Mireku v Volta Ghana Investment Ltd. and Others (C1/36/2023) [2025] GHAHC 113 (18 July 2025)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE HELD AT NSAWAM ON 18TH DAY OF JULY, 2025 BEFORE HER LADYSHIP RUBY NAA ADJELEY QUAISON (MRS) HIGH COURT JUDGE. ABUSUAPANYIN KWABENA MIREKU VRS. VOLTA GHANA INVESTMENT LTD. & 27 ORS SUIT NO C1/36/2023 : : PLAINTIFF DEFENDANTS ================================================================ Parties: Plaintiff present. 9th Defendant present 18th Defendant present 23rd Defendant present. 17th Defendant represented by Oti Boateng Nuamah. 18th Defendant represented by Peter Yaw Owusu. Other Defendants absent. Counsel: Michael Lartey for Plaintiff present. Jesse A. Adongo for Dennis Adjei Dwomoh for 1st Defendant present. Abigail Tetteh for the 7th Defendant present Akorful Moses holding Alexander K. K. Abban’s brief for 14th, 15th, 17th, 18th, 19th, 20th, 23rd and 26th Defendants present. =========================================================== RULING ========================================================== The Counsel for 7th defendant/applicant has filed this application to set aside the order of the court granted on 27th of March, 2025 for the substitution of Abdul Kader 1 of 7 Kalmoni in the place of Subhi Kalmoni (deceased). Subsequently on 23/06/2025 she has filed an application to strike out Subhi Kalmoni from the suit In sum, the gravamen of this instant application is that a writ of summons was issued on the 14th of March, 2023 against three (3) Defendants. On the 22nd February, 2024 this court ordered the joinder of the 4th to 27th Defendants of which Subhi Kalmoni was the 7th Defendant. Prior to the joinder granted on 22nd February, 2024 as per Exhibit ‘JAT2’ the 7th Defendant had passed away on 8th February, 2024. Thereafter, an amended writ was issued dated 4th March, 2024 to include the deceased as 7th Defendant. Suffice to state that at the time the writ was issued the 7th defendant Subhi Kalmoni (deceased) had already died per Exhibit“JA2”. It is an undisputed fact that the writ which was served on all parties by substitution was never served on Subhi Kalmoni (deceased) especially as his name was not part of the parties served by substitution. The plaintiff before the court differently constituted filed a notice of discontinuance against the deceased. Subsequently the counsel for 7th defendant made an application to have the 7th defendant, Abdul Kader Kalmoni to be substituted in the place of Subhi Kalmoni (deceased). The counsel for 7th defendant now seeks the court to disjoin and or strike out the suit against the 7th defendant as 7th defendant’s substitution is void on the basis that the substitution was made at the time the suit had already been discontinued against the deceased he sought to substitute. The counsel for plaintiff in an affidavit in opposition is vehemently opposed to both applications. The court heard both parties. The parties opined as follows: Counsel for 7th Defendant – We have before you a motion on notice for an order to strike out 7th Defendant Subhi Kalmoni from the suit. We move in terms of the motion paper and the supporting affidavit. Very shortly, this action was begun or instituted on the 14th of March, 2023 against three (3) Defendants. On the 22nd February, 2024 this court ordered the joinder of the 4th to 27th Defendants of which Subhi Kalmoni was the 7th Defendant. Prior to the joinder on 2 of 7 8th February, 2024 as per Exhibit ‘JAT2’ the date and hour of 7th Defendant death was on 8th February, 2024 at 16:35 p.m. Thereafter, an amended writ was issued dated 4th March, 2024 to include the deceased as 7th Defendant. My lady, naturally he was never served although the other parties were served by substituted service. Indeed, my lady, order for substituted service did not include the 7th Defendant and he was not and he could not be served. Based on the above, we pray that deceased, 7th Defendant Subhi Kalmoni be struck out. We pray accordingly. Counsel for Plaintiff – Respectfully, we are opposed to this application. We are vehemently opposed to this application. First, the Exhibit “JA2” from the surface of the document is a document obtained outside the jurisdiction of Ghana and same ought to have been notarized to be clothed with validity and applicability within the jurisdiction of Ghana. What we see on the document is translation of language and not notarization of document and same ought to be disregarded. Secondly, is that the initial writ that was issued on the 14th of March, 2023 had three (3) Defendants and the 3rd Defendant being the trespassers which included the 7th Defendant. My lady, the application for joinder was based on a search conducted at the Lands Commission to verify the names of all the trespassers who had been properly sued on 14th of March, 2023. The order to join and subsequent amendment of the writ on the 4th of March, 2024 only brought out the names of the trespassers which had been properly sued on 14th of March, 2023 therefore assuming without admitting that the Exhibit “JA2” is valid to be admitted 7th Defendant was properly sued. First in the initial writ and subsequent amendment are all valid since the law allow a trespasser to be sued and that includes the 7th Defendant. Finally, on the 14th March, 2025 the Plaintiff upon an order to substitute the 7th Defendant by the administrators of the 7th Defendant an amended writ was filed and served on the administrators who are properly before this court. It is never in dispute that indeed the Plaintiff had a cause of action against the 7th Defendant and therefore Plaintiff still maintains 3 of 7 that the 7th Defendant is a proper party before the court and all processes filed are valid to uphold the suit against the 7th Defendant. Per order 4 Rule 6 generally govern a deceased party. Counsel read the said Rule. The cause of action survived the deceased and therefore he is still a proper party as in this case the administrators have filed to substitute him in this honourable the court. We addressed the issue of notice of discontinuance against the 7th Defendant in our affidavit in opposition filed on 28th of March, 2025 stated at paragraph 13, 14 and 15. Counsel read the said paragraphs. On our notice of discontinuance, we stated that with liberty to reapply and in deed upon the motion filed by the 7th Defendant a prayer of an application was made in the affidavit of opposition. Praying on the honourable court on the bases of the prayer by the Plaintiff reapplying for the proper restoration of the 7th Defendant on the writ of summons as we stated on our notice of discontinuance. Counsel for 2nd Defendant – On the first question as to the status and effect of a writ issued when the Defendant was alive but was not served until his demised. The principle of law that the only time a party/defendant becomes a proper party/defendant to an action is when he has been served with a writ. Until service, even the court has no jurisdiction over that party/defendant. My lady, in the case BH Industries Ltd. v. Adamu and another Court of Appeal Case with Suit No. H1/22/2007 decided on the 19th of January, 2007 per her ladyship Akoto Bamfoe JA, as she then was, the court formed the view that until a defendant is served with the writ no court has jurisdiction. See: the book entitled The Ultimate Lawyer written by Godfred Adjabeng, first edition Page 86. It is on the basis of this principle that even in the rules of this court time does not run against the defendant until he is served with the writ personally or the court otherwise direct. Therefore, service of a writ on 4 of 7 a defendant is the activation point of the jurisdiction of the court over that defendant. This rule is a fundamental and the basis. Again, on the issue of substitution of the 7th Defendant in this suit after his demise. Since at the time of the substitution the person was dead prior to which he had not been served and the court had not assumed jurisdiction over him there was no 7th Defendant properly before the court in the first place to be substituted. In the infamous case of Mcfoy v. UAC, 1962 AC 152, it is trite that nothing can be put on nothing and expected to stand. In effect no valid substitution could have been effected to substitute a nonparty to a suit, the motion itself would be groundless and ought to have been dismissed if the court was seized with these essential facts. Counsel for 7th Defendant – On Point of law. The first point counsel raised, I respond that the death certificate has been notarized by a notary public of Tripoli, Carla Talal Amin on 28th May, 2024 after translation of same from the Arabic language. BY COURT: In Barclays Bank Company Limited Vrs. Ghana Cable Company Limited [1998-99] S. C. GLR 1 the court held as follows: “…Under the rules of procedure, every writ of summons or any process initiating a legal action had to be personally served on the defendants in accordance with law unless the solicitors of the defendants undertook in writing to accept service on behalf of the defendants or the court, taking into account the exigencies of the case, directed otherwise. Proceedings against a party were therefore deemed to commence only after the service of a writ or notice on that party; and when personal service proved unsuccessful, substituted service might be resorted to Furthermore, unless a defendant had been served, no process could be taken to obtain judgment against him for, until such service, the court was generally not seized with jurisdiction to proceed against the unserved defendant…” 5 of 7 This position was fortified in B. H. Industries Ltd Vrs Adamu and Another [2007] GHACA 9 (19 January 2007) in which the Supreme Court referring to the case Barclays Bank Company Limited Vrs. Ghana Cable Company Limited (SUPRA) held that a court has no jurisdiction to proceed against a party who has not been served. The above cited decisions reinforce the principle that a court cannot proceed against a party who has not been properly served, as it would constitute a breach of the audi alteram partem rule—the right to be heard. It also highlights the necessity for courts to ensure that service of process complies strictly with procedural rules to uphold the integrity of judicial proceedings. There is no legal basis for substituting a non- party into ongoing litigation, and any motion attempting to do so is inherently groundless and must be dismissed if the court is made aware of the true status of the parties. In conclusion, it is the view of this court that a. Jurisdiction is contingent/and or evoked based on valid service. A court therefore lacks jurisdiction over an individual/or entity that has not been properly served. Where service has not properly been effected, the proceedings and any consequent substitution are nullities. b. Substitution cannot cure lack of service. Since a court only obtains jurisdiction through effective service, a party cannot substitute someone who has not been properly served. Thus the motion for substitution ought to have failed/and or dismissed at its very foundation, thus the court order for substitution was void ab initio as the court did not have jurisdiction. The application to strike out the 7th defendant as a party succeeds. 6 of 7 No order as to cost (JUSTICE OF THE HIGH COURT) (SGD.) RUBY N. A. QUAISON (MRS.) (J.) 7 of 7