IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 65 OF 1995

Between:

MOHAN LAL
s/o Megh Nath
Plaintiff

and

NAIRIRILEKA LAND PURCHASE
CO-OPERATIVE SOCIETY LIMITED
Defendant

Mr. A. Kohli for the Plaintiff
Mr. V. P. Ram for the Defendant

JUDGMENT

This is the defendant's Motion for an Order striking out this action on the ground that the Writ of Summons which was issued on 12 October 1995 herein has not been served on the Defendant (the "Society") within 12 months after the said date.

Background

In support of the motion, RAJ KUMAR, the Chairman of the Society, filed an affidavit stating, inter alia, that the Society which is registered under the provisions of Co-operative Societies Act Cap 250, (the "Act"), is by virtue of section 9 of the Act a corporate body and has had its registered office at Muanidevo Indian School, Dreketi, Macuata since 1969. The Society denies ever having been served with the Writ of Summons.

Mr. Kohli for the Plaintiff submits that the Society was served with the Order for injunction in this action and therefore by now "appearing" (through this application) the Society was aware of the Writ and therefore it has "waived service". He said that the Writ was not served at the registered Office of the Society but at Government's Co-operative Society Office at Nasea, Labasa.

Mr. Kohli is saying that the Society waited till the writ expired before making this application. He is asking the Court to extend the time for Writ of Summons if Court finds that it was not served at the registered office.

Mr. Ram submits that upon search it would have been revealed to the Plaintiff where the registered office of the Society was and is. He said that there was no application to extend the life of the writ. In the circumstances there was no alternative but to apply to Court to have the writ struck out.

Consideration of the issue

The Applicant/Defendant is saying that this action should be struck out because the writ has expired and also that it has not even been served on it.

It is not in dispute that the Writ of Summons was not served at the registered office of the Society as required by law.

From the affidavit of the said RAJ KUMAR it is clear that the "first intimation" he had of any proceedings against the Society was when an Order of injunction was served personally on him on or about 21 August 1996 in Labasa Town. Whereupon the Society sought legal advice and it was advised by its solicitors after search that, inter alia, a Writ of Summons had been issued by the Plaintiff.

The Writ was issued on 12 October 1995 and it is required to be served within 12 months after the said date. The Society knew about the Writ before it expired. The injunction Order reads as follows:

"....that the Defendant and/or its servants and/or agents or members be restrained from deviating from the original scheme plan approved for Stage 2 until further Order with liberty to apply on three days notice and all papers together with the sealed order be served within 4 days on or before 25 August, 1996." (underlining mine for emphasis)

No doubt, if it wanted, the Society could have made an application to dissolve the injunction but instead on 16 October 1996, after the expiry of the Writ, it makes the present application. That is the Society's prerogative.

In these circumstances and on the facts of this case Mr. Kohli argues that the Society had waived the requirement of service of Writ although it was done after the expiry date when it made the present application. I do not agree. In this regard Mr. Kohli relies on the case of THE GNIEZNO 1967 2 ALL E.R p.738 to which he made reference in his submission but that case does not assist him on the point he has raised.

The law

Provisions as to service of originating process are contained in Order 10 of the High Court Rules and in Or.10 r.7 it is stated that "this rule shall have effect subject to the provisions of any Act and these Rules and in particular to any enactment which provides for the manner in which documents may be served on bodies corporate".

The defendant is a Society registered under the Act. Upon registration it becomes a body corporate "by the name under which it is registered, with perpetual succession and with power to hold property, to enter into contracts, to institute and defend suits and other legal proceedings, and to do all things necessary for the purpose of its constitution" (Section 9).

The Society shall have an address "to which all notices and communications may be sent" (section 12).

The question for the Court's determination is whether the action could be struck out on the facts outlined hereabove. The case of THE GNIEZNO (supra) is authority for certain proposition, namely, whether there can be "appearance" without service before expiry of writ and "appearance" after expiry; and it is pertinent that I refer to various relevant passages from the judgment in that case in this regard for the purpose of deciding whether to strike out the action or not.

In THE GNIEZNO (supra), BRANDON J discusses the effect of appearance to a writ governed by R.S.C. Or. 12 r.1 and R.S.C. Or 10 r.1(3). He is of the view that there could be "appearance by a defendant without there having previously been due service of the writ on him ... at any rate while the writ is current for service" (at p.743-744) underlining mine for emphasis. He derives support for this in the case of PIKE v MICHAEL NAIRN & CO. LTD (1960) 2 ALL.E R at p.186 where CROSS J said:

"The service of the process of the court is made necessary in the interests of the defendant so that orders may not be made behind his back. A defendant, therefore, has always been able to waive the necessity of service and to enter an appearance to the writ as soon as he hears that it has been issued against him, although it has not been served on him (see Fell v. Christ's College, Cambridge (1), Oulton v. Radcliffe (2)."

Referring to the above passage BRANDON J concluded by saying that "... that is the correct statement of the law which I ought to follow". He went on to say (at p.744):

"Looking at the matter as one of principle, it seems to me that a defendant ought to have the right to enter a voluntary appearance in this way so that in any case where an action is hanging over him he may take steps to have it dismissed. Under the present rules there is no obligation to serve a writ earlier than within twelve months, and even then a plaintiff may, if he shows cause, obtain a renewal of the writ ex parte. In this way a defendant may have an action, the existence of which is known to him, hanging over him for a very considerable period. It seems to me desirable in principle that a defendant, faced with such a situation, should be able to obtain some finality."
(underlining mine for emphasis)

BRANDON J concluded by saying that "... in principle a defendant can appear voluntarily to a writ which has not been served on him, anyhow, while the writ remains valid for service" (at p.745).

In the case before me the defendant could have done the same as the writ was still valid for service when the Society came to know that there was an action but it chose not to do so.

The next question that arises is "Is it open to the defendant to appear where the writ has expired?"

BRANDON J discussed the case of SHELDON v BROWN BAYLEY'S STEEL WORKS LTD (1953) 2 All E.R 894. There he referred to the following passage from the judgment of DENNING L.J in SHELDON at p.897 in the matter of service of an expired writ:

"If it was an irregularity, then the irregularity was waived by the unconditional appearance. But if it was a nullity, then it could not be waived at all. It was not only bad, but incurably bad. In determining the question, it is important to notice that, even after twelve months have expired, the writ can be renewed. This is not done under R.S.C., Ord. 8, r.1, for that only permits renewal before the twelve months have expired. It is done under R.S.C., Ord. 64, r.7, which is the general rule permitting enlargement of time ... Now, if a writ can be renewed after the twelve months have expired, that must mean that it is not then a nullity. There are other reasons, too, why the writ cannot be considered a nullity. Suppose a defendant, who is served after the twelve months, deliberately enters an unconditional appearance and goes to trial. It may be that it is a case where no statute of limitation avails him and he does not think it worth while to object to the service of the writ, because he knows that it would only mean the issue of a fresh one. Could he thereafter turn round and say that all the proceedings were void on the ground that the writ was a nullity? Clearly not. That shows that the service out of time was only an irregularity which could be waived."
(underlining mine for emphasis)

BRANDON J said (at p.746) that the said Court of Appeal decision:

"..... binds me to hold that an expired writ is still a writ, although it is not available to the plaintiff for service to the defendant if the defendant chooses to take the point. On the other hand, the defendant can, if he likes, waive the point. In that case the service of an expired writ will be good service. If a defendant can waive the right to complain of a writ being served on him out of time, I do not see in principle why he should not also be entitled to waive the requirement of service itself not only while the writ is current, but also after it has expired."
(underlining mine for emphasis)

BRANDON J goes on to say:

"The essential point seems to me to be that the requirements in the rules relating to service are requirements made for the protection or benefit of the defendant, and that, because of that, if the defendant wishes to waive any of those requirements, he can do so. It is clear from Sheldon's Case (15) that a defendant can accept service of an expired writ although the plaintiff could not impose service of it on him. I cannot see why, if a defendant can appear voluntarily before the twelve months have elapsed, he is not also entitled to do so after the twelve months have elapsed."
(underlining mine for emphasis)

The Society did not appear voluntarily even after - the 12 months elapsed. Again, that was its prerogative.

Conclusion

In this case I find that there was no service of the Writ of Summons at all. The Plaintiff has disobeyed the Order of the Court in not serving "all papers" (which includes the Writ) as he was ordered to do so by 25 August, 1996. The Plaintiff obtains an order for injunction and sleeps on it without taking any further steps in the action. It is an abuse of the process of the Court to do so in this case. The Society cannot be expected to file a Statement of Defence without knowing what the Plaintiff's claim is in the absence of service of the writ. The fact that the Society has made this application cannot be deemed to be waiver of service by any stretch of the imagination and not even under THE GNIEZNO (supra).

In the outcome, for the reasons given the application to strike out the action is granted with costs against the Plaintiff to be taxed if not agreed.

D. Pathik
Judge
At Suva
14 March 1997
HBC0065J.95B