Personal Service of a Writ

Introduction:

This note will discuss personal service as one of the modes of serving a writ. In doing so, the note will discuss the meaning of personal service, its use as the general mode of service, who effects personal service, and how it is effected.

Meaning of Personal Service:

This is when the writ is served on the person(s) named on the writ as defendants and not through their lawyer or agent.

In the case of Dakar Ltd. v. Industrial Chemical And Pharmaceutical Co., Ltd. And Another [1980] GLR 453 , the court, in discussing personal service, said:

…personal service is meant service on the person of the defendant. The case law on the matter provides ample support for this. Illustrative of this is the interesting case of Goggs v. Lord Huntingtower (1844) 12 M. & W. 503 at pp. 503-504, where Alderson B. said of personal service, “Service means serving the defendant with a copy of the process, and shewing him the original if he desires it,” It seems to me therefore that 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. A host of cases lend considerable support to this view. A few of them are Redpath v. Williams (1826) 3 Bing 443; Rose v. Kempthorne (1910) 13 L.T. 730; Heath v. White (1844) 2 D. & L. 40; Jay v. Budd [1898] 1 Q.B.12, C.A. and Hanmer v. Clifton [1894] 1 Q.B 238, D.C.

Personal Service as the General Mode of Service:

In Order 7 Rule 2(1) of C.I. 47, it is provided that:

2(1) A document which is required to be served on a person shall be served personally unless the express provisions of these Rules otherwise provide or the Court otherwise directs.

This provision lays down the general rule that personal service is the mode of service that should be adopted in serving a person with a document pursuant to a rule that the person should be served with that document. A writ is one of those documents that is required to be served on a person. Order 7 Rule 12 of C.I. 47 provides that:

(1) Subject to these Rules and any other enactments, a writ shall be served separately on each defendant.

Also, the courts have held that without service, the court has no jurisdiction to proceed against a person. In light of this, the general rule is that a writ must be served on a defendant personally, as was pointed out by Kpegah JSC in the case of Barclays Bank Vs. Ghana Cables Limited (1998-1999) SCGLR 19 . In that case, his lordship advanced:

The procedure in our courts requires that every writ of summons be personally served on the defendant unless the court, taking into account the exigencies of the case, otherwise directs. For, it is a cardinal principal of our jurisprudence that a person must be made aware of the rights being asserted against him before he can be condemned or his own rights compromised. Because it is a precept of natural justice that those whose interests may be directly affected by a decision should be given prior notice and adequate opportunity to be heard.

When the Requirement for Personal Service is Deemed to be Fulfilled Despite the Writ not having been Served on Defendant Personally:

A writ may be served on the lawyer of the defendant instead of the defendant himself, and such service will amount to service on the defendant. This is because Order 7 Rule 12 (2)provides that:

Where a lawyer undertakes in writing to accept service of a writ on behalf of a defendant, the writ shall be deemed to have been duly served on that defendant when served on the lawyer .

How Personal Service is Generally Effected:

This is covered by Order 7 Rule 3 of C.I. 47 which reads as follows:

(1) Personal service of a document shall be effected by leaving a duplicate or attested copy of the document with the person to be served.

(2) Where personal service of a document on any person is hindered by the violence or threats or other acts of obstruction of that person or of any other person with or under that person, it shall be sufficient for the person effecting service to leave it as near that person as may be practicable.

Thus, as a general rule, personal service of a writ is effected (done) if the defendant is personally given a duplicate or an attested copy of the writ by the person effecting the service. However, leaving the writ as near to defendant as possible will amount to personal service if the personal service is hindered by:

i. Violence

ii. Threats

iii. Other acts of obstruction.

How Personal Service is Effected for Particular Entities:

In C.I. 47 and other laws, various provisions are made for the service of particular persons like bodies corporate, stools and families, among others. It is obvious that because such persons or entities are unlike natural persons of full capacity, special provisions ought to be made for service on them.

1. The State:

A person commencing a civil action against the State shall commence the action against the Attorney General, as required by Article 88 (5) of the 1992 Constitution. Per Section 12 of the State Proceedings Act, 1998 (Act 555) ,

Documents required to be served on the State for the purpose of or in connection with civil proceedings by or against the State shall be delivered at the office of the Attorney-General or to a representative of the Attorney-General in any part of the country or to any officer specified under any law.

2. A Member of Parliament:

Under Article 117 of the 1992 Constitution, members of Parliament are provided some immunity when it comes to service of processes, which include writs. The provision reads:

Civil or criminal process coming from any court or place out of Parliament shall not be served on, or executed in relation to, the Speaker or a member or the Clerk to Parliament while he is on his way to, attending at or returning from, any proceedings of Parliament.

In the recent case of Republic v. High Court (Land Division) Accra and Others [2020] GHASC 55 (14 October 2020) , the Supreme Court of Ghana clarified the effect of Article 117 (supra) as follows:

To our minds, Article 117 does not bar service of court processes on a Member of Parliament. It only forbids service of processes on a Member of Parliament whilst such a member is on his/ her way to, attending, at or returning from, any proceedings of Parliament.

Thus, Article 117 only provides circumstances under which a member of Parliament cannot be personally served with a writ.

3. Bodies Corporate:

Bodies corporate such as companies are often sued. As an artificial entity, it cannot personally receive the writ, but can do so through its agents. In Commodore v Fruit Supply (Ghana) Ltd. [1977] 1 GLR 241 , Kingsley-Nyinah JA advanced that “as the company is an artificial person, it can only act normally through human agents. These agents are usually the directors.”

Order 7 Rule 5(1) of C.I. 47 provides that:

Service of a document on a body corporate may, in cases for which provision is not otherwise made by any enactment, be effected by serving it on the chairman, president, or other head of the body, or on the managing director, secretary [thus the company secretary, not the receptionist], treasurer or other similar officer of it.

What is essential is that the above rule applies where an enactment has not made any provision for service on a body corporate. Put differently, where an enactment establishing a body corporate, such as a company, makes provision for the service of documents on that body corporate, the provisions in the enactment will dictate how service is to be effected, and the rule in C.I. 47 will not apply.

In the case of Dakar Ltd v. Industrial Chemical & Pharmaceutical Company Ltd (supra) , the court noted that a rule on service on a company in the High Court (Civil Procedure) Rules, 1954 (L. N. 140A) was not applicable to service on a company because the Companies Act, 1963 (Act 179) had made provision for service on a company.

Now, the service of writs on a company is governed by the Companies Act, 2019 (Act 992). In Section 291(1), it is provided that:

291. (1) A document may be served on a company by

(a) 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,

(b) sending it to the official electronic mail address of the company registered with the Registrar, and

(c) sending it by facsimile machine to a telephone number used by that company for the transmission of documents by facsimile.

In the case of Barclays Bank Vs. Ghana Cables Limited (supra) , the Supreme Court, in commenting on a similar provision in Section 263(1) of Act 179, clarified that although the provision said service may be effected by “leaving it” at the registered office, the documents must be left with somebody in the office who can bring it to the notice of the company. It delivered itself as follows:

For once a company acts through human beings, whenever there is a dispute as to whether the company had been served, it may become necessary for the bailiff to point out the person with whom he left the document with, since a bailiff is not expected to throw the document at the floor of the offices of that company when he goes to effect service. Thus, although section 263(1) of Act 179 talks of “leaving it at” the registered office or address of the company, the bailiff must obviously leave it with someone who is in a position to bring the document to the attention of the company.

Their lordships added that if the document is left with a director, a managing director, a secretary, or a member of the company at the registered office or address, that would be sufficient service on the company within the meaning of “leaving it at”.

In Section 291(5), it is further provided that:

Where it is proved that a document was in fact received by the director, managing director or Company Secretary, the document shall be deemed to have been served on the company despite the fact that service may not have been effected in accordance with subsections (1), (2), (3) or (4).

In light of this, it may be said that even if the service is effected on a director of a company outside the registered office, the document being served (in this case a writ) shall be deemed to have been served on the company.

4. A Stool or a Skin:

In Order 7 Rule 5(2) of C.I. 47, it is provided that:

Service of a document on a stool or skin may be effected by serving it

(a) on the occupant of that stool or skin or on any secretary, clerk or linguist of that stool or skin; or

(b) where the stool or skin is vacant, on the regent or caretaker of that stool or skin.

5. A Family:

In Order 7 Rule 5 (3) of C.I. 47, it is provided that:

Service of a document on a family as constituted by customary law may be effected by serving it

(a) on the head of the family; or

(b) on any member of the family who is, or is acting as caretaker of any property of that family or on any person who is a principal member of the family.

6. A Prisoner or a Person in Detention:

In Order 7 Rule 5 (4) of C.I. 47, it is provided that:

Service of a document on a person who is in prison or detention may be effected by serving it on any person apparently in charge of the prison or place or detention, or, if access cannot be readily had to the person apparently in charge of the prison or place of detention, then on any warder, guard or similar officer of that prison or place of detention.

7. Minister of State:

In Order 7 Rule 5 (5) of C.I. 47, it is provided that:

Service on a Minister of State in his or her capacity as such or a Ministry or Government Department may be effected by serving it on the administrative head of that Ministry or that Department.

8. A Person with Disability:

In Order 5 Rule 1(1) of C.I. 47, a person with disability is defined as:

A person under the age of eighteen years or a person who is certified by a medical officer to be incapable of managing and administering his or her property and affairs by reason of mental disorder or infirmity of mind.

In Order 7 Rule 5 (6) of C.I. 47, it is provided that:

Service of a document on a person under disability may be effected in accordance with Order 5 rule 9.

In said Order 5 Rule 9, subrules 1 and 2 provide that:

(1) Where in any cause or matter a document is required to be served personally and the person on whom it is to be served is with disability, the document shall be deemed to have been duly served if served on the father or mother or guardian of the person with disability or the person with whom the person with disability resides or under whose care the person with disability is.

(2) Notwithstanding anything in subrule (1), the Court may order that a document which has been or is to be served on a person with disability or on a person other than a person mentioned in that subrule shall be deemed to be duly served if served on the person with disability.

Thus, if a civil action is commenced against a person with disability, the general rule is that he should be personally served. However, he shall be deemed to have been served if the writ is served on his father, mother or guardian.

9. Partnership:

Order 6 Rule 3 of C.I. 47 makes provisions on the service of a writ on partners of a firm. It provides that where partners are sued in the name of the firm, the writ may be served:

i. On any one more of the parties.

ii. At the principal place of business of the partnership within the jurisdiction on any person who has at the time of service the control or management of the partnership business there.

Once the service is effected in any of the above ways, the writ shall be deemed to be duly served on the firm.

Who Effects Personal Service:

Per Order 7 Rule 1 of C.I. 47, personal service of a writ is done by:

1. A bailiff of the court.

2. A process server registered with the court.

The effect of Order 7 Rule 1 (supra) is that neither the plaintiff nor his lawyer is authorised to serve a writ on the defendant. In the case of Republic v List 2023 GHAHC 298 (22 September 2023) , the court acknowledged this when it said that “ Order 7 Rule 1 of C.I. 47 does not give the lawyer of a party the right to serve a process on the opponent.”

However, Order 7 Rule 1 (supra) provides that a party can direct service. With this, a plaintiff may guide either the bailiff or process server to find and serve the defendant.

Acts After Personal Service:

i. Preparation of Affidavit of Service:After the defendant is personally served by the bailiff or process server, Order 7 Rule 9 of C.I. 47 requires the bailiff or process server to prepare an affidavit of service. This states by whom and on whom the writ was served, the day of the week and the date and the hour on which it was served, where it was served, and how it was served.

ii. Entry of Service in Record Book: In Order 7 Rule 11 (1) of C.I. 47 , it is provided that a process book shall be kept at every court for recording service of process by bailiffs and process servers. Thus, after a writ has been served, a record is entered to that effect in the process book. Essentially, Order 7 Rule 11 (2) provides that “Every entry in a Process Book or an office copy of it shall be prima facie evidence of the matters stated in it.” This means where there is a dispute on whether or not a defendant was served, a record in the process book will be prima facie evidence of that service was effected.

iii. Indorsements on Writ: When the writ is served personally on the defendant, thus not through his lawyer, the person serving the writ is required by Order 7 Rule 12 (4) to indorse on the writ the date on which it is served and the person on whom it is served. Failure to do this will disentitle the plaintiff from entering judgement against the defendant in default of appearance or in default of defence. See the case of Antwi v. Appiahen 2023 GHASC 24 (18 May 2023) , where the Supreme Court, in speaking on Order 7 Rule 12(4) , stated that “indeed, a Plaintiff in an action cannot proceed to take judgment in a Suit against a Defendant against whom a Writ of Summons had been issued unless the Writ had been served on the Defendant and due process observed.”