Supreme Court
Action No. 101 of 1979
30th March, 1982
STAINE, CJ.

Mr. Denys Barrow for the Plaintiff
Mr. J.C. Gray for the Defendants

Practice and Procedure - Order to set aside service of writ - Order 76 rule 3 of the Supreme Court Rules - Objectives for irregularities - Conditional appearance - Whether service of proceedings can be done on a Sunday - Order 65 rule 8 - Rules forbid service on Sunday - Service and subsequent proceedings bad - Order set aside - Cost.

J U D G M E N T

This action has had a chequered career. The action was commenced with the issue of this writ, which was issued out of the Supreme Court on 1st June, 1979.

Appearance was entered for the second named Defendant on the 25th June, 1979, and conditional appearance entered for the 1st named Defendant, on the same date. After several adjournments at the request of Counsel for the Defendants, the action was finally commenced when the Court heard Counsel's objection to service of the Writ and other objections. The Court dismissed the application to set aside service of the Writ and other proceedings on the 4th March, 1980.

The next stage in these proceedings was reached, when application was made to continue the action between the Plaintiff and Eugenio Eck, Sotero Eck the second named Defendant having died on the 4th day of October, 1979, and Eugenio Eck being the applicant for Letters of Administration in the Estate of Sotero Eck. The application was heard on the 15th of July, 1980 and was granted.

The Writ having been served on Eugenio Eck a Conditional Appearance was entered for him on the 15th December, 1980. The condition which was endorsed on the Writ was to stand as unconditional, unless Eugenio Eck made a relevant application within 10 days after the Conditional Appearance, and the application remained undisposed of.

It is out of these latter proceedings that the present application arises, and in the course of this hearing the Court's attention was drawn to the provisions of Order 76 Rule 3, which deals with objections for irregularities. This is to the effect that when objection is taken to proceedings all the irregularities to which objection was being taken, should be stated in the summons or notice of motion.

In this connection the Court was referred to Petty v. Daniel (1886) 3 Ch. D. Mr. Barrow also argued that there was a conditional appearance and the 10 days having passed, the appearance was now unconditional and it was not competent for Counsel to take the objection he was seeking to take. The matter had already been disposed of.

Regarding service on a Sunday, argued Mr. Barrow, there was nothing in our Laws that prohibited service of proceedings on a Sunday. The prohibition was found in English Laws, the Sunday Observance Act, 1677, from which it was borrowed. Since there as nothing in our Laws against Sunday service of proceedings, he would ask the Court to waive the non compliance, if there had been any.

Mr. Gray, Counsel for the Defendants, confined himself to addressing the Court on the matter of service on a Sunday. Since, he argued, our Laws were silent on the matter of service on a Sunday, English Laws, would apply in accordance with the well known principle that where the provisions of our law were silent on a matter, then such provisions as there were in English Law, on that same matter, would apply in this Country. Our substantive Law and Rules of Supreme Court were silent on the point, and therefore the English Rules of Court, which forbade absolutely service on a Sunday, applied with as great a force as if the provisions were embodied in our laws. As such, the service was bad and had to be set aside.

Turning to the provisions of Order 76 Rule 3 I note that the rule provides that when a an application to set aside proceedings is made, all objections relied upon, should be stated in the summons or notice of motion. In this case, when the application was made to set aside the proceedings in the case of Sotero Eck, no allegation was made that service of the writ was effected on a Sunday, and therefore it might be said that the Rule was breached.

However I have had to have recourse to the fact that the present application is as regards service on Eugenio Eck, whereas the former application was as regards to service on Sotero Eck. In that way it could be said that these are two different proceedings. So that the provisions of the Rule do not apply in this case. It cannot be said that all the objections relied upon were not stated.

It was next argued that there was a conditional appearance which had become unconditional. But there could only be appearance if there had been effective service, or service over which the parties had an option to treat as good service or otherwise. I t remains to be seen whether there had been any service on Eugenio Eck, and I will return to this point at a later stage. Nor is it open to me to treat any compliance or non compliance as waivable as this. That will depend on what view I take of the service on Eugenio Eck, and I intend to return to this subject matter in due course.

It appears to be common ground, both to Counsel for the Plaintiff and Counsel for the Defendant that our laws, both substantive and Rules of the Supreme Court, are silent as regards service process on a Sunday and we are driven to rely on English Law and the Sunday Observance Act 1677.

If by saying our laws are silent on the point, what is meant is there is no provision of law which expressly mentions service on a Sunday in those very same words, such a conclusion appears inevitable. But it may be that one has to look at our laws, and see what are the general rules regarding service, and then see what is the general import of those rules.

In order 65 Rule 8 of our Rules of the Supreme Court, it is provided that service of pleadings, notices, summonses etc., shall be effected before the hour of six in the afternoon, except on Saturdays, when it shall be effected before the hour of two in the afternoon. Then follows the provision, "Service effected after six in the afternoon on any weekday except Saturday shall, for the purpose of computing any period of time subsequent to such service, be deemed to have been effected on the following day. Service effected after two in the afternoon on Saturday shall, for the like purpose, be deemed to have been effected on the following Monday."

First of all, it follows from the latter provision that service has to be on a weekday, so that would exclude Sunday. Then normally, service effected after the specified hour on a weekday, is deemed to be service on the day following, except in the case of Saturday service, when if the service is after the hour of two in the afternoon, service is deemed to haven effected on the following Monday. This means that Sunday, the day following Saturday is excluded.

The logical conclusion of this mode of reasoning, is that it can be said that our Rules of Supreme Court forbid service on Sunday, albeit, in an indirect way. So that it is not correct to say that our laws are silent on the matter of Service on a Sunday, and it is not necessary to invoke English Law to answer the question.

Our laws having forbidden service on a Sunday, such service would be a nullity, no question can arise regarding a conditional appearance becoming unconditional, nor can the Court waive non compliance in this case.

I must therefore rule that the purported service and all subsequent proceedings are bad, and are ordered set aside. The costs of this application are to be costs in the Cause.