17 Aug Otis Asante Vrs Anowah Afrique Limited, Civil Appeal No.: H1/54/2022, Delivered On 10th March, 2022
“… after a writ of summons is filed at the Registry of any Court, the most important step to be taken after the issuance of the writ, is for the service of the writ on the Defendant.”
The Plaintiff/Respondent (“Respondent”) filed a writ of summons at the Registry of the Circuit Court, Accra. A search conducted at the Registry by the Respondent revealed that the Appellant had been served with the writ of summons but had failed to enter an appearance within the time limit prescribed by the rules of court. The Respondent, therefore, filed an application for judgement in default of appearance against the Appellant which was granted by the trial Circuit Court.
Subsequent to the default judgement, the Appellant conducted a search at the Registry of the trial Circuit Court, revealing that the writ of summons was served on a worker of the Appellant company described in the bailiff’s affidavit of service as the company secretary. According to the Appellant, the said worker was a security officer at the company but not the company secretary.
An application was therefore made to the trial Circuit Court by the Lawyer for the Appellant for an order to set aside the default judgement, which was dismissed.
The Appellant appealed to the Court of Appeal on a number of grounds which included that the trial court erred in refusing to set aside the default judgment even though no officer of the Appellant company had been served with the writ of summons and statement of claim.
The Court of Appeal, in arriving at a decision, relied on legal provisions that set out the requirements for the service of documents on body corporates; namely, Order 7 of the High Court (Civil Procedure) Rules, 2004 (C. I. 47) and Section 291 of the Companies Act, 2019 (Act 992) – similar to Section 263 of the repealed Companies Act, 1963 (Act 179)-the applicable law at the time the suit was instituted.
The court stated that the service of documents on a company may be effected by leaving it at the registered office with some identifiable person who will find it expedient and necessary to bring it to the attention of the company.
Furthermore, the court held that the class of officers who may be deemed as reasonable persons to receive documents on behalf of a company includes a director, managing director, company secretary or member (shareholder) of the company.
The Appellant produced records of the company that established that the person served was not the company secretary as alleged. On the other hand, the Respondent failed to produce evidence to establish that the person served was indeed the company secretary.
The Court concluded that failure to properly serve a Defendant with a writ of summons and a statement of claim was not least in breach of rules of natural justice and fairness against the Defendant, but also deprived the courts of jurisdiction to hear the matter.
Consequently, the Court of Appeal allowed the appeal and set aside the default judgement on the basis that the security officer served with the writ of summons and statement of claim was not the proper person to receive such documents on behalf of the company. The service was thus defective and improper.
Insight: To properly effect the service of a court process or any other document on a body corporate, it must be served on either a director, a managing director, a company secretary, or a member (shareholder) of the company. Moreover, the court would not be seized with jurisdiction until a Defendant has been served with a writ of summons. In effect, no process can be initiated to obtain a judgement against an unserved Defendant.
AUTHORS:
Bessy Agyeiwaa Crentsil (Legal Associate)
Christ Agyakwa Agyir