Osei Bonsu v Barnes and Another (A11/01/2025) [2026] GHADC 2 (4 February 2026)

_**8: 44 a.m.**_ _**IN THE DISTRICT COURT, WESTERN REGION HELD AT EFFIAKWESIMINTSIM, THIS WEDNESDAY THE 4**_ _**TH**_ _**DAY OF**_ _**FEBRUARY, 2026 BEFORE HER WORSHIP BERNICE ODURO**_ _**KWARTENG ESQ. (MS.).**_ _**SUIT NO. A11/01/2025.**_ **MADAM ROSE OSEI BONSU : PLAINTIFF** **VRS:** **HAJIA AMINA BARNES & ANOR. : ****Defendant****S** **___________________________________________________________** **RULING** The Plaintiff instituted the instant action against the Defendants praying for the following reliefs; 1\. Declaration that the franchise agreement between Plaintiff and 2nd Defendant is valid and will lapse on 30th November 2029. 2\. 1st Defendant be ordered to vacate the toilet facility at Abenbebom, the subject matter of this suit and hand over to the Plaintiff until her contract expires. 3\. 1st Defendant be ordered to reimburse Plaintiff with daily sales of GH₵500.00 since she took over on 8th January 2025. 4\. 2nd Defendant who contracted with Plaintiff be held liable for specific performance. 5\. 2nd Defendant to be surcharged with damages for breach of contract. 6\. Defendants to pay for the cost of this legal action including attorney fees. 7\. Any further order(s) this Honourable Court may deem fit. The Plaintiff’s case is that she had a valid franchise agreement with the 2nd Defendant to manage a toilet facility at Abenbebom Lorry Terminal until 30th November 2029. However, after the new government took office in January 2025, the 1st Defendant and her team forcibly took over the facility despite the Plaintiff’s contract, hence the instant action. The matter proceeded to trial and was awaiting judgment when, on 5th November 2025, the 2nd Defendant filed a motion on notice seeking to strike out the suit against it on grounds that the 2nd Defendant had not been served with the originating process. The Plaintiff/Respondent filed an affidavit in opposition on 14th November 2025, and the application was subsequently heard on 29th January 2026. The 2nd Defendant/Applicant contends that, as a statutory body, it may be sued but must be served through the proper officer in accordance with the Local Governance Act, 2016 (Act 936). Upon learning of the suit, the Applicant conducted a search at this Court’s Registry, Exhibit A, which revealed that the originating processes were not served on the appropriate officer. Counsel for the 2nd Defendant/Applicant argues that under section 5 of Act 936, the Coordinating Director is the secretary of the Assembly, and court processes such as a Writ of Summons must be served on officers including the Coordinating Director, the Municipal Chief Executive (MCE), or heads of departments. Instead, service was effected on a secretary to the Coordinating Director, who is not recognized under the Act as a proper officer for service. In support of his case, counsel referred to the case of _Republic v. STMA and 3 Ors ex parte Robert Dudeme Suit No. E9/19/21 Delivered on 7_ _th_ _December 2021_ , where similar facts led the High Court to hold that service on a secretary to the Coordinating Director did not constitute proper service. Counsel submits that the same principle applies here, as none of the mandatory officers of the Assembly were served. Counsel further refers to CI 59 which is procedural law, that Local Governance Act being a substantive law must be given credence on the issue of service of processes on the 2nd Defendant. On this basis, Counsel argues that while the Plaintiff may have a cause of action, the 2nd Defendant cannot be made amenable to the suit unless service is properly effected in accordance with Act 936. He therefore prays the Court to strike out the suit against the 2nd Defendant/Applicant for want of service. The Plaintiff/Respondent contends that the 2nd Defendant was duly and properly served in accordance with the law. Counsel argues that the Plaintiff complied with the statutory requirement by first issuing the one‑month notice of intention to sue, which was acknowledged by the Assembly’s employee as evidenced by Exhibit “ROB1” Subsequently, on 3rd March 2025, the Writ of Summons and Statement of Claim were served by the Court’s bailiff, as confirmed by the Affidavit of Service and a search from this court’s registry dated 13th March 2025. Counsel contends that at the time of service, there was no substantive Municipal Chief Executive in office. Under the Local Governance Act, 2016 (Act 936), the Coordinating Director is the administrative head and principal officer of the Assembly. Service was therefore effected on the secretary to the Coordinating Director, which the Plaintiff argues is valid service under **Order 4 rule 2(6)(b) of the District Court (Civil Procedure) Rules, 2009 (C.I. 59)**. Counsel stresses that the rule permits service on a corporation or public body through its secretary, clerk, or principal officer, or by leaving the process at its office. Further, **section 211(2) of Act 936** empowers the Court to vary service requirements. Despite this, the 2nd Defendant failed or refused to enter appearance, file a defence, or participate in the proceedings, even after several adjournments and hearing notices. Counsel submits that the present application, filed only days before judgment, is a deliberate attempt to evade the consequences of default and frustrate the administration of justice. The claim that the Assembly was unaware of the suit is untenable, since the processes were left at its offices and acknowledged by staff in the ordinary course of business. The Plaintiff counsel further argues that the 2nd Defendant has slept on its rights, and any objection to service at this stage is belated and contrary to the principle that objections must be raised promptly once a party becomes aware of proceedings. Counsel argues that granting the motion would unjustly prejudice the Plaintiff, who has complied with all requirements, while rewarding the 2nd Defendant’s neglect, and therefore urges the Court to dismiss it as frivolous, vexatious, and an abuse of process with costs. **Decision of the Court** In the case of _**R v. Appeal Committee of London Quarter Sessions, ex parte Rossi**_**[1956] 1 All ER 670 at 674, Lord Denning** underscored the principle that no one should be made liable by any tribunal unless given fair notice of proceedings to enable them to appear and defend. Similarly, the Supreme Court in **Serbeh-Yiadom v Stanbic Bank (Gh) Ltd [2003-2005] 1 GLR 86** stated that: “It is a salutary and well-known principle of law that a person should be given the opportunity of being heard when he is accused of any wrong doing before any action is taken against him”. Therefore, whether a person is natural or juristic, they can only be given the opportunity to defend themselves if they are properly served with the originating process that invokes the court’s jurisdiction to decide a case against them. **Order 4 rule 2(2) of the District Court Rules, 2009 (C.I. 59) which provision is akin to order 7 rule 5(1) of the High Court Civil Procedure Rules 2004 (CI47)** provides that where no enactment prescribes service on a body corporate, service may be effected on its head, managing director, secretary, treasurer, or other similar officer. **Section 29(2)(d) of the Interpretation Act, 2009 (Act 792)** echoes this by permitting service on a body corporate through its secretary or clerk at the registered or principal office. These provisions, however, are general provisions on service on a body corporate. The 2nd Defendant, Effia Kwesimintsim District Assembly, is a body corporate as provided for by section **4(1) of the Local Governance Act, 2016 (Act 936). Section 211 of Act 936** makes specific provision under the heading “Legal proceedings and notices,” and states that: “Any summons, notice or other document required or authorised to be served on a District Assembly shall be served by delivering or sending the summons, notice or other document by registered post addressed to the District Chief Executive.” The Supreme Court in _**Boyefio v NTHC**_**[1997–98] 1 GLR 332** held that “where an enactment has prescribed a special procedure by which something is to be done, it is that procedure alone that is to be followed.” Applying this principle, section 211 of Act 936 overrides the general provisions of C.I. 59 and Act 792. Hence, the Court, in relying on section 211 of the Local Governance Act, 2016 (Act 936), finds that the proper person to be served with the summons, that is, the originating process, is the Municipal Chief Executive (MCE)of the 2nd Defendant. The Plaintiff/Respondent has argued that since there was no substantive MCE at the time, service on the Coordinating Director’s secretary was sufficient. **Section 5(5) of Act 936** designates the District Coordinating Director as the secretary of the Assembly. **Section 75 of Act 936** further makes clear that the Coordinating Director is the administrative head of the Assembly, answerable to the District or Municipal Chief Executive, and responsible for coordinating the activities of the Assembly. While these provisions underscores the office of the Coordinating Director, it does not extend recognition to his secretary. In my respectful view, the Plaintiff’s argument that service on the secretary to the Coordinating Director was valid cannot be accepted. Section 211 is express that service must be on the District or Municipal Chief Executive, unless the Court orders otherwise. Nothing in the proceedings so far reveals that the Court made such an order permitting other modes of service. If the Plaintiff had served the Coordinating Director himself, acting as the Municipal Chief Executive (MCE), that would have sufficed. However, service on the secretary to the Coordinating Director is not recognised under Act 936. Even upon resort to **Order 4 rule 2(2) of C.I. 59** , and considering the reasoning in **Republic v STMA & 3 Ors, Ex parte Robert Dedume**, as cited by counsel for the Plaintiff/Applicant, the High Court was emphatic that the term _“secretary”_ does not refer to a clerical or front desk secretary attached to the Coordinating Director. Rather, as the High Court explained in _Ex parte Dedume_ , the _“secretary”_ referred to in Order 7 rule 5(1) of C.I. 47**** a provision materially similar to Order 4 rule 2(2) of C.I. 59 denotes the Coordinating Director himself, who by statute is the secretary of the Assembly. Accordingly, service on a subordinate staff member cannot be deemed proper service within the meaning of the law. Again, in the case of **Tema District Assembly v. Djabatey [1992] 1 GLR 228–231** , the Court, in striking out a writ for non-compliance with the statutory requirement, held that under sections 97 and 99 of the repealed Local Government Law, 1988 (PNDCL 207), the proper person to be served with a notice of intention to commence legal proceedings against a district assembly is the District Secretary, either personally, by registered post, or as otherwise directed by the Court. Service on a subordinate or clerical secretary does not constitute valid service, and therefore the writ and statement of claim were set aside. This Court holds that the import of the decisions in **Republic v STMA & 3 Ors, Ex parte Robert Dedume** and **Tema District Assembly v. Djabatey [1992] 1 GLR 228–231** is that service on a District Assembly’s secretary is valid only when effected on the Coordinating Director, who by law is the secretary of the Assembly, and not on a subordinate or clerical secretary. By virtue of **section 211 of the Local Governance Act, 2016 (Act 936)** , the proper person to be served with originating processes against an Assembly is the Municipal Chief Executive (MCE). Where, as in the present case, the Plaintiff asserts that there was no substantive MCE at the time of service and that the Coordinating Director was acting in that capacity, service ought to have been effected on the Coordinating Director himself as acting MCE. Service on his personal secretary does not satisfy the statutory requirement. Hence, the court holds that the application is meritorious and is granted. Accordingly, the court sets aside the service of the originating processes on the 2nd Defendant for want of proper service **SGD** **H/W BERNICE ODURO KWARTENG ESQ. (MS).** **DISTRICT MAGISTRATE** **EFFIA KWESIMINTSIM.** _**COUNSELS:**_ **DANIEL WIBERFORCE WITH MRS. NANA BEMA ADENU-MENSAH FOR THE PLAINTIFF.** **SAMUEL AGBOTTAH FOR THE 2****ND** **DEFENDANT****.** _**PARTIES:**_ **PLAINTIFF PRESENT.** **DEFENDANT****S ABSENT.** 3 **|** Page