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Telaaka v Kaupule of Niutao [2022] TVHC 5; Civil Case 4 of 2021 (20 May 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 16^th May 2022

Ms Nelu for Plaintiff
Ms Teo for Defendant

J U D G E M E N T

Muria J: At the hearing on 16^th May 2022, the Court refused the application by the first defendant to strike out the plaintiffs’ case against it. I indicated that I will give the reasons for the decision. These are the reasons for the Court’s decision.

2. The application by the first defendant is for an order to strike out the claim against the first defendant and for costs in the sum of $5,000.00. The sole ground relied on by the defendants is:
   

“That the Writ of Summons was not served on the first defendant as per rule 9 of Order 2 of the High Court (Civil Procedure) Rules within reasonable time”

BRIEF BACKGROUND

3. The background to this application had already been dealt with in a separate judgment of the Court given on 4^th February 2022 in this matter. In that judgment, the Court dealt with the issues of service of the Writ of Summons and default judgment. The Court held that service of the Writ on the first defendant by email was not proper service and therefore ineffective. Service on the second defendant was proper and effective.
   
4. Judgment in default was defused against both defendants. As against the first defendant, judgment in default was refused due to ineffective service and as against the second defendant, judgment in default was refused for non-compliance with Order 29 Rule 14 of the High Court (civil procedure) Rules which requires leave of the Court before judgment can be entered against the Crown. Having refused the plaintiff’s application for default judgment, the Court ordered that the pleadings in the case to continue in the usual manner. In the circumstances one would have expected that the plaintiff would have taken steps to remedy his default of service of the Writ on the first defendant. That did not happen.
   

Application to strike out

5. The first defendant now asks that the plaintiff’s case against the Kaupule O Niutao be struck out. As already noted the reason being the lack of service on the first respondent. Had it not for the Entry of Appearances by Counsel for both the first and second defendants on 9^th March 2022, the first defendant’s case for striking out would have been on strong ground.
   
6. As both defendants, through their Counsel, entered appearance on 9^th March 2022, Rule 1 of Order 9 must be taken to apply in this case in so far as the first defendant is concerned.
   

Order 9 Rule 1 states:

“Rule 1 No service of writ shall be required when the defendant, by his advocate, undertakes in writing to accept service, and enters an appearance”.

7. The entry of appearance by Counsel must be taken as an undertaking by Counsel to accept service of the Writ on behalf of the First defendant. As such no service of the writ on the first defendant is required anymore to be done by the plaintiff. Growing Tall Ltd –v- Biofilta Pty Ltd (22/2/22) High Court Civil Case No. 6 of 2020.
   
8. Counsel informed the Court that the writ was served on the first defendant on 13^th May 2022. In the light of the Entry of Appearance made on 9^th March 2022 on behalf of the first defendant and the operation of Order 9 Rule 1, the service of the writ on the first defendant on 13^th May 2022 is of little consequence.
   
9. Ms Teo suggested that the last paragraph of the judgment of 4^th February 2022 is somewhat confusing. While that may appear to be so, it was premised on the assumption that the proper service of the writ on the first defendant would have been done as soon as possible so that the first defendant would enter appearance within the time set by the Court. That did not happen. However, the first defendant, through Counsel, had jumped the gun and filed entry of appearance without being served with the writ. Consequently, the first defendant is caught by Order 9 Rule 1 and cannot now complain of lack of service of the writ upon it.
   
10. In the circumstances, as already announced on 16^th May 2022, the first defendant’s application for striking out is refused.
    

Dated on the 20^th day of May 2022.

Sir John Muria
Judge