy of International Transport Workers Federation (I.T.W.F.)
(ii) 35% Interest on the sum payable from 1 November 2001 to date of payment.
Despite this (purported) endorsement, the Supreme Court noted, when the case got to it on appeal, that no cause of action was endorsed on the writ of summons and that “by a binding precedent of this Court, this meant that the writ was a nullity.” On the authority of Republic v High Court, Tema; Ex parte Owners of MV Essco Spirit (Darya Shipping SA Interested Party) (supra) , their lordships concluded that:
There is little doubt that the ratio decidendi of this case covers the facts of the case before us. It is impossible to interpret the endorsement on the writ of summons in the case before us as disclosing any cause of action. Accordingly, the writ is a nullity and, likewise, the proceedings based upon it. It is thus unnecessary for this Court to enter into the merits of the other arguments rehearsed by or before the Court of Appeal.
Summarily, since the writ of summons did not contain a substantive claim, the courts were prepared to declare the writ of summons a nullity.
Presently, the position is that if a writ of summons does not contain a substantive claim, but the statement of claim that mandatorily accompanies the writ of summons has a statement of the claims sought, the writ of summons, albeit defective, will be cured by the accompanying statement of claim. This position was upheld in the cases of Opoku [No 2) v Axes Co Ltd [No 2) [2012] 2 SCGLR 1214 , Hydrafoam Estates (Gh) Ltd V. Owusu (Per Lawful Attorney) Okine & Others Civil Appeal No J4/62/2013 , Saviour Church of Ghana v. Adusei and Others [2021] GHASC 96 (24 November 2021) , and Living Faith World Outreach Centre & 2 Ors v. The Registrar-general &4 Ors [2023] GHASC 27 (17 May 2023) .
In the case of Opoku [No 2) v Axes Co Ltd [No 2), for instance, Gbadegbe JSC advanced that:
...the writ of summons ought to be read together with the statement of claim in order to determine if there was any cause of action before the court. This is so because a statement of claim may, in appropriate cases, as provided for in rule 15 (2) of Order II of the High Court Civil (Procedure) Rules, 2004 (CI 47), amplify or diminish the scope of the writ on which it is founded.
This position was cited with approval in the case of Hydrafoam Estates (Gh) Ltd V. Owusu (Per Lawful Attorney) Okine & Others (supra) . In that case, the plaintiff, in its writ of summons, claimed against the defendant only one relief as follows:
Perpetual injunction restraining the defendant company, its agents, assigns, servants, privies and workmen or otherwise howsoever be from interfering with the plaintiffs' peaceful and quiet enjoyment and possession of their land.
Their lordships pointed out that the above indorsement is not a substantive relief known in law (because once the order is given, “there was no cause of action to be tried by the court; no dispute, no controversy, nothing” in the words of their lordships in Republic v High Court, Tema; Ex parte Owners of MV Essco Spirit (Darya Shipping SA Interested Party) (supra) ). However, their lordships noted that in the statement of claim, there was a substantive relief sought which could be read together with the writ of summons to cure its defect.
Also, in the case of Saviour Church of Ghana v. Adusei and Others (supra) , the Supreme Court, again, advanced that:
The law is settled that a writ includes a writ of summons and a statement of claim so the absence of a relief in an endorsement on a writ of summons does not destroy the sanctity of the writ as the reliefs could be deciphered from the accompanying statement of claim. It is the law that a statement of claim is an expanded form of a writ of summons, so whatever relief that is prayed for in a statement of claim is equally as good as a relief sought for in an endorsement on the writ, if not better.
It should be noted, however, that if the writ of summons does not contain a substantive claim, and there is also no substantive claim in the statement of claim, the defect in the writ of summons cannot be cured, and the writ will be declared a nullity.
iii. Misnomers and Misdescriptions of Parties:
These are defects in the naming of a party. For example, Esinam Adukpo wants to sue Ziyaad Ibn Shiraz, but on the writ of summons writes Ziyaad Bin Shiraz, the courts are likely to treat the misspelling of Ibn as Bin, as a mere misnomer which does not nullify the writ of summons. Here, the court will likely grant leave to Esinam to amend the title of the writ of summons. See the case of Birch v. Asempa and Another [1992] 2 GLR 416 .
Conclusion:
In this note, we discussed various defects that may render a writ of summons a nullity and those that may render a writ of summons a mere irregularity but not a nullity. On the one hand, we mentioned that a writ issued by a plaintiff without capacity is a nullity, so is a writ issued by a non-existent plaintiff or against a non-existent defendant. On the other hand, we mentioned that failure to indorse a writ of summons with a substantive claim will be considered a defect, but can be cured by the statement of claim.
Speed
1x