Kombat And Others v. Bediako and Others Ex Parte Kombat [1971] 1 GLR 196
Material Facts:
The plaintiffs issued a writ against the defendants on 26 January 1971. On the same day, they applied for an order of substituted service. On the writ, there was no address for the first and second defendants.
Issue:
Whether a writ of summons on which the address of a defendant has not been endorsed can be the subject matter of an application for substituted service.
Arguments of the Applicant:
Holding:
Substituted service can only be ordered where there is a failure to effect personal service for stated reasons. Without the address for the defendants, personal service cannot be effected, and substituted service will not be ordered.
Ratio Decidendi:
The court, speaking through Taylor J., extensively discussed the law on ordering substituted service:
It is sufficient now to advert to the principles usually followed in ordering substituted service. These principles are stated in The Annual Practice, 1962 at p. 133 and are therein supported by the relevant authorities. The following is set out in the paragraph headed, “Where person to be served is usually resident within the jurisdiction” and it reads:
“The affidavit should state (1) that a writ (a copy of which should be exhibited) of such a date has been duly issued; (2) that such and such efforts, stating them with great particularity, have been made to serve the defendant personally; and that all practicable means of effecting personal service have been exhausted, . . . and that prompt personal service is impossible; (3) that the substituted service which is proposed will probably come to the knowledge of defendant; and (4) if the defendant is evading service, . . . the affidavit should state the deponent’s belief to that effect, giving the facts upon which the inference is founded. The affidavit should also show whether the defendant is within the jurisdiction or whether he is believed to be so. It is not necessary to allege that defendant has not appeared.”
In the present case, it is not shown that efforts were made to serve the defendant personally and that all practical means of effecting personal service have been exhausted.
On the applicant's argument that he proceeds under Order 10 Rule 1 , said Order 10 Rule 1 provides that:
Where it appears to the Court (either after or without an attempt at personal service) that for any reason personal service cannot be conveniently effected, the Court may order that service be effected either— . . . (e) by prepaid registered letter addressed to the defendant at the address indicated in the affidavit filed by the plaintiff in support of his application for substituted service, whereas there is reasonable ground for believing that it will reach him.
In light of this provision, Taylor J. extensively explained when substituted service could be ordered and the effect of the absence of the defendant's address on issuing such an order:
It appears to me that substituted service can only be resorted to where personal service cannot be effected for stated reasons. This means that if, at the time of the issue of a writ for service within the jurisdiction, there could at law have been personal service of it upon the defendant sought to have been served, but circumstances prevented such service being made, then substituted service of such a writ may be allowed: Trent Cycle Co. v. Beattie (1899) 15 T.L.R. 176, C.A . On the other hand if at the time of the issue of a writ, personal service of it could not have been made, then unless it is a case of evading service, substituted service cannot be ordered: Fry v. Moore (1889) 23 Q.B.D. 395, C.A.
In the case before me since there were no addresses for service and the defendants may very well not be within the jurisdiction, personal service cannot obviously be made. No one can overreach himself by attempting the impossible. Indeed in Wilding v. Bean [1891] 1 Q.B. 100, C.A., a case which is for all practical purpose on all fours with the instant case, the plaintiff issued a writ of summons for service within the jurisdiction and when he issued it, he did not know the address of the defendant. He later obtained an order for substituted service upon the defendant’s solicitor. It turned out that the defendant at the time of the issuance of the writ was out of the jurisdiction and had remained out from the time that the writ was issued.
The Court of Appeal set aside the order permitting substituted service on the defendant’s solicitor and gave as its reasons, following Fry v. Moore (supra), that the writ of summons could not at the date of its issue be served personally upon the defendant. It seems to me that the absence of the address of the defendant, which as I have shown, contrary to the submission of counsel, is an essential feature of the writ, makes it inexpedient to order substituted service. Personal service cannot obviously be effected.
Principles in Case: