Practice and procedure – Writ – Service – Personal service – Omission to serve adversary fatal to proceedings.

Evidence – Burden of proof – Service of process – Burden on party alleging service – Or 9 rr 1 and 2, High Court (Civil Procedure) Rules 1954 (LN 140A).

Legal practitioner – Counsel – Representation – Counsel presumed to have authority to act – Counsel to establish authority to act if disputed by litigant.

The 2nd, 3rd, 4th and 6th appellants, limited companies, had guaranteed a debt owed by the 1st appellant to the respondent bank. Upon 1st appellant’s default, the bank sued the appellants in the High Court. The writ and statement of claim were served rather on one Madam Alice. A lawyer entered appearance and for the appellants and submitted to judgment on behalf of the appellants upon application for summary judgment by the bank. Five years later, the 1st, 2nd, 3rd, 4th and 6th appellants moved the High Court unsuccessfully to set aside the judgment and appealed to the Court of Appeal. At the hearing of the appeal their counsel contended that Madam Alice had no authority to accept service on their behalf; besides the 6th appellant was in lawful custody, to the knowledge of the respondent bank. They denied instructing the lawyer to appear on their behalf or submit to judgment. Counsel for the respondent bank on the other hand submitted that so long as a lawyer had entered appearance for the appellants, they were deemed to have been duly served.

Held: (1) Service of process was so fundamental that non-service could not be said to be an irregularity. For if the rules of natural justice were not to lose their importance and credibility then every person to be affected by an order of court ought to be given opportunity to be heard. It was therefore important that the rules relating to service of court processes be strictly adhered to.

 (2) To determine whether a party had been served with process, the court must be guided by Order 9 rr 1 and 2. The party alleging service must prove it. The omission of the respondent bank to establish that Madam Alice had lawful authority to accept service on behalf of the appellants was fatal. Ghassoub v Bibiani Wood Complex Ltd [1984-86] 1 GLR 271 CA, Craig v Kannsen [1963] 1 KB 256 AC referred to.

(3) Failure to serve process personally on the defendants vitiated all proceedings including the application for summary judgment and the defendants were entitled to apply to set aside the proceedings. State v Asantehene’s Divisional Court B1, ex parte Kusada [1963] 1 GLR 238, SC, Hope v Hope (1854) 4 De GM & G 328, Nelson v Pastorino& Co (1883) 49 LT 564, Pole v Least (1863) 33 LJ Cm D 155, Amoakoh v Hansen [1987-88] GLR 62 referred to.

Per Benin JA. Generally a lawyer required special authority to represent the litigant and where a lawyer entered appearance for the litigant such lawyer impliedly warranted his authority so to act and a rebuttable presumption arose that the lawyer was duly instructed. Where however the lawyer acted without authority the proceedings would be struck out on the application of the litigant and the lawyer mulcted in costs. Thus if the party denied having instructed such a lawyer, the onus lay on the lawyer to prove that he had been instructed.

Cases referred to:

Amoakoh v Hansen [1987-88] 2 GLR 26, CA.

Craig v Kanseen [1943] 1 All ER 108, 1 KB 256, CA.

Ghassoub v Bibiani Wood Complex Ltd [1984-86] 1 GLR 271, CA.

Gray, Re, Gray v Coles (1891) 65 LT 743, [1891-4] All ER Ext 1933.

Hope v Hope (1854) 4 De GM & G 328, [1843-60] All ER Rep 441, 2 Eq Rep 1047, 23 LJCH 682, 23 LTOS 198, 24 LTOS 29, 2 WR 548.

Karletse-Panin v Nuro [1979] GLR 194, CA.

Nelson v Pastorino & Co (1883) 49 LT 564, 50 Digest (Repl) 252.

Pole v Leask (1863) 33 LJCh 155, 8 LT 645, 9 Jur NS 829, HL.

State v Asantehene’s Divisional Court B1, ex parte Kusada [1963] 2 GLR 238, SC.

Yonge v Toynbee [1910] 1 KB 215, [1908-10] All ER Rep 204, 79 LJKB 208, 102 LT 57, 26 TLR 211, CA.

APPEAL to the Court of Appeal against the ruing of the High Court.

LAMPTEY JA. This is an appeal against the ruling of the High Court Accra in which that court refused to set aside a judgment obtained against the appellants before the court. A short background history of the case may be stated as follows.

The 1st appellant company is a customer of the respondent bank. The 2nd, 3rd and 4th appellants are limited liability companies that stood as guarantors of the indebtedness of the 1st appellant company to the bank. The 6th appellant was also a guarantor of the 1st appellant company’s indebtedness to the bank. The 1st appellant company was unable to pay its debts to the bank. The bank on 23 March 1989 sued all the appellants to recover the colossal amount of nearly ¢125 million. The writ of summons together with the statement of claim intended for service on the appellants was served on one Madam Alice on 4 April 1989. In due course, Mr E S Aidoo of Quist, Brown, Aidoo and Wontumi, a firm of lawyers, entered appearance for the appellants.

The bank on 20 April 1989 took out a summons for leave to enter final judgment against the appellants pursuant to Order 14 rule 1 of the High Court (Civil Procedure) Rules 1954 (LN 140A) as amended by LI 1129. On 25 May 1989, the High Court Accra entered final judgment for the bank against the appellants. Some 5 years later, on 14 January 1994, the 1st, 2nd, 3rd, 4th and 6th appellants moved the High Court to set aside the judgment dated 25 May 1989. The High Court differently constituted dismissed the application to set aside the judgment. The appellants were dissatisfied and aggrieved by the ruling of the High Court, Accra and appealed to this court. Several grounds of appeal were filed in this matter.

Before us, one of the grounds argued by counsel for the 6th appellants was that the trial judge erred in law in holding that the appellants were each served with the writ of summons and the statement of claim. He submitted that none of the appellants was served with the writ of summons and statement of claim. He drew the court’s attention to the endorsement touching upon service of the writ of summons. The declaration made by the serving bailiff was that the writ of summons “was served on one Madam Alice.” He argued that the said Madam Alice had no lawful authority to accept service of the writ of summons intended for service on the 6th appellant. He submitted that the rules of court enjoined the bailiff to serve the 6th appellant personally with the writ of summons. He contended that the bank had not produced any evidence before the lower court that Madam Alice had lawful authority to accept service on behalf of the 6th appellant. He submitted that the 6th appellant was not personally served; indeed he pointed out that the 6th appellant was at the material time in lawful custody to the knowledge of the bank and that the trial judge erred in law in the view he took of the evidence before him. He submitted that the failure to serve the 6th appellant personally with the writ of summons and statement of claim was fatal to the proceedings resulting in the entry of judgment.

Learned counsel for the other appellants adopted those submissions in arguing the appeal of the four appellant companies. He contended that Madam Alice had no lawful authority to accept service of the writ of summons and statement of claim on behalf of the four appellant companies. The bank did not produce evidence to prove that Madam Alice had lawful authority to accept service of process intended for the four companies. He pointed to evidence that Lennap & Co of Valley View, 20 Sobukwe Road, Farrar Avenue was the proper person to accept service on behalf of the four appellant companies. Learned counsel for the bank did not, in her reply, advert to the serious matters raised above. She was quite content, to make the briefest of replies. She was of the view that in so far as there was evidence that lawyers entered appearance for

and on behalf of the appellants, the appellants would be deemed to have been properly served with the process. She did not comment on the submission that service on Madam Alice was not proper service according to the rules of court. She did not refer to nor rely on any authority to support her submission on the issue of service of process.

In the light of the submissions and arguments made by counsel for the parties, I begin with an examination of the rules on service of process, and the case law on these rules. I refer to Order 9 rules 1 and 2 as follows:

“9(1) No service of writ shall be required when the defendant, by his solicitor, undertakes in writing to accept service, and enters appearance.

(2) When service is required, the writ shall, whenever it is practicable, be served in the manner in which personal service is now made…”

I must mention that rule 2 makes provision for service of writ by substituted mode or method. It seems to me that when the issue raised by a party before a court calls for determination whether or not that party has been served with process, the court must be guided by the above rules. The party who alleges that his adversary has been duly and regularly served with process must prove due service of process in accordance with the rules of court. I now refer to the case law on service. I begin with the Supreme Court case of the State v Asantehene’s Divisional Court B1, ex parte Kusada [1963] 2 GLR 238. I reproduce the following passage from the judgment of Azu Crabbe JSC at page 251:

“The purpose of serving a writ on, or of giving notice of the hearing of a case to a party in a case is so that the party may have the opportunity to appear or be represented in order to assert or defend his rights. The essence of service of any process is that it should be communicated to or should reach the person to whom it is addressed…”

He quoted with approval the following passage from the English case of Hope v Hope (1854) 4 De GM & G 328:

“According to the rules of law, service ought either to be made personally, or at least by leaving notice at the dwelling-house of the party named [on the process].”

He reproduced the following passage from the case of Nelson v Pastorino & Co (1883) 49 LT 564:

“In his case also, however, the only service has been through Frederico Pellas. It is said that that writ did, without any doubt, find its way to him, and that he does in fact know that an action has been commenced against him. But no one is bound to take notice of a writ has been improperly served, and there is no evidence before me that Frederico Pellas represented Giacomo. There has, therefore, been no proper service.”

It will be seen from the above cases that there must be evidence before the court to prove that Madam Alice represented the appellants and that she had lawful authority to accept service of the writ of summons and the statement of claim as the duly authorised agent of the appellants. There must be evidence before the court that the writ of summons and statement of claim found their way to appellants. The issue of service of process was considered by the court of Appeal in Karletse-Panin v Nuro [1979] GLR 194. Francois JA stated the position at page 211 as follows:

“On the adjourned date of 15th May, 1975, the defendant was absent, but the record indicates that his counsel was served. This can hardly be service on the defendant to compel the visitation upon him of the full rigours of default…the fact that notice of the adjourned date was not served on the defendant personally in compliance with the statutory directions in my view nullifies completely whatever occurred subsequently.”

It would be seen from the above passage that failure to serve process personally on the defendant vitiated all subsequent proceedings. It is plain and clear that a party, who must be served personally but has not been so served and has also not been served by substituted service, can apply and have such proceedings set aside. I will refer also to the case of Pole v Leask (1863) 33 LJCh 155 to the speech of Lord Cramworth at page 161 as follows:

“No one can become an agent of another person except by the will of that person. His will may be manifested in writing or orally or simply by placing another in a situation in which according to the rules of law or perhaps it will be more correct to say, according to the ordinary usages of mankind that other is understood to represent and act for the person who has so placed him.”

His Lordship then proceeded to show that a duty was placed on the person who alleged proper service to prove and establish that fact. This was how he stated the law:

“Another proposition to be kept constantly in view is that the burden of proof is on the person dealing with any one as an agent through whom he seeks to charge another as principal. He must show that the agency did exist, and that the agent had the authority he assumed to exercise, or otherwise that the principal is estopped from disputing it.”

Again in the earlier case of Hope v Hope (supra) Lord Cramworth stated the law at page 539 as follows:

“The object of all service is of course, only to give notice to the party 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.”

It is in my opinion beyond dispute that where the issue before the court is the determination whether or not a party has been served with process, the burden of proof of due service rested upon the party alleging that service of process has been properly effected. In the case of Ghassoub v Bibiani Wood Complex Ltd [1984-86] 1 GLR 271, CA one of the issues raised for consideration of the Court of Appeal was whether service of process on a visitor in a solicitor’s office was service or not on the solicitor. The court held that since there was no evidenced to establish that the visitor had authority to accept service of process, there was no proper service on the solicitor. The English case of Craig v Kannsen [1963] 1 KB 256, AC is of some assistance in this matter. In that case the court held “that failure to serve processes required renders null and void an order made against the party who should have been served. The court can set aside such an order in its inherent jurisdiction and it is not necessary to appeal from it.”

The burden assumed by the bank in the instant case was to produce evidence to prove and establish that Madam Alice had lawful authority to accept service of process on behalf of all the appellants. The bank had to produce evidence to prove and establish that Mr E S Aidoo was a director of appellant companies at all times materials to this action. I do not find evidence on these matters adduced by the bank. In my opinion the failure on the part of the bank to prove and establishes that each and every appellant was duly and properly served with the writ of summons and statement of claim was fatal to the proceedings leading to entry of judgment.

Indeed there is a matter which I must examine before I conclude this judgment. The issue is whether or not the appellants should have been served with the summons for judgment. I turn to Or 14 rule 11 which provides as follows:

“(ii) A judgment given against a defendant who does not appear at the hearing of an application under this Order may be set aside or varied by the court on such terms as it thinks just.”

The complaint of the appellants was that they had not appeared at the hearing of the summons for judgment because they were not served with hearing notice. They stated further that they had not instructed Mr E S Aidoo to appear on their behalf and to submit to judgment. The bank had not produced evidence to dispute nor challenge the very serious complaint made by the appellants. The trial judge with great respect misdirected himself on the complaint made by the appellants. This court has held that failure to serve a summons for directions on an appellant was not a mere irregularity. In the Court of Appeal case of Amoakoh v Hansen [1987-88] 2 GLR 26, CA, holding (5) states is as follows:

“(5) The failure to serve the summons for directions on the appellant or his solicitor was not a mere irregularity or a bare technicality but an irregularity that went to the root of the trial and fouled the springs of the judicial process and thereby disabled the machinery of the law from advancing the course of justice. The whole proceedings were therefore void and a nullity…. The non-service was therefore in breach of the conditions required by the law as conditions precedent for the validity of the proceedings.”

I must observe that in the above case the successful appellant took part in the trial to a finish yet when the application to set aside was presented, the fact that the appellant had taken steps in the action was held immaterial. The opinion of the court was that failure to serve the summons for directions on the appellant was fatal to the proceedings leading to the entry of judgment. In my opinion the failure on the part of the bank to prove that the appellants were each served with the summons for judgment was fatal to the proceedings leading to and resulting in the entry of judgment. That judgment cannot be supported in law and must be set aside. The trial judge misdirected himself on the operative law. His ruling was plainly and clearly erroneous in law. It is for the above reasons that I allow the appeal.

FORSTER JA. I agree that the appeal should be allowed.

BENIN JA. I also agree that the appeal be allowed. I wish only to add a few words in support. Service of a court process on a person to be affected by an order to be made under the process is so fundamental that non-service cannot be said to be a mere irregular act. For if the rules of natural justice which underpin the concept of justice as known and accepted by every civilised society are not to lose their importance and credibility, then it means every person