BAWA vs. OYEGOKE [1977]DLHC1253

Date	1977-06-20
Suit No.
Citation No.	[1977]DLHC1253

TAYLOR J.

CATHLINE FOR THE APPLICANT.

[1977]DLHC1253
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													<main id="main" class="content" style="min-height: 60rem" >BAWA <o:p></o:p>vs. <o:p></o:p>OYEGOKE <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1989-90]2 GLR 412<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
20 JUNE 1977<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

CATHLINE FOR THE APPLICANT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

TAYLOR J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF TAYLOR J.<o:p></o:p>This is
an application ex parte by the plaintiff herein for an order in respect of the
first defendant for substituted service of the writ of summons in this action,
inter alia, on one Alice Abraham said to be the wife of the first defendant who
is resident in Nigeria. The application does not concern the second and third
defendants. It is not necessary to consider the nature of the claim endorsed on
the writ and elaborately set down in the statement of claim. The procedural
steps however which the plaintiff took in this action are necessary for the
purpose of deciding whether the application should be granted or refused. On 30
November 1976 the plaintiff herein took out a writ of summons against the three
defendants herein. As against the first defendant there was no address of any
nature indicated on the writ. He was described simply as Abraham Oyegoke of
Nigeria. The writ was an ordinary writ for service within the jurisdiction and
it was taken under Order 2, r. 3 of the High Court (Civil Procedure) Rules,
1954 (L.N. 140A).<o:p></o:p><o:p>&nbsp;</o:p>The first
defendant is said to be in Nigeria and this is stated as follows in paragraph
(9) of the statement of claim which accompanied the writ: “The first defendant
prohibited by law from carrying on petty trading in Ghana left for Nigeria
about 1970 though occasionally he visits Ghana.” Clearly the first defendant is
resident in Nigeria and if it is intended to serve him out of the jurisdiction
then in accordance with the provisions of Order 2, r. 4 of L.N. 140A leave of
this court is necessary before the issue of the writ of summons. I shall take
it that the intention is to serve him within the jurisdiction when he comes to
Ghana since paragraph (9) of the statement of claim avers that he occasionally
visits Ghana. A note to Order 2, r. 4 of the English rules of the Supreme Court
in the Annual Practice, 1961, p. 15 states that: “A writ may be issued against
a defendant with a foreign address where it is not intended to serve it out of
the jurisdiction.” In this case there was not even a foreign address endorsed
on the writ. It is really very doubtful, as I hope to show in this ruling,
whether this is a valid writ as against the first defendant. It seems to me
however that although ideally since the defendant is resident outside the
jurisdiction, leave of the court should have been obtained for the issue of a
writ for service out of the jurisdiction, the issue of such a writ for service
within the jurisdiction is not necessarily a bad procedure since as I have
already indicated the intention may be to serve the defendant on one of the
occasions when he visits the jurisdiction assuming of course that the address
outside the jurisdiction is stated on the writ. Lindley L.J. faced with a not
dissimilar situation in Fry v. Moore (1889) 23 Q.B.D. 395 at p. 397, C.A.
observed:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“the writ
in the action was issued in the ordinary form applicable to a defendant who is
within the jurisdiction. The defendant was in fact then out of the
jurisdiction, and a writ for service on him there could not even be issued
without the leave of the Court. In the form in which it was issued it cannot be
said that the writ was irregular, because the plaintiff might have kept it with
the view of serving it on the defendant if he should come within the
jurisdiction.”<o:p></o:p><o:p>&nbsp;</o:p>Be that
as it may, there is a matter however which has given me much concern. As I have
already indicated the address of the first defendant was completely omitted and
indeed this was deliberately done because, as counsel put it, the plaintiff
does not know the present address of the defendant in Nigeria nor does he know
his last place of abode in Ghana before he left for Nigeria. In the course of
the argument of counsel I drew his attention to the case of Ex parte Kombat;
Kombat v. Bediako [1971] 1 G.L.R. 196. This was a case in which the addresses
of two defendants were not given in the writ and I decided on the authority of
The W. A. Sholton (1887) 13 P.D. 8 that the address of a defendant is an
essential feature of the writ of summons. If that is so, then in my view as
against the first defendant in this case the writ would seem to be invalid and it
would therefore be improper to order substituted service if the plaintiff does
not obtain an amendment. In The W. A. Sholton (supra) the address of the
defendants was deliberately omitted from the writ of summons. The defendants
were a Dutch company carrying on business in Holland and a copy of the writ was
each served on a sub agent of the company in America and the managing director
of the company in Holland who both happened to be temporarily within the
jurisdiction. On an application to set aside the writ of summons, Butt J. held
at p. 9:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
question in this case is whether the writ should be set aside. If the writ
itself is not valid, it is unnecessary to consider how it was served . . . By
the form prescribed by the orders under the Judicature Act, the address as well
as the name of the defendant is a necessary part of the writ. I am quite aware
that this is a writ for service not out of the jurisdiction, but within it;
still it would not have been sealed if the officer of the Court had observed that
there was no address of the defendant on it, or had there been the address of
this foreign corporation. It is clear that the address wa</main>