To serve or not to be served: Service of court processes Is not always a necessity
Service of processes is crucial to proceedings in court and goes to jurisdiction, making it a fundamental part of any judicial proceedings, particularly in civil suits. It is, however, argued that a party who truly believes in his allegations against an individual and seeks his day in court does not necessarily need to wait to […]
Service of court processes is a vital component of legal proceedings in Ghana, particularly in civil cases. It ensures jurisdiction and provides notice to the party against whom the action is filed, fulfilling the requirement of "audi alteram partem," or the right of a person to be heard. However, some individuals argue that they can directly enter an appearance in court without being served, or instruct their lawyers to accept service.
While this assertion may appear reasonable, it is crucial to understand the legal implications and potential consequences.
In Ghana, civil proceedings commence with the filing of a writ of summons in court, followed by the service of the writ on the party required to respond. There are three primary methods of initiating a civil action in the country: an originating motion on notice, a petition, or the issuance of a writ. A court may also have jurisdiction based on other enactments, which parties must comply with as per the law.
Once a writ is issued, it must be served to the party against whom it has been served. The Rules of Court outline several means of serving a writ, including personal service, electronic service, and service through a lawyer. Personal service involves leaving a duplicate or attested copy of the document with the person who is required to be served.
Electronic service became permissible in 2020, subject to specific rules, such as the party initiating the action requesting electronic service at the time of filing the action or appearance.
The importance of service lies in its role in upholding the fundamental principle of natural justice, audi alteram partem, which prohibits the court from disregarding the right of the other party to be heard. Non-service may lead to a breach of this principle, causing the court to lack jurisdiction to proceed with a case. In some instances, parties may attempt to hide behind non-service, particularly when their actions have complicated or rendered service impracticable. However, this approach is perceived as cowardly and unscrupulous.
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