Substituted Service of a Process

Introduction:

This note will discuss substituted service as one of the modes of serving a process. In doing so, the note will discuss the meaning of substituted service, the modes of substituted service, the conditions that must be fulfilled before the court orders substituted service, and how to obtain an order for substituted service.

Meaning of Substituted Service:

Per the Black’s Law Dictionary, substituted service is:

Any method of service allowed by law in place of personal service, such as service by mail. - Also termed constructive service.

In the recent case of Ankomah-Nimfah v. Quayson & 2 Ors [2022] GHASC 24 (5 April 2022) , the Supreme Court of Ghana, speaking through Torkornoo JSC, characterised substituted service as follows:

Substituted service is allowed if a document that is required to be served personally on any person cannot be effected because of failure in attempts to serve them; or because it is impracticable to serve the court process personally.

Marful Sau, in A Practical Guide to Civil Procedure in Ghana, substituted service is:

When the court, on application, dispenses with personal service of court processes or documents. [p. 37]

Summarily, substituted service is a mode of bringing a court process to the attention of a party otherwise than by personal service.

Conditions to Satisfy before Applying for Substituted Service:

In Order 7 Rule 6 (1) of the High Court Civil Procedure Rules, 2004 (C.I. 47) , one of two conditions must be fulfilled before the court will make an order for substituted service. These are:

1. That 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 [meaning this condition or the second condition]
2. That it is otherwise impracticable for any reason to serve the document personally.

If personal service of a process such as a writ is possible, the court will not order personal service. In the case of Dakar Ltd v. Industrial Chemical & Pharmaceutical Company Ltd [1981] GLR 453 , the plaintiff instituted an action against the defendant company. It argued that when it made attempts to serve the defendant with the writ, employees of the defendant company told them there was no manger or person in authority to receive the writ. They therefore prayed the court for an order of substituted service to be made.

The court noted that personal service of a process on a company can be effected by sending the process by post to the registered office of the company. Since the plaintiff could effect personal service by posting the writ to the office, the court will not order substituted service. In the opinion of the court:

The jurisdiction to order substituted service therefore depends on failure of the prescribed process of personal service in the circumstance:

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.

Also see the case of Bawa v. Oyegoke [1989-90]2 GLR 412.

Modes of Substituted Service or Ways of Effecting Substituted Service:

In ordering substituted service, per Order 7 Rule (6)(4) , the court may direct that service be done through any of the following modes/means:

1. By serving the document in accordance with Order 7 Rule 4. Said rule 4provides the following modes of service:
2. Leaving the document at the proper address of the person to be served.
3. Sending the document to registered post bearing a return address and addressed to the person to be served at the address of the person;
4. Delivery to agent:“Delivery of the document to the agent of the person to be served or some other person if there is reasonable ground to believe that the document will through that person, come to the knowledge of the person to be served;”
5. Sending via post:“By sending the document by registered post, addressed to the person to be served at an address to be specified in the affidavit made under rule 9 (2) at which there is reasonable ground to believe that it will reach the person.”
6. Notice at the court or public place:“By notice put up at the Court or some other public place in the Region in which the cause or matter is commenced or at the usual or last known place of residence or business of the person to be served;”
7. Advertisement:“By advertisement in the media within the jurisdiction of the Court.”

Once the court direct a particular mode or way of effecting substituted service, substituted service must be effected in the way directed by the court. In Order 7 Rule 6(3), it is provided that:

Substituted service of a document in relation to which an order is made under this rule, is effected by taking such steps as the Court may direct to bring the document to the notice of the person to be served.

In the recent case of Antwi v. Appiahen [2023] GHASC 24 (18 May 2023) , the Supreme Court, in commenting on this provision, stated that:

Where an order for substituted service is therefore made by a court, the party ordered to effect the substituted service ought to serve the process in strict compliance with the order made by the court.

Thus, if the court orders that substituted service should be effected through an advertisement, a party cannot decide to effect substituted service by giving the document to an agent.

How to Obtain an Order for Substituted Service:

Follow the following steps to obtain an order for substituted service:

1. Make sure that you satisfy at least one of conditions under which the court will order substituted service. This is required by Order 7 Rule 6(1).
2. Make an application ex partefor an order for substituted service. This is provided for in Order 7 Rule 6(2). Without making an application to the court for an order of substituted service, substituted service of a document that ought to be served personally will be set aside. In the case of Poku v. Kwabena [1972] 2 GLR 75-78 , the respondent instituted an action against the appellant and obtained judgement in their absence. The appellant, on appeal, argued that he was not personally served with the writ of summons. The trial judge held that the appellant had actual notice of the writ when it was served by substituted service. The appellant appealed where the service was set aside and the court advanced that:

As there was no direction from the trial court that substituted service be employed it follows that the service was invalid, and could not initiate the proceedings that took place before the trial court as far as the appellant was concerned.

The fact that the appellant had actual notice of the writ does not amount to service so to speak, to dispense with personal service.

3. The application must be supported by an affidavit stating the facts on which the application is founded . The facts on which the application is founded is any of the conditions under Rule 6 (1) supra.