Introduction to Service of Processes:

Introduction:

This note will discuss the meaning of service of a process, its essence, the consequences of failing to serve a process, and highlight the modes of service.

Meaning of Service of a Process:

The word process encompasses a range of formal documents used in the conduct of legal proceedings. These may include documents issued by the court, such as writs, as well as documents filed by parties such as a statement of defence, a reply, among others.

In light of this understanding of a process, service of a process simply involves the delivery of a process, such as a writ, to a party entitled to be served.

Essence of Service of a Process:

The courts have severally held that the essence of service is to:

1. Let a party know about the proceedings against him.
2. Enable the party to mount a defence in response to the proceedings.

These two purposes were captured by Lord Cranworth L.C. in the often-cited case of Hope v. Hope (1854) 4 D.M. & G. 328, where his lordship said:

The object of all service is of course only to give notice to the party on 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.

This was cited with approval in the cases of Dakar Ltd. v. Industrial Chemical and Pharmaceutical Co., Ltd. [1981] GLR 453 and State v. Asantehene's Divisional Court B1; Ex Parte Kusada [1963] 2 GLR 238-276 .

Consequence of Failing to Serve a Defendant with a Process:

When a defendant is not served with a process, the courts generally hold that the court has no jurisdiction to proceed against him, as proceeding against him will violate the natural justice principle of audi alterem partem.

In the case of Republic v. Appeal Committee of London Quarter Sessions, Ex-Parte Rossi [1956] 1 All ER 670, Lord Denning forcefully submitted that:

It is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. The common law has always been careful to see that the defendant is fully apprised of the proceedings before it makes any order against him.

Also, in the Ghanaian case of Antwi v. Appiahen [2023] GHASC 24 (18 May 2023) , the Supreme Court, speaking through Aseidu J. on the essence of service of a writ of summons, advanced that:

It is tantamount to a breach of the rules of natural justice for a plaintiff to proceed to obtain judgment against a defendant who has not been served with the writ of summons and its statement of claim issued against him and, a court of law had no business to enter upon any enquiry by way of determining the suit filed by a plaintiff where the writ of summons has not been served on the defendant. Thus, in Alabi vs B5 Plus Company Limited and Others [2018-2019] 1 GLR 197 , this court stated in no uncertain terms that:

“The general position of the rules of procedure under Order 7 rule 2(1) and 5(1) of CI.47 was that a court had no jurisdiction to proceed against a party who had not been served. A writ had to be personally served on all defendants, unless otherwise provided by the rules.”

Also, in Barclays Bank of Ghana Ltd. v. Ghana Cable Co. Ltd. and Others [1997-1998] 2 GLR 61 , the Supreme Court, speaking through Acquah JSC on the effect of failing to serve a writ on a defendant, similarly said:

A court has generally no jurisdiction to proceed against a party who has not been served. Accordingly, when a defendant complains that he has not been served with a writ of summons or any process which requires his personal service, the court is duty bound to examine that complaint thoroughly and make a definitive finding irrespective of whether there is proof of service or entry of appearance on behalf of that defendant. For the success of his complaint would render both the proof of service and the appearance nothing but a brutum fulmen, thereby consigning all the proceedings, orders and judgment procured thereon, into the realm of nullities.

Also, see the case of Napex Connect Ltd v. Puma Energy Distribution Gh. Ltd [2019] DLHC 8728 .

Modes of Serving a Process:

There are two main modes of service:

1. Personal service.
2. Substituted service.

These modes of services are discussed in subsequent notes.