IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
VIBRANT INTERNATIONAL LLC - (Plaintiff)
PERFTPROJ COMPANY LIMITED & ORS -(Defendants)
DATE: 23 TH JANUARY, 2018
CIVIL APPEAL NO: OCC/47/2018
JUDGES: ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT
LAWYERS: TONY MMIEH FOR PLAINTIFF
Before me is an ex-parte application brought by counsel for the Plaintiff/Applicant herein for an order of Substituted Service of the Plaintiff’s/Applicant writ of summons and statement of claim on the Defendants. The grounds of the application are contained in the supporting affidavit. In paragraph 5 thereof, it was deposed that all attempts to serve the Defendants personally with the writ of summons and statement of claim have not been successful.
The Plaintiff exhibited copies of the affidavits of non-service to the application. Counsel for the Plaintiff in his submissions before this court, stated that, the registered office of the 1st Defendant known to the Plaintiff is currently not open, and the 2nd and 3rd Defendants are not operating from that office. It is for these reasons that he has prayed the court to grant the instant application for substituted service under order 7 rule 6 of C. I. 47. The court notes that the 1st Defendant has been sued as a Limited Liability Company. The mode of Service of processes on corporate entities or companies is provided for under Section 263 of the Companies Act, 1963, Act 179. Section 263 (1) reads:
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.
See also order 7 rule 4 (2) (c) of C. I. 47 and see 29 at the Interpretation Act, 2009.
This position of the law was re-echoed by Taylor J as he then was in the case of Dakar Limited v.
Industrial Chemical and Pharmaceutical Company Limited & Anor. (1981) GLR 453.
In holding (3) thereof, his Lordship emphasized that
“ The courts would order Substituted Service only where it appeared to the court that for any reason personal service could not be conveniently effected. Personal service under L. N. 140 A, order 10 meant service on the Defendant. That mode of service was thus applicable only to service on human beings as parties in whatever capacity, whether as Plaintiffs or Defendants or human agents and servants of such parties, not on dehumanized artificial entities like governments or companies like the Defendant Company”.
Order 7 of C. I. 47 is the equivalence of order 10 of LN 140 A referred to.
This court is of the view that until the modes of service listed in Section 263 of Act 179 are exhausted, an order for substituted service cannot be granted in respect of a company. And, as Taylor J observed in the case under reference, the circumstances that would justify a court to order substituted service on a company must be rare in deed.
The court notes that the 1st Defendant, as a Limited Liability Company must necessarily have a postal address as this is a legal requirement. The affidavit of non-service simply states:
“That Perftproj Company Limited has been closed down and Nana Asandoh who could not be located so processes returned to docket”.
It is clear from the above that no effort was made to serve the processes in issue by post to the last known registered postal address of the 1st Defendant, which in terms of Section 263 (1) of Act 179 is good service. The fact that the 1st Defendant’s office is closed does not mean that its post office box is also closed. At least, the Plaintiff ought to have exhausted that mode of service in respect of the 1st Defendant.
In the circumstance, the court is unable to grant the application in respect of the 1st Defendant at this time. Counsel is to take steps to exhaust the procedure under Section 263 (1) of Act 179. I would however grant the application in respect of the 2nd and 3rd Defendants on whom personal service could not be effected as per the affidavit of non-service filed on 19/01/2018. It is hereby ordered that, the Plaintiff’s Writ of Summons and Statement of Claim filed on 27/12/2017 be served on the 2nd and 3rd Defendants by Substituted Service under order 7 rule 6 of C. I. 27.
The mode of service shall be as follows:
(a) By posting copies at their last known place of business House Number, SE 12047 ST, opposite Stadium Road, Kumasi.
(b) By posting copies on the notice board of the High Court, (Commercial Division), Court of Appeal Complex, Kumasi.
The notices shall be posted for 10 days.