DAKAR LTD. vs. INDUSTRIAL CHEMICAL AND PHARMACEUTICAL CO., LTD. AND ANOTHER [1980]DLHC1571

Date	1980-04-28
Suit No.
Citation No.	[1980]DLHC1571

TAYLOR J.

SAM OKUDZETO FOR THE PLAINTIFFS-APPLICANTS.

[1980]DLHC1571
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													<main id="main" class="content" style="min-height: 60rem" >DAKAR LTD. <o:p></o:p>vs.<o:p></o:p>INDUSTRIAL CHEMICAL AND PHARMACEUTICAL CO., LTD. AND ANOTHER<o:p></o:p>[HIGH COURT, ACCRA] <o:p></o:p>[1980] GLR 453<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:
28
APRIL 1980<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">

SAM OKUDZETO FOR THE PLAINTIFFS-APPLICANTS.<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
apparently a simple application for substituted service. Within my experience,
however, it is a novel application, involving, as it does, substituted service
against a limited liability company. In my view, it also gives rise to some
complex issues which I propose to canvass and so although in normal
applications for substituted service the facts founding the claim are strictly
not necessary, in this case it seems it is necessary to give an indication of
the facts.<o:p></o:p><o:p>&nbsp;</o:p>By their
specially indorsed writ of summons, the plaintiffs claim against the
defendant-company ¢4,402,700 being the balance of the price of goods sold and
delivered by the plaintiff-company to the defendant-company,<o:p></o:p><o:p>&nbsp;</o:p>In this
motion ex parte, the plaintiff-company on 21 April 1980 moved this court for an
order of substituted service and for such further order or orders as to this
court may seem just. By an affidavit in support of the motion, a clerk in the
chambers of the solicitor of the plaintiffs has deposed as follows:<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">“(1)
Having been directed to serve direct on the above named defendants with a copy
of the writ of summons in this action which appeared to have been regularly
issued out under the seal of the Supreme Court of Judicature by the above named
plaintiffs against the above named defendants and dated 15 January 1980, which
said writ and copy were subscribed and indorsed in the manner and form
prescribed by the Rules of the Supreme Court, and a true copy of which said
writ is now produced and shown to me marked A, I did on 23 January 1980, in the
company of the court bailiff, Ebenezer Abotchi Mensah, attend for the purpose
of serving a copy of the said writ at the registered offices of the company of
the defendants, being at the Light Industrial Area, Labadi, in the city of
Accra. That on inquiring as of the management of the defendant-company, I was
informed by persons whom we believed to be employees of the said
defendant-company that there was no manager or person of authority at the said
place to receive the said writ. That we stated to the said persons there, the
nature of our business and told them that we had called to serve the said
defendant-company with a copy of the said writ and that we will call again for
that purpose at the office of the defendants on 22 February 1980.<o:p></o:p>&nbsp;(2) That we did accordingly attend at the
above address on 22 February 1980, for the purpose aforesaid of serving the
writ and then again none of the employees accepted service of the writ and
directed us to the Ghana Industrial Holding Corporation (G.I.H.O.C.) which company
is alleged to be in charge of the management of the company whereupon we went
to the said G.I.H.O.C. to effect service and they also refused to accept
service and directed us back to the company’s premises. (3) That I have made
all reasonable and practical efforts and used all due means in my power to
serve the said writ but, I have not been able to do so and for the reason
aforesaid, I only believe the said writ has come to the knowledge of the
defendants and that they wilfully evaded the service of the said writ. (4) In
the circumstances, I respectfully ask that an order for substituted service of
the said writ be made by advertisement in one issue of the Daily Graphic and I
verily believe that the writ would probably come to the knowledge of the defendants
by such service.”<o:p></o:p><o:p>&nbsp;</o:p>When the
motion first came before me a week ago, I had nagging feelings that it was a
misconceived application because of existing statutory provisions regulating
service of process on limited liability companies. I was in the process of
giving a final decision when in the course of additional submission in support
of the motion, counsel for the plaintiffs pointed out to me that the
defendant-company, hereinafter referred to as the defendants, are affected by
the provision of the Transfer of Shares and Other Proprietary Interests
(Babylos Co. Ltd. and Others) Decree, 1979 (A.F.R.C.D. 38). In the circumstance
as I had not had the opportunity of considering the said Decree and as I found
my doubts as to the propriety of the motion mounting I adjourned for a
considered ruling which I now proceed to give.<o:p></o:p><o:p>&nbsp;</o:p>