In the motion on notice, for an order to set the writ of summons and statement of claim aside, Defendant/Applicant’s lawyer cited, ORDER 9 Rule 8(a) of C. I. 47/04, as the relevant rule of Court, under which he was proceeding. “A defendant may at any time before filing Appearance, or if the defendant has filed a Conditional Appearance within fourteen days after filing Appearance, apply to the Court for an order to: (a) Set aside the writ or service of the writ …”The record showed that the defendant [herein after called applicant] filed Notice of entry of Conditional Appearance on 13/02/2019. That same day, applicant filed the application, under consideration.
This means that he has complied with the time lines stated in ORDER 9 Rule 8(a). The reasons in support of the application as could be gleaned from the affidavit in support is that, plaintiff per EXHIBIT ‘A’, which is an order for substituted service, dated 18/09/2018, was to post a writ of summons and statement of claim at named locations.
And that this means that the process was in existence at the time the order was made.
In continuation, it was stated that what plaintiff, served is rather a writ and statement of claim filed on 30/02/2019, as per EXHIBIT ‘B’. The applicant contends that there has occurred an irregularity or defect, affecting the service of the process or order made by the Court.
This is how it is stated in paragraph 9 of the affidavit in support: “That I have been advised and believe same to be true that the service of the said order for substituted service was wrongly posted and served on me. ”In opposition, Plaintiff/Respondent, [hereafter called Respondent] stated the service of the amended writ of summons and statement of claim is permitted by the Rules of Court.
And reference was made to ORDER 16 Rule 1. Respondent also stated, the process served, has the same suit number as the writ which has been amended namely: LD/0572/2018 ORDER 16 Rule 1(i) of C. I. 47/04 provides: “The plaintiff may, without leave of the Court, amend the plaintiff’s writ once at any time before the pleadings are closed. ”The above is under the heading: “Amendment of writ without Leave”There are two questions that must be answered correctly so as to reach a decision which is in compliance with the rules of procedure.
The first is has pleadings in this action closed? The second is whether having got the order to serve the applicant with the writ, by mode of substituted service, Respondent could a
