Dakar Ltd v. Industrial Chemical & Pharmaceutical Company Ltd [1981] GLR 453

Material Facts:

The plaintiff instituted an action against the defendant company, a limited liability company to recover an unpaid amount. According to the plaintiff, attempts were made to serve the defendant with a copy of the writ by visiting the registered office of the company. However, the service was unsuccessful because employees of the defendant company informed the plaintiff that there was no manager or person in authority to receive the writ. The plaintiffs believe that they have made all reasonable and practical efforts to serve the defendant company, but have been unable to do so.

By this ex parte motion, they are praying the court for an order of substituted service of the writ to be made by advertisement in the Daily Graphic.

Issue:

1. Whether or not service of a company is regulated under the rules of court.

2. Whether or not substituted service can be ordered in respect of a company with a registered office?

Holding:

1. Service of a company with a registered office is to be done pursuant to the rules in the Companies Act, 1963 (Act 179) (now Act 992), and not under the rules of court.

2. Substituted service will not be ordered against a company with a registered office.

Ratio Decidendi:

There are existing statutory provisions regulating the service of process on a company. Under the High Court (Civil Procedure) Rules, 1954 (L. N. 140A), Order 9 Rule 8(2) provides that:

In the absence of any statutory provision regulating service on a company carrying on business in the Gold Coast or on any society or fellowship in the Gold Coast whether corporate or incorporate , service may be effected, by sending the writ or other document to be served, by prepaid registered post to the secretary or other corresponding officer at the head office in the Gold Coast of such company, society or fellowship, as the case may be, or by serving the writ or document on such secretary or corresponding officer personally of such office as aforesaid.

However, this rule is now obsolete because Section 263 of the Companies Act, 1963 (Act 179) makes provisions for service of documents on a company. It for instance provides that

A document may be served on a company by leaving it at, or sending it by post to, the registered office of the company, or the latest office registered by the Registrar as the registered address of the company.

These statutory provisions will govern the service of a company, not the rules of court contained in the High Court (Civil Procedure) Rules, 1954 (L. N. 140A).

On the second issue, the courts have held that substituted service can only be ordered in cases where personal service could be had if there were no difficulties on the way ; thus, substituted service is only ordered after an attempt at personal service fails. The court delivered itself as follows:

Be that as it may, in the normal run of cases and within the experience of the common law courts, substituted service is only resorted to on failure of personal service. No doubt Lord Reading C.J. had that in mind when in reading the judgment of a strongly constituted Court of Appeal in Porter v. Freudenberg [1915] 1 K.B. 857 at p. 888 he said:

“In order that substituted service may be permitted, it must be clearly shown that the plaintiff is in fact unable to effect personal service and that the writ is likely to reach the defendant or to come to his knowledge if the method of substituted service which is asked for by the plaintiff is adopted.”

In this application for substituted service, which is being made to this court, the plaintiffs’ solicitor made it clear that he knew the registered office of the company. In such a case the statutory mode of service is as is indicated in section 263 (1) of the Companies Code, 1963 (Act 179). This mode was not shown to have been used by the plaintiffs and it is therefore difficult to appreciate the reasons why another mode of service is sought to be substituted for this statutory mode.

In the present case, personal service cannot be effected because personal service is “service on the person of the defendant” and not service on dehumanised artificial entities like governments or companies. However, Act 179 has provided the means of service of a company, which includes post. Given this statutory provision on the mode of service on companies other than personal service, the court is of the opinion that “prima facie there will be no jurisdiction to order substituted service in terms of Order 10, r. 1.”

His lordship quickly added that where a company has no registered office and where the directors and members endeavour to evade service, a court may consider substituted service as an appropriate mode of effecting service where personal service cannot be effected on the directors and members. In these situations, the accompanying affidavit must indicate:

1. That there is no registered office

2. That the directors are evading service or cannot be traced for personal service.

Principles in Case:

1. Meaning of personal service: “Service on the person of the defendant.”

2. Service on company: This is governed by the Companies Act, 2019 (Act 992).

3. Substituted service is only ordered after the failure of personal service.