POTSIA AND ANOTHER vs. KLU [1973] 2 GLR 47

CASE REFERRED TO

Sheldon v. Brown Bayley’s Steel Works and Dawnays Ltd. [1953] 2 Q. B. 393; [1953] 3 W.L.R. 542; 97 S.J. 570; [1953] 2 All E.R. 894; 103 L.J. 776, C.A.

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NATURE OF PROCEEDINGS

APPLICATION on notice of motion by the defendant to set aside service on him of the writ of summons on the ground that the writ was served after the expiration of twelve months and when the writ was not in force. The facts are sufficiently set out in the ruling.

COUNSEL

A. A. Adomako for C. E. Quist for the applicant

Osei Kwaku for the respondent.

JUDGMENT OF MENSA BOISON J.

This is an application on notice of motion to set aside the service of the writ of summons on the defendant on the ground that the writ was served after the expiration of twelve months when the writ was not in force.

From the affidavits and the court docket, the facts I find are as follows: The action was commenced by a writ filed on 4 March 1969. By an ex parte application filed on 2 March 1970, and heard on 16 March 1970, leave was granted to the plaintiff to renew the writ for six months as from 2 March 1970. The original writ on the court’s docket bears the following endorsement duly signed by the Senior High Court registrar: “Renewed writ of summons by order of the court dated 16 March 1970, for six months from 2 March 1970”.

On 9 March 1970, the defendant was served in Accra with a copy of the writ and the statement of claim.

It appears the writ and the statement of claim were already with the bailiffs in Accra before the renewal; and the copy of the writ served had no endorsement of renewal as appears on the original writ in the docket.

The defendant entered a conditional appearance by solicitor on 25 March 1970, and on 3 June 1970, filed a motion on notice to have the service of the writ set aside. For reasons not explained the solicitor filed a notice on 15 July 1970 “wholly discontinuing the motion.” On 19 January 1973, the same solicitor again filed a similar motion, which as counsel he now argues asking for an order to set aside service of the writ, it not being in force on 9 March 1970.

On seeing the affidavit in opposition in court to the effect that the writ was in fact renewed as already stated, counsel submitted in the alternative that the renewed writ is what ought to have been served on the defendant. As a last resort counsel’s stand would appear to be that in any case the writ served on the defendant ought to have been sealed as renewed, to amount to a regular service.

It is clear that the renewal of the original writ in this case was done under Order 8, r. 1 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A). It is as well to note that the position under the rule is that the writ is not in force for purposes of service after the twelve months’ period has run; but it is still a writ. So that an unconditional appearance by a defendant to such a writ is a step in the action and amounts to a waiver with regard to service, and prevents such defendant from being able to contend successfully that the service on him

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is bad: see Sheldon v. Brown Bayley’s Steel Works and Dawnays Ltd. [1953] 2 Q.B. 393 at p. 400, C.A. In the instant case, the defendant having entered a conditional appearance has not waived his right to challenge the service.

Now Order 8, r. 1 does not provide for any special mode of service. It seems to me therefore that service where writ has been renewed is also governed by Order 9, r. 2 of L.N. 140A which unless there is an order for substituted service provides that, “When service is required the writ shall, wherever it is practicable, be served in the manner in which personal service is now made.” According to Earl Jowitt’s The Dictionary of English Law at p. 1617, “ personal service of [a] 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.” It is therefore clear that the original writ, be it in force because the initial twelve months have not run out, or in force by virtue of it having been renewed before the end of the twelve months, is not the document to be served on the defendant.

Does the failure or omission to seal the renewal on the copy render the service of it on the defendant bad in the sense that the writ was not in force on 9 March 1970? In my opinion, the answer is in the negative. What seems to matter in the eyes of the law for purpose of service is whether the writ is in force. The validity or genuineness of a writ for that purpose or any other could under Order 8, r. 2 be verified by production of the original writ if the defendant so requires. Again, it could have been ascertained by a search directed to the registry.

I take this view by reason of what amounts to prima facie evidence of a writ having been renewed. That is provided by Order 8, r. 2 as follows:

“The production of a writ of summons purporting to be marked with the seal of the Court, showing the same to have been renewed in manner aforesaid, shall be sufficient evidence of its having been so renewed, and of

the commencement of the action as of the first date of such renewed writ for all purposes.”

Having regard to the meaning of “production” in Order 8, r. 2, as referring to production of the original writ, when required, I am of the opinion that when Order 8, r. 2 speaks of “The production of a writ of summons purporting to be marked with the seal of the Court, showing the same to have been renewed€..” it refers to production of the original writ. I find support for this view in a note under Order 8, r. 1 in The Annual Practice (1958 ed.) at p. 91. The commentator’s note reads as follows:

“Effect of Renewal of Original Writ. – Renews all concurrent writs which may have been issued; and where the original is abroad, renewal of a concurrent writ renews the original and any other concurrent writ which may have been issued€.”

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In my respectful opinion, the principle may equally apply to copies of a writ and its original.

In my opinion, it follows that as the original writ was duly renewed, the service of a copy on 9 March 1970 was not irregular. The application therefore fails. Before I conclude, I may be permitted to observe that the practice of solicitors on record refusing to accept service of process or other documents seems to be contrary to the rules of court and must be deprecated. Order 12, r. 4 (1) of L.N. 140A of 1954 states, “The solicitor of a defendant appearing by a solicitor shall state in the memorandum of appearance his place of business within the jurisdiction which shall be an address for service.”

In the present case the solicitor for the defendant, who has appeared as counsel in this application, on refusing to accept service of a hearing notice, wrote on 9 July 1971, asking the registrar to direct the service on the defendant personally as he lost contact with the defendant. But the court appeared to have had immense difficulty in getting the defendant, until out of the blue counsel filed the present motion on 19 January 1973. The docket shows that during the period of one-and-half years, endless hearing notices were sent out intended for the defendant in vain. The delay and expense occasioned by this refusal is evident.

In my view unless a solicitor has removed himself from the record, he is under the rules bound to honour his undertaking in the memorandum of appearance to accept service of process or other documents. Perhaps it may not be out of place, in such cases, for a bailiff to thrust any document or process either upon the solicitor’s person or his premises in his presence. On the application counsel for respondent hardly merits any costs save ¢10.00 as out of pocket.

DECISION

Application refused.

S.Y. B.-B.