Service of writ on family member apparently 16+ is valid even if actual age is under 16.

[*190] 1981 Dec.15

(ARTEMIDES, S.D.J.)

IN. THE DISTRICT COURT OF NICOSIA

Takis Michael,

Plaintiff,

v.

Stavros Markou,

Defendant.

(Action No. 2321/79).

Civil Procedure - Practice - Service of writ of summons -Service "On a member of his family of apparently 1 6 years and upwards" in Order 5 rule 1(i) of the Civil Procedure Rules - Meaning.

N. Pelides, for Applicant-Defendant.

A. Danos, for Respondent-plaintiff.

RULING

The following ruling was delivered by:-

ARTEMIDSS, S.D.J.: On 2.7.1979 the plaintiff obtained judgment against the defendant in default of appearance. On 9.2.1981 the defendant filed the present application praying for the setting aside of this judgment on one ground only, namely that the service of the writ of summons was had because it was delivered to the daughter of the defendant, on 3.6.1979, who was at the time below the age of 16. 0.16 r.9, 0.17 r. 10 and

0. 26 r.40 are cited in support of the application. [*191]

0.16 r.9 provides that a defendant before appearing may take out a summons to set aside the service of the writ upon him. Although this rule is cited in support of the application, there is no prayer in the body of the application for the setting aside of the writ. 0.17 r.10 applies when a defendant prays for the setting aside of judgment obtained in default of appearance and 0.26 r.14 similarly in default of pleading. If the remedy provided in 0.17 r. 1 0 and 0.26 r.14. applies, then the judgment may be set aside but the service of the writ will not be invalidated.

In the light of the above I do not consider the application to have been drafted in the best of terms. However, I shall resolve the substance of the matter i.e. whether the service of the writ was bad in law.

Attached to the application there is a birth certificate of Antigoni Stavrou showing that she was born on 15.1.1965 i.e. she was about 14 1/2 at the time of service.

It seems to me that counsel for the applicant has missed the important words of apparently 16 years or upwards" when reading 0.5 r.1(i) and ( ii) which provides the following:-

"2(1) The service shall, whenever it is practicable, be effected by leaving the copy with the person to be served; but if he is not found at his house or at his usual place of employment, the service shall be deemed to be effected if the copy is left -[*192]

(i) with any member of his family of apparently

16 years and upwards then in his town or village or within the lands there of; or

"(ii) with any person apparently of such age and in charge of the place of his "employment; or

(iii) with his master in the case of a servant living with his master".

This means that service can he effected on a person who appears to the over 16 and not who is in actual fact over that age. The provision is based on reason and expediency. Certainly when the process server is making use of this provision he is not expected to make enquiries leading him to a proof of a person's age with the degree of certainty a Court would have demanded.

What remains to be considered is the meaning of the word "apparently". On this point the case of Westcott & Lawrerce Line v. The Mayor- Deputy Mayor, Councillors and Townsmen of Limassol (1957) 22 C.L.R. 193 is quite relevant. In that case the words found in 0.5 r. 7 "who appears to be authorised were held to mean a person who is obviously or manifestly authorised etc. It is specifically mentioned in the judgment, however, that these words are interpreted strictly because the rule applies to the service of the writ on a body corporate out of the jurisdiction, whilst in the application under consideration rule 2 applies in the case of service within the jurisdiction. [*193]

In the present application no material has been placed before me showing that Antigoni Stavrou did not appear at the material time to be over 16. On the contrary the fact that she was 14 1/2 may lead to the assumption that she appeared to be over 16 to the process server. In case the present application is held to he relied also on 0.16 r.9 of the Civil Procedure Rules, which I do not think it does, it must he dismissed because no defence is shown in the affidavit. (Christoforou v Kyriacoulli (1963) 2 C.L.R. 159). On the contrary the defendant, after judgment was obtained against him, has made substantial periodical Payments to the plaintiff.

In the result the application is dismissed with £30.- costs against the applicant.

Application dismissed with £30.-. costs against applicants.