Dakar Ltd v. Industrial Chemical & Pharmaceutical Company Ltd [1981] GLR 453

Material Facts:

The plaintiff instituted an action against the defendant company, a limited liability company to recover an unpaid amount. According to the plaintiff, attempts were made to serve the defendant with a copy of the writ by visiting the registered office of the company. However, the service was unsuccessful because employees of the defendant company informed the plaintiff that there was no manager or person in authority to receive the writ. The plaintiffs believe that they have made all reasonable and practical efforts to serve the defendant company, but have been unable to do so.

By this ex parte motion, they are praying the court for an order of substituted service of the writ to be made by advertisement in the Daily Graphic.

Issue:

1. Whether or not service of a company is regulated under the rules of court.

2. Whether or not substituted service can be ordered in respect of a company with a registered office?

Holding:

1. Service of a company with a registered office is to be done pursuant to the rules in the Companies Act, 1963 (Act 179) (now Act 992), and not under the rules of court.

2. Substituted service will not be ordered against a company with a registered office.

Ratio Decidendi:

There are existing statutory provisions regulating the service of process on a company. Under the High Court (Civil Procedure) Rules, 1954 (L. N. 140A), Order 9 Rule 8(2) provides that:

In the absence of any statutory provision regulating service on a company carrying on business in the Gold Coast or on any society or fellowship in the Gold Coast whether corporate or incorporate , service may be effected, by sending the writ or other document to be served, by prepaid registered post to the secretary or other corresponding officer at the head office in the Gold Coast of such company, society or fellowship, as the case may be, or by serving the writ or document on such secretary or corresponding officer personally of such office as aforesaid.

However, this rule is now obsolete because Section 263 of the Companies Act, 1963 (Act 179) makes provisions for service of documents on a company. It for instance provides that

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.

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These statutory provisions will govern the service of a company, not the rules of court contained in the High Court (Civil Procedure) Rules, 1954 (L. N. 140A).

On the second issue, the courts have held that substituted service can only be had in cases in which personal service could be had if there were no difficulties on the way. Also, the courts have held that substituted service is ordered after an attempt at personal service fails. In the opinion of the court, personal service means

service on the person of the defendant.

…

personal service is applicable only to service on human beings as parties in whatever capacity, whether as plaintiffs or defendants or the human agents and servants of such parties, not on dehumanised, artificial entities like governments or companies.

In the earlier case of Bawa v. Oyegoke [1977] 2 G.L.R. 412 which affirmed the decision in Kombat v. Bediako; Ex parte Kombat [1971] 1 G.L.R. 196, it was held that “where at the date of the issue of a writ, personal service cannot be made, then substituted service will, as a general rule, be refused.” In the present case, personal service cannot be made on the company because as a company, it does not have the requisite human attribute capable of enabling personal service.

In any case, several means of serving a company has been provided, and ought to be exhausted before the court will order substituted service.

Principles in Case:

1. Meaning of personal service: “Service on the person of the defendant.”

2. Service on company: This is governed by the Companies Act, 2019 (Act 992).

3. Substituted service is only ordered after the failure of personal service.

Comment:

The court added that the above ratio is not to be interpreted to mean that no court can order substituted service against a company. There are circumstances under which a court will order such. For instance, where the company has no registered office and its directors and managers are evading service, a court can order substituted service.