IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
GEORGE KOFI BOATENG - (Plaintiff)
NEW PATRIOTIC PARTY - (Defendant)
DATE: 18 TH JUNE 2018
SUIT NO: E12142/2018
JUDGES: ERIC B A AH JUSTICE OF THE HIGH COURT
EMILE ATSU AGBAKPE FOR PLAINTIFF/RESPONDENT
ERNEST YAO GAEWU FOR DEFENDANT/APPLICANT
I am compelled by this application to determine the nature and effect of a bailiff's proof of service in pursuance of Order 7 r 1, C.I. 47 and whether a political party; by reason of being a body corporate under the Political Parties Act, 2000, Act 574, is qua a company or corporation and therefore amenable to the provisions of section 263 of the Company's Act, 1963, Act 179. I will determine the office and officials of a political party upon which and whom processes can be served and consider whether an administrator at a regional office of a party is one such person. I will also consider whether a court process can validly be served on the regional office of the party; instead of at the head office. I will finally determine the nature and effect of non-compliance with the provisions on service of court processes and whether they apply to this case.
The Defendant/Applicant's (hereafter Applicant) motion on notice dated 18 May 2018 prays the court for an order setting aside service of the Plaintiff/Respondent's (hereafter Respondent) writ of summons filed on 17 April, 2018, motion ex-parte for interlocutory injunction and the order of interlocutory injunction granted by this court on 20 April, 2018. The Applicant relied on the depositions in the attached affidavit and a supplementary affidavit dated 21 May 2018, as well as the annexures. The Respondent opposed the application based on the depositions in the affidavit in opposition filed on 24 May 2018.
By the combined effect of the depositions in their affidavits, annexures and the submissions of their counsel, the case of the Applicant is that:
a. The Applicant was not served the writ of summons and the motion ex parte for interlocutory injunction, for the person on whom it was allegedly served; Charles Gadator, is not known to the Applicant, is not the administrator as alleged on the certificate of service and is not a proper officer legally mandated by the law or the Applicant to receive court processes on its behalf.
b. The persons in leadership of the Applicant are members of the executive including the following individuals;
Nana Addo Dankwa Akuffo-Addo - President of the Republic of Ghana
Freddy Blay -acting chairman
John Boadu - acting general secretary
Abankwa Yeboah - treasurer
Sammy-Awuku - youth organizer
Applicant's counsel referred the court to the definition of "executive officers" in section 33 of the Political Parties Act, 2000, Act 574.
c. The Applicant's registered or head office is at ATTC, Kokomlemle, Accra, and that is where it conducts all its affairs. Applicant's counsel contended that per the Political Parties Act, 2000, Act 574, section 4(3), the Applicant is a body corporate and all legal processes ought to be served at its registered office or head office.
That was because service of documents was to be effected in accordance with section 263 of the Companies Act, 1963, Act 179.
d. Where a statute establishes a condition to be satisfied before a court can assume jurisdiction, failure to comply with the condition deprives the court the right to assume jurisdiction and to make any order(s).
Applicant's counsel cited: Heward Mills v Heward-Mills (1992-93] GBR 239;  1 GLR 153; Zoomlion Ghana Ltd (No3) v Merkworld Co Ltd [2013-14] 1 SCGLR 233 at 326. Counsel contended that the writ of summons and the motion ex parte for interlocutory injunction having not been served properly on the Applicant or at all, the order for interlocutory injunction made by the court on 20 April, 2018, was null and void, and the Applicant is entitled; ex debito justiciae, to have it set aside. Further to that, he argued that the court's order dated 19 April, 2018, that copies of the writ, motion ex parte and a hearing notice be served on the Applicant was not served on the Applicant according to statute, and that rendered any subsequent order made thereupon null and void.
He relied on Anlabi v Trastorious (1880) 20 QB 764; Craig v Kansen (1943) 1 KB 256, Amoa Ben v Badu 3 WLR 214 and Mosi v Bagyina (1963] 1GLR337 e. The Respondent; based on the order of interlocutory injunction which Applicant considers void for having not been properly procured, is seeking to injunct certain elected officials of the Applicant from performing their duties. Further, the Respondent has cited certain officials of the Applicant for contempt of court, and that is more reason why the bona fides of the order ought to be investigated for it to be set aside. Applicant's counsel prayed the court to set aside the service of the writ of summons, the motion ex parte for interlocutory injunction and the order for interlocutory injunction, as being void.
The Respondent's defence; as discerned from the depositions in the affidavit in opposition and the submissions of his counsel is as follows:
That it is not accurate that legal processes can only be served at the national headquarters of the Applicant. According to Respondent's counsel, such a process could be served on a member of the executive committee, which includes regional chairpersons or their representatives. That was because, regional representatives form part of the national council of the party. He relied on article 9 of Applicant's constitution.
That each region has a regional executive committee, as provided by article 7 and is required to have regional executive officers. That the regional office in Ho is an agent of the head office in Accra since the business of the party are carried out through regional offices. Service on the regional office was accordingly, as good as service on the head office.
That per section 263 (3) of the Companies Act, service on a member of the company is good service. Accordingly, service on the administrator Charles Gadator; who was appointed by the regional executive, was good service.
That the order of interlocutory injunction elapsed after 10 days, and can therefore not be set aside.
In the Respondent's view, the application has been brought to forestall punishment for contempt. His counsel prayed the court to dismiss it.
BRIEF HISTORY OF THE CASE
Order 7 r 1, C.I. 47, identifies bailiffs of the court or a process server registered with the court, as the proper persons to effect service of a court process. A perusal of the record did not reveal that the Respondent's writ of summons and motion ex parte for interlocutory injunction had been served on the Applicant on the motion's return date of 19 April, 2018. That explains why the court ordered on 19 April, 2018, that the said processes; together with a hearing notice, be served on the Applicant. On the same 19 April 2018, a bailiff attached to this court named Jacob Amadah filed a certificate in proof of service of the processes on the Applicant, through one Charles Gadotor, identified as the administrator of the Applicant at Ho. The Applicant disputes that the said Charles Gadator is its administrator and secondly contends that the said service was wrong; not having been effected at the head office and on the recognised officials. The bailiff's affidavit of service is prima facie evidence of the service per Order 7 r 9(3) However, where a party alleges that he was not served served or at all, a need to conduct an inquiry arises, and the bailiff's certificate of service is not adequate or conclusive. See: Brakowaah v Awuakyewaah and Gyasi  1 GLR 164, SC. That was because service of a process is fundamental and goes to jurisdiction. Even though Respondent's application for injunction was ex parte, once the court directed that it should be served on the Applicant, that order was required to be complied with. In Republic v High Court, Accra; Ex parte Salloum & Ors (Senyo Coker Interested Party)  1 SCGLR 574, it was held holding (2)
“The majority of the court would hold that in motions mounted ex parte, the utmost good faith was required of the applicant. And it has been the practice, backed by the provisions in Order 19 r 1(4) of C.I. 47, that even if an application was ex parte and the court was of the view that it had to be on notice, the court should order for a copy of the motion to be served on the affected party even though the application had been sought ex parte."
EFFECT OF FAILURE TO SERVE PROCESS - COURT CAN'T ASSUME JURISDICTION
In Barclays Bank of Ghana Ltd v Ghana Cable Co Ltd & Ors [1998 - 1999] SCGLR 1, it was held inter alia (holding 1):
"A court has generally no jurisdiction to proceed against a party who has not been served. Accordingly when a defendant complains that he has not been served with a writ of summons or any process which requires his personal service, the court is duty-bound to examine the complaint thoroughly and make a definitive finding irrespective of whether there is proof of service or entry of appearance on behalf of the defendant.”
MODE OF SERVICE
The mode of service of a process depends on the nature of the proceedings and the party involved. Where service should be on a person, that person should be served personally as provided by Order 7 r 2-4. There are however special modes of service on certain bodies, including body corporates. The Applicant is a body corporate.
Section 4(3) of the Political Parties Act 2000, Act 574 provides:
"A political party shall upon registration under this Act shall be a body corporate with perpetual succession and a common seal, may sue and be sued in its corporate name, and shall have the power to acquire, hold, manage or dispose of movable or immovable property and enter into any contract or other transaction as any legal person.
Order 7 r 5(1) provides for service of processes on corporate persons. It states:
"Service of a document on a body corporate may, in cases for which provision is not made by any enactment, be effected by serving it on the chairman, president, or other head of the body, or on the managing director, secretary, treasurer or other similar officer of it."
The law accordingly is that, where a statute provides for a specific mode of service, it is that mode that should be deployed for service. Applicant's counsel's submission to that effect was therefore accurate. It was accordingly held in Ghana Commercial Bank v Tabury (1777] 1 GLR 329 per Sarkodie J, inter alia (holding 2):
"Order 9 r 8 of LN 140A (dealing with service on corporations) drew a distinction between cases where a statute provided modes of service and where it did not so provide. All statutory modes of service must be strictly adhered to....
It was common cause for counsel on both sides that service on the Applicant was to be effected under the Companies Act 1963 Act 179. They specifically mentioned section 263 as applicable to this case, I beg to disagree with counsel on both sides. The fact that a political party is a body corporate did not make it a company or corporation in the strict sense. Whereas all companies or corporations are body corporates, not all body corporates are companies or corporations in the true and strict sense. The types of companies that can be formed in Ghana are categorized in section 9 of Act 179. They may be public or private; with limited or unlimited liability. The members of a company limited by shares hold shares but other companies are limited by guarantee. Excepting companies limited by guarantee which are prohibited from carrying on business for profit, the raison d'etre for the existence of companies is to engage in business for profit. Not so for political parties. Per section 1(3) of the Political Parties Act, 574 (2000):
“A political party may subject to the constitution and this Act, participate in shaping the political will of the people, disseminate information on political ideas, social and economic programmes of a national character and sponsor candidates for public elections other than elections to District Assemblies or lower government units.”
A political party accordingly issues no shares and are also not limited by guarantee. Whereas political parties are registered by the Electoral Commission under section 4 of Act 574, companies are registered under section 14 of the Companies Act by the submission of the proposed regulations to the Registrar of companies at the Registrar-Generals Department Political parties are winded up under section 31 of Act 574 on an application by the Electoral Commission to the High Court whiles companies are winded up under section 246 of Act 179, which has procedures radically different from that of the winding up of political parties.
Accordingly, the Black's Law Dictionary (9 ed. 391) defines a body corporate, company or corporation as:
"An entity, (usually a business) having authority under law to act as a single person distinct from the shareholders who own it and having rights to issue stock and exist indefinitely; a group or succession of persons established in accordance with legal rules into a legal or juristic person that has a legal personality distinct from the natural persons who make it up, exists indefinitely apart from them, and has the legal powers that its constitution gives it." (Emphasis mine).
The second meaning in the above definition it the one that applies to political parties. It is my humble view that the classification of political parties as bodies' corporates did not make them qua companies or corporation to make them amenable to the Companies Act. In the circumstances, the legislative provision covering service of processes on the Applicant is Order 7 r 5(1), C.I. 47 and not section 263 of Act 179.
WHETHER CHARLES GADATOR IS AN ADMINISTRATOR OF THE APPLICANT
I will begin this inquiry by examining the bona fides of the proof of service. The certificate of proof of service indicates that the processes were served one Charles Gadator, an administrator of the Applicant, at Ho. The Applicant denies that it has an administrator of that name. The Respondent insisted that the said person is an administrator, appointed by the regional executive in this region. I have the oath of the Applicant against the oath of the Respondent. In such circumstances, the rules of evidence have clear criteria for the inquiry that will determine the truth. In law, he who alleges assumes the burden of proof. It was accordingly held in Owusu v Tabiri (1987 – 88] 1 GLR 287, holding 1:
"It was trite principle of law that he who asserts must prove and must win his case on the strength of his own case and not on the weakness of the defence..."
In ZABRAMA V SEGBEDZI  2 GLR 223, the Court of Appeal expatiated:
"The correct proposition is that, a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden."
The Respondent who asserted that Charles Gadator is an administrator of the Applicant, assumed the primary burden of proving what he asserted. It was only after he had placed some evidence before the court; which if not rebutted by the Applicant, will prove the assertion that his claim in that regard could prevail over the Applicant.
It is my burden to determine whether or not the Respondent was able to prove what he asserted.
Indeed, the instant application is being fought on affidavit evidence, but there is a clear criterion as to how proof is effected in such circumstances. In Kojo Nsafoah v Dr Kwame Appiah  GMJ 52, SC, it was held, holding 4:
"Ordinarily applications brought by way of motion proceed to trial on the basis of, and succeeds or fails, on the strength of the affidavits and annexures filed at the trial. Thus, all affidavits must be drafted with utmost care, the case for each side being set with clarity and precision with nothing left for chance since the matter stands to be judged along the issues emerging from the affidavits filed by the parties."
At the close of the case, there was no conclusive evidence form the Respondent indicating that Charles Gadator is an administrator of the Applicant. The bailiff who filed the certificate of service indicating that the said person is an administrator does not work with the Applicant. The source of his information is not disclosed. If the bailiff acquired the information independent of the Respondent, then the Respondent could have elicited an affidavit from him, and with leave of the court, cross-examined him as to how he got that information. See: Nkegbe v Africa Motors Division of United Africa Company of Ghana Ltd  GLR 32. If the information that Charles Gadator is an administrator of the Applicant came from the Respondent, then he (Respondent) was obliged to proffer evidence that the said person was of such status. A letter of appointment, any document prepared and signed by the officer as an administrator, an affidavit from Charles Gadator himself or any records with his name as an administer could have buttressed or corroborated the Respondent's claim. As things stand, the Respondent and his lawyer merely repeated the claim in the affidavit of service that Charles Gadator is an administrator of the Applicant, in circumstances where the Respondent could have adduced further and better evidence to prove that claim.
The Respondent failed to discharge his primary burden of proof. He left the matter; to borrow the words of my Lords in Hawkins v Powells Tillery Steam Coal Ltd  1 KB 996, “... to rest in surmise, conjecture or guess." Since the Respondent failed to discharge the primary burden, the onus of proof did not shift onto the Applicant, and Applicant's initial denial was sufficient to defeat that assertion. I hold accordingly that Charles Gadator is not an administrator of the Applicant and neither was he appointed to receive court processes on behalf of the Applicant.
LAW REGULAING SERVICE OF PROCESSES IN THIS CASE, AND THE PERSONS TO BE SERVED
Whether the processes were to be served under Order 7 r 5(1), or section 263 of Act 197, they were to be served on the officials of the Applicant equivalent to those mentioned in the above two provisions or by the mode stipulated. Under Order 7 r 5(1), service on a body corporate can be effected on the chairman, president, or other head of the body, or on the managing director, secretary, treasurer or other similar officer of that body. Per section 263 of the Company's Act, service is good if the process: Is left at, or sent by post to the registered office or registered address of the company If the company has no registered address, then service can be effected on any director, and where no director can be traced in Ghana, upon any member of the company Is served on the board of directors, managing director or secretary If the court directs that it be served on any particular person or by any particular way, then that mode should be adhered to. According to section 33 of Act 574 the “executive officers of a political party", are the chairman, the leader, the general secretary or equivalent designation, the national treasurer and the other members of the national executive committee of the party. The Applicant contended that the said officers of the party are at its headquarters in Accra, and it was on those officials that the processes in this case should have been served. The Respondent thought otherwise. It was his case that per the Applicant's constitution, regional representatives form part of the national council, and that a person appointed by the regional executive as administrator was a proper person to receive processes on behalf of the Applicant.
Indeed, article 9 (B) (iii) of the New Patriotic Party (NPP) constitution stipulates that regional representatives shall be part of the National Council. The National Council, per article 9 B (1): "Subject to the decisions of the National Delegates Conference, shall direct the affairs of the party in between meetings of the national delegates' conference, and for this purpose may give such directives to the National chairperson as may be considered necessary for the well-being of the party."
Article 9 C (1) on the powers of the National Executive Committee, provides:
"Subject to such directives as the National Council may issue, the National Executive Committee shall be responsible for directing and overseeing the operations and activities of the party.
The membership of the National Executive Committee includes the regional chairpersons or their representatives (Article 9 (C) (2) (V)).
For all intents and purposes, the National Council is equivalent to the board of directors of a company while the National Executive Committee is equivalent to the Executive of a company, including the chief executive officer and other directors, secretary and officers. Were it to be the Judicial Service, the National Council will be the Judicial Council and the National Executive Committee, also equivalent to the Judicial Service Administration, constituted by the Chief Justice, Judicial Secretary, and the various directors and other officials. The relevant point for this case is that, the regional representatives are part of the National Council while's regional chairpersons or their representatives are part of the National Executive Committee. Even though article 9 B (iii) does not stipulate the specific official from the region to represent it on the National Council, it is obvious that the most senior executive in the region; that is the regional chairperson, will be the one to represent the region on the National Council. If the region desires that another officer represents it on the National Council, they obviously may be able to do so. On any occasion that the regional chairperson is unable to attend a National Council meeting, a representative may be appointed by him to do so. Therefore, at any particular time, a representative from the region is part of both the National Council and National Executive Committee. In identifying the persons on whom processes could be served, Order 7 r 5 (1), C.I. 47 mentions the chairman, president, or other head of the body."
To my mind, these officials are the very top echelons of every company or body corporate and must relate to the board of directors. When it comes to the New Patriotic Party, the equivalent of a board is the National Council. Therefore under Order 7 r 5 (1), the chairman, president or other head of the board (National Council) could be served. It must be understood that under the order, it was the head of the National Council and not every other member who could be served the process. Therefore, assuming Charles Gadator was even the Volta Regional representative on the National Council, he was not the property person to be served because he is not the head. Membership of the Regional Executive Committee is stipulated by article 7 of the NPP Constitution. Assuming Charles Gadator exists, and is indeed the administrator of the party, he is not a member of even the Regional Executive Committee as per article 7 of the NPP constitution. There was no evidence that he has been appointed as the party's representative on the National Council or the National Executive Committee. On what basis was he then a qualified person to receive processes on behalf of the Applicant? The term, “...or other head of the body" in Order 7 r 5 (1) ought to be interpreted ejusdem generis. As a canon of statutory interpretation, the ejusdem generis rule is used when a statute contains certain specific words which are followed by a general term.
In Allen v Emmerson (1944] KB 362, it was held:
"....the general expression is to be read as comprehending only things of the same kind as that designated
by the preceding particular expressions, unless there is something to show that a wider sense was intended as where there is a provision specifically excepting certain classes clearly not within the suggested term.'
It can be deduced from the above that when Order 7 r 5 (1), C.I. 47 talks of "the chairman, president, or other head of the body", it is referencing the equivalent of the chairman, president, or other persons in leadership position of the National Council. Ordinary floor members of the National Council, such as regional representatives, are excluded. The situation is quite different when it comes to the reference by the same Order and rule to, or on the managing director, secretary, treasurer, or other similar officer of it.” I contend that under that provision, service of a process on a regional chairperson or his representative is good service on the party. That was because, the definition of members of “executive officers of a political party" by section 33 of Act 574 includes "the national chairman, the leader, the general secretary or equivalent designation, the national treasurer and the other members of the national executive committee of the political party". This makes the regional chairperson or his representative an "other similar officer” of the party, capable of receiving processes on behalf of the party, as envisaged under Order 7 r5 (1). The contention by the Respondent's counsel that the regional chairman or his representative could be served processes, was accordingly well grounded.
areIn casu, the processes were not served on the regional chairman of the party. There was no evidence also that Charles Gadator is a representative of the regional chairperson on the National Executive Committee. He was accordingly not qualified to receive processes on behalf of the Applicant.
SERVICE ON THE REGIONAL OFFICE
The Respondent contended per his counsel that since the party conducts its activities through the regional and other offices, service of processes on the regional office was good service. Since Order 7 r 5)1) of C.I. 47 does not provide for service on the office, qua office of a body corporate, that submission lies to be considered against section 263 of the Company's Act. But such analysis will be on the basis that service of processes in respect of a political party is to be effected in accordance with the Company's Act. One would further have to presuppose that political parties are body corporates governed by the Company's Act. But as I have explained supra, even though political parties are body corporates, they are not companies envisaged to be governed by the Company's Act.
All the same; and for the avoidance of doubt, I decided to screen the Respondent's arguments through the provision on service of processes under the Company's Act, as an alternative ground of showing that services were wrongly effected. Under section 263 of Act 179, service of process may be effected by leaving it physical at or sending it by post to the registered office or registered address of the company – see: section 263 (1). Per section 263(3), it is only where the company has no registered office that service could be effected on a director or where there is no director found in Ghana, then on a member of the company. Service; under section 263(4), may also be effected on the board of directors, managing director or secretary of the company. Lastly, the court has jurisdiction to stipulate the manner in which service should be effected. In unpacking the provisions on service, the first point is determining what constitutes the registered office of a body corporate such as the Applicant.
It is of moment to state that the corporate office of a body corporate may not be the same as the registered office, even though the two may be in the same edifice in these days of magnificent corporate buildings with space for different kinds of activities. Whereas the corporate office is the main office with the top officials of the company where major decisions are taken, the registered office is the office established specifically under the Company's Act for receipt of legal documents in case of a law suit. The registered office may have a registered agent to receive legal documents. (See: Mack Mitzsheva - Differences between a Corporate Office and a Registered Office - www.smallbusiness.chron.com.) In their supplementary affidavit in support filed on 21 May 2018, the Applicant averred, per the deponent, that the Applicant run its affairs from its headquarters located behind the ATTC, Kokomlemle, Accra. The Respondent did not deny or challenge that deposition. In Francis Assuming v Divestiture Implementation Committee  3 GMJ, 35, SC, it was held, holding 5:
"An allegation that is not denied nor challenged in any way is deemed admitted and so proved as to demand no further proof..."
The established fact is that the registered office or head office of the Applicant is at ATTC, Kokomlemle Accra.
The contention by the Respondent that the process could be served on the Ho office of the Applicant was premised on the believe that a body corporate could have several registered offices or corporate head offices. That notion appears to be wrong. Section 263 of Act 179 talks about the "registered office" and "registered address.” It speaks in the singular and not plural. Where the corporate head office doubles as the registered office, it will be one edifice which performs the dual legal roles. To that end, section 119(1) of the Companies Act provide:
"A company shall, as from the date when it commences to carry on business or as from the twenty-eight day after the date of its incorporation, whichever is the earlier have a registered office in Ghana with a post office box to which all communications and notices to the company may be addressed."
When section 263 talks about service of processes on the registered office, it is the office envisaged in section 119(1) that it talks about Any notion that any branch office of a corporate body; and in this case, a regional office of the party, is a registered office capable of receipt of legal processes is wrong.
In deprecating service of a process on a branch office, the English case of Watkins v Scottich Imperial Insurance Co.  23 QBD 285 held specifically that a court process should be served at the registered office, and it was bad and ineffective if service is effected on a branch office.
That principle can be applied mutatis mutandis to political parties. Since the officials identified for receipt of processes under Order 7 r 5 (1) operate at the head office, processes should be served at the head office, except when service is effected on the regional chairperson or his representative to the National Executive Committee. Should it even be argued or accepted that section 263 of Act 179 is applicable to this case, the Supreme Court in Barclays Bank Ghana Ltd v Ghana Cable Co Ltd [1998 99] SCGLR 1, held, holding 1:
"... In Ghana one can take a cue from section 263 (3) and (4) of Act 179 and comfortably hold that a document left with a director or the managing director, or the secretary or a member of the company at the registered office or address, should be sufficient service on the company within the expression "leaving it at” in section 263(1) of Act 179."
Whether treated as company or non-company body corporate, the court processes should have been served at the head office of the Applicant in Accra. The only person on whom it could have been served properly in Ho is the regional chairperson or his representative on the National Executive Committee. The processes in this case were not served on any such official. The existence of the alleged administrator; Charles Gadator, was not established by the Respondent, let alone prove that he had the legal mandate to receive the processes as he allegedly did.
The service of the writ of summons and the motion ex parte for interlocutory injunction, having been effected on the wrong person and at the wrong place, were improper services.
EFFECT OF THE BREACH
But what should be the effect of such procedural deviations occurring within C.I. 47? The effect will depend on whether the breach was a mere irregularity or amounted to a fundamental breach. In Republic v High Court, Accra; ex parte Salloum & others (Senyo Coker Interested Party)  1
SCGLR 574, the court held, holding 3:
“The right to be heard in proceedings before a court of law – the audi alteram partem rule – was well – established in every common law jurisdiction. Thus, no matter the merits of the case, the denial of the audi alteram partem rule would be seen as a basic fundamental error which should nullify proceedings made pursuant to the denial. It should be taken away only when the rules of court or practice so permitted. Order 81 of the High Court (Civil Procedure) Rules, 2004 (C./. 47), could not be reasonably applied to regulate a basic fundamental error, which error had denied a party his constitutional and inalienable right to be heard in a case....
Order 81 could not be invoked to cure the fundamental error arising from the breach of the audi alteram partem rule."
It is obvious that the services of the writ of summons, the motions ex parte for interlocutory injunction and the order for interlocutory injunction are liable to be set aside.
SETTING ASIDE ORDERS AND SERVICES OF PROCESES
There are two distinct grounds upon which the service of the writ of summons and the motion ex parte for interlocutory injunction, as well as the order for interlocutory injunction can be set aside. Each of the grounds is relevant and applicable to this case, but may be in the alternative.
SETTING ASIDE VOID ORDERS
A void order is not valid or legally binding. In taking an extreme attitude towards void orders, Lord Denning held in Macfoy v UAC Ltd  AC 152, PC:
"If any act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad.
You cannot put something on nothing and expect it to stand. It will collapse."
This extreme view does not completely hold true in our jurisdiction, for there is no principle of automatic voidance of an order or judgment in Ghana. The Supreme Court in Republic v High Court, Accra; Ex parte Speedline Stevedoring Co Ltd (Dolphyne Interested Party) (2007-2008] SCGLR 102, specifically held, holding 1:
“A court order or judgment subsists unless varied or set aside by a court of competent jurisdiction....
Mosi v Bagyina (1963] 1 GLR 337, SC, held that the party affected by the void order is entitled; ex debito jusitiae, to have it set aside. Alternatively, the court may suo motu set it aside. In casu, the Applicant has applied to have the order set aside. Because the Applicant was not properly served with the processes, the court could not assume jurisdiction to determine Respondent's motion ex parte as it did. The order for interlocutory injunction issued on 20 April 2018 for the ten day period was without jurisdiction. By reason of the breaches occurring in this case being basic and fundamental, all proceedings thereupon are void, and I hereby so declare. The Applicant is entitled; ex debito justitiae, to have it set aside and I, as a judge have no discretion.
SETTING ASIDE ON GROUNDS OF NATURAL JUSTICE
National justice provides yet another ground for setting aside the order. The audi alteram partem rule under national justice requires that each side to a litigation should be heard. A party should therefore not be judged without a hearing per which he will be given the opportunity to respond to the evidence marshalled against him.
It was accordingly held in Safo v Badu  2 GLR 63 holding 3:
"National justice required that no condemnation should be pronounced behind the back of a man who had no opportunity to appear and defend his interests, either personally or by his proper representative....'
Counsel for the Respondent contended that since the order was based on an ex parte application and has elapsed after 10 days, there was no need to bring the instant application to set the order aside. With due difference, I doubt the accuracy of that argument. Even though the order has elapsed, any offence committed under it is presently prosecutable. It was common cause that the Respondent has a pending application to commit the Applicant's officials for contempt, based on that order. The instant application to have the order set aside is accordingly proper.
The Applicant was able to establish that his application has merit. The application is granted as prayed. The court hereby orders: That the service of the writ of summons, motion ex parte for interlocutory injunction and hearing notice; having not been served on the Applicant at all, or properly, was void and are hereby set aside. That since the Applicant was not properly served, the court wrongly assumed jurisdiction over the application ex parte for interlocutory injunction and the order made thereto in violation of the audi alteram partem rule, cannot stand, and is hereby set aside. Application granted as above.