Bawa v. Oyegoke [1989-90]2 GLR 412

Material Facts:

The plaintiff issued a writ against three defendants. Although ordinarily resident in Ghana, the first defendant was Nigerian and out of the jurisdiction at the time the writ was issued. However, his address was not on the writ.

The plaintiff, by this application, is seeking an order for substituted service of the writ on the wife of the first defendant.

Issue:

Whether or not substituted service can be ordered against the first defendant.

Holding:

Substituted service cannot be ordered against the defendant.

Ratio Decidendi:

The plaintiff has argued that the address of the first defendant was omitted because he does not know it. In the earlier case of Ex parte Kombat; Kombat v. Bediako [1971] 1 G.L.R. 196 , it was decided, relying on the case of The W. A. Sholton (1887) 13 P.D. , that the address of the defendant is an essential part of the writ. In light of this, the court, speaking through Taylor J., advanced that if the address is as essential, then “as against the first defendant in this case, the writ would seem to be invalid, and it would therefore be improper to order substituted service if the plaintiff does not obtain an amendment.” Essentially, it will only be against the first defendant that the writ will be invalid, and the writ against the second and third defendants is still valid. His lordship noted:

I suppose I cannot lose sight of the fact that in this case there are three defendants and that the addresses of two of the defendants were properly given. It will in the circumstance not be proper to invalidate the whole writ. In any case this is an invalidity of a nature that ought not to make the writ void, it seems to be an irregularity of a type that can be cured at any time hereafter by the simple expediency of amendment.

However, even if the plaintiff were to amend the writ and insert the address of the first defendant, substituted service cannot be ordered. The present case is similar to the case of Fry v. Moore (1889) 23 Q.B.D. 395 . In that case, a writ was issued against a defendant who, although ordinarily resident in the jurisdiction, was out of the jurisdiction at the time the writ was issued. The plaintiff then sought an order for substituted service on the defendant’s brother, it was granted. Upon appeal, there was a question on whether the order was good or bad. The court therein noted that:

In Field v. Bennett ((1886) 56 L.J.Q.B. 89), the Queen’s Bench Division laid down the principle, that, if a writ could not be served personally at the time when it is issued, there cannot be substituted service. That is a sound principle. You cannot affect a principal through an agent when you could not affect the principal himself. If in such a case an order for substituted service could be made, the process might very easily be abused. Nothing could be easier than to issue an ordinary writ against a foreigner who was residing out of the jurisdiction, and then to obtain an order for substituted service, and thus the very mischief at which the rules relating to service out of the jurisdiction are directed would be brought back. Both principle and authority are against such a practice. I think, therefore, that the order for substituted service of the writ was a bad order.

Relying on the ratio above, the court in Wilding v. Bean [1891] 1 Q.B. 100, C.A. held that:

where the writ cannot be served on a person directly, it cannot be served indirectly by means of substituted service. As long as the defendant is abroad such a writ as this cannot be served upon her personally. Therefore it cannot be served by substituted service.

In the present case, the plaintiff could not effect personal service because the first defendant was abroad and was so resident even at the time of the issue of the writ. Consequently, substituted service cannot be ordered herein.

If it was the case that the first defendant was within the jurisdiction at the time of the issue of the writ and merely left to evade service, then the court would have ordered substituted service.

Principles in Case:

1. An address is an essential part of a writ.
2. Failure to endorse the address of a defendant on a writ renders the writ invalid against that defendant.
3. However, if there are multiple defendants, the entire writ is still valid, and an amendment may correct the invalidity against the defendant whose address is omitted.
4. Where personal service cannot be ordered because the defendant was outside the jurisdiction at the time of the issue of the writ, substituted service will not be ordered.