IN THE HIGH COURT OF TUVALU 2021

CIVIL CASE NO.12/19

BETWEEN   

USCHI SIAOSI	
PLAINTIFF

AND

CEO of the
MINISTRY OF PUBLIC UTILITIES
FIRST DEFENDANT

ATTORNEY GENERAL
SECOND DEFENDANT

Before 		Hon Judge   Sir John Muria

Hearing		4th February 2021

Ms T. Drecala for Plaintiff
Mr G. Drecala for Defendant

J U D G E M E N T

Muria J:	This, again, is another dispute over service of Writ of Summons on a defendant.  In, this case the dispute is over the service of a Writ of Summons on the Second defendant, the Attorney General. 

	Brief Background

2.	The plaintiff took out a Writ of Summons against the First and Second Defendants on 23rd September 2019 and served on both defendants on the same day.  Service on the First defendant, CEO of the Ministry of Public Works, was effected by leaving a copy of the Writ of Summons endorsed with a Statement of Claim with one Avafoa Irata who is an employee in the First Defendant’s office, at the First Floor, Government Building, Funafuti.  Service on the Second Defendant, Attorney General was effected by leaving the Writ of Summons with the Statement of Claim with one Uluaki Ioelu, the Professional Assistant to the Attorney General at the Second Floor, Government Building, Funafuti.

3.	The services on both defendants was done by Counsel for the plaintiff herself and had sworn an affidavit on 17th December 2021 confirming services the defendants.  See Affidavit of Service of Teresa Lifuka Drecala 

sworn to on 17th December 2021 and filed in support of the plaintiff’s case that services had been effected on both defendants.

	Issue

4.	Mr Apisai of Counsel for the defendants accepted that services on the First defendant was proper and effective.  Counsel, however, was adamant that service on the Second Defendant, Attorney General, was not proper service and therefore ineffective.

5.	The only issue here is whether service of the Writ endorsed with Statement of Claim on the Second defendant was proper service or not.

	Consideration and determination

6.	The applicable rule is Order 9 Rule 2, which requires personal service of the Writ on the person to be served.  If personal service is not possible, then substituted service may be sought from the Court and the Court may make an order for substituted service.

7.	Order 9 Rule 2, states as follows:

“ Rule 2:  When Service is required the Writ shall, whenever it is practicable, be served in the manner in which personal service is now made, but if it be made to appear to the Court that the plaintiff is from any cause unable to effect prompt personal service, the Court may make such order for substituted or other service, or for the substitution for service of notice, by advertisement or otherwise, as may be just.”

8.	There is no question here that Counsel for the plaintiff delivered the Writ endorsed with a Statement of Claim to the Attorney General by delivering them to the Attorney General’s Professional Assistant, Uluaki Ioelu.  If that is not proper service on the Attorney General, then it begs the question as to how does one or a plaintiff effect service on the Attorney General?  or what is the manner in which personal service is effected on the Attorney General? Counsel did not say.  Counsel simply argued that service on the Attorney General through her Professional Assistant, was not proper service.

9.	With respect, I feel the position taken by Counsel for defendants is, not only that it is unhelpful, but it is also one that would thwart the operation of the rule.  Rules on the practice and procedure of the Courts are designed to cover of the conduct of litigation in the Courts and are meant to work.  Among the first rules on the proper conduct of litigation through the Courts are the rules on service of documents commencing an action, such as the Writ of Summons under our rules.

10.	Turning to Order 9 Rule 2, it cannot be the intention of that rule that service on the Attorney General can only be properly effected if the Writ of Summons was to be literally placed in her hands personally and that service through her Professional Assistant would be insufficient.  The rule recognises that there are office practices and protocols in existence in government offices or companies or other bodies.  Hence, the rule states that the Writ, where “it is practicable be served in the manner in which personal service is now made.”

11.	The manner in which documents, intended for the Attorney General, and which are delivered to the office of the Attorney General, are normally received by an employee who may be the Professional Assistant, Clerk or Secretary at the front desk or Reception and who then deliver them to the Attorney General.  In the same manner, plaintiff or his Counsel, or a process server, delivers a Writ of Summons intended for the Attorney General to the Attorney General’s office, received by an employee in the office, then delivered it to the Attorney General.  That is the “manner in which personal service is made on the Attorney General”

12.	I dare say, that I do not find any distinction can be drawn between service on the First defendant and service on the Second defendant in this case.  My finding would have been exactly the same had the service on the First defendant been disputed.

13.	In my judgment, personal service of a Writ on the Attorney General is proper, sufficient and effective by leaving with or delivering a copy of the Writ to an employee in the office of the Attorney General.  I therefore find and hold that the delivery of the Writ of Summons endorsed with a Statement of Claim to the Professional Assistant of the Attorney General in the office of the Attorney General by Counsel for the plaintiff on 23rd September 2019, was proper and effective service.

14.	The question of proper service on the Second defendant having been dealt with, the pleadings must be completed and the case to proceed in the usual manner.

	Dated on the 4th day of February 2021.

Sir John Muria
Judge