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March 23, 1972
HIGH COURT
GHANA
CORAM
On a claim for a debt of ¢900.00 against the two defendants jointly and severally the District Court Grade I, Kumasi, presided over by Mr. T. B. G. S. Addo, district magistrate, gave judgment for the plaintiff in the absence of the defendants as an "undefended" cause.
The certificate of service of the writ of summons made by the bailiff stated: "On the 17th day of July, 1970 at 2.00 p.m. a copy of this summons was served on Kwaku Poku [i.e. the appellant] through Juamina." In evidence on a motion for stay of execution the said bailiff explained that when he went to the village he found Juamina, the non-appellant, who told him that the appellant had gone to farm. So he "served both copies of the writ of summons on Juamina for him to give the other copy to his brother . . . At first he protested but later accepted them." In the proceedings for stay of execution the trial court found as a fact that the appellant had actual notice of the writ of summons.
The only ground of appeal argued on behalf of the appellant was that the judgment against the appellant was void in so far as he was not personally served with the writ of summons. Counsel bases his submission on the provisions of the Courts Ordinance, Cap. 4 (1951 Rev.), Sched. II, Order 10, r. 1 which reads: "The writ or document shall be served on every defendant within the time and in the manner directed by the Court."
[p.77]
Counsel contends that without any direction to the contrary there should be personal service, and that the service through the second defendant amounted to substituted service, which can only be valid service, if so directed by the court. If counsel is right it follows that the judgment was invalid.
Counsel for the respondent in substance contends that on the true construction of Order 10, rr. 1 to 13 only the mode of service on particular defendants are provided for; and as rule 1, which applies to the defendant, does not direct personal service, it is adequate service if the defendant in fact had actual notice of the writ.
In my opinion although Order 10, r. 1 does not specifically mention personal service, as rules 2 to 13 direct specific mode of service on particular defendants, service on a defendant not within rules 2 to 13 falls under rule 1. Since rules 2 to 13 made provisions for dispensing with personal service, I think service under rule 1 is intended to be personal service unless otherwise ordered by the court. This interpretation seems to me to accord with the p
AI Generated Summary
This appeal concerns whether a default judgment for a5900 from the District Court Grade I, Kumasi, could stand where the writ of summons was left with co-defendant Juamina for delivery to his brother, Kwaku Poku. The bailiff testified he served "through Juamina" because Poku was on the farm, and the trial court later found Poku had actual notice. On appeal, Poku argued the judgment was void for lack of personal service under the Courts Ordinance Order 10 rule 1. Mensa Boison J interpreted the rules to require personal service for defendants not covered by specific modes, and, by reference to the Supreme (High) Court Rules and Jowitts definitions, treated service via a co-defendant as substituted service requiring court direction. Citing Re Tuck and Brakowaah v. Awuakyewah, the court held actual notice did not cure improper service, declared the proceedings against Poku null, allowed the appeal with costs, and permitted re-service.