Hardwood Sales and Marketing (Fiji) Ltd v Shamsood [2011] FJHC 141; HBC267.2010 (4 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 267 of 2010

BETWEEN:

HARDWOOD SALES AND MARKETING (FIJI) LIMITED a limited liability company having its registered office at Lot 3, Bulei Road, Laucala Beach Estate.
PLAINTIFF

AND:

MOHAMMED SHAMSOOD (f/n Mohammed Sakoor) t/a Sam Civil Services a business entity and carries out its business operations at Namadi Heights, Suva.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: Nacolawa & Daveta for the Plaintiff
Samad Law for the Defendant

Date of Hearing: 24th February, 2011
Date of Ruling: 4th March, 2011

RULING

1. INTRODUCTION

1. The summons before me is to set aside the default judgment the Plaintiff has obtained against the Defendant. The writ of summons was not personally served and it was served to a company where the Defendant is a director. The address of the service is different from the address of the Defendant that is contained in the writ of summons. No leave from the court was sought to serve the writ to an address other than what was stated in the writ. The service of the writ is also not done by a registered bailiff. Even the writ is not signed by a solicitor. The Plaintiff is a limited liability company, and the signature on the writ denotes the signature only as the 'Plaintiff' without specifying the name, designation or any authority.
   

2. LAW AND ANALYSIS

2. The Writ o f summons was filed on 31st August, 2010, and according to the wit the Plaintiff is a limited liability company and the Defendant is a natural person. The address stated in the writ is as follows:
   

Mohammed Shamsood (f/n Mohammed Sakoor) "t/a Sam Civil Services a business entity and carries out its business operations at Namadi Heights, Suva"

3. In the affidavit of service filed by a person designated as 'Chief Law Clerk/ Para – Legal" dated 20th October, 2010 the address of the service of the writ is stated as follows
   

"the Defendant's Company Office, Industrial Sub-division, Vatuwaqa"

4. No leave of the court was obtained to serve to an address other than what is contained in the Writ of summons. The Defendant is a natural person and has to be served personally and service to a company where he is a director is irregular.
   
5. The affidavit in opposition filed on behalf of the Plaintiff, to setting aside the default judgment; at paragraph 7 the Plaintiff admits the service to a person called Ravin in the office of Sam Civil Services, an office where the Defendant is a Director.
   
6. According to Order 10 rule 1 a Writ must be served personally to defendant. In this case the Defendant is a natural person and he should be served personally.
   
7. The Order 10 rule 1(1) of the High Court Rules of 1988 states as follows:
   

"A writ must be served personally on each defendant by the plaintiff or his or her agent".

This is a mandatory provision and the word 'must' denotes that.

In this case the writ was not served personally, and on that basis the judgment obtained is irregular and needs to be vacated without any conditions.

100. CONCLUSION
     

8. The default judgment entered on 21st October, 2010 against the Defendant is set aside unconditionally. The cost of this application will be cost in the cause.
   

Dated at Suva this 4th day of March, 2011

Mr D. Amaratunga
Acting Master of the High Court

Suva