v
MANASEH SOGAVARE
High Court of Solomon
Islands n>
Before: KABUI, J
Civil Case No. 190 of 1997
Hearing: 8th
September, 1999
Judgment: 24th
September, 1999
A. Nori for the Petitioner
Mrs L. Tepai for the 1st
Respondent
Mrs. J. Gordon for the 2nd Respondent
JUDGMENT
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(F.O. Kabui, J):T is an interesting ting application. This is how it started. The main case is
an Election Petition filed by the
Petitioner on 15th August,
1997 later amended on 22nd October, 1997. It had taken
apparently too long for the hearing of the Petition as amended to come
to trial.
On the 9th July 1999, I adjourned the hearing of
the Petition and ordered that the Petitioner set a hearing date for the
Petition within 14 days or else the Petition would be struck out
automatically. This was a self-executing order. On 23rd July,
1999, a summons was signed by Bridge Lawyers and filed in the High
Court. There was no filing date on this
summons but the hearing date for
the Summons was stated as “Tuesday
3rd August 1999 at 9:30 am”.
When the application came up
before me on that date, Mrs. Tepai who is the solicitor on record for
the First Respondent
was not present in Court nor the lawyer for the
Second Respondent. Mr. Nori for the Petitioner explained to me that Mrs.
Tepai had been served together with the supporting affidavit to Mr.
Nori’s application. Mr. Nori undertook to
file the affidavit of service.
The affidavit of service was filed in the afternoon of that same day. It
was sworn
by Mr. Misi that same day. Paragraph 2 of that affidavit
confirms that the affidavit was served on the solicitors for the
1st
Respondent and the 2nd Respondent. The gist of Mr. Nori’s
application by Summons was that due to misunderstanding between himself
and
the Registrar, no date had been set down for the hearing of the
Petition within 14 days as ordered by me and that on that
ground the
self-executing order be varied. The details of the reasons for the
alleged misunderstanding were set
out in an affidavit sworn and filed by
Mr. Nori on 2nd August 1999. On the basis of this, I extended
the self-executing order on the same terms as before. By a
Summons signed by Motis Pacific Lawyers on 13th August, 1999,
the 1st Respondent now seeks to set aside my extension order
made on 3rd August, 1999 on the ground set out in the
affidavit filed by Mrs. Tepai on 9th August, 1999. The ground
alleged by the First Respondent as a reason for setting aside the
extension order I
made on the 3rd August, 1999 was
“non-service” of the Summons dated 23rd July, 1999 filed by
Mr. Nori to vary the extension order I made on 3rd August,
1999 above.
The Procedure for Service
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Trvice of summons is
regulated by Order 9, rule 14 of the High Court (Civil Procedrocedure) Rules
1964, (the High
Court Rules). Order 9, rule 14 above are in these
terms:-
“(1) Service
notice, summons, order or other document, shall hall wherever it is
practicable, be effected personally
on the person to be served and
service thereof shall be completely effected by the delivery of a
duplicate or
attested copy of any such notice, summons, order or
document without the exhibition of any original.
/b>
Provided that where
service as aforesaid cannot be effected the provisions of Rule 2 of this
Order as to substituted
service shall, mutatis mutandis, apply.
(2) Service on the
advocate or recognised aof the person to be served rved shall be deemed
to be effective service
on such person.”
The aation of this
Order was discussed in the case of Leslie Allison v Monique Medl Medlin (Civil
Appeal No. 7 of 1996) (unreported). Kapi, A/P was the dissenting voice
on the issue of effective service
whilst the majority were simply silent
on the issue. It would appear from the judgment of the Court of Appeal
that deciding whether or not effective service has taken place in any
particular case is a question of fact to be decided
by the judge.
Was there proper service in
this case
In this case, Mrs. Tepai is the solicitor on record for the 1st Respondspondent so that rule
14(2) of Order 9 above would apply. That is to say, service would have
been effected
on Mrs. Tepai personally to be regarded as effective
service on her. In her affidavit filed on 9th September,
1999, she painted the picture that she was always available in her
office and could have been easily
served with the Summons. However, she
says she was not served and that was why she was not able to attend
Court
on 3rd August, 1999. She says the fact that Mr. Nori
had told me that she had been duly served was incorrect. Not only that,
it would have also caused me to form a negative impression on her as the
solicitor on the record for the 1st Respondent. Mrs.
Tepai was also supported by Mrs Gordon who is the solicitor on record
for the Returning Officer, the 2nd Respondent. She says she
too was not served with the Summons. As against this was the affidavit
of service filed
by Mr. Misi dated 3rd August, 1999 at 14:20
hours after the Court hearing. This was done as an undertaking by Mr.
Nori to prove that
there had been proper service on Mrs. Tepai. The
proper thing to do was for me to have adjourned the hearing until the
affidavit of service had been filed by the person who effected service
upon Mrs. Tepai. However, I believed Mr.
Nori and did otherwise. Mr.
Nori might have also believed Mr. Misi and told me what he believed to
be the truth.
That truth is now being disputed by Mrs. Tepai whose
reputation is I have no reason to think otherwise but absolutely intact.
There is also no evidence before me to doubt the truth or otherwise of
Mr. Misi’s affidavit. It was a sworn affidavit
supposedly representing
the truth also. Who then is telling the truth? Certainly, someone is not
telling the
truth. I do not blame Mr. Nori nor Mrs. Tepai. However, both
have not told me about the details of the procedure if any,
employed in
their respective offices for effecting service or on receipt of service
documents so as to be clear
about where possible breakdown of
communication links might occur. Be that as it may, the fact is that
Mrs. Tepai
was not aware of the hearing date, 3rd August
1999, and time, 9:30 am. That
information could only be discovered if Mrs. Tepai was in possession of
a copy of the Summons issued by
Mr. Nori. She was therefore denied the
opportunity to represent and speak for her client before me on 3rd
August, 1999. I believe Mrs. Tepai when she said that she was not in
possession of copy of the Summons before
the returnable date specified
in the Summons filed by Mr. Nori. I think there was lack of proper
service in this
case. There is another matter of concern. In paragraph
13 of Mrs Tepai’s affidavit she took issue on the fact that the
Summons
in the High Court Registry was an unfilled copy of the Summons. This
issue was not raised before me because
Mrs. Tepai was not present as a
result of not being aware of the hearing date and time. This was
a direct result of not having been served with the Summons. In
my view,
that is not justice.
The Law
“1. Non-compliance
with any of these Rules,ith any rule of practice foce for the time being
in force, shall not render
any proceedings void unless the Court shall
so direct, but such proceedings may be set aside either wholly or in
part as irregular, or amended, or otherwise dealt with in such manner
and upon such terms as the Court shall think
fit.
2……
3…...
4…..”
The equivalent of Order 69
was Order 70 of the Rulethe Supreme Court of Englanngland of 1883 and
onwards. The
application of Order 70 was discussed by the Court of
Appeal in Craig v Kanseen [1943] 1 A.E.R. 108. The facts were
that a receiving order was served on the appellant as a result of a
Summons that had not been
served on him. However, the order was drawn up
after the production of an affidavit sworn by a clerk in the employment
of the Plaintiffs solicitors who deposed that he had served the
Defendant with a true copy of the Summons by
posting it in a pre-paid
envelop, addressed to the Defendant. However, that address was not the
Defendant’s address
stated in the action. The appellant then applied for
an order to set aside the order against him on the ground that it
was
irregular. In delivering the judgment of the Court of Appeal, LORD
GREENE, M, R. at pages 110-111, said,
“Therefore, t substantial question with which we have to deal is l is whether the order was
a nullity. Before I go
more closely into that matter, it is desirable to
examine the distinction between proceedings or orders which are
nullities and proceedings or orders in respect of which there has been
nothing worse than an irregularity. No definition
is to be found in the
rules which draws a line between these two classes, and exactly where
that line lies may
not, in certain circumstances, be easy to discover.
The existence of the distinction is however one which has been
recognised in the language of many authorities.”
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At page 113, LORD GREENE,
M.R.
“Those cases appear to me
to establish that an order which can properly be described as a nullity
is something
which the person affected by it is entitled ex debito
justitae to have set aside. So far as the procedure for having it
set
aside is concerned, it seems to me that the court in its inherent
jurisdiction can set aside its own order;
and that an appeal from the
order is not necessary. I say nothing on the question whether an appeal
from the
order, assuming that the appeal is made in proper time, would
not be competent.
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The question we have to
deal with is whethe admitted failure to serv serve the summons upon
which the order in
this case was based was a mere irregularity, or
whether it was something worse, which would give the defendant the right
to have the order set aside. In my opinion, it is beyond question that
failure to serve process where service
of process is required, is a
failure which goes to the root of our conceptions of the proper
procedure in litigation.
Apart from proper ex parte proceedings, the
idea that an order can validly be made against a man who has had no
notification of any intention to apply for it is one which has never
been adopted in England. To say that an order of
that kind is to be
treated as a mere irregularity, and not something which is affected by a
fundamental vice,
is an argument which, in my opinion, cannot be
sustained” (Also
see Re Pritchard (deceased) [1963] 1 AER. 873 and
my judgment in Mill Ling Chan v The Premier of Malaita Province
(Civil Case No. 159 of 98) (unreported).
Conclusion
The faf the above case
are similar to the facts of this case. However, there is a diffedifference.
In the above
case, a copy of the summons was sent to the wrong address
confirmed by the fact that the Defendant did not receive it for
that
reason. In this case, the affidavit filed by Mr. Misi confirmed on the
face of it that service was effected
upon the First and Second
Respondent’s Solicitors. However, in my view, the affidavit of Mr. Misi
was done in
a hurried manner. This is obvious from its appearance. It
said nothing about what documents were served and upon whom they
were
served. There is nothing in it to suggest that Mrs. Tepai and Mrs Gordon
cannot possibly deny receiving
copies of the Summons or at least being
aware of them in their respective offices. As I have said, both Mrs.
Tepai and Mrs Gordon have denied categorically that each of them had
received or seen a copy of the Summons. The fact that
each of them were
not present at the hearing before me on 3rd August, 1999
confirms this fact. The faxed message by Mr. Nori dated 2nd
August, 1999 addressed to Mrs. Tepai and copied to Mrs.
Gordon assumed that service of the Summons had been effected upon them
by Mr. Misi. Mr. Nori argued that Mrs.
Tepai should have been surprised by this faxed message and should have
immediately contacted Mr. Nori about non-service
of the Summons. This,
Mr. Nori said, she did not do and she should not now be heard to be
complaining about non-service
of the Summons. In my view, the burden of
proof of service was upon Mr. Nori though according to Mr. Misi, he had
served Mrs. Tepai and Mrs Gordon on 27th July, 1999.
Obviously this was not so because by the 2nd August, 1999,
Mrs. Tepai was still not able to know what summons, Mr. Nori was
referring to in his faxed message
to her. This was four working days
after the date of alleged service. If indeed Mr. Misi had served copies
of
the Summons upon Mrs. Tepai and Mrs. Gordon on 27th July,
1999, why did he not say so in his affidavit of service together with
the exact times service was effected?
This omission obviously leaves
doubt in my mind whether Mr. Misi had as a matter of fact served the
copies of
the Summons upon Mrs. Tepai and Mrs. Gordon. I think this is a
case where I should rule in favour of the 1st Respondent. The
extension order I made on 3rd August, 1999 is accordingly set
aside with costs. It was a nullity.
This case does demonstrate
that there need for complying with Order 9, rule 16 of the High
Court Rules which
I believe is not being complied with at the moment.
F.O. Kabui
Judge
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