Telaaka v Kaupule of Niutao [2022] TVHC 1; Civil Case 4 of 2021 (4 February 2022)

IN THE HIGH COURT OF TUVALU 2022

CIVIL CASE NO.4/21

BETWEEN

TEFITI TELAAKA FIRST PLAINTIFF
MAUATU TEPOGA SECOND PLAINTIFF

AND

KAUPULE OF NIUTAO FIRST DEFENDANT
MINISTRY OF HOME AFFAIRS SECOND DEFENDANT

Before Hon Judge Sir John Muria

Hearing 4^th February 2022

Ms Nelu for Plaintiff
Ms Teo for Defendant

J U D G E M E N T

Muria J : This is an application by the Plaintiff seeking judgement in default of appearance and defence by the Defendant . The defendant opposed the application challenging the effectiveness of the Service on the defendant and secondly, relying on section 111 (3) of the Falekaupule Act (Cap. 4. 08), to say that the action should be brought against the Kaupule rather than the Falekaupule.

2. The two issues now raised by Ms Teo of Counsel for the defendant do not dwell on the issue over section 111 (3) of the Falekaupule Act, as raised in Court during the hearing. However, it is clearly an error to name the Niutao Falekaupule as First Defendant. Under Sections 5 (2) and 111 (3) of the Falekaupule Act, the First Defendant should be properly named as the Kaupule of Niutao. See the Kaupule of Nukufetau –v- Lotoala Metia [2012]TVHC 8; Civil Case No.2 of 2011 (11^th July 2012). That error is now corrected and the Kaupule of Niutao is now substituted as the First Defendant.
   

BRIEF BACKGROUND

3. The brief background facts of this case are that on 1^st March 2021 the Plaintiff took out a Writ endorsed with a statement of Claim against the Defendant claiming specific and general damages for loss of salaries, pain and suffering and loss of future earning capacity. The Plaintiffs were members of the Falekaupule of Niutao.
   
4. The Writ and Statement of claim were served on Defendants respectively on 8^th April 2021, and 9^th March 2021. The Affidavit of Tefiti Telaaka confirmed the Service on the Defendant on the dates mentioned.
   
5. Despite the alleged services on the Defendants, no entry of appearances or filing of defences have been made by either of the Defendants. Consequently on the 16^th June 2021, the Plaintiffs applied by motion for Judgement in default of appearance and defence. As I have already indicated, the Defendant oppose the Plaintiff’s application.
   

Whether service properly effected on the Defendants.

6. I deal first with the issue of proper service. There is no dispute in this case that service was effected on the First Defendant in this case. The email, attaching the Writ of Summons and Statement of Claim, was sent by Counsel for the Plaintiff to Mr Taufala Nia who was the Secretary to the Kaupule of Niutao. This was confirmed by the Affidavit of Tefiti Telaaka. There can be no dispute that the Secretary to the Kaupule of Niutao was the proper person to be served with the Plaintiff’s Writ of Summons and Statement of Claim in this case, on behalf of the First Defendant.
   
7. The issue raised by Ms Teo in her objection to service on the First Defendant is, however on the manner of Service on the First Defendant. Counsel argued that Order 9 rule 2 of the High Court (Civil Procedure) Rules 1964, requires the First Defendant to be served personally and that service by email on the Secretary to the Kaupule of Niutao (Mr Taufala Nia) was, not personal service within the meaning of Order 9 Rule 2 of the High Court Rules. Counsel further submitted that if the Plaintiffs intended to serve the Secretary to the Kaupule, they should have sought an order for substituted Service under the rule to serve the First Defendant by email. They had not done so and as such, the service made on the Firs Defendant by email was not proper and was ineffective.
   
8. I have not heard any counter-argument from Ms Nelu of Counsel for the Plaintiff on this point. I therefore assume that the Plaintiff’s position is that service on the First Defendant was done by email which the Secretary to Niutao Kaupule received and that Service was in order.
   
9. The rule on Service of the Writ of Summons commencing an action in the High Court is Order 9 rule 2 as pointed out by Counsel for the Defendant. That rule provides as follows:
   

“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.”

10. The manner of personal service under Rule 2 is for the Plaintiff to serve the Writ personally on the person to be served. I have not been told nor Counsel had alerted the Court of any amendment to the above rule permitting service by “Fax or other electronic means” which, subject to other requirements, would permit service by email. In the absence of any amendment to the rule, a Writ of Summons or other documents to commence an action in the High Court must be served personally on the person to be served.
    
11. However, even if it can be argued that service by electronic means is permitted, it is not sufficient to simply send the document by email to the person to be served. Proof of service would be necessary and the way to achieve those is to get the person to be served to give his or her email address and to confirm that he will accept service by email. This will also ensure that the electronic communications are received, confirmed and the person or persons who should receive them do actually receive them. This is highlighted by the UK Supreme Court in Barton, Wright Hassall LLP [2018]. UKSC 12 which discussed the problems associated with electronic service and said that:
    

“There must be arrangements in place to ensure that the arrival of electric communications is monitored, that communications constituting formal steps in current litigation are identified, and their contents distributed to appropriate people within the Firm,”

12. In this case, I must accept Ms Teo’s submission that even if Mr Taufala Nia was the correct person to be served with the Writ of Summons on behalf of the First Defendant, Niutao Kaupule, service on him was ineffective, since it was done in a manner not permitted by Order 9 Rule 2 of the High Court (Civil Procedure) Rules, 1964. I find that service on the First Defendant was not proper service and therefore ineffective.
    
13. If personal service could not be effected because the Defendant is in the outer island of Niutao, the Rules also allow the Plaintiff to seek alternative service on the Defendant. Order 10 rules 1 and 2 permit the Plaintiff to apply for substituted service in the manner set out in Rule 1 and can be carried as directed by Order of the Court. No application has been made in this by the Plaintiff for substituted service that is also fatal to the Plaintiff’s case.
    
14. Naturally, in today’s digital era Counsel might feel that the most convenient means to serve the Defendant was by email as the Defendant Secretary is reachable by email. Regrettably, the one area of litigation where our rules are in need of modernisation is to do with service of proceedings to commence in action. However, until the Rules Committee makes the appropriate changes to the Rules, service of Writ of Summons or other documents for commencement of an action must comply with Order 9 Rule 2 of the High Court (Civil Procedure) Rules 1964.
    
15. I now deal with the issue of Service on the Second Defendant. The argument for the Plaintiff is that the Writ of Summons was served on the Second Defendant on 9^th March 2021. The facts revealed through the Affidavit of Tefiti Telaaka that on 9^th March 2021, the lawyer for the Plaintiff served the Writ of Summons on the personal Secretary, Ms Agiao Tetaa, to the Minister of Home Affairs. Ms Nelu of Counsel for the Plaintiffs has contented that service on the Second Defendant was properly effected and as such Judgment in default should be ordered.
    
16. Relying on Order 9 Rule 8 of the High Court (Civil Procedure) Rule 1964, Ms Teo of Counsel for the Defendant submitted that service on the Second Defendant was not proper service, as being in breach of Order 9 rule 8. Counsel submitted that service on a Government Department must be effected on the Head of the Department.
    
17. The Provision of Order 9 Rule 8 (3) provides as follows:
    

“(3) Whenever any Writ or other documents is to be served on any Government Department, service may be effected either by personal service on the Head of such Department, or by sending the Writ or document to the Head of such Department in the same manner as writs or documents may, under paragraph (2) be sent to a company.”

18. The above rule provides two mode of service on a Governments Department, namely either by personal service on the Head of Department which normally is the Permanent Secretary or by sending the writ or document to the Head of the Department in the same manner as writs or documents are sent to the company, that is, by prepaid registered post. The evidence in this case shows that the Writ of Summons was delivered to the Office of the Ministry of Home Affairs whose Administrative Head is the Permanent Secretary.
    
19. As a matter of office practice, someone usually at the reception would receive the documents, signs for them to show receipt and then passes them on to the Officer responsible in the Department or Ministry. It is rarely that the Clerk or Personal Secretary or an Officer who receives the documents at the reception never passes on to the responsible Officer after receiving the documents. It does not make common sense to presume that the documents received at the Reception Desk stop there and are not passed on for appropriate action by the appropriate authority in the Ministry. To the contrary, in such a case, the only plausible presumption is that the documents are sent to the appropriate Governments Ministry or Department by hand-delivery, signed off for their receipt by an employee of that Ministry or Department, passes them on to the Head of the Department for attention and action.
    
20. In the present case, the Writ of Summons was sent, not by registered post, but by hand delivery to the Ministry or Government Department whose Admin Head is the Permanent Secretary. The delivery of the Writ was confirmed by the Secretary to the Minister of Home Affairs. That in my judgement was good and effective service on the Second Defendant. The Plaintiff can hardly be blame if the documents have not been given to the Permanent Secretary who is the Administration Head of Second Defendant.
    
21. I find and hold that there was proper and effective service on the Second Defendant in the present case for the reasons set out above. To hold otherwise would be to encourage defaulting parties in litigation to hold other parties to ransome and to defeat the course of Justice.
    
22. Having said that, I feel the matter does not end there. Although, I find that there is effective service on the Second Defendant in this case, the Plaintiff is not relieved from complying with Order 29 Rule 14 of the High Court (Civil Procedure) Rules, 1964 which provides:
    

“ 14. In proceedings against the Crown, no judgement for the plaintiff shall be entered in default of pleading without the leave of the Court, and any application for such leave shall be made by notice of motion or summons served not less than seven days before the return day”

23. That rule requires leave of the Court before judgement in default of pleading can be entered against the Second Defendant. The Plaintiff has not taken out any application whether by notice of motion or Summons in this case seeking leave to enter Judgement in default against the Second Defendant. Consequently, no judgement in default can be entered against the Second in the present case.
    
24. The application for judgement in default against the First and Second Defendant in the present case is refused.
    
25. The pleadings in the case are to proceed in the usual manner. The Defendants are given 14 days to enter appearances and 14 days thereafter to file defences.
    

Dated the 4^th day of February 2022

Sir John Muria
Judge