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Uakeia v Uamoa [2014] KIHC 39; Civil Case 50 of 2013 (18 September 2014)

IN THE HIGH COURT OF KIRIBATI

CIVIL CASE NO. 50 OF 2013

BETWEEN

IANANA UAKEIA
PLAINTIFF

AND

RABWAERE UAMOA
DEFENDANT

Before: The Hon Mr Justice Vincent Zehurikize

18 September 2014

Mr Raweita Beniata for Defendant/Applicant
Ms Eweata Maata for Plaintiff/Respondent

Court: I have considered submissions by both Counsel and studied the pleadings on Court record. I have also studied the record of proceedings of the case.

The filing of the writs is as stated by Counsel. The first writ was filed on 1 July 2013 and issued by the Chief Registrar on 5 July 2013. There is no evidence on record to show that it was ever served on the defendant. There is no affidavit of service on the case file. The applicant does not state when he was served with this Writ. In any case if he had been served he was obliged to comply with the order of the writ by taking action in his defence. No action like filing an appearance or defence was done.

The second writ was filed on 21 October 2013. It was not endorsed by the Chief Registrar and so there was nothing to be served on the defendant. A Court document is incomplete or ineffective until it has been signed by the relevant officer of Court and sealed with the seal of Court. In the instant writ, although it was received in Court on 21 October 2013, but since it was not signed by the Chief Registrar and appropriately sealed, it ceased to be a Court document, to wit a writ of summons. It was not a document capable of being served on the defendant. And in fact it was not served on him as there is no proof thereof. Therefore it is not an amended writ to talk about.

The only amendment to talk about is that which was filed on 25 October 2013 and signed by the Chief Registrar on 30 October 2013. This can be treated as the first amendment. It did not contravene the provisions of O.30 r.2 since the original writ of 5 July 2013 was never served on the defendant.

It should be remembered that O.8 r.1 gives the plaintiff a whole 12 months within which to serve the writ to the defendant. It is only after service that the operation of O.30 r.2 can be put in motion. Since the plaintiff was still within 12 months' period he was at liberty to change/amend his claim without leave as long as he had not served the defendant so as to be affected by the provisions of O.30 r.2.

I must comment that O.8 r.1 of Civil Procedure Rules is indeed outdated. It gives room to the plaintiff to play with his pleadings and even sleep over his case for such a long time. It is not clear how the defendant who was not served came to know that these proceedings did exist. Probably he was alerted.

The provision, like O.8 r.1, which allows a party to file a writ and take so long before effecting service affects the defendant who happens to learn of the case against him/her. It creates anxiety. It must have been out of such anxiety that the applicant filed this application.

Be that as it may for the aforesaid reasons I find no merit in this application. The plaintiff should go ahead and serve the amended writ within the time allowed by law. I hope he will not relax in a bid to create more anxiety. I wish also to comment that the applicant who had not filed any pleadings in this case has no locus standi to bring this application and in particular under O.30 r.2 of the Civil Procedure Rules. But given the plaintiff's inactivity by failing to serve the defendant promptly, in dismissing this application, I will make no order as to costs.

Consequently this application has no merit and it is hereby dismissed with no order as to costs.

Dated the 18th day of September 2014

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge