POKU v. KWABENA [1972] 2 GLR 75
HIGH COURT, KUMASI
Date: 23 MARCH 1972
Before: MENSA BOISON J.
CASES REFERRED TO
(1) Re Tuck; Murch v. Loosemoore [1906] 1 Ch. 692; 75 L.J.Ch. 497; 94 L.T. 597; 22 T.L.R. 425,
C.A.
(2) Brakowaah v. Awuakyewah [1961] G.L.R. 164, S.C.
NATURE OF PROCEEDINGS
APPEAL by the appellant against the ruling of a district magistrate, refusing an application for a stay of execution on the ground of non-personal service of writ of summons.
COUNSEL
Pobee for Agyepong for the appellant.
Atakora for the respondent.
JUDGMENT OF MENSA BOISON J.
On a claim for a debt of ¢900.00 against the two defendants jointly and severally the District Court Grade I, Kumasi, presided over by Mr. T. B. G. S. Addo, district magistrate, gave judgment for the plaintiff in the absence of the defendants as an “undefended” cause.
The certificate of service of the writ of summons made by the bailiff stated: “On the 17th day of July,
1970 at 2.00 p.m. a copy of this summons was served on Kwaku Poku [i.e. the appellant] through
Juamina.” In evidence on a motion for stay of execution the said bailiff explained that when he went to the village he found Juamina, the non-appellant, who told him that the appellant had gone to farm. So he “served both copies of the writ of summons on Juamina for him to give the other copy to his brother . . . At first he protested but later accepted them.” In the proceedings for stay of execution the trial court found as a fact that the appellant had actual notice of the writ of summons.
The only ground of appeal argued on behalf of the appellant was that the judgment against the appellant was void in so far as he was not personally served with the writ of summons. Counsel bases his submission on the provisions of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 10, r. 1 which reads: “The writ or document shall be served on every defendant within the time and in the manner directed by the Court.” [p.77] of [1972] 2 GLR 75 Counsel contends that without any direction to the contrary there should be personal service, and that the service through the second defendant amounted to substituted service, which can only be valid service, if so directed by the court. If counsel is right it follows that the judgment was invalid.
Counsel for the respondent in substance contends that on the true construction of Order 10, rr. 1 to 13 only the mode of service on particular defendants are provided for; and as rule 1, which applies to the defendant, does not direct personal service, it is adequate service if the defendant in fact had actual notice of the writ.
In my opinion although Order 10, r. 1 does not specifically mention personal service, as rules 2 to 13
direct specific mode of service on particular defendants, service on a defendant not within rules 2 to 13 falls under rule 1. Since rules 2 to 13 made provisions for dispensing with personal service, I think service under rule 1 is intended to be personal service unless otherwise ordered by the court. This interpretation seems to me to accord with the practice in the courts and one looks forward for the day when the rule would be as plainly stated as it is intended.
Personal service is known to the rules of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and Order 9, r. 2 thereof provides that “When service is required the writ shall wherever
practicable be served in the manner in which personal service is now made.” I think I can safely attach the same meaning as used in the practice of the High Court, to the meaning in Order 10, r. 1.
Dealing with service of process, Earl Jowitt’s The Dictionary of English Law (1st ed.) (2nd impression), p. 1617 makes two classifications, namely, direct and substituted service. It explains them as follows:
“Direct service is effected by actually bringing the document to the person or thing to be served. In the case of a person such service is called personal. Thus, in an ordinary action, personal service of the writ of summons is effected by handing a copy of the writ to the defendant, and showing him the original if he asks to see it.”
In contrast it refers to substituted service among other things at p. 1618 as follows:
“The usual mode of effecting substituted service is by directly serving the document on some person likely to bring it to the knowledge of the party (e.g., his wife, agent, etc.), or by advertising notice of it, or by sending a copy by post to the party’s address.”
From the foregoing commentary I hold that the service of the writ of summons left with the co-defendant to be given to the appellant was not personal service but substituted service. As there was no direction from the trial court that substituted service be employed it follows that the service was invalid, and could not initiate the proceedings that took place before the trial court as far as the appellant was concerned. [p.78] of [1972] 2 GLR 75 The fact that the appellant had actual notice of the writ does not amount to service so to speak, to dispense with personal service. For authority I would refer to Re Tuck; Murch v. Loosemoore [1906] 1 Ch. 692, C.A. In that case the court on 5 December 1905, by consent made an order that the defendant, Francis Loosemoore, the last surviving trustee under the estate of Tuck, should lodge a certain sum of money being proceeds from the estate in court on or before 1 January 1906. The defendant was in court and represented by counsel when the order was made, and he himself initiated the endorsement on one of the
briefs.
By the rules that order ought to be served on the defendant and it was personally served on him on 2
January 1906. The defendant did not pay the money into court and on 10 January 1906 the defendant was proceeded against on a motion to issue a writ of attachment. The High Court held that the defendant had actual notice of the order on the day it was made, so that personal service was unnecessary and that in failing to comply with the order within the time limited attachment would issue. But the English Court of Appeal ruled the order of attachment invalid, holding that the fact that the order was made by consent and that the defendant was in court when it was made and initialled on one of the briefs, did not make personal service unnecessary, unless it is shown that he was evading service.
In Re Tuck,. Murch v. Loosemoore [1906] 1 Ch. 692, C.A., the order to pay into court required, under the rules, an endorsement of a memorandum warning the defendant that the consequence of not complying with the order may be the issue of attachment. Similarly the endorsement of the memorandum on the writ warns the defendant to attend before the court at a stated time and answer to the claim of the plaintiff or suffer the consequences. That in my view makes personal service necessary unless dispensed with by the direction of the court.
The result is that as there was no valid service on the appellant the judgment against him was null and void and of no effect. That was the decision in Brakowaah v. Awuakyewah [1961] G.L.R. 164, where the Supreme Court in a judgment read by van Lare J.S.C. upheld the decision of Adumua-Bossman J. (as he then was) sitting at the Land Court in Cape Coast, and ruled that as the defendant had not been served with the writ of summons the purported judgment against her by the trial native court was void and of no effect, and consequently the sale of the defendant’s cocoa farm under a writ of fi. fa. by way of execution, was of no effect. In the result I would allow the appeal on the ground that the trial and judgment as affecting the appellant were null and void. It follows that the respondent is at liberty to proceed against the appellant upon due service of the writ. There will be costs of ¢30.00 for the appellant.
DECISION
Appeal allowed with costs.
