VIBRANT INTERNATIONAL LLC vs. PERFTPROJ COMPANY LIMITED & ORS. [2018]DLHC3357

Date	2018-01-23
Suit No.	CIVIL APPEAL NO.OCC/47/2018
Citation No.	[2018]DLHC3357

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

TONY MMIEH FOR PLAINTIFF.

[2018]DLHC3357
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													<main id="main" class="content" style="min-height: 60rem" >VIBRANT INTERNATIONAL
LLC<o:p></o:p>vs.<o:p></o:p>PERFTPROJ COMPANY
LIMITED &amp; ORS.<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL
DIVISION), KUMASI]<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">

CIVIL APPEAL NO.OCC/47/2018&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 23TH
JANUARY, 2018<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT<o:p></o:p>

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

</div><o:p>&nbsp;</o:p>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.<o:p></o:p>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.<o:p></o:p>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&nbsp; 2nd
and&nbsp; 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.&nbsp; 47.<o:p></o:p>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.<o:p></o:p>Section
263 (1) reads:<o:p></o:p>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.<o:p></o:p>See
also order 7 rule 4 (2) (c) of C. I.&nbsp; 47
and see 29 at the Interpretation Act, 2009.<o:p></o:p><o:p>&nbsp;</o:p>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 &amp;
Anor. (1981) GLR 453.<o:p></o:p>In
holding (3) thereof, his Lordship emphasized that<o:p></o:p>“&nbsp;&nbsp; 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”.<o:p></o:p>Order
7 of C. I. 47 is the equivalence of order 10 of LN 140 A referred to.<o:p></o:p>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.<o:p></o:p>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:<o:p></o:p>“&nbsp;&nbsp; That Perftproj Company Limited has been
closed down and Nana Asandoh who could not be located so processes returned to
docket”.<o:p></o:p>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.<o:p></o:p>