IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2017
JONATHAN NORTEY SOWAH - (Plaintiff/Respondent)
LANDS COMMISSION & 51 ORS. - (Defendants) MARY OSAFO-NOWACKI - (10TH Defendant/Appellant)
DATE: 3RD MAY, 2017
CIVIL APPEAL NO: H1/12/2017
JUDGES: ADJEI J.A. (PRESIDING), SOWAH J.A. , MENSAH J.A.
MIRACLE ATTACHEY FOR 10TH DEFENDANT/APPELLANT
R. O SOLOMON FOR PLAINTIFF/RESPONDENT
This is an appeal by the 10th defendant/appellant [hereafter referred to simply as the ‘appellant’] against the ruling of the High Court, Koforidua, dated the 13th March 2015. By the ruling, the trial court dismissed the appellant’s application to set aside the writ of summons and statement of claim as it relates to her.
The sole ground of appeal in the notice of appeal filed on the 25th March, 2016, states that:
The trial judge erred in law when he dismissed the appellant’s application to set aside and dismiss the writ of summons and statement of claim against her in the face of the evidence on the record of appeal that at the time the writ of summons and statement of claim was issued, the appellant was not resident within the jurisdiction of the Court.
The appellant had indicated that other grounds would be filed upon receipt of the record of appeal but did not file any further grounds.
By their respective written submissions, varying arguments have been presented for and against the ruling by the appellant and respondent respectively. The issues raised thereby to be dealt with in this appeal are the following:
(1) When was the writ of summons and statement of claim issued and when were they served on the appellant?
(2) Was the appellant in the jurisdiction of the Ghanaian Courts when the processes were purportedly served?
(3) Whether the plaintiff/respondent violated Order 2 rule 7(5) and Order 8 rule 1 (1) of C.I 47 and consequently the writ of summons and statement of claim or service thereof should be set aside for non-compliance?
On the first issue of the correct date of issue of the writ of summons and statement of claim, the appellant contends in the written submission filed on the 16th December 2016 that the writ of summons was issued against her on the 12th of December, 2014. She maintains that she was not resident in Ghana at this time
The appellant further contends that she filed a motion to set aside the Writ of Summons because a writ meant for service on a person who is not a Ghanaian resident could not be served by substituted service as was done by the Respondent.
In response, counsel for the respondent contends that the correct date when the writ of summons was issued was 12th December 2008, and not 12 December 2014. It is contended that by the 12th December 2008, the appellant was within the jurisdiction of the Court. He comes to this conclusion on the basis of the appellants’ affidavit that she came to Ghana in June 2008, but she did not show when she had returned to Germany.
I find at pages 1-13, Volume 2 of the record of appeal that the writ of summons was issued on the 12th December 2008, and an amended writ was issued on the 17 February 2014, pursuant to an order of the court dated 13 February 2014.
Having established the correct date on which the writ of summons was filed, the second core issue to establish is whether or not the appellant was in the jurisdiction when the writ was originally issued and purportedly served?
Needless to say, evidentiary principles would place the onus squarely on the appellant to prove her assertion that she had been in the country in June 2008 but was not in the country when the writ was issued.
I agree with the appellant that if a document is required to be served personally on any person, it cannot be served by substituted service if the person to be served is not present in the jurisdiction to the knowledge of the applicant.
To demonstrate that she was not in the jurisdiction in 2008 when the writ was issued, the appellant exhibited several documents to her application [see pages 244-255 of the record]. However, apart from the fact that most of those documents were in a foreign language which had not been translated as she was required to do as the party seeking to rely on them, the evidence does not establish when she returned to Germany.
As it did not appear to be in dispute that the appellant is Ghanaian, it was necessary to establish clearly her claim that she was not ordinarily resident in the jurisdiction and was not present in the jurisdiction at the crucial time of the issue of the writ of summons.
The affidavit evidence she adduced does not sufficiently prove that she had left the jurisdiction at the time the writ was issued.
Nonetheless the Rules of court must be examined to determine whether the respondent violated Order 2 rule 7(5) and Order 8 rule 1 (1) of C.I 47 and as a consequence the writ of summons and statement of claim or service thereof should be set aside for non-compliance?
Order 2 rule 7(5) provides:
(5) No writ, notice of which is to be served out of the jurisdiction, shall be issued without leave of the Court as provided in order 8.
And Order 8 rule 1 provides as follows:
(1) No writ shall be served out of the jurisdiction.
(2) Notwithstanding sub rule (1), notice of a writ as in Form 3 in the Schedule may be served out of the jurisdiction with leave of the Court.
The appellant contends that by Order 2 rule 7 (5) of the High Court Civil Procedure Rules, 2004 C.I. 47, the respondent needed the leave of the High Court to issue the writ of summons intended to be served on her as a non-resident person.
That indeed is the position of the law. Order 2 rule 7(5) read together with Order 8 rule 1 (1) of CI 47 prohibits the issue of writs for service out of the jurisdiction, as to do so will be to breach the law on state sovereignty. Leave of the court has to be sought prior the issue of such writ, and only Notice of the writ may be served outside the jurisdiction.
Having established that a writ requires the leave of Court if notice of it is intended to be served outside the jurisdiction, the next question is whether the respondent intended to serve the writ on the appellant outside the jurisdiction? What is the nature of the evidence required to establish such intention?
Lokko vs. Lokko  2 GLR 184 CA, dealt with this requirement under Order 2 rule 4 of the High Court, (Civil Procedure) Rules, 1954 LN 140A, the equivalent of Order 2 rule 7 (5) of C.I 47.
The facts of that case were that the parties had a dispute over a piece of land. The defendant/respondent was resident in the United States at the time the plaintiff/appellant issued the writ of summons against her. In spite of the fact that the respondent had a foreign address, the appellant issued the writ without the leave of the court to serve the writ out of the jurisdiction. The respondent, however, by her solicitors, entered appearance without protest, and filed a statement of defence. Later however, the respondent questioned the competence of the writ. The trial court ruled that as the writ to be served outside the jurisdiction was issued without leave contrary to Order 2, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A), it lacked validity and accordingly declared it a nullity and set it aside. On appeal, the appeal was allowed. The Court of Appeal, speaking through Ofori Boateng JA (as he then was) held that a writ of summons intended for service out of the jurisdiction if issued without leave, would be a violation of Order 2, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A). Such a fundamental error would result in the writ being declared null and void and it could not be saved by Order 70, rules 1 and 2. However, if the writ of summons was not intended for service out of the jurisdiction, then Order 2, r. 4 of L.N. 140A did not apply.
The courts view was that if the defendant had a foreign address, it was a strong indication that the writ of summons was intended for service out of the jurisdiction. But a foreign address per se was not a conclusive indication that the writ would be served outside the jurisdiction.
I think I could add to this by saying that if the plaintiff served or made any attempt to serve the writ on a defendant out of the jurisdiction, that intention would have been manifestly shown.
In the present case on appeal, both the original and the amended writ of summons issued by the respondent (at pages 139 and 166 of Volume 2, of the record of appeal) do not disclose the address of the appellant as required by the rules.
Indeed, the respondent averred at paragraph 4 of the affidavit in support of the ex parte motion for substituted service filed on the 26th November 2013 (at page 66 and 67 of Volume 2 of the record of appeal) that he did not know the address of most of the several defendants in the suit, including the 10th defendant/appellant.
As the respondent did not know of the address of the defendants for personal service, it made sense for him to presume, considering that this was an action relating to immovable property situate in Ghana that the appellant was resident in Ghana for the purposes of the writ.
No foreign address was indicated on the writ which would have strongly indicated that the writ was intended for service on the appellant at a place outside the jurisdiction, nor had the respondent tried to serve the appellant in Germany, her alleged place of residence.
Besides, the appellant did not show any evidence to the effect that the respondent had knowledge that she was not resident in Ghana,
Being an action relating to immovable property in Ghana, and in the circumstances where the appellants’ address was not known to the respondent, substituted service remained the only viable option.
I will now briefly discuss the appellants’ contention that the writ of summons and statement of claim should be set aside on the basis of non-compliance with the rules of service.
As a first consideration, it is clear from Order 9 rule 8 that there is a distinction between setting aside a writ and setting aside service of the writ.
Having regard to the facts of this case, we find the writ of summons as filed to be competent. The plaintiff/respondent had capacity to pursue his claim; the writ did not lack validity as it was not intended for service out of the jurisdiction, nor was any attempt made to serve it out of the jurisdiction thus requiring prior leave of the court. As held in Lokko vs. Lokko (supra), if the writ of summons is not intended for service out of the jurisdiction then the order does not apply; in other words, no leave need be obtained before the writ is issued and served within the jurisdiction. Therefore, the fact that the writ was issued without leave, does not violate Orders 2 rule 7(5) and 8 rule 1 (1) of the High Court (Civil Procedure) Rules 2004, C.I 47. Lokko vs. Lokko (supra) applied.
As to setting aside service of the writ on the appellant, as already noted, the appellant was unable to demonstrate that she was not in the country when the writ was issued. The only viable option for the respondent in the circumstances was to seek leave of the court and effect service by substituted service through posting on the property in dispute. And indeed the intended purpose which was to bring the suit to the notice of the appellant was achieved. We do not find any irregularity to warrant setting aside its service.
In conclusion we find no merit in the appeal which is hereby accordingly dismissed.