•• I Emma Ghristiana Bruce of
Accra, Trader, make oath and say
as follows ;-
•• 1. I know and I am well
acquainted with Tom 'Boovey
Barrett, who was resident in
this Colony in the year 1923,
but to the best of my knowledge
and belief is now in London,
England .
• 2. That Tom Boevey Barrett is
justly and truly indebted to me
in the sum of Three hundred and
sixty eight pounds sixteen
shillings and three pence (£368
16s. 3d.) for and on account of
money lent to him By me at his
request, in terms of his 1.0. U.
dated the 5th December, 1923 .
•• 3. I am informed by Mr. T. J.
Whitaker, my Solicitor and
Counsel, and verily believe that
he has caused a written demand
to be made on the said Tom
Boevey Barrett through the post
for the payment of the said sum
of Three hundred and sixty eight
pounds sixteen shillings and
three pence (£368 16s. 3d.) but
he has faied to pay the same or
any portion of it.
•• 4. My claim against the said
Tom Boevey Barrett apparently a
debt or liquidated
money demand, and to my belief
tl1ere is no defence to it on
the merits .
•• 5. I make this affidavit in
support of application for this
suit to be placed on the
Undefended List for hearing and
determination
,
. Sworn at Victoriaborg,
Accra,
this 22nd August 1929
Before me,
(Sgd.) SAMUEL BANNERMAN
Commissioner far Oaths."
The writ was issued on 13th
September 1929 in this form No.
264. No. 30. Writ of Summons
Suit No. 264/1929.
IN THE SUPREME COURT OF THE GOLD
COAST COLONY UNDEFENDED LIST.
(Sgd.) R. E. HALL
Ag.G.].
Eastern Province.
Divisional Court holden at
Victoriaborg, Accra
Between
EMMA C.
BRUCE .......... .
Plaintiff
AND
TOM BOEVEY BARRETT ......•..
Defendant.
" To TOM BOEVEY BARRETT of
Accra, now residing at 53
Gartmoor Gardens, I.ondon,
England .
•• You are hereby commanded in
His Majesty's name to attend
before this Court at
Victoriaborg, Accra, on Saturday
the 7th day of December, 1929,
at 8.30 o'clock in the forenoon,
then and there to answer a suit
by Emma C. Bruce of Accra
against you. The Plaintiff's
claim for the sum of Three
hundred and sixty-eight pounds
sixteen shillings and three
pence (£368 16s. 3d.) justly and
truly against Tom Boevey Barrett
is amount of money lent to him
at his request by the said
Plaintiff, in terms of his
1.0.U. dated the 5th December,
1923 .
•• Issued at Victoriaborg,
Accra, the 13th day of
September, 1929.
Sum claimed
............ £361\ 16 3
Court fees
.......................... II 6
0
Bailiff's fees
........................ 0 0
0
Total ..... £377 2 3
(Sgd.) R. E. HALL
Acting Chief justice."
Rules of the Supreme Court,
Schedule 2, Order 2, rule 3
provides :-
•. No writ of summons for
service out of the particular
jurisdiction, or of which notice
is to be given out of the
particular jurisdiction, shall
be issued without leave of the
Court."
No special application was made
in this case before the writ was
signed by the Acting Chief
Justice.
Notice was then filed by
respondent's Solicitor for an
order for service of the writ of
summons and copy of affidavit
sworn to on the 22nd day of
August, 1929, by the respondent
in support thereof on the
appellant, out of the
jurisdiction, in terms of the provisions
of Rules of the Supreme Court,
Schedule 2, Order 10, rule 9.
This application was supported
by the following affidavit :-
GardinerSmith, J.
IN THE SUPREME COURT OF THE GOLD
COAST COLONY, EASTERN PROVINCE
BEFORE DIVISIONAL COURT, ACCRA.
Between
EMMA
C. BRUCE OF ACCRA
Plaintiff·
AND
TOM BOEVEY BARRETT, ALSO OF
ACCRA, NOW RESIDING AT
1)3, GARTMOOR GARDENS, LONDON,
ENGLAND
On 21st September, 1929, the
motion was granted, and it was
ordered by the Court that a copy
of the LO.V. upon which the
action was based should be
attached to the copy writ of
summons which was to be served
upon the defendant.
The alleged LO.V. was in these
terms :•• T. O. U.
Miss Emma C. Bruce of Accra the
sum of Three hundred and
sixty-eight pounds sixteen
shillings and three pence (£368
16s. 3d.\
T. BOEVEY BARRETT 5-12-·28. "
An attempt was made to serve the
writ upon the appellant
personally, at his address at 53
Gartmoor Gardens, London, but
his wife stated that he was
abroad, and his Solicitor
declined to give his address,
and stated that he was some
thousands of miles away.
On the return day, the 7th of
December, 1929, respondent
obtained an extension ()f time
till 29th March, 1930, in which
to endeavour to effect service,
and the writ was amended
accordingly.
Respondent then filed notice of
motion for an order for
substituted service on the
appellant by delivery of office
copy of the writ of summons,
together with copies of
affidavit in support thereof and
LO.V., to an adult inmate of
appellant's last known place of
abode at 53 Gartmoor Gardens,
London, in accordance with Rules
of the Supreme Court, Schedule
larder 3, rule 5 (a) and
Schedule 2, Order 10, rule 9.
This application was supported
by the following affidavit :-
•• IN THE SUPREME COURT OF THE
GOLD COAST COLONY, EASTERN
PROVI~CE
DIVISIONAL COURT, ACCRA.
Suit No. 264/1929.
Between EMMA C. BRUCE OF
ACCRA ...... Plaintiff.
AND
TOM BOEVEY BARRETT OF ACCRA, NOW
RESIDING AT 53, GARTMOOR GARDE)<S
LONDON,
ENGLAND
.........................................
Defendant.
I, Emma Christiana Bruce of
Accra, Trader, make oath and
say:
1.
That I am the Plaintiff in the
above-named suit.
2. That to the best of my
knowledge, information and
belief the defendant herein is
at present residing outside the
jurisdiction of this Court and
his present place of abode is
unknown to me.
3. That on the 21st day of
September, 1929 upon Motion by
my Solicitor and Counsel, T. J.
Whitaker, Esquire, leave was
granted to me by this Honourable
Court to serve the Writ of
Summons, affidavit in support
thereof and copy of the I.O.U.
on which my claim herein is
based, on the Defendant at 53
Gartmoor Gardens, London,
England, through Messrs. Kenneth
Brown, Baker Baker, Solicitors
of Essex House, Essex Street,
Strand, London. W.C.2.
4. I have been informed by my
said Solicitor and Counsel, T.
J.
Whitaker, Esquire, and verily
believe that he caused the said
documents to be transmitted to
Messrs. Kenneth Brown, Baker
Baker aforesaid for service and
that he has since received a
letter from them, wherein they
stat.:> that the Defendant had
gone abroad but that his wife
was in occupation at the
aforementioned address.
5 I have been further informed
by my said Solicitor and
Counsel, Messrs. Kenneth Brown,
Baker, Baker informed him that
they interviewed the
Defendant's Solicitor in
England, Mr. Bryden, who
informed them that the Defendant
was some thousands of miles
away,
6. I crave leave to refer to a
copy of the said letter dated
the 4th of November, 1929,
exhibited to this my affidavit
and marked" A."
7. In the circumstances I
believe that the Defendant is
evading service of the said Writ
of Summons and other documents
thereto attached, on him, with a
view to delaying the hearing of
my suit against him.
8. I make this affidavit in
support of application for leave
to serve the said Writ of
Summons, affidavit in support
thereof and copy of the LOU.
therein referred to on the said
Defendant by delivery thereof to
some adult inmate at the last
known place of abode of the said
Defendant, at 53 Gartmoor
Gardens, London, England, and
out of the jurisdiction of this
Court.
Sworn at Victoriaborg. Accra
(the 27th day of December, 1929}
.
Before
me,
(Sgd.) SAMUEL BANNERMAN
Commissioner for Oaths.
Filed 27-12-29 J.E.O. for R.D.C."
I have already quoted Rules of
Supreme Court, Schedule 2, Order
10, rule 9. Rules of Supreme
Court, Schedule 1, Order 3, rule
5, is in these terms :-
" 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-
(a)
by delivery of the document to
some adult inmate at the usual
or last known place of abode or
business of the person to be
served, or
(b)
by delivery thereof to some
person being an agent of the
person to be served or to some
other person, on it being proved
that there is reasonable
probability that the document
will through that agent or other
person, come to the knowledge of
the person to be served: or
(c)
by advertisement in the
Gazette,
or in some newspaper circulating
within the jurisdiction or
(d) by notice put up at the
Court House or some other place
of public resort of the province
or district wherein the
proceeding in respect of which
the service is made is
instituted, or at the usual or
last known place of abode or of
business of the person to be
served."
On the 28th of December, 1929,
the Court granted leave to
effect substituted service :--
II
(a)
by delivering forthwith a copy
of the said Summons together
with a copy of the affidavit in
support thereof and of the LO.V.
referred to therein and also a
copy of this Order, to an adult
inmate at the last known place
of abode of the said defendant
at 53
Gartmoor Gardens, London,
England, which is out of the
jurisdiction, and-
(b)
by posting a copy of the said
summons together with a copy of
each of the aforesaid documentts,
at the Supreme Court House,
Accra, for a period of three
months from date thereof, i.e.
until the 29th day of March,
1930. And that affidavits of
service be filed thereafter and
accepted as proof of such
service in this Court."
Substituted service was effected
upon appellant's wife at 53
Gartmoor Gardens, London, on
18th February, 1930.
On 25th February, 1930,
appellant's Solicitor in London
wrote a letter to the Chief
Registrar, Accra, supported by
an affidavit by himself. The
affidavit stated that appellant
was then resident within His
Majesty's dominions in East
Africa and had not been in
England since the 4th of July,
1928, and that the writ of
summons could not come to
appellant's notice in time for
him to instruct a solicitor in
the Colony before the return
date, and the first paragraph of
the letter reads as follows :-
Suit
264/1929.
Bruce
vs.
Barrett.
I have the honour to enclose for
your information and that of the
Court an affidavit by myself
relating to the above action. In
face of '1uch affidavit I
presume judgment will not be
entered against Mr. Barrett on
the return day or before he has
a proper opportunity of dealing
with the case. I have
communicated with him on the
matter. I must, however, leave
the Court to take such action as
they think fit, as I have no
authority to instruct anyone to
act for him in the Colony."
On the 29th of March 1929,
judgment was given in favour of
respondent for £368 16s. 3d.
with £18 18s. costs, but
execution was stayed for six
months, in order that, if so
advised, the defendant might
move for a review of judgment by
default and for a relisting. On
the same day the Acting Chief
Registrar informed respondent's
London solicitor of this by
letter.
On the 24th of November, 1930,
notice of motion to set aside
the judgment of 29th March,
1930, was filed in the
Divisional Court, Accra, and on
9th December, 1930, this motion
(as I have already mentioned)
was dismissed in the judgment
now appealed from.
Three grounds of appeal were
filed, but learned Counsel for
appellant did not mention these,
but argued generally that the
original proceedings and the
judgment of 29th March, 1930,
should have been set aside on
the ground of irregularity. His
first point was that the writ of
summons as issued was a writ for
service within the jurisdiction.
While Rules of the Supreme Court
Schedule 1, Order 2, rule 5,
provides that no writ of summons
for service out of the
particular jurisdiction shall be
issued without the leave of the
Court, these Rules are much
simpler than the English rules
and contain no provision as to
the application for or the
granting of such leave,
nor do they provide for any
special form of writ to be
issued in such cases.
Applications for the issue of
writs of summons for service out
of the jurisdiction are not
infrequently made in the Supreme
Court of this Colony, especially
for writs for service in
Ashanti. The practice of the
Court has been to dispense with
any special application, and to
leave the plaintiff to apply,
after issue of the writ, for an
order for service out of the
jurisdiction, under Rules of the
Supreme Court, Schedule 2, Order
10, rule 9.
In
the present case, it is clear
that the writ was intended by
the respondent for service out
of the jurisdiction. It was
addressed to the appellant at
his address in London, and an
affidavit to th;} effect that
appellant was residing in London
was before the Judge who signed
it, and it was issued in
accordance with the practice of
the Court. It is true that the
return day was originally the
7th of December, 1929, and not
the 29th of March, 1930, as
stated by the learned Chief
Justice, but, as the writ was
signed on the 13th of September,
the 7th of December was a
suitable return day, considering
the postal communications
between this and England.
It may be said that Rules of the
Supreme Court, Schedule 2, Order
2, rule 5, serves no purpose if
it is not to be acted on.
In
my opinion, it serves very
little purpose in our local
rules, except perhaps to give
the Court a certain control over
the issue of such writs. I think
that it is a vestige of the
Englis!1 rules which has crept
in, without the machinery
required to make it effective.
In my opinion, this first point
fails.
Learned Counsel for appellant
then referred to Schedule 2,
Order 10, rule 9, and submitted
that an LO.D. did not come
within this rule: if it was
covered by the rule it would
have been mentioned. According
to this argument, a
hire-purchase agreement or an
agreement for a sale could not
come within the rule, because
the rule does not mention
hire-purchase agreements nor
agreements for sale by name, but
only speaks of contracts. An
LO.D. is an acknowledgment of
the receipt of and contract to
repay money on demand, and comes
within the clause of rule 9
dealing with the enforcement of
contracts.
The next point taken \vas that
the LO.D. did not show where it
was entered into, and was not
therefore evidence of a contract
made or entered into within the
jurisdiction within the meaning
of Schedule 2, Order 10, rule 9.
This point was not taken in the
Court below.
Learned Counsel for the
appellant also cited Schedule 2,
Order 10, rule 10, which reads
as follows :-
" Every application for an order
to serve a writ or notice on a
defendant out of the
jurisdiction shall be supported
by evidence by affidavit or
otherwise, showing in' what
place or country such defendant
is or probably may be found, and
the grounds upon which the
application is made,"
He submitted that when the order
for service out af the
jurisdiction was made, on the
21st of September, 1929, the
learned Judge who made the order
had not before him evidence that
the LO.V. was made within the
jurisdiction.
The Judge's notes show that he
had before him the provisions of
Schedule 2, Order 10, rule 9,
and also an affidavit in which
respondent's solicitor craves
leave that an order be granted
for service out of the
jurisdiction of the office copy
of the writ of summons and copy
of affidavit in support thereof.
The Solicitor's affidavit did
not mention the LO.V. In
granting leave the Judge added:-
" A copy of the LO.V. upon which
the action is based, to be
attached to the copy writ of
summons which is to be served
upon the defendant."
It is evident, therefore, that
the learned Judge referred to
the documents which respondent
wished to have served. He had
before him the respondent's
affidavit in support of
application for writ of summons
on the undefended list, which
states that she is a trader of
Accra; that appellant was
resident in this Colony in the
year 1923; and that she lent him
£368 16s. 3d. for which he gave
her an LO.V. dated the 5th of
December, 1923. In my opinion
this was sufficient evidence
prima facie
that the loan was made within
the jurisdiction, and the
learned Judge was justified in
making the order under Schedule
2, Order 10, rule 9.
Learned Counsel next cited
Schedule 2, Order 10, rule 11,
which is as follows :-
"Any order giving leave to
effect service out of the
jurisdiction shall prescribe the
mode of service, and shall fix a
date subsequent to such service
as the return day, such date to
depend on the place or country
where or within which the writ
is to be served, and the Court
may receive an affidavit or
statutory declaration of such
service having been effected as
prima facie
evidence thereof."
and submitted that the order for
service out of the jurisdiction
was a nullity, because it did
not prescribe the mode of
service or fix a return day. The
affidavit, however, in support
of the motion for service out of
the jurisdiction asked for
personal service, and, by
granting leave as prayed, the
Judge sanctioned such service.
As a suitable return date had
already been fixed, it was
unnecessary for the Judge to
interfere with this. This
objection in my opinion fails.
Learned Counsel for the
appellant then referred to the
order for substituted service.
He submitted that the order for
substituted service was wrong,
as before the writ of summons
was issued appellant had left
the Colony, and with no
intention of evading service. He
cited
Wilding v. Bean
(1891) 1.
Q.B.
100;
Fry v. Moore
23.
Q.B.D.
395;
Porter v. Freudenberg
(1915)
U.K.B.
857;
In re Urquhart
24
Q.B.D.
723;
Field v. Bennett
56
L.]., Q.B.
89 ;
Great Australian Gold Mining Co.
v. Martin
5
Ch.D
1;
and The Hagin
(1908)
p. 189.
This argument is based upon the
assumption that the writ was
issued for service within the
jurisdiction. If the writ had
been issued for service within
the jurisdiction and no order
had been made for service out of
the jurisdiction, it is clear
that, appellant being out of the
jurisdiction when the writ was
issued, no order for substituted
service could have been made.
The position, however, was quite
different. The writ, as I have
held, was issued for service out
of the jurisdiction, and an
order was obtained for service
out of the jurisdiction on
appellant at his address in
London.
The case therefore falls within
the rule in
Wilding v. Bean,
where Lord Esher, M,R. said:
" It has been provided by
statute that the English Court
may under certain conditions,
and with certain formalities,
allow the issue of writs for
service, or of which notice is
to be given, out of the
jurisdiction. When those
conditions are fulfilled, and
such a writ is issued, there may
be service abroad, and
consequently, in that case the
rule would not apply that, as
there could not be direct
service, there could not be
substituted service."
Learned Counsel for the
appellant then quoted the
English rule that, if the
defendant is out of the
jurisdiction at the time of the
issue of the writ, substituted
service can only be ordered if
the evidence satisfies the Court
that he went out of the
jurisdiction to evade service.
This does not apply here. In the
first case it refers to a writ
issued for service within the
jurisdiction, and in the second
place, our local role is much
wider. Schedule I, Order 3, rule
5 provides :-
" 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 ..... "
"
Even if the respondent's
allegation that appellant was
evading service was not
substantiated (although some
.colour was given to it by the
concealment of appellant's
whereabouts) the Court had
sufficient evidence before it to
warrant it in holding that
personal service could not
conveniently be effected.
It is submitted, however, by
learned Counsel for the
appellant that Schedule I, Order
3, rule 5, applies only to
service within the jurisdiction.
No substantial ground was given
for this submission. It is true
that clauses
(c)
and
(d)
of rule /) refer to
advertisement and notice within
the jurisdiction. Clauses
(a)
and
(b)
refer to service on an adult
inmate of defendant's house or
on his agent and do not state
whether such house or agent are
within or without the
jurisdiction. It was submitted
that the expression "adult
inmate" suggests this Colony.
This is a matter of opinion. On
the other hand, this rule /)
occurs in Schedule 1 of the
Rules of the Supreme Court,
Order 1 of which provides :-
