IN THE MATTER OF THE REPUBLIC vs MRS. VIVIAN AKU BROWN AND 9 OTHERS;EX PARTE ODWUMA LAKES FARMS AND RURAL ESTATES AND ANOTHER (APPLICANTS)
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2018
IN THE MATTER OF THE REPUBLIC
MRS. VIVIAN AKU BROWN AND 9 OTHERS -(Respondent)
EX PARTE ODWUMA LAKES FARMS AND RURAL ESTATES AND ANOTHER - (Applicants)

DATE:  6TH FEBRUARY, 2018
CIVIL APPLICATION NO:  H3/453/2018
JUDGES:  F.G. KORBIEH J.A. (PRESIDING), BARBARA ACKAH-YENSU (MISS) J.A., H. KWOFIE J.A.
LAWYERS: 
JUDGMENT

F.G. KORBIEH, J.A

On the 10/5/2017, the applicants herein filed an application praying this Court to commit the respondents to prison terms for contempt of court citing various breaches of orders of the Court the respondents had committed. The application could not be moved on the return date for reasons of non-service on the respondents and the case continued to be adjourned until the 20/11/2017 when the 1st, 2nd and 4th respondents filed a notice of their intention to raise a preliminary legal objection to the application altogether. They intimated that the jurisdiction of the Court to entertain the application to commit them for contempt of court had not been properly invoked. On the 16/1/2018, this Court heard the argument for and against the notice filed by the1st, 2nd and 4th respondents. Their lawyer, Alfred Agyei-Mensah, Esq., argued as follows: the applicants have failed to invoke the jurisdiction of the Court to entertain the application to commit the 1st, 2nd and 4th respondents for contempt of court because the posting of the notices as ordered in the order for substituted service was not posted on the residences where the three respondents reside but elsewhere. Counsel referred to article 19(3) of the Constitution which provides that the trial of a person charged with a criminal offence shall take place in his presence after he has been duly notified of the trial, among other things.

 

He also cited the case of Barclays Bank of Ghana Ltd. v Ghana Cable Co. Ltd. and Others [1998-99] SCGLR which decided that proceedings against a party are deemed to commence only after service on the party or notice on that party. The preliminary legal objection was opposed by counsel for the applicants in the person of Baffour Assasie Gyimah, Esq. who contended that even though personal service is required in contempt cases, substituted service is permissible under Order 7 of the High Court Civil (Procedure Rules), 2004 (C.I.47) and that he had obtained an order for substituted service on the 20/6/2017 to serve the respondents by substituted service. Curiously he cited the case of the Republic v. High Court (Commercial Division) Accra; Ex Parte Millicom Ghana Ltd. & Others (Superphone Co Ltd. Interested Party) [2009] SCGLR 41 (holding 1) in which the Supreme Court held that proceedings in an application for contempt could not commence until the court has satisfied itself that the respondents to the application had been personally so served. He however went on to point out that having obtained an order for substituted service, the applicants had effected service by posting notices at House No. 60 F/1, Osu Accra, where the 1st respondent resides and also at the Adutso Family Land Office at Abokobi near the Fish Pond as directed in the order for substituted service.

 

In our considered estimation of the issue under consideration, we are not being called upon to decide on the legal issue whether or not this Court’s jurisdiction has been properly invoked because personal service had not been effected on the 1st, 2nd and 4th respondents. Both counsel for the 1st, 2nd and 4th respondents and the applicants spent quite some time and energy trying to convince us that personal service is a sine qua non in any case of contempt proceedings. That is trite law and cases such as Barclays Bank of Ghana Ltd. v Ghana Cable Co. Ltd. and Others (supra) and Republic v. High Court (Commercial Division) Accra; Ex Parte Millicom Ghana Ltd. & Others (Superphone Co Ltd. Interested Party) (supra) attest to that. In the case before us, going by the facts, the case has gone beyond the question of personal service and we are dealing with the issue whether or not the applicants, having obtained an order for substituted service; did indeed effect the substituted service properly and in accordance with the law.

 

Whereas it was the contention of counsel for 1st, 2nd and 4th respondents that the applicants failed to effect proper service by failing to post the notices on the respective places of abode or residences of the 1st, 2nd and 4th respondents, counsel for the applicants argued that in so far as copies of the notices had been left at Adutso Family Land Office at Abokobi near the Fish Pond as directed in the order for substituted service, this amounted to proper service. In all the cases where contempt is in issue, the courts have always been concerned that because contempt is a quasi-criminal matter that may end up by taking away the liberty of the individual, it must be treated with extreme care, thus the insistence that a person facing contempt proceedings in court be served personally. But the law also recognizes that personal service is not always possible in every single situation hence the provision in Order 7 rule 6 of C.I. 47 for substituted service. The applicants took advantage of this rule and obtained an order under which they proceeded to serve the 1st, 2nd and 4th respondents. Since counsel for the applicant repeatedly referred to the order for substituted service during his submissions, we asked him to produce the order to us for our perusal which he did by filing the same at the Court of Appeal registry on the 22/1/2018. In the said order the 1st to 9th respondents were ordered to be served by substituted service in the following manner:

 

a. Copies to be left in the Adutso Family House No. 60.1 Osu

 

b. A copy to be pasted on the walls of the Adutso Family House.

 

c. A copy to be pasted at the Family Office at Abokobi.

 

d. Copies for service to be left at the Adutso Family Land Office at Abokobi near Fish Pond where all nine respondents go to work or visit regularly.

 

e. Copy to be pasted on the Court of Appeal Notice Board, Accra.

 

What we have to do, as a court, is to look at the legal effect of substituted service in general. And we shall do so by looking at the meaning of substituted service. Black’s Law Dictionary (10th Edition) defines “substituted service” as “Any method of service allowed by law in place of personal service, such as service by mail – Also termed constructive service.” The present application is premised on the fact that the respondents have not been served at all hence this Court’s jurisdiction has not been properly invoked or at all. But in his submissions before this Court, counsel for the respondents never denied that the applicants had obtained an order for substituted service. Indeed in contending that the applicants only left copies for service at the Adutso Family Land Office at Abokobi near Fish Pond, he tacitly conceded that the applicants had indeed obtained an order for substituted service.

 

He therefore conceded that the respondents had been served albeit improperly. But we think it is premature or too early in the day to come to that conclusion because a careful reading of paragraph (d) of the order for substituted service talks of “the Adutso Family Land Office at Abokobi near Fish Pond where all nine respondents go to work or visit regularly.” Once there is indisputable evidence on the record that service was effected at that place by substituted service, there is at least prima facie evidence that service was effected on the 1st, 2nd and 4th respondents since they are presumed to be some of the nine respondents who go to work or visit regularly at the Adutso Family Land Office at Abokobi near Fish Pond. We must reiterate that in this case personal service has been dispensed with and so the cases cited above, namely Barclays Bank of Ghana Ltd. v Ghana Cable Co. Ltd. and Others (supra) and Republic v. High Court (Commercial Division) Accra; Ex Parte Millicom Ghana Ltd. & Others (Superphone Co Ltd. Interested Party) (supra), are inapplicable here. It is also on record that on the 15/1/2018, the 1st, 2nd and 4th respondents filed their respective affidavits in opposition to the applicants’ motion for order of attachment/committal for contempt. We cannot close our eyes to these processes which are on the docket. We therefore hasten to say that in the case of Barclays Bank of Ghana Ltd. v Ghana Cable Co. Ltd. and Others (supra) this is what Atuguba, JSC said at page 22:

 

“I agree that the appeal be dismissed. However, in State v. Asantehene’s Divisional Court B1; Ex Parte Kusada [1963] GLR 238, SC, it was held that the object of service is merely to bring to the notice of an affected party the institution or pendency of court proceedings. If, therefore, a party, without actual service, nonetheless, pursuant to some notice of them, deliberately participates in the unserved proceedings, he should be bound by them.”

 

This is precisely what the 1st, 2nd and 4th respondents have done and are therefore bound by these proceedings. We accordingly hold that the Court’s jurisdiction has been properly invoked. The preliminary legal objection raised by the 1st, 2nd and 4th respondents is hereby dismissed.

 

 

 

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