Conditional Appearance

Introduction:

This note will discuss the following:

1. The meaning of conditional appearance.
2. Capacity to enter or file conditional appearance.
3. When conditional appearance may or may not be entered or filed.
4. The consequence of entering conditional appearance.
5. Effect of failing to enter conditional appearance.
6. How to enter conditional appearance.

Meaning of Conditional Appearance:

At its core, conditional appearance, also known as appearance under protest, is appearance in qualified terms. It is a defendant’s way of saying that he has obtained notice of the action against him, but is arguing that

1. There is a problem with the writ by which the action against him was commenced; or
2. There is a problem with how he obtained notice of the writ, thus, a problem with the service of the writ.

By virtue of these problems, the defendant, by entering conditional appearance, either wishes to set aside the writ itself or the service of the writ.

The following two Ghanaian cases explain the meaning of conditional appearance:

In the case of Amissah-Abadoo v. Abadoo [1973] 1 GLR 490-500 , conditional appearance was characterised as follows:

The term `conditional appearance' means an appearance in qualified terms, reserving to the appearing defendant the right to apply to the Court to set aside the writ, or service thereof, for an alleged informality or irregularity which renders either the writ or service invalid or for lack of jurisdiction. There is no real distinction between the term `conditional appearance' and `appearance under protest.'

…

A conditional appearance or appearance under protest is a complete appearance to the action for all purposes, subject only to the right reserved by the defendant to apply to set aside the writ or the service thereof, on any ground which he can sustain. A defendant has the right to appear conditionally where he has a bona fide intention to dispute the jurisdiction of the Court.

In the case of Republic v. High Court, Denu; Ex Parte Avadali IV [1993-94] 1 GLR 561—594 , the Supreme Court of Ghana, in explaining conditional appearance, referred to the White Book (1959) which says:

The term 'conditional appearance' means an appearance in qualified terms, reserving to the appearing defendant the right to apply to the Court to set aside the writ, or service thereof, for an alleged informality or irregularity which renders either the writ or service invalid, or for lack of jurisdiction. There is no real distinction between 'conditional appearance' and 'appearance under protest'. The latter term is more usually applied to an appearance by a person served as a partner...but who denies that he is a partner...

Their lordships added that “The whole purpose of a conditional appearance is to stop the case in its tracks; stop it from being gone into at all—on this occasion, for the reason that the court has no jurisdiction to hear it.”

Capacity to Enter or File Conditional Appearance:

In Order 9 Rule 7 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47) , it is provided that “a defendant may file a conditional appearance.” Note, however, that there are grounds under which a defendant may file conditional appearance. These are now discussed.

Circumstances Under Which a Defendant May Enter Conditional Appearance:

1. When the writ is defective:

A defendant may enter conditional appearance if the writ is defective. A writ is said to be defective under the following circumstances:

i. The plaintiff has no capacity to institute the action. See Republic v. High Court, Accra; Ex Parte Aryeetey [2003-2005] 1 GLR 537 and Akrong and Another v. Bulley [1965] GLR 469

ii. The lawyer issuing the writ has no valid licence, which is contrary to Section 8(1) of the Legal Profession Act, 1960 (Act 32) . See the case Amosa (No. 1) v. Korboe (No.1) [2015-2016] 2 SCGLR 1516 and The Republic v. High Court (Fast Track Div.) Accra Ex Parte: Justin Pwavra Teriwajah and Henry Nuertey Korboe Civil Appeal No. J5/7/2013 .

iii. The writ is issued by a non-existent plaintiff, such as a sole proprietor in its trading name. See the case of Ghana Industrial Holding Corporation v. Vincenta Publications [1971] 2 GLR 24.

iv. The writ is filed in a court that lacks jurisdiction. See the case of Frimpong v Nyarko [1999-2000] SCGLR 429 .

v. Where there is a failure to comply with legal conditions precedent, see the case Nartey v. Gati [2010] SCGLR 745 where the Supreme Court of Ghana, speaking through Date-Bah JSC, advanced that “Section 30 of Act 32 was a mandatory precondition for the commencement of an action by a lawyer to recover his fees.” This was cited with approval in Gaise Zwennes Hughes & Co Vrs Loders Crocklaan B. V. [2012] GHASC 7 (1 February 2012) where Gbadegbe JSC advanced that “The non-compliance in this case being a failure to comply with a mandatory statutory requirement invalidated the writ of summons on which proceedings in the matter herein were based as was decided by this court in the case of Republic v High Court, Accra, Ex-parte Allgate Co Ltd [2007-2008] SCGLR, 1041 ”

vi. The writ is issued against a defendant outside the jurisdiction without leave of the court. See the case of Lokko and Another v. Lokko [1989-90] 2 GLR 96 .

vii. The defendant does not exist or is not the proper person to be sued.

viii. The writ of summons is not accompanied by a statement of claim.

Note the difference between entering conditional appearance to set aside a writ and entering conditional appearance to set aside service of the writ . On the one hand, when a defendant enters conditional appearance to set aside a writ, he is essentially advancing that the writ has a defect and ought to be set aside. On the other hand, when the defendant enters appearance to set aside service of the writ, he is advancing that the manner in which he was served is contrary to the rules.

Note also that it is possible for a defendant to enter conditional appearance to set aside both the writ and service of the writ.

Also note that if a defendant enters conditional appearance to only set aside service of the writ, the writ can be served again and the action will proceed if the service is valid.

2. When service of the writ is defective:

A defendant may also enter conditional appearance if the service of the writ is defective. Service of a writ is said to be defective under the following conditions:

i. The writ was not served personally on the defendant.

ii. An expired writ was served.

iii. Leave of the court was not sought before notice of the writ was served on the defendant out of the jurisdiction.

3. When the court has no jurisdiction to entertain the action:

An enactment may provide that a particular court does not have jurisdiction to entertain a particular action. For example, Section 57 of the Courts Act, 1993 provides that:

Subject to the provisions of the Constitution, the Court of Appeal, the High Court, Regional Tribunal, a Circuit and Community Tribunal shall not have jurisdiction to entertain either at first instance or on appeal, any cause or matter affecting chieftaincy.

If a person institutes a chieftaincy action at the High Court, the defendant may enter conditional appearance to challenge the jurisdiction of the court.

In the case of Republic v. High Court, Denu; Ex Parte Avadali IV (supra) , the defendant, upon service of a writ on him, was of the opinion that the High Court had no jurisdiction to hear the matter because it was a chieftaincy matter couched as a land action. He entered conditional appearance and the High Court dismissed the defendant’s application to set aside the writ. On an appeal to the Supreme Court for an order of certiorari, the Supreme Court advanced that:

Quite apart from the general law that objections to jurisdiction may be taken at any time, there are at least two ways of presenting such a situation to the court; a defendant may appear unconditionally, and raise the issue of jurisdiction in his statement of defence as a defence, and, at the appropriate time, ask the court, if so advised, to take that issue and try it in limine: see Wilkinson v Barking Corporation [1948] 1 KB 721 (holding 1) and at 725, CA. Or he may file a conditional appearance and move the court to set aside the writ of summons and statement of claim. If he chooses the latter course, his reasons for contending that the court has no jurisdiction can only be stated in the affidavit accompanying the motion, since there will be no statement of defence at that stage.

Circumstances Under Which a Defendant Cannot or Should Not Enter Conditional Appearance:

Having a strong defence to the plaintiff’s case is not a ground for entering conditional appearance, and this was recognised in Ex Parte Aryeetey (supra) as follows:

A conditional appearance is to enable the defendant who intends to object to the issue or service of the writ or notice of the writ on him, or to object to the jurisdiction of the court, to apply to the court to set aside the writ, or notice of the writ or the service thereof on him. Such an application may encompass any irregularity or defect in the issue or service of the writ, or notice of the writ. For example any defect in the writ or order to amend or renew the writ, or for substituted service or service out of the jurisdiction. It is not permissible for a defendant who has entered a conditional appearance to move the court to have the writ set aside because he has a legal defence, even if unimpeachable, to the action; certainly such an application is not available to a defendant who seeks to rely on a plea of res judicata since this plea, to be successful, must satisfy certain requirements which can only be revealed through evidence. A defendant who enters a conditional appearance therefore has no right to apply to set the writ aside because he has a good defence to the action.

The Aftermath of Entering a Conditional Appearance:

If a defendant files or enters a conditional appearance, Order 9 Rule 8 provides that the defendant must, within 14 days after filing the conditional appearance , apply to the court for an order to set aside the writ or service of the writ.

If the defendant fails to do this, the conditional appearance shall be treated as unconditional appearance. In the case of Amissah-Abadoo v. Abadoo (supra), the court stated that:

if the defendant fails to apply to the Court to enforce his alleged objection [that either the writ or service of the writ is defective], the appearance shall stand as unconditional, and the action proceed accordingly.

In the recent case of Quainoo v. Hanoo and Another 2023 GHAHC 121 (11 January 2023) , the defendant/applicant entered conditional appearance on 5 ^th October and brought an application to set aside the writ of summons on grounds of res judicata on 6 ^th December. The court held that given the failure to bring the application within 14 days , the conditional appearance had transformed into an unconditional appearance. It delivered itself as follows:

Firstly, it ought to be noted that the conditional appearance filed by the applicant crystallised into an unconditional appearance and the law requires that any objection to the writ or service of the writ, or jurisdiction of the court be raised within 14 days of filing same…I, therefore, agree with counsel for the respondent that once he failed to bring the application within 14 days of filing the conditional appearance, the defendant would be deemed to have admitted the regularity of the writ and this court must treat the conditional appearance as unconditional.

Summarily, a defendant, upon service of a writ on him, has 8 days to enter appearance inclusive of the day of service. Once he enters conditional appearance within these 8 days, he has a further 14 days from the date of entering the conditional appearance to apply to the court to set aside the writ or service of the writ.

Effect of Failing to Enter Conditional Appearance:

Save for issues of jurisdiction, a defendant who fails to enter a conditional appearance despite irregularities or defects on the writ or service of the writ, may be deemed to have waived the irregularity or defect. This is particularly true if the defect does not render the writ or service null and void, as the courts have severally held that neither the court nor the parties can waive a nullity.

In the case of Sterman v. E. W. and W.J. Moore (A Firm) 1970 2 WLR 386 C.A , Lord Denning advanced that:

At any rate, even if it is not necessary to state the cause of action, it is very desirable to do so. I am prepared, therefore, to approach this case on the footing that the writ did not comply with the rule. It was defective in that it said simply: “damages and for loss of earnings” without stating the cause of action, viz., negligence and breach of statutory duty. That defect did not render the writ a nullity. It was at most an irregularity, and the irregularity was waived when the defendants entered an unconditional appearance to that writ .

This decision was cited with approval by Atugugba JSC in the case of Axex Company Ltd Vrs Opoku and Others [2012] GHASC 39 (19 July 2012), where his lordship added that “I agree with this reasoning and the appellants here are caught by it since they have also entered unconditional appearance to the writ herein and since the relevant Rules under C.I. 47 are substantially the same as those dealt with by Lord Denning M.R. in that case.”

Also, in the case of Edusei v. Diners Club Suisse S.A. [1982-83] GLR 809-816 , the Court of Appeal also held:

Besides, by appearing unconditionally to the writ, the appellant is deemed to have waived any issue relating to the appropriateness of a forum.

Also, in the case of Ackerman v. Societe Generale De Compensation [1967] GLR 212-218 , the Court cited with approval an exposition in The Annual Practice, 1966, p. 131 where it is stated that:

Where a defendant enters an ordinary appearance, without any condition or protest reserving his right to object to the irregularity of the writ or service, or the jurisdiction of the Court, he is debarred from raising an objection afterwards. The effect, therefore, of an ordinary or unconditional appearance is a waiver of irregularity, if any, as well as a submission to the jurisdiction of the court

Finally, in the recent case of Quainoo v. Hanoo and Another 2023 GHAHC 121 (11 January 2023) , the High Court held that:

Indeed it is trite that where a defendant enters appearance unconditionally, he is deemed to have acknowledged the jurisdiction of the court, including the regularity of the writ and regularity of its service.

How Conditional Appearance is Entered:

The defendant enters conditional appearance by filing a notice of conditional appearance. Save for the heading and a few changes, this notice is similar to the notice of unconditional appearance. Below is a sample:

Afterwards, an application on notice is made to the court to either set aside the writ or service of the writ on the defendant. In said application, the defendant will be the applicant. The application must be supported with an affidavit highlighting the grounds upon which the defendant seeks to set aside the writ or service of the writ. Below is a sample of an application and an affidavit in support:

1. Application to Set Aside Writ and Service of the Writ:

2. Affidavit in Support:

Conclusion:

In conclusion, conditional appearance, also known as appearance under protest, is entered by a defendant when he objects to the plaintiff’s writ or service of it on him on grounds of irregularity, and wishes to set it aside. Grounds on which a writ may be set aside include that the plaintiff has no capacity to institute the action, the lawyer issuing the writ has no valid licence and the writ is filed in a court that lacks jurisdiction. Service of a writ may also be set aside on grounds including that the writ the writ was not served personally on the defendant and that the writ had expired. Aw defendant who files a conditional appearance must file a proceeding under order 9 rule 8 within 14 days, otherwise he will be deemed to have filed an unconditional appearance. Lastly, except for issues of jurisdiction, a defendant who fails to enter a conditional appearance despite irregularities or defects on the writ or service of the writ, may be deemed to have waived the irregularity or defect.