BARCLAYS BANK OF GHANA LTD vs. GHANA CABLE CO LTD AND OTHERS [1997-1998] 2 GLR 61

CASES REFERRED TO

(1) Ofori v Lartey [1978] GLR 490, CA.

(2) Vasquez v Quarshie [1968] GLR 62.

(3) R v Appeal Committee of County of London Quarter Sessions; Ex parte Rossi [1956] 1 All ER 670, CA.

(4) Ansah v Ansah [1977] 2 All ER 638; [1977] 2 WLR 760, CA.

(5) Brakowa v Awuakyewa (1956) 2 WALR 164, WACA.

(6) Brakowaah v Awuakyewah & Gyasi [1961] 1 GLR 164, SC.

(7) Dakar Ltd v Industrial Chemical and Pharmaceutical Co Ltd [1981] GLR453.

(8) Ghana Commercial Bank v Tabury [1977] 1 GLR 329.

(9) Watson v Sheather, Sons & Co Ltd (1886) 2 TLR 473;

(10) Annon 1 Salk 86.

(11) Yonge v Toynbee [1910] 1 KB 215; 79 LJKB 208; 102 LT 57, CA.

(12) Esson v Oppong, High Court, Cape Coast, 4 August 1987, unreported.

(13) State v Asantehene Divisional Court B1; Ex parte Kusada [1963]2 GLR 238, SC.

(14) MacFoy v United Africa Co Ltd [1961] 3 All ER 1169; [1962] 2 AC 153; [1961] 3 WLR 1405, PC.

(15) Mosi v Bagyina [1963] 1 GLR337, SC.

APPEAL by appellant bank from the unanimous judgment of the Court of Appeal, setting aside the ruling of the High Court which refused to vacate a summary judgment entered against the respondents. The facts are sufficiently set out in the judgment of Acquah JSC.

Aduawa Osei for the appellants.

N Amegatcher (Miss Blackie and Jolyl with him) for the respondents.

[p.65] of [1997-1998] 2 GLR 61

Acquah JSC. Delivered the first judgment at the invitation of Charles Hayfron-Benjamin JSC. This is an appeal by the Barclays Bank of Ghana (henceforth referred to as the ‘bank’) against the unanimous judgment of the Court of Appeal dated 8 December 1994, setting aside the ruling of the High Court which had refused to vacate a summary judgment entered against the defendants.

The brief facts are that on 23 March 1989, the bank issued a writ of summons with a statement of claim attached for the sum of ¢24,454,985 together with 30 per cent compound interest on the said amount form 1 March 1989 up to the date of final judgment The basis of the bank’s claim is that the amount was a loan granted to the first defendant and guaranteed by the remaining defendants. In a notice and memorandum of appearance, dated 10 April 1989, the bank took out summons for final judgment under Order 14, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended by the High Court (Civil Procedure) (Amendment) Rules, 1977 (LI 1129). At the hearing of the summons, Lawyer E S Aidoo is recorded as having announced himself as appearing for the defendants. The lawyer is further recorded as having consented to judgment being entered against the defendants. The High Court thereupon entered final judgment as prayed together with ¢750,000 costs. Almost five years after this judgment, one Lawyer D O Lamptey filed a motion dated 14 January 1994 at the High Court on behalf of the first, second, third, fourth and sixth defendants praying for an order to set aside the final judgment entered on 25 May 1989 on the grounds that none of them was served with the writ of summons, and consequently that the court had no jurisdiction to enter judgment against them. In an affidavit sworn to by the sixth defendant, supporting the motion, the defendants applicants deposed that at the time summary judgment was entered, the sixth defendant was in detention at the behest of the Provisional National Defence Council and was, indeed, not served, and that the remaining four defendants were equally not served with the writ of summons, the statement of claim and the motion for judgment. And further, a search conducted by them at the High Court registry revealed that the first, second, third and fourth defendants were served through one Madam Alice as their secretary. Supporting their averments with documents from the Registrar-General’s Department, they contended that the said Madam Alice was not their secretary and had no authority to [p.66] of [1997-1998] 2 GLR 61 receive service on their behalf; and that their secretary was Lennap & Co.

Opposing the application, the bank deposed that after they had issued their writ against the defendants, there was appearance entered on their behalf by Messrs Quist, Brown, Addo and Wuntumi and further, at the hearing of the motion for judgment Lawyer E S Aidoo announced himself for the defendants and sought an adjournment. On the adjourned date, the said counsel consented to judgment being entered against the defendants. Consequently, the bank swore in paragraph (12) of its affidavit:

“(12) That upon Messrs Quist, Brown, Aidoo and Wontumi entering appearance on behalf of the defendants, the question as to whether they were served and the issue as to the relationship between Mr Nasser and/or defendants and Madam Alice, mentioned in paragraph (8) of their affidavit as the person served is irrelevant and cannot be grounds for setting aside the judgment.”

On 12 May 1994, the High Court, differently constituted, refused the application to set aside the judgment on grounds that the said Madam Alice “might have held herself out as such (secretary) to the bailiff.”

Dissatisfied with the High Court’s ruling, the defendants lodged an appeal at the Court of Appeal. In its unanimous decision the Court of Appeal found that the defendants were indeed not served in accordance with the law, since Madam Alice was not the secretary of the defendants. Accordingly, the court reversed the High Court’s ruling of 12 May 1994 and further set aside the summary judgment entered against the defendants on 25 May 1989. It is against this decision of the court on the following grounds:

“(a) The Court of Appeal erred in setting aside the judgment entered against the defendant-respondents on 25 May 1989 and in setting side the ruling of the High Court dated 12 May 1994 and misdirected itself on the legal effect of the entry of the appearance by solicitors for a party or parties in a suit.

(b) The Court of Appeal misdirected itself in allowing its decision to be influenced by matters which were not pertinent to the issues before it or before the trial court.”

[p.67] of [1997-1998] 2 GLR 61

Now, the first crucial step, after a writ of summons or any process initiating a legal action had been issued, is for the defendant to be served personally with a copy thereof, or notice of the said writ if permissible, unless the solicitors of the defendant undertakes in writing to accept service on behalf of the defendant As Francois JA (as he then was), pointed out in Ofori v Lartey [1978] GLR 490 at 492, CA: “It is trite law that proceedings against a party are deemed to commence only after the service of a writ or notice on that party.” (The emphasis is mine.) When personal service proves unsuccessful, substituted service may be resorted to. And unless a defendant has been served, no process can be taken to obtain judgment against him. For until such service, the court is generally not seized with jurisdiction to proceed against the unserved defendant. Thus in the headnote of Vasquez v Quarshie [1968] GLR 62, it is stated (in holding (3) that:

“A court making a decision in a case where a party did not appear because he had not been notified would be doing an act which was a nullity on the ground of absence of jurisdiction.”

The rationale for this is stated in Broom Legal Maxims (9th ed) at p 78 thus:

“It has long been a received rule that no one is to be condemned, punished, or deprived of his property in any judicial proceedings unless he has had an opportunity of being heard.”

Denning LJ (as he then was) in R v Appeal Committee of County of London Quarter Sessions; Ex parte Rossi [1956] 1 All ER 670 at 674, CA, made the same point, when he said:

“. . . it is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. The common law has always been very careful to see that the defendant is fully apprised of the proceedings before it makes any order against him.”

Now, on the basis of this well-settled principle, ex parte applications and orders for injunctions are undoubtedly anomalies

[p.68] of [1997-1998] 2 GLR 61 in our administration of justice. And had the Rules of Court not permitted such applications and orders to be made, they would have been nullities. Thus to prevent the misuse of ex parte applications for injunctions, the practice, as sanctioned by case law, is that such applications are to be resorted to only in cases of extreme emergency, where the interest of justice requires that the court should intervene immediately without notice to the party affected. This implies that the urgent situation must be such that it would be improper or even imprudent to give notice of the application to the other party. And if a court is satisfied that the situation is urgent enough to require its intervention, the ex parte order that the court would make thereon should be for a very limited time of about seven days. For, it is not permissible—and indeed it is a travesty of justice—or a court to make an ex parte order remain in force, pending the final determination of the suit, or pending the determination of the application on notice to the other side. In Ansah v Ansah [1977] 2 All ER 638 at 642, CA, it was pointed out that:

“Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party . . . Nonetheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately. Such circumstances do undoubtedly tend to occur more frequently in family disputes . . . particularly when a marriage is breaking up, in a state of high emotional tension; but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the court. Such cases should be extremely rare, since any urgent application can be heard inter partes on two days’ notice to the other side . . .”

On how ex parte orders should be made, it is explained at the same page thus:

“If an order is to be made ex parte, it must be strictly limited in time if the risk of causing serious injustice is to be avoided. The time is to be measured in days, ie the shortest period which must elapse before preliminary hearing inter partes can

[p.69] of [1997-1998] 2 GLR 61 be arranged, and the order must specify the date on which it expires. (If difficulty in serving the other party is anticipated it may, exceptionally, be permissible to fix a longer period and to provide in the order that the other party may apply on 24 hours’ notice to discharge the injunction.)”

The principle therefore is that ex parte applications for injunctions should sparingly be entertained and when so entertained there must be credible and weighty evidence to support the exceptionally urgent need for their invocation. For, notwithstanding the fact that the application is ex parte, the court has the power and discretion in the interest of justice, to adjourn it for about a week and direct the application to be served on the other party so as to enable same to be determined fairly and on notice. But if the ex parte application is to be granted it must be for a very short period—not certainly for a month and over. Where for an exceptional reason, the ex parte order is to subsist for a little longer period of about two weeks, the order must give the affected party the right to apply to set it aside on giving 24 hours’ notice to the other side. Indeed, in Ansah v Ansah (supra), it was held that it is quite unjustifiable and improper to grant an ex parte order to subsist “until the further hearing of the application” inter partes.

Now, back to the instant appeal. In his written submissions, the bank contends that the Court of Appeal failed to appreciate that the real issue in dispute is whether the solicitors who entered appearance for the defendants had authority to enter the said appearance. For the legal effect of entering appearance, the bank continues, is to give jurisdiction to the court to grant any appropriate relief against the party on whose behalf appearance was entered. Citing page 128 of the Annual Practice (White Book) 1954-1956, the bank submitted:

“. . . that once appearance was entered by solicitors on behalf of the defendants, the defendants were deemed to have been served with the writ of summons and to have submitted to the jurisdiction of the High court. The High Court therefore had jurisdiction to grant any proper relief against the defendants in the suit. Summary judgment is a proper relief which the High Court could enter and at the time . . . the High court was clothed with jurisdiction so to do.”

[p.70] of [1997-1998] 2 GLR 61

There is no doubt that the record of proceedings disclose an appearance entered on behalf of the defendants by Quist, Brown, Aidoo and Wontumi & Co. And that such entry of appearance presupposes that the defendant had already been served. But this presumption is rebuttable and not conclusive. And therefore the defendants are entitled to rebut the said presumption by credible evidence if they have indeed not been served with the writ of summons. For, as stated earlier on, a court has generally no jurisdiction to proceed against a party who has not been served Accordingly, when a defendant complains that he has not been served with a writ of summons or any process which requires his personal service, the court is duty bound to examine that complaint thoroughly and make a definitive finding irrespective of whether there is proof of service or entry of appearance on behalf of that defendant. For the success of his complaint would render both the proof of service and the appearance nothing but a brutum fulmen, thereby consigning all the proceedings, orders and judgment procured thereon, into the realm of nullities.

Thus, in Brakowa v Awuakyewa (1956) 2 WALR 164, the plaintiff took action at the Native Court for a declaration of title and recovery of possession of a cocoa farm on ground that: “. . . there is no existing judgment against her, which will necessitate the said cocoa farm described above being sold under the process of a ‘writ of fi fa.” The basis of the plaintiff’s action was that the defendant sold her the plaintiff’s) cocoa farm under a writ of fi fa in execution of a judgment in an action instituted by the defendant against one Kwame Noah as debtor and the plaintiff as guarantor of the said debt. The plaintiff was never served to appear at any stage of the proceedings culminating in that judgment. And yet her cocoa farm was sold in execution of that judgment debt. She therefore issued the writ in Brakowaah v Awuakyewa (supra)—contending that she was not served at all with the writ of summons and therefore the judgment obtained against her resulting in the sale of her cocoa farm was a nullity. At the trial, the native court accepted the evidence of the recorder that the bailiff who was entrusted with the service of the writ reported service to him. There was also an entry on the original writ that both defendants were served. The bailiff who effected the service was not called. The native court dismissed the plaintiff’s claim, and this was confirmed on appeal at the Land Court. On further appeal to the West African Court of Appeal, it was found that the evidence as to [p.71] of [1997-1998] 2 GLR 61 service of the writ was unsatisfactory and that the native court had misdirected itself as to proof of service. At 165 of the report, the WACA noted: “It is a settled rule of law and practice that no court of law can give judgment against a party in a suit in which a copy of the writ of summons has not been served on the party concerned.” The appeal was thus allowed and the suit remitted to the native court for rehearing.

At the hearing, further evidence was led on the plaintiff’s claim of non-service. The bailiff who had endorsed proof of service on the writ also testified, after which the native court once again found against the plaintiff and dismissed her claim. On appeal to the Land Court, this time constituted by Adumoa-Bossman J (as he then was), the record was subjected to a thorough and painstaking analysis, which revealed evidence in support of the plaintiff’s contention. The appeal was accordingly allowed and the judgment in respect of which the plaintiff’s cocoa farm was sold was declared a nullity and set aside. On further appeal to the then Supreme Court, reported as Brakowaah v Awuakyewah & Gyasi [1961] 1 GLR 164 at 166 SC, the court observed in respect of the bailiff’s evidence insisting that he had served the plaintiff: “That the bailiff is an interested person is plain. He had a stake in the game. He had created a make-believe which he had to support in order to save his own skin.” The Land Court’s decision was upheld and the appeal dismissed.

In the above long litigation on the plaintiff’s complaint of non-service, both the West African Court of Appeal and the then Supreme Court did not regard the bailiff’s proof of service as conclusive on the issue of service. Evidence was received and examined to determine whether the plaintiff was served. And when it was established that she was not served, the judgment procured thereby was declared a nullity and set aside. It is therefore evidently clear that a proof of service or entry of appearance on behalf of a defendant raises only a rebuttable and not a conclusive presumption of service on the party.

In the instant appeal, the basis of the defendant’s application to set aside the summary judgment entered against them was that they were not served with the writ of summons, and the court therefore had no jurisdiction to proceed against them. Thus paragraphs (5),(6),(7) and (14) of their affidavit sworn to by the sixth defendant in support of their application read:

[p.72] of [1997-1998] 2 GLR 61

“(5) That at the time judgment was given against us, viz first, second, third, fourth defendant companies and myself, I was in detention at the behest of the erstwhile PNDC regime.

(6) That I was not served with any court processes, viz writ of summons, statement of claim, motion or judgment etc prior to the entry of default judgment.

(7) That the first, second, third and fourth defendants were also not served with any of the above mentioned court processes prior to the entry of the default judgment against the first, second, third and fourth defendant companies.

(14) That I am advised and verily believe same to be true that the default judgment entered against the first, second, third and fourth defendants companies and myself was entered by this honourable court without jurisdiction and the same ought to be set aside or vacated; that I am entitled to this relief ex debito justitiae.”

The affidavit proceeds further to aver that a search conducted later at the registry of the High Court revealed that one Madam Alice was served for and on behalf of the defendants in an alleged capacity as secretary of the defendants companies. They contend that Madam Alice was not their secretary and that their secretary was Lennap & Co, as evidenced by the letters from the Registrar General’s Office. The said Madam Alice was not known to them and consequently service on her could not be service on them.

Now, from the record of proceedings, there is no dispute that the sixth defendant, a human being, was not personally served with the writ of summons as he was then in detention, and as there was no order of substituted service through this Madam Alice. In respect of the sixth defendant therefore, the record clearly establishes that he was not served at all.

The other defendants, that is, the first, second, third and fourth defendants, are all limited liability companies, and in examining the mode of service or writs and other processes on them, the first place to look at is in the High Court (Civil Procedure) Rules 1954 (LN 140A) wherein Order 9, r 8 (2) provides:

“(2) In the absence of any statutory provision relating to service on a company . . . service may be effected, by sending the writ or other document to be served, by prepaid registered

[p.73] of [1997-1998] 2 GLR 61 post to the secretary or other corresponding officer at the head office . . . or by serving the writ or document on such secretary or corresponding officers personally of such office as aforesaid . . .”

The opening words of the above rule clearly shows that the rule applies: “In the absence of any statutory provision regulating service on a company . . .” Accordingly, since section 263 of the Companies Code, 1963 (Act 179) regulates service of documents on companies, Order 9, r 8 (2) of LN 140A cannot therefore be resorted to. Section 263 of Act 179 reads:

“263. (1) A document may be served on a company by leaving it at, or sending it by post to, the registered office of the company, or the latest office registered by the Registrar as the registered address of the company.

(2) Any document to be served by post on a company shall be posted in such time as to admit of its being delivered in due course of delivery within the time, if any, prescribed for the service thereof; and in proving service it shall be sufficient to prove that a letter containing such document was properly addressed prepaid and posted, whether or not by registered post.

(3) If a company has no registered office, service upon any director of the company or, if the company has no director or if no director can be traced in Ghana, upon any member of the company, shall be deemed good and effectual service upon such company.

(4) If it shall be proved that any document was in fact received by the board of directors, managing director or secretary of a company such document shall be deemed to have been served on the company notwithstanding that service may not have been effected in accordance with the foregoing subsections of this section.

(5) Nothing in this section shall derogate from any provision in this Code relating to the service of any document, or from the power of any court to direct how service shall be effected of any document relating to legal proceedings before that court.”

(The emphasis is mine.) The above provisions are quite comprehensive enough. Section 263 (1) of Act 179 provides that service

[p.74] of [1997-1998] 2 GLR 61 may be effected by leaving it at or sending it by post to, the registered office or latest office registered as the registered address of the company. For, under Act 179, every company must have a registered office.

The obvious reason for this is that a company being a person with only a legal existence and without any physical existence, it is necessary to know where the company can be found, where communications and notices may be addressed and where documents can be served on it. Thus sections 119, 120 and 121 of Act 179 mandatorily require every company to have a registered office with a postal address; the notice of this registered office with its postal address must be given to the registrar for registration, and any subsequent change in the situation of this registered office should be brought to the notice of the registrar; and finally the company is to display conspicuously on a signboard, the particulars of its registered office in front of all its offices. Now, if a company defaults in complying with the provisions of section 119 to 121 of Act 179, and thereby has no registered office, Act 179 provides in section 263(3) that in such a situation, service of a document or any process on a director, or in the absence of a director on any member of the company is deemed good and effectual service on the company. Furthermore, as provided in section 263(4) of Act 179, once it is confirmed that service had indeed been received by the board of directors or the managing director, or the secretary of the company, the said document shall be deemed to have been properly served on the company notwithstanding the fact that the manner in which the document got to such a recipient was not in line with any of the provisions in section 263(1) to (3). And finally section 263(5) of Act 179 reserves to the court power to direct in any manner how documents should be effected on a company.

Now, as stated earlier on, section 263(1) provides that in respect of a company with a registered office or registered address, a document may be served by leaving it at or sending it by post to such an office. The question is with whom should the document be left, and if it is by post how should this be done?

I will deal first with service by post. In Dakar Ltd v Industrial Chemical and Pharmaceutical Co Ltd [1981] GLR 453 at 459, Taylor (as he then was) held: “The provision that a document may be served by post on a company finds further elaboration in section 13(2) of the Interpretation Act, 1960 (C.A. 4).” His lordship, then quoted the said section 13(2) of CA 4 and after

[p.75] of [1997-1998] 2 GLR 61 stating that the word “person” therein is defined in Act 179 to include a body corporate, he concluded: “The procedure for and effect of serving a limited liability company which has a registered office is therefore clearly indicated by the combined effect of section 263 of the Companies Code, 1963, and the relevant provision of the Interpretation Act 1960, noted here.”

This conclusion of his lordship is clearly untenable as it was, with respect, wrong for him to resort to CA 4. Section 13(2) of CA 4 reads:

“(2) Where an enactment authorises or requires a document to be served by post, whether the word ‘serve’ or some other word is used, service may be effected by prepaying, registering and posting an envelope containing the document, addressed to the person on whom the document is to be served at his last known postal address; and, unless the contrary is proved, the document shall be deemed to have been served at the time at which the envelope would have been delivered in the ordinary course of post.”

(The emphasis is mine). From the above provision, the letter containing the document for service should, among other things, be registered and addressed to the last known postal address. But section 263 of Act 179 requires the letter to be sent to either the registered office or the latest office registered as the registered address of the company.

But the more important objection is that Taylor (as he then was) ought not to have resorted to CA 4 in finding out the modalities of the service by post, because section 263(2) of Act 179 specifically deals with that issue. Let me once again quote this section 263 (2) of Act 179. It reads:

“(2) Any document to be served by post on a company shall be posted in such time as to admit of its being delivered in due course of delivery within the time, if any, prescribed for the service thereof; and in proving service it shall be sufficient to prove that a letter containing such document was properly addressed prepaid and posted, whether or not by registered post.”

[p.76] of [1997-1998] 2 GLR 61

(The emphasis is mine). From section 263(2) of Act 179, registration of the letter is not mandatory. But the expression “properly addressed” therein clearly requires in terms of section 263 (1) of Act 179, that the letter should be addressed to either the registered office or the latest office registered as the registered address of the company, and not the last known postal address as provided in section 13 (2) of CA 4.

Indeed, CA 4 is not to be resorted to in determining the meaning or scope of a word in an enactment where either the meaning or scope of that word is apparent from the context of that enactment, or the enactment contains its own interpretation provision specifying the meaning or scope of that word. Thus section 1 of CA 4 reads: “1. Each provision of this Act applies to every enactment . . . except in so far as the contrary intention appears in the enactment.” (The emphasis is mine.) And a contrary intention would appear where as stated earlier on, the meaning is evident from how the word had been used in that enactment or where the enactment has a provision explaining the meaning of that word Accordingly, since in the instant case section 263(2) of Act 179 explains the modalities of service by post, it would be wrong and contrary to section 1 of CA 4 to resort to the provision of CA 4.

The true legal position therefore is that service on a company by post should be in accordance with section 263(1) and (2) of Act 179 and not section 13(2) of CA 4. And this in effect is that the letter containing the document should be addressed either to the registered office or the latest office registered as the registered address of the company, prepaid and posted early enough to ensure that the letter is received in such a time as to enable the company file their relevant papers within the time provided by the procedural rules of court.

Now, if the service of the document is not by post but by leaving it at the registered office or registered address, as provided in section 263(1) of Act 179, with whom should the documents be left with at that place? Act 179 does not mention the persons with whom the document should be left with. Commenting on an identical section 437(1) of the English Companies Act 1948, the 1961 Annual Practice states at p115: “It is sufficient to prove . . . that the writ was left at the registered office, without showing with whom . . .”

I find this to be not too helpful. For once a company acts through human beings, whenever there is a dispute as to whether

[p.77] of [1997-1998] 2 GLR 61 the company had been served, it may become necessary for the bailiff to point out the person with whom he left the document with, since a bailiff is not expected to throw the document at the floor of the offices of that company when he goes to effect service Thus, although section 263(1) of Act 179 talks of “leaving it at” the registered office or address of the company, the bailiff must obviously leave it with someone who is in a position to bring the document to the attention of the company. In Ghana Commercial Bank v Tabury [1977] 1 GLR 329, Sarkodie J in dealing with a similar provision in section 15 of the Ghana Commercial Bank Decree, 1972 (NRDC 115) said at 334-335:

“It seems to me therefore that even though NRCD 115 is silent at to the person with whom the document or writ should be left, the proper thing to do is to serve somebody who can represent the bank or some other responsible officer. If the bank is to have notice of the writ and to appear and defend the action pending against them it will not be enough . . . to leave the writ with a clerk or some other person who might not know the nature or the import . . . The important point is that the person served must be responsible and he must accept service in the normal course of his business.”

But the problem still remains as to who are these responsible persons at the registered office of address of the company?

In Watson v Sheather, Sons & Co Ltd (1886) 2 TLR 473, a writ was handed to a director of the defendant’s company whom the person serving the document happened to find at their head office. It was held that the writ had been properly served. In Ghana, one can take a cue from sections 263(3) and (4) of Act 179 and comfortably hold that a document left with a director or the managing director, or the secretary or a member of the company at the registered office or address, should be sufficient service on the company within the expression “leaving it at” in section 263 (1) of Act 179. For if by these provisions, service on any of the said persons is deemed to be good service, then they are the categories of persons with whom a bailiff can safely leave a document for service with at the registered office or address of a company. In the instant appeal the endorsement by the bailiff on the writ of summons shows that the writ was served in Accra “on the defendants through their company secretary Madam Alice at their office.”

[p.78] of [1997-1998] 2 GLR 61

Since the first, second, third and fourth defendants are separate and distinct companies, one obviously wonders whether the bailiff found this Madam Alice at the office of each of the companies. Of course, the endorsement talks of “at their office,” the question is, do all the defendants have a common office? These questions become more intriguing if one observes that the writ contains no address of any of the defendants. Neither is there any endorsement on the writ that the bank was going to direct service. On what address then did the bailiff proceed to discover this Madam Alice?

Be that as it may, the defendants deny that this Madam Alice is their secretary and support their denial with particulars from the Registrar-General’s office to the effect that their secretary is Messrs Lennap & Co. In the face of such denials and documents, the bank produces nothing in rebuttal. No wonder, the High Court judge who heard the application to set aside the judgment, speculated that Madam Alice might have held herself out as the secretary. But there is no evidence on record to support such speculation. And a decision of a court of law cannot be based on speculations. In the face of the unchallenged documentary evidence from the Registrar-General in support of the defendants’ contention that Lennap & Co is their secretary, the defendants contention is more credible and authentic.

Now, in respect of the bank’s failure to provide the address of the defendants on the writ of summons, it is worthy of note that by necessary implication of Order 2, r 3 of LN 140A, the address of a defendant must always be provided on the writ of summons Order 2, r 3 of LN 140A reads:

“The writ of summons for the commencement of an action shall, except in the cases in which any different form is hereinafter provided, be in one of the Forms Nos. 1 and 2 in Appendix A, Part 1, with such variations as circumstances may require.”

(The emphasis is mine.) A look at each of Forms 1 and 2 shows that the address of the defendant is clearly provided. But in the instant case, the bank failed to provide the address of any of the defendants, notwithstanding the fact that they could have easily had this from the Registrar-General’s office. Of course, its strange for a bank which claims to have granted loans to the first defendant, with the others acting as guarantors, not to have had record of the particulars of the addresses of the said defendants There is

[p.79] of [1997-1998] 2 GLR 61 something wrong somewhere. And such serious default on the part of the bank punctuates their contention that the defendants were properly served.

Since it is quite clear from the above exposition that the defendants were not served, I would refrain from discussing the authority of the solicitors who purported to have entered appearance on behalf of the defendants. The reasoning and conclusion of the Court of Appeal can therefore not be faulted, and the appeal is accordingly dismissed.

Charles Hayfron-Benjamin JSC. I fully concur in the reasoning and the conclusions which my learned and respected brother Acquah JSC has just read. In my respectful opinion, the appellants, aided by their counsel, embarked on a quixotic adventure in basic civil procedure and now nine years later they had obtained their nemesis. Good counsel would have averted a situation in which the implications are now far-reaching.

I will also dismiss the appeal.

Ampiah JSC. I also agree that the appeal be dismissed

Kpegah JSC. I do not think it is necessary to state the facts in this case as they have been succinctly stated in the judgment just read by my brother Acquah JSC. The finding that the respondents have not been personally served with the writ of summons is amply supported by the record.

It is also clear from the evidence on record that Messrs Quist, Brown, Aidoo and Wontumi, a firm of solicitors, who entered appearance on behalf of the defendants on 12 April 1989, did so without proper authority. However, it was urged upon us that the Court of Appeal misdirected itself on the legal effects of the entry of appearance on behalf of the defendants. The Court of Appeal, so went the argument, therefore erred in setting aside the judgment of Sapong J (as he then was) which dismissed an application brought by the defendants seeking to set aside a final judgment earlier obtained by the appellant bank under Order 14, r 1 of the High Court (Civil Procedure) Rules, 1954 (LN 140A). The ground urged upon Sapong J was that the defendants were not personally served with the writ of summons, a fundamental error which should subvert the subsequent proceedings and any judgment based thereon. This argument was rejected by Sapong J who dismissed the application.

[p.80] of [1997-1998] 2 GLR 61

In support of the accusation of misdirection leveled against the Court of Appeal, learned counsel for the plaintiffs contended in this court that “once appearance was entered by solicitors on behalf of the defendants, the defendants were deemed to have been served with the writ of summons.” This submission was made in apparent reference to the fact that there was entry of appearance by a firm of solicitors on behalf of the respondents, and that one lawyer E S Aidoo from the said firm appeared for the respondents when an application was brought by the plaintiffs to sign final judgment under Order 14, r 1 of LN 140A. On the return date of that application, Mr E S Aidoo appeared in court as counsel for the defendants and asked for an adjournment. On the next adjourned date, he again appeared in court and submitted to judgment on behalf of the defendants. The records show that Mr E S Aidoo at the material time was a director of the plaintiff bank. Conflict of interest should be obvious enough, but I am not prepared to make any positive finding of misconduct in the matter without any further evidence; it could have been a case of terrible indiscretion.

On the fundamental issue whether there had been service in law of the writ on the defendants, I will, since my brother Acquah JSC has extensively dealt with this aspect, briefly state what I know to be the legal position. The procedure in our courts requires that every writ of summons be personally served on the defendant unless the court, taking into account the exigencies of the case, otherwise directs. For, it is a cardinal principal of our jurisprudence that a person must be made aware of the rights being asserted against him before he can be condemned or his own rights compromised. Because it is a precept of natural justice that those whose interests may be directly affected by a decision should be given prior notice and adequate opportunity to be heard On the submission of counsel for the plaintiff bank that by the entry of appearance by a firm of solicitors on their behalf, the defendants in this appeal must be deemed to have been served with the writ of summons and that their remedy lay in a separate action against the solicitor, I must confess my discomfort at such a legal proposition and my inability to accept it as a true statement of the law. The entry of appearance by a solicitor can only raise a rebuttable presumption that the defendant has been served with the writ of summons, for we are not unaware, as the instant case itself demonstrates, that solicitors can enter appearance without proper authority.

[p.81] of [1997-1998] 2 GLR 61

However the entry of appearance by a solicitor whether with or without proper authority, does hold certain legal implications for the solicitor personally. In an anonymous case reported in Salked Reports (Annon, 1 Salk 86) Holt CJ said:

“The course of this court is, where an attorney takes upon himself to appear, the court looks no further, but proceeds as if, the attorney has sufficient authority.”

Therefore a solicitor who enters, appearance on behalf of a defendant warrants that he has authority from the client to enter appearance. So in the case of Yonge v Toynbee [1910] 1 KB 215 at 233, CA Swinfen-Eady J said:

“I wish to add that in the conduct of litigation the Court places much reliance upon solicitors, who are its officers; it issues writs at their instance, and accepts appearance for defendants which they enter, as a matter of course, and without questioning their authority; the other parties to the litigation also act upon the same footing, without questioning or investigating the authority of the solicitor on the opposite side; and much confusion and uncertainty would be introduced if a solicitor were not to be under any liability to the opposite party for continuing to act without authority in cases were he originally possessed one. At one time the Common Law Courts acted very firmly upon the view that, if any attorney took upon himself to sue or defend, the Courts would presume his authority and not inquire into it; so much so that, if an attorney . . . without authority instituted or defended proceedings, the Court would not interfere, but left the party injured to his remedy in damages against the attorney.”

The rationale behind this principle, as pointed in Yonge v Toynbee, (supra) is the requirement that the business of the court was such that each party should be able to rely on the solicitor of his adversary to have obtained the proper authority before assuming to act. It was therefore important that a solicitor should be held to warrant the authority he claims for representing the client. In the case of Esson v Oppong, High Court, Cape Coast, 4 August 1982, unreported, I had this to say:

“. . . a solicitor is an agent of a special kind with a definite obligation toward his client to take all necessary steps on his behalf in the action. In this wise, where a solicitor issues a

[p.82] of [1997-1998] 2 GLR 61 writ or enters appearance, neither the adversary or his client nor the court has a duty to enquire or investigate whether he in fact had the authority to take the step he took. It is presumed that such an authority exists. The rationale behind this presumption is that the solicitor, by issuing the writ or entering appearance, impliedly warrants his authority to so act. And where the authority does not exist, he is often held liable to a party who acts upon his representation to his detriment.”

In the Esson case (supra), counsel entered appearance for the first defendant without authority. When the plaintiff took out a motion for judgment in default of defence he came and informed the court and the plaintiff that he in fact had no authority to enter appearance on behalf of first defendant. He was held personally liable to the plaintiff who relied on his representation to his detriment.

In this case, it is the entry of appearance by Messrs Quist, Brown, Aidoo and Wontumi, which encouraged the appellant bank to apply for summary judgment under Order 14, r 1 of LN 140A. The prerequisite for such an application is the requirement not only that the defendant must have been “served with a statement of claim” but also that he must have “entered an appearance.” So that even if the respondents were personally served, once the entry of appearance was unauthourised, they were entitled to have set aside a judgment against them in default of appearance. Where therefore an appearance is entered on behalf of a defendant, although the court will not enquire whether the said solicitor has authority to do so, the defendant has the right to set aside any process based on such unauthorised entry of appearance; otherwise grave justice would be done to such defendant.

As a general principle, I can say that where a solicitor issues a writ in the name of a plaintiff without authority, or enters appearance on behalf of a defendant without authority, neither the court nor the solicitor on the other side has the obligation to enquire whether his authority to so act indeed exists. However the plaintiff or the defendant, as the case may be, has the right to set aside any subsequent judicial process taken against him upon the representation of the said solicitor. And any person prejudiced by such representation has a right against the said solicitor. In the case before us, it was clear that the legal firm Quist, Brown, Aidoo

[p.83] of [1997-1998] 2 GLR 61 and Wontumi never had the authority of the respondents to enter appearance on their behalf. The appellants have not challenged this assertion but rather urged us to presume service out of the entry of appearance. We are not justified in doing so and I shall not do so.

I take the view that the respondents were not only personally served with the writ of summons but also that this is a case of a solicitor entering appearance without proper authority. The respondents have a judgment based upon that entry standing against them. They are entitled ex debito justitiae to have it set aside. Otherwise this court will cease to be a court of justice.

Atuguba JSC. I agree that the appeal be dismissed. However, in the State v Asantehene’s Divisional Courts; Ex parte Kusada [1963] 2 GLR23 8, SC, it was held that the object of service is merely to bring to the notice of an affected party the institution or pendency of court proceedings. If therefore a party, without actual service, nonetheless deliberately participates in the unserved proceedings, he should be bound by them. But on the facts of this case the actual parties were not served and the person on whom the process was served had no vestige of authority to accept service of the same. It appears legitimate to infer from the facts that the entry of appearance by the solicitor in this case was induced by the invalid service on the unauthorised Madam Alice. Thus, that service itself being void ab initio for lack of authority, she could not competently instruct a solicitor based on such service on her, to enter an appearance for the defendants, as was apparently done on the facts of this case. The purport entry of appearance for the defendants was therefore null and void. The solicitors apparent authority has been rebutted. One cannot put something on nothing and expect it to stay there. It will collapse: see per Lord Denning in MacFoy v United Africa Co Ltd [1961] 3 All ER 1169 at p 1172-1173, PC quoted with approval in Mosi v Bagyina (1963) GLR 337, SC. I would also dismiss this appeal.

Appeal dismissed.

SA