Lal v Nairirileka Land Purchase Co-operative Society Ltd [1997] FJLawRp 12; [1997] 43 FLR 75 (14 March 1997)

[1997] 43 FLR 75

HIGH COURT OF FIJI ISLANDS

MOHAN LAL

v

NAIRIRILEKA LAND PURCHASE
CO-OPERATIVE SOCIETY LIMITED

[HIGH COURT, 1997 (Pathik J) 14 March]

Civil Jurisdiction

Practice: Civil- non- service of writ - whether appearance by Defendant after expiry of the writ amounts to a waiver of the requirements for due service- High Court Rules 1988 - Order 10.

laintiff commenced nced proceedings and obtained an interlocutory injunction ex parte. Over 12 months later and after the writ had expired the Defendant sought to have the action struck out on the ground that it had not been served with the writ. The High Court granted the Defendant’s application and HELD: that the Defendant’s voluntary appearance after the writ had expired did not amount to a waiver of the requirement for due service.

ses cited:
Pike chael Nair Nairn & Co. Ltd [1960] 2 All ER 186
Sheldon v. Brown Bayley&#s Steel Works Ltd [1953] 2 All ER 894The Gnhe Gniezno [1967] 2 A 7 ER 738
8

Incutory applin in n in the High Court.

A. Kohli#1i>&#16> for the Plaintiff
for the Defendan PatPath/b>:
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Backgrou>
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In support of thiomotion, Raj Kumar, the Chairman of the Society, filed an affidavit stating, inter alia, that the Society which is registered under the provisions of Co-operaoperative Societies Act Cap 250, (the 0;Act”)221;), is by virtue of section 9 of the Act a rate body and has had its registered office at Muanidevo Invo Indian School, Dreketi, Macuata since 1969. The Society denies ever haveen served with the Writ ofit of Summons.

Mr. Kohli for laintiff tiff 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 rit and therefore it has &#as “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. Koh saying that thet 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 Courds that it was not served at the registered office.
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Consider of the issu issue

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

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

Fre affidavit of the sahe said Raj Kumar it is clear that thet intimation he had of any any proceedings against the Society was when an Order of injunction was served personally on him on or ab1 August 1996 in Labasa Towa 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 issued2 Oc12 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 Ordeds as follows:

&#822.that the Defe Defendafendant 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 .” (underlining mine fohasis)

No doubt, if it w, the the Society could have made an application to d 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.
The Go [1967] 267] 2 All E.R 738 io 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 coed in Order 10 of the High High Court Rules and in Or.10 r.7 it is stated that “this rule shall have effect subject to the provs of any Act and these Rules and in particular to any enactenactment 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 contracts, to institute ande and defend suits and other legal proceedings, and to do all things necessary for the purpose of its constitution” (Section 9).

The Society shall havedan 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 n the facts outlined hereabereabove. The case of The Gniezno&#supra) pra) is authority for certain proposition, namely, wr there can be appearance wnce without service before expiry of writ and appearance after expiry; and it is pertinent that I refer toous relevant passages from from the judgment in that case in this regard for the purpose of deciding whether to strike out the action or not.

In &#/u> (supra),pra), Brandon J dsecusses 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 pusly been due service of thof the writ on him ... at any ratee the writ isit is current for service” (at p.743-744 underlining mine for emphasis). He derives support for this in the case of Pike v. Michael Naamp; Cmp; Co. Ltd ] 2 All E p.186 where here here Cross J said:

“The servi thof the process of the court is made necessary in therestthe defendant so that orders may not be made behi behind his back. A defendant, therefore, ore, has always been able to waive the necy of service and to enter ater 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.”

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 atter as one of principle, ple, it seems to me that a defendant ought to have the right to enter a voluntary appearance in this way&#u>so that in any case where an action is hanging over him he may take steps to have it dism 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 Jluded by sayinsaying that “... in principle a defendant can appear voluntarily to a writ which has not been served on him, anyhow while the writ remains vfor service” (at p.745).

In the case befe 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 questiot aris s is “Is it opit open to the defendant to appear where the writ has expired?”.

Brandon J discussed the of Sheldon v Brown Bayles’s Steel Works Ltd [1953] 2 AR 894. 894. T94. There he referred to the following pa from the judgment of Denning L.J. in Sn at p.897 in 7 in the mattes of seof service of an expired writ:

.” (underlining mine for emphasis)

Brandon J said (at p th6) that the said Court of Appeal decision:

&#8220. binds me tome to hold that an expired writ is still a writ, although it is not available to the plaintiff for service to efendf the defendant cant chooses to take the point. On the other hand, the defendant can, if heif 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 notin principle whye 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)

Brandooes on to say:

#8220;The essential poil point seems to me to be that the requirements in the rules relatinservice are requirements made for the protection or benefit of the defendant, and that, bec, because of that, if the defendant wishes to waive any of those requirements, he can do so. It is clear from Sheldon’s Case 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.&#8221derlining mine for emphasis)

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

usion
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In this c find thad that there was no service of the Writ of Su at all. The Plaintiff has has disobeyed the Order of the Court in not serving “all papers” (which includes the Writ) as he wdered to do so by 25 Augustugust, 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). e outcome, for ther the reasons given the application to strike out the action is granted with costs against the Plaintiff to be taxed if not agreed.

(Application granted: action struck out.)