Introduction to Service of a Writ:
Introduction:
This note will discuss the meaning of service of a writ, its essence, the consequences of failing to serve a writ, when a writ must be served, and highlight the modes of service.
Meaning of Service of a Writ:
This is the delivery of the writ to the defendant(s) to inform him or her formally that a civil action has been commenced against him by the plaintiff(s).
Essence of Service of a Writ:
The courts have severally held that the essence of service is to:
These two purposes were captured by Lord Cranworth L.C. in the often-cited case of Hope v. Hope (1854) 4 D.M. & G. 328, where his lordship said:
The object of all service is of course only to give notice to the party on whom it is made, so that he may be made aware of and may be able to resist that which is sought against him; and when that has been substantially done, so that the Court may feel perfectly confident that service has reached him, everything has been done that is required.
This was cited with approval in the cases of Dakar Ltd. v. Industrial Chemical and Pharmaceutical Co., Ltd. [1981] GLR 453 and State v. Asantehene's Divisional Court B1; Ex Parte Kusada [1963] 2 GLR 238-276 .
Consequence of Failing to Serve a Defendant with the Writ:
When a defendant is not served with the writ, the courts generally hold that the court has no jurisdiction to proceed against such a defendant, as proceeding against such a defendant will violate the natural justice principle of audi alterem partem.
In the case of Republic v. Appeal Committee 0f London Quarter Sessions, Ex-Parte Rossi [1956] 1 All ER 670 , Lord Denning forcefully submitted that:
It is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. The common law has always been careful to see that the defendant is fully apprised of the proceedings before it makes any order against him.
Also, in the Ghanaian case of Antwi v. Appiahen [2023] GHASC 24 (18 May 2023) , the Supreme Court, speaking through Aseidu J., advanced:
It is tantamount to a breach of the rules of natural justice for a plaintiff to proceed to obtain judgment against a defendant who has not been served with the writ of summons and its statement of claim issued against him and, a court of law had no business to enter upon any enquiry by way of determining the suit filed by a plaintiff where the writ of summons has not been served on the efendant. Thus, in Alabi vs B5 Plus Company Limited and Others [2018-2019] 1 GLR 197 , this court stated in no uncertain terms that:
“The general position of the rules of procedure under Order 7 rule 2(1) and 5(1) of CI.47 was that a court had no jurisdiction to proceed against a party who had not been served. A writ had to be personally served on all defendants, unless otherwise provided by the rules.”
Also, in Barclays Bank of Ghana Ltd. v. Ghana Cable Co. Ltd. and Others [1997-1998] 2 GLR 61 , the Supreme Court, speaking through Acquah JSC, similarly said:
A court has generally no jurisdiction to proceed against a party who has not been served. Accordingly, when a defendant complains that he has not been served with a writ of summons or any process which requires his personal service, the court is duty bound to examine that complaint thoroughly and make a definitive finding irrespective of whether there is proof of service or entry of appearance on behalf of that defendant. For the success of his complaint would render both the proof of service and the appearance nothing but a brutum fulmen, thereby consigning all the proceedings, orders and judgment procured thereon, into the realm of nullities.
Also, see the case of Napex Connect Ltd v. Puma Energy Distribution Gh. Ltd [2019] DLHC 8728 .
When a Writ must be Served:
Generally, a writ must be served within the period it remains valid. A writ, validly drafted and issued, remains valid twelve months after its issue. This is provided for in Order 2 Rule 9(1) of C.I. 47 , it is provided that:
(1) For the purpose of service, a writ… shall be valid in the first instance for twelve months beginning with the date of its issue….
The essential question is, what happens if the defendant is not served with a writ within twelve months after its issue? Order 2 Rule 9(2) provides that the Court can, by an order, extend the validity of the writ. The rule reads:
(2) Where a writ has not been served on a defendant within the time limited for its service by this rule, the Court may by order extend its validity from time to time for a period as may be specified in the order, not exceeding twelve months at a time, beginning with the day following that on which it would otherwise expire, if an application for extension is made to the Court before that day or such later day as the Court may allow.
Modes of Serving a Writ:
There are two main modes of service:
These modes of services are discussed in subsequent notes.
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