A legal claim, even an incontestable one, will not be noticed by the courts unless or until it is properly brought to the notice of the person against whom it is made. This other person may be the defendant, the respondent or an interested party in the case. It is this reason which, perhaps, makes service – the process in litigation where claims and other related processes are formally brought to the notice of a party – the most important step in the civil litigation procedure. Except in a very negligible number of cases, every process in the civil litigation procedure must be brought to the notice of the other party.
Nonetheless, service (or the modes effecting it) is the least, if not one of the least, developed processes in Ghana’s civil litigation procedure. For many, service has become one of the single most expensive processes. This is a problem. The nature of the problem is such that even the revolutionary strides in technology have not been able to overcome it. While this problem may be attributed to the blurred appreciation of the rules that regulate the service of court processes, the blurredness, itself, may be a product of one of two other factors: (1) genuine widespread unfamiliarity with the rules, or (2) a deliberate systematic design to pervert the rules.
Whichever way, the problem cannot be left unattended. Like all lawyer-problems, only lawyers can resolve the service problem. This short note, therefore, is an attempt to trigger a discussion on how the service problem may be resolved. The note will do this by explaining the two main modes of serving a court process – personal service and service on a company. It will draw on these two modes to point to one of the primary ways by which we may begin to solve the problem, namely, the honourable judges and how they supervise their hardworking officials at the court registries. The note will, then, conclude by indicating some of the basic things that may be done immediately about the problem.
1.Service on a Human Being
This mode of serving a court process is known as ‘personal service’. It is important, for reasons which will be explained later, to distinguish personal service from other modes of service. Personal service is done by leaving the process which is to be served with the person who is to be served. Sometimes, however, the person who is to be served tends to behave in a way that makes service on her impossible. In such cases, the processes may be served by leaving it as near that person as may be practicable.
From this, it may be obvious that a process cannot be served on a person unless the person is found or located. This makes addresses a very essential component of the litigation process. Accordingly, the law requires the plaintiff to provide not only his own address (residential and occupational), but also the address of the person against whom she brings the claim. These addresses must be printed on the face of the process.
The law also envisages situations where the plaintiff may genuinely not know the address of the person who is to be served. It would appear that not knowing the person’s address is not intended to be a bar to bringing a claim to the courts. Therefore, the rules also allow a plaintiff who does not know the address of the person who is to be served to simply state on the process that “the plaintiff will direct service”. Directing service means exactly what it says – the plaintiff will guide the court bailiff to find and serve the person in question.
This means that service is, at all times, the duty of the court (not the litigant or her lawyer). The job of the litigant or her lawyer is merely to provide the proper address (when she has it) or direct service (where she does not have it at the time of issuing the process). A part of the filing fee which the court takes from litigants is supposed to cover the cost of serving the process. However, every honest court user knows that this is theory. In practice, many litigants find themselves making substantial unofficial payments again for the service of the court process.
Clearly, this is much a problem; but the problem is not much about the extra money and the heightened nominal cost of justice. The bigger problem is how severely the practice chips off the integrity of the judicial process. In other words, this practice discounts the integrity of the judicial process because it offers an opportunity for litigants or their lawyers to influence or be perceived as unfairly influencing the judicial process.
2.Service on a Company
Companies are not human beings. Therefore, the mode for serving a company is not the same as the mode of serving a human being. When a company is being incorporated, the incorporators are required by law to provide an address for the company. Therefore, it should be possible to find every company’s address by simply conducting a search at the Companies Registry. This address is known as the company’s ‘registered’ office.
There are, however, two problems here. First, the Companies Registry does not seem to have sufficient particulars of a lot of companies’ addresses. As a result, it is not uncommon to, upon an official search, find out that a company’s registered address is simply “Accra”. This defeats the purpose of the address requirement. The second problem on this point is that the registered address, even if sufficient, may be misleading. This problem arises from a situation where a company fails to update its records at the Companies Registry.
Quite apart from its registered address, a company may have other places of business. The address for such other places is known, invariably, as the company’s ‘known place of business.’ Companies are required to update their records at the Companies Registry to reflect their branches and new places of business. If companies comply with this requirement, a search at the Companies Registry should disclose all the addresses of the company’s branches too. That way, service will be easier.
Further, each director of a company is required by law to provide her personal details to the Registrar of Companies. These particulars include the director’s address, residential or occupational. Like her company, a director is required to also update her records regularly and at any time that there is a change. From this, it may be obvious that serving a process on a company should never be a challenge. Yet, the struggle to have a court process served is not in any way reduced merely because the person to be served is a company.
The methods for serving a company are more than one. You may serve a company by leaving the process at the registered office of the company. Of course, leaving the process at the address does not mean simply dropping it there. Neither may it mean that it must necessarily be served on an executive officer of the company. It may be left with an official of the company. In this respect, we submit that leaving the process with a company receptionist may be sufficient for the purpose (after all, what is the use of a company receptionist if he cannot receive a court process for the company?). The process may also be posted by a prepaid mail (whether registered or not) to the registered office of the company.
Also, where the company’s registered office cannot be traced, the law allows a director or a shareholder (and, we submit that, it does not matter the quantum of shares) of the company to be served with the process. It remains a philosophical debate whether tracing a director’s address is easier than tracing the registered address of the company of which he is a director. Suffice it to say, however, that the sum of all the above is that the accuracy of a company’s records at the Companies Registry is fundamental to the effectiveness of these rules.
It is important to note, too, that service by post to the company’s registered address or by service on a director or shareholder are all direct and first instance modes of service. They do not need a prior court order to be applicable. Therefore, the stubborn insistence by some court registrars that they will not serve a company by post without a judge’s order of substituted service may not be grounded in law at all. The explanation to this proposition follows in the nest section.
Service is substituted when a mode other than the ordinary mode of service is used to serve a process. Substituted service is, therefore, an extraordinary method of serving a court process. For this reason, its use is strictly regulated by law. The first rule of regulation is that it is only a judge who can make an order of substituted service. This power of the court (to order a substituted service) is invoked by an application ex parte. This application must be supported by an affidavit which shows that ordinary service has been impossible or will be impracticable.
The second rule is that substituted service is only applicable where personal service is possible. As indicated above, personal service means service on a human being. Therefore, where at the time of issue a process could not be served on a person directly, it could not be served indirectly by means of substituted service. The cumulative effect of these learnings is that a court will, ordinarily, not grant an order for substituted service on a company. This well-established rule notwithstanding, it appears that the High Court may, in very exceptional circumstances, exercise its inherent jurisdiction to make an order for an alternative mode of service on a company.
4.Service on the Court
The phrase – “service on the court” – is an anomaly. The rules of court say nothing about it. If any textbook or a case has ever discussed it, this writer is not aware. But there is a good reason why no one talks about the service of a court process on the court itself. The reason is that the process is filed in the court, issued from the court and kept by the court itself. In fact, it is not called a ‘court process’ for nothing. So, it may be plainly senseless to think of serving the court’s process on the court, not to talk of expending ink to discuss it. However, I will.
Many a lawyer can count more than one instance in a legal year where a case was either adjourn to another day or stood down so that a process that has been filed could be “placed” on the case docket. It is understandable if a process is not placed on the case docket on the same day that it was filed. That is normal. The motivation for this discussion, however, is not this kind of delay. The issue here is the proliferation of the situation where a duly filed process takes several days, weeks, or, sometimes, even long after all the external parties have been served, to move from the court’s registry on to the case docket.
No doubt, such occurrences tend to delay justice, thereby, making it more expensive. Perhaps, that is also why every judge (and many lawyers) look on such occurrences with great fury. The point here, however, is not the level of fury that the delay invokes. The point is how the situation is resolved. While some judges resolve the situation by calling the court officials to order, others would rather shoot the arrow of blame at the lawyer. Each of the two approaches reveals something great, something important, and something different.
Calling the court official to order implies a noble admission on the part of the judge of the court’s responsibility for ensuring that the process is placed on the case docket. It even goes beyond that. It reveals a virtuous desire on the part of the judge to ensure fairness, impartiality, and cleanliness of the proceedings. It reveals a gallant desire on the part of the judge to rid the court of ill-practices and undue interferences by litigants and their lawyers in the judicial process.
On the other hand, blaming the lawyer (for the process’ absence on the case docket) implies everything opposite of the foregoing. It implies a sharp abdication of responsibility on the part of the judge to supervise the court staff. It implies a donation of such responsibility and supervisory power to the litigant or her lawyer. It also implies the willingness of the judge to allow litigants into the management of the court’s administrative procedures. But most importantly, it promotes all the things that should not be countenanced in the administration of justice.
When the judiciary is named in corruption perception indexes as one of the most corrupt or distrusted public institutions, we often limit the discussion on the causes of the perception to plain bribery and partisanship. The other thing, however, is that a significant part of the perception that court users have of the judiciary may be stemming from some of these administrative inefficiencies and how the judges handle them. The sad thing, however, is that we bask in the false glory of calling these inimical practices “sharp” with very little regard, if at all, for their detrimental consequences on the society as a whole. Going forward (and by way of summary), there are a few things that we can agree on.
First: we can agree that serving a court process is exclusively the duty of the court and its registry staff (not the litigant or her lawyer’s). Accordingly, the only way a litigant and her lawyer come into the service process is the provision of the names and proper addresses of the parties.
Second: we can agree that in some limited cases, a litigant or her lawyer may direct service. Even that, there is a precondition – they should not direct service or be seen to be directing service unless they have indicated clearly on the process at the time of filing that they will direct service. Complying with this will not only reduce litigant’s undue interference in the justice administration process, but also the public’s perception of corruption in the judiciary.
Third: we can agree that the courts’ service system need a serious improvement in order to achieve the first two. It may require the retraining of court registry staff, particularly the court bailiffs. It may require the deployment of modern technology. But most of all, it requires a reorientation, a change in mindset, towards the standards of professionalism.
Fourth: we can agree that a service of a court process on a company should be done, at the first instance, by a post to the registered address of the company and without going through any other mode of service. If this approach is taken more seriously, companies will begin to see the need to update their records at the Companies Registry.
Fifth: elsewhere, court processes for companies are served on the local government office of the area where the company is located. Companies are, then, given a few days’ interval after which service on them will be presumed. This approach achieves two ends. It simplifies the service process on companies and helps local government officials to generate revenue. We can agree to do that.
Sixth, we can agree that the court registry and the persons who work in them are the agents or workmen of the court and not of the litigants or their lawyers. As agents of the court, court officials are accountable only to the judges of the court in respect of court management. This means that judges are entitled to exercise supervision, responsibility, and disciplinary powers over them. Accordingly, judges ought not to direct, advise, encourage, or blame lawyers for the court’s internal case management lapses.