The Fast Track High Court, Accra, will on Wednesday, November 14, 2007 rule on an application by Dr. Stephen Adei, the Rector of the Ghana Institute of Management and Public Administration (GIMPA), the governing Council of GIMPA and GIMPA requesting the court to dismiss the writ filed by GO's Editor-in-Chief, Egbert Faibille Jnr. against the three defendants.
This was after the Fast Track Court presided over by Justice Victor Ofoe had heard arguments from Nene Ofoe Amegatcher representing the three defendants and Egbert FaibiIIe Jnr. representing himself last Monday.
Moving the motion, which was seeking an order to set aside the writ, Nene Amegatcher told the court that Egbert Faibille Jnr. as well as any citizen of Ghana lacks the capacity to bring any action seeking certain declarations against the three defendants.
He premised his argument on the ground that by its establishment law, the Ghana Institute of Management and Public Administration Act, Act 676, GIMPA has its own internal mechanisms for ensuring that all the reliefs being sought by Egbert Faibille Jnr. are met.
Citing an authority from the Supreme Court, Nene Amegatcher said not even the Attorney General of the Republic can move the court to seek reliefs against GIMPA and Dr. Stephen Adei as well as GIMPA's governing Council.
Nene Amegatcher took the liberty to quote copiously from some law textbooks and invited the court to dismiss the writ against the three defendants.
He told the court that the fact that Egbert Faibille Jnr. is a citizen of Ghana does not give him capacity to sue GIMPA, Dr. Adei and GIMPA's governing Council.
In his response, Egbert FaibiIle Jnr. told the court that the application by Dr. Adei and the two other defendants to have his writ set aside was incompetent, a waste of the court's time, misconceived and an abuse of the court process.
Egbert Faibille Jnr. told the court that when he filed his writ against Dr. Adei and the two others on the 4th day of September, 2007, they caused Nene Amegatcher to enter what in the rules of court is referred to as 'Conditional Appearance' or an appearance under protest.
He said subsequent to that they applied to have his writ set aside on the ground inter alia that he lacked capacity, had no locus standi and also that his writ did not disclose any reasonable cause of action.
Arguing further , he invited the court to dismiss the application with punitive costs against Dr. Adei and the two other defendants on the ground that the Supreme Court and the High Court had ruled in several decided cases that any defendant who enters conditional appearance cannot subsequently request a court to set aside a writ; even if he has an impregnable defence to the writ.
Egbert Faibille Jnr. told the court that by the same principle, the only grounds permissible for a defendant to apply to set a writ aside after entering conditional appearance is when the defendant objects to the issue or service of the writ or notice of the writ on him; or objects to the jurisdiction of the court and applies to the court to set aside the writ, or notice of the writ or service of thereof on him.
He drew the court's attention to the fact that the several decided authorities which have repeated his position provide that such an application may encompass any irregularity or defect in the issue or service of the writ, or notice of the writ, e.g. any defect in the writ or order to amend or renew the writ, or for substituted service or service out of the jurisdiction.
Egbert Faibille Jnr. then told the court that by their application, the Defendants have not showed the court there is any irregularity on his writ or its service on them, hence it is incompetent and must be dismissed with punitive costs as amounting to a waste of the court's time.
He said the only grounds that the defendants had set out in their application to the court to set aside his writ are on grounds of capacity, locus standi and a purported failure to disclose a reasonable cause of action; which all fail to meet what a party who enters conditional appearance can use to apply to the court to set aside a writ.
Turning to the defendant's purported claim that he lacks capacity to sue Dr. Adei and GIMPA, Egbert Faibille Jnr. drew the court's attention to the fact that the authorities show that the issue of capacity is a legal defence available to the defendants and which in turn shifts the burden on him (Faibille) to prove that he is clothed with capacity to issue the writ against the defendants.
He said the issue of his purported lack of capacity is a triable issue which can only be determined after pleadings have been filed and evidence led to that effect; and since at this stage no evidence has been led nor admitted and the issue not tried (because the defendants have failed to file their defence as required under the rules of court), it will be preposterous for the court to uphold their application.
He therefore urged the court to dismiss the application and order Dr. Stephen Adei and the two other defendants to file their defence for the issues to be set down for trial.
It will be recalled that Egbert Faibille Jnr. caused a writ to be issued against Dr. Stephen Adei , the GIMPA governing Council and GIMPA as Ist, 2nd and 3rd Defendants respectively seeking the following reliefs:
a) A declaration that by virtue of the provisions of ACT 676 and the Conditions of Service of the Rector of GIMPA, the 1st Defendant has exhausted the stipulated tenure as Rector/Director General of GIMPA and cannot continue to hold himself out to the public as such;
b) A declaration that by virtue of the provisions of ACT 676 and any consequential statutes, bye-laws and conventions thereof; it is fraudulent for the 1st Defendant to hold himself out at GIMPA and to the public as a professor of Leadership at GIMPA.
c) An order perpetually restraining the 1st Defendant from holding himself or being held out by the 2nd Defendant as a professor of Leadership at GIMPA;
d) An Order directed at the 2nd Defendant to declare the position of Rector of GIMPA vacant and take the necessary steps to appoint a substantive Rector of GIMPA;
e) Costs, including lawyer's fees.