Service of processes is crucial to proceedings in court and goes to jurisdiction, making it a fundamental part of any judicial proceedings, particularly in civil suits.
It is, however, argued that a party who truly believes in his allegations against an individual and seeks his day in court does not necessarily need to wait to be served with court processes before taking up the challenge and facing his opponent in court.
Upon hearing of the case in the media, such a party can enter an appearance and participate in the case.
Alternatively, the party can instruct his lawyers to undertake, in writing, to accept service and file his defence.
Hiding behind non-service, particularly when one’s own actions have made service difficult or impracticable, is a cowardly act of running away from the allegations he has made.
I make this claim based on the reasons below:
Commencing Civil Action in Ghana.
Generally, in Ghana, civil proceedings are commenced by the filing of a writ of summons in court and the service of the writ on the person who is required to respond to the claims stated in the statement of claim that accompanies the writ.
This is subject to any existing enactment to the contrary as the law provides three main means by which an action can be commenced in court.
They are: an originating motion on notice, a petition, and the issuance of a writ of summons (commonly known and referred to simply as a “writ”). Where an enactment sets out a procedure for invoking the jurisdiction of the court, a party is expected to comply with that method.
(See YAW ANING BOADU V. GHANA LAW SOCIETY AND OTHERS, SUIT NO. GJ/0348/2026, per His Lordship Isaac Addo J., quoting with approval the time-tested position of the courts in BOYEFIO V. NTHC PROPERTIES LIMITED [1996–97] SCGLR 531.)
Service
Following the issuance of the writ, the writ is to be served on the party against whom it has been issued.
The Rules of Court provide for several means by which a writ can be served.
The HIGH COURT (CIVIL PROCEDURE) RULES, 2004 (C.I. 47), together with its various amendments, which regulate civil proceedings in the High Court and the Circuit Courts, contain various provisions on how service is to be made.
For instance, Order 5 rule 9 provides for the means by which a person with a disability can be served. Order 7 provides for service of process generally, while Order 8 provides for service out of the jurisdiction (i.e., outside Ghana).
Who Can Serve?
Order 7 rule 1 provides that a document which is required to be served on a person shall be served by a bailiff of the court or a process server registered with the court. At common law, a bailiff is a court officer who assists the court, ensures courtroom security, and serves processes on parties.
The object of service is to bring to the notice of an affected party the institution or pendency of court proceedings.
Since it is the court that needs to bring to the attention of a party that an action has been instituted against him, the party who instituted the action is generally not involved in the process of service.
However, the rules in Order 7, Rule 1 of C.I. 47 allow such a party to direct service.
Importance of Service
Service is fundamental to court processes, and non-service goes to the root of jurisdiction.
In FRIESLAND FRICO DOMO ALIAS FRIESLAND FOODS BV V. DACHEL CO. LTD [2012] 1 SCGLR, the Supreme Court, quoting with approval the decision in REPUBLIC V. HIGH COURT, ACCRA; EX PARTE ALLGATE CO. LTD (AMALGAMATED BANK, INTERESTED PARTY) [2007–2008] SCGLR 1041, explained that non-service implies that audi alteram partem, the rule of natural justice, is breached.
This is fundamental and goes to jurisdiction. Thus, a court generally has no jurisdiction to proceed with a case if the other party has not been served.
Who Can Be Served.
The rules make provision for different persons to be served based on the nature of the case;
1. Personal Service: Generally, a document is to be served personally on a person who is required to be served. This is the first crucial step after a writ or any process initiating a legal action has been issued.
This is done by leaving a duplicate or attested copy of the document with the person to be served.
Where personal service is hindered by violence, threats or other acts of obstruction by that person or any other person with or under that person, such as a bodyguard, it shall be sufficient for the bailiff to leave the document as near that person as may be practicable.
2. Electronic Service: Pursuant to the 2020 amendment of C.I. 47, ORDER 7 RULE 3A OF C.I. 47, AS AMENDED BY C.I. 133, allows for electronic service of processes.
However, this is subject to specific rules. These include the fact that a party who initiates an action shall, at the time of the initiation of the action or filing of the appearance or proceedings, clearly state that he would want service of processes to be done by electronic means.
Such a person shall provide his telephone number and electronic mail address. The service through electronic means can be done either by a bailiff, a process server or a party to the case.
However, where the service is by a party, that party shall deliver a hard copy of the process to the registrar of the court for verification only.
Since a party has to specifically ask for processes to be served on him electronically, where a party had earlier asked that all processes be served personally but subsequently wants the processes to be served electronically, he would have to notify the registrar of the court.
3. A Lawyer: A lawyer for a party may undertake to accept service. In such a case, the lawyer undertakes, in writing, to accept the writ on behalf of the party. The writ shall, therefore, be deemed to have been duly served on the defendant when it is served on the lawyer.
In TRUSTEESHIP SYNAGOGUE CHURCH OF ALL NATIONS V. AGYEMAN [2010] SCGLR 717, the Supreme Court explained that, normally, when service has to be effected on someone, such service has to be personal.
However, such necessity has been qualified to mean that service on the agent put forth by the person in question for the purpose of service is good service.
Acquah JSC (as he then was) explained it clearly in BARCLAYS BANK OF GHANA LTD V. GHANA CABLE CO. LTD [1998–1999] 1 that the first crucial step after a writ of summons or any process initiating a legal action has been issued is for the defendant to be served personally with a copy thereof or notice of the said writ, if permissible, unless the solicitors of the defendant undertake in writing to accept service on behalf of the defendant.
4. Company: In the case of a corporate body, an enactment may provide for the means by which service is to be effected. Where no such provision is made in an enactment, service may be effected by serving it on the chairman, president or other head of the body, or on the managing director, company secretary, treasurer or other similar officer of the company.
5. Stool/Skin: Service on a stool or skin may be effected by serving it on the occupant of the stool or skin or any secretary, clerk or linguist of that stool or skin. Where the stool is vacant, service may be effected by serving it on the regent or caretaker of that stool or skin.
6. Family: Service on a family constituted by customary law may be effected by serving it on the head of the family or any principal member of the family who is, or is acting as, a caretaker of any property of that family, or a principal member of the family.
7. Prison/Police/BNI/EOCO Officers: For a person who is in prison or detention, service may be effected by serving it on any person apparently in charge of the prison or the place of detention, such as a police officer, a BNI officer or an EOCO officer at a police station, BNI office or EOCO office.
If, however, access cannot readily be had to the person apparently in charge of the prison or place of detention, service may be effected on any warder, guard or similar officer of that prison or place of detention.
8. MDA: Service on a Minister of State in his capacity as such, or on a ministry or government department, may be effected by serving it on the administrative head of that ministry or department.
9. Attorney-General: SECTION 12 OF THE STATE PROCEEDINGS ACT also provides that 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, to a representative of the Attorney-General in any part of the country, or to any office specified under any law.
10. Parent/Guardian: A process to be served on a person with disability shall be deemed to have been duly served if served on the father, mother or guardian of the person, or the person with whom the person with disability resides or under whose care the person is. This is provided by ORDER 5, RULE 9 OF C.I. 47.
A person with disability in this context is not used in the general terms as defined by the Persons with Disability Act, 2006 (Act 715).
A person with disability in this context means a person under the age of 18 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.
Substituted Service
Where it becomes difficult to serve a person personally, a party may, with the permission of the court, seek to effect service through other means, such as publication in the newspapers.
This option becomes available where three or more attempts have been made without success to effect personal service and any further attempt to effect personal service may result in undue delay, or it is otherwise impracticable, for any reason, to serve the document personally.
This is the means of last resort where personal service is unsuccessful or impracticable.
IN DAKAR LTD V. INDUSTRIAL CHEMICAL AND PHARMACEUTICAL CO. LTD AND ANOTHER [1981] GLR 461, Taylor JSC, as he then was, explained that substituted service is ordered when personal service is unsuccessful, not when it is impossible.
Is Service a Necessity?
While service goes to the jurisdiction of the case, the Rules of Court make provision for service to be dispensed with.
A party who truly believes in his case, upon hearing that a writ has been issued against him, will not wait to be served. ORDER 7 RULE 12(3) provides that where a writ is NOT duly served on a defendant but the defendant files an unconditional appearance, the writ shall be deemed to have been duly served on the defendant and to have been served on the date on which the defendant filed the appearance.
Atuguba JSC explained this in the BARCLAYS BANK case when he noted at page 22 that the object of service is merely to bring to the notice of an affected party the institution or pendency of court proceedings.
If, therefore, a party, without actual service, nonetheless deliberately participates in the unserved proceedings, he should be bound by them.
Conclusion
Thus, while service is crucial to proceedings in court, a person who truly believes in his allegations against an individual and truly seeks his day in court could, upon hearing of the case in the media, enter an appearance and participate in the case.
Alternatively, the party can instruct his lawyers to undertake, in writing, to accept service and file his defence.
Hiding behind non-service, particularly when one’s own actions have made service difficult or impracticable, is a cowardly act of running away from the issues.
While the option of substituted service is available, a party who truly believes in the allegations he has made in the media and who hears of a legal suit against him through the same media should be able to muster the courage to enter an appearance and participate in the case without waiting to be served.
