Brief Facts
- In this case, the wife petitioner had served the divorce petition on the respondent by A.R registered post, addressed to the last known address said to be in Sabah, through the office of the solicitors.
- The affidavit of service is said to have been affirmed by a clerk of the solicitors and also does not display any acknowledgment from the respondent.
- The contents of the affidavit read as follows:
AFFIDAVIT OF SERVICE
I, NGU TSUEY ING (F) KP. No. 820310-13-5108) of full age and residing at No. 4E, Lane 2, Jalan Langsat, 96000 Sibu, Sarawak do hereby solemnly and sincerely affirm and say as follows:-
- I did on Tuesday the 6th day of January, 2009, serve LAU KAH NGIEK the above-named Respondent with a true copy of the Order in this action which was dated the 10th day of December, 2008 by sending the same on the 6th day of January, 2009 by prepaid A.R registered post addressed to the above-name Respondent at his last known address at 63, Lot 10, Blok M, Lorong Seri Baru 1, Taman Seri Baru, Jalan Tuaran Menggatal, 88450 Kota Kinabalu, Sabah.
- That a copy of the covering letter dated the 6th day of January, 2009 together with the Receipt issued by the Post Office, Sibu is now produced and shown to me marked “A”.
- The respondent did not appear on the date of hearing. Learned counsel for the petitioner says that the service of the petition is good in law, notwithstanding that the petitioner did not make an application to the court to request that the petitioner be allowed to serve the petition by post pursuant to Rule 12(2) (b) of the Divorce and Matrimonial Proceeding Rules 1980 (DMPR1980).
Procedure For Service Of Petition
- The procedure for service of divorce petition is meticulously set out in Rule 12 of DMPR 1980. Strict compliance of the Act as well as the rules are required before the registrar can sanction a contested matter for hearing. Rule 12 DMPR 1980 reads as follows:
Rule 12(1) and (2) of Divorce and Matrimonial Proceedings Rules 1980 (“the Rules”) provides: “12
(1) Subject to this Rule and Rules 84 and 87, a copy of every divorce petition shall be served personally or by post on every respondent or co-respondent.
(2) Service may be effected:
(a) where the party to be served is a person under disability within the meaning of Rule 83, through the petitioner, and
(b) in any other case, through the court or, if the petitioner so requests, through the petitioner.
(3) Personal service shall in no case be effected by the petitioner himself.
(4) A copy of any petition which is to be served through the court shall be served by registered post by an officer of the court.
(5) For the purposes of paragraphs (1) to (4) a copy of a petition shall be deemed to be duly served if
(a) an acknowledgment of service in Form 6 is signed by the party to be served or by a solicitor on his behalf and is returned to the court office; and
(b) where the form purports to be signed by a respondent spouse, his signature is proved at the hearing.
(6) Where a copy of a petition has been sent to a party and no acknowledgment of service has been returned to the court office, the registrar, if satisfied by affidavit or otherwise that the party has nevertheless received the document, may direct that the document shall be deemed to have been duly served.
(7) Where a copy of a petition has been served on a party personally and no acknowledgment of service has been returned to the court office, service shall be proved by filing an affidavit of service showing, in the case of a respondent, the server’s means of knowledge of the identity of the party served.
(8) Where an acknowledgment of service is returned to the court office, the registrar shall send a copy thereof to the petitioner.
(9) An application for leave to substitute some other mode of service for the modes of services prescribed in paragraph (1), or to substitute notice of the proceedings by advertisement or otherwise, shall be made ex parte by lodging an affidavit setting out the grounds on which the application is made; and the form of any advertisement shall be settled by the registrar.
(10) Where it appears necessary or expedient to do so, the registrar may by order dispense with service of a copy of a petition on the respondent or on any other person, and an application to a registrar for an order under this paragraph may, if no notice of intention to defend has been given, be made ex parte by lodging an affidavit setting out the grounds of the application.”
- Rule 12(1) says that the petition can be served personally or by post but that rule does not say who in law is authorized to serve that petition and in what manner. These are dealt with other sub-sections of the rule. Further, Rule 12(2) (c) specifically says that personal service shall in no case be effected by the petitioner. This only attempts to show that in all circumstances, it will be most appropriate for service to be done by court or by an order of court. In almost all cases where the petitioner has means to serve by substituted service, the court is likely to order to do so, in lieu of service by post by the petitioner himself. Service per se by the petitioner cannot be done in a cavalier manner, in breach of the rules and without obtaining appropriate sanction from the court. (see Rule 12 (10)]
- Once the service is done according to law, the fact that the acknowledgment of service was not received, etc may on valid grounds be waived by the court. Support for the proposition is found in a number of cases:
(a) Ng Kah Tiang v Ching Peng Tow [1977] 2 MLJ 30, the delivery card showing that the envelope containing the documents had been duly delivered on August 18, 1975 was returned by the Post Office but Form of Acknowledgment was not returned by the respondent to the solicitor. The court was satisfied that the petition had actually been served on the respondent.
(b) In Health v Health [1950] 1 All E.R 877, the petition was sent by registered post to the husband’s last known address with a request that he sign the acknowledgment of service. The husband made no reply, nor was the letter returned through the post and inquiries made personally at the given address by a firm of American lawyers failed to trace him. Bucknill,L.J. at pg.880 observed: There has been no proper service because, under r. 8, the husband must sign an acknowledgment of service, but is it a case where under r. 10 the judge should direct that the petition shall proceed on the grounds that he is satisfied that the petition has in fact been received? The only suggestion now made is that an advertisement should be put in the local Sikeston paper which would cost about f7. I ask myself what use would that be? Is it more likely that the husband will see the advertisement than that he received the registered letter sent to him at the address where he had been living? I see no reason to suppose that that would be more likely…
- Denning,L.J. at pg.880 to 881 observed: “It is very important that everything that is reasonable should be done to bring a petition to the notice of a respondent. At one time there had to be personal service. Now service by registered post is permitted, but it is only effective if the acknowledgment of service is signed by the respondent. Often the respondent does not sign or return the acknowledgment, but, when that happens, it does not necessarily mean that the wife has to go to the expense of personal service or advertisement. If the probabilities are that the respondent has received the petition and simply declined or omitted to sign the acknowledgment, then the court can dispense with further service. That is a course which I have repeatedly taken when sitting in chambers in the Divorce Division. On the facts of the present case I should unhesitatingly have dispensed with further service.
- For reasons stated above, I take the view that the service of the petition is irregular. My reasons are as follows:-
(a) The petitioner did not request the court to serve the petition by post as required by Rule 12(2)(b).
(b) the affidavit of service per se is irregular, as no particulars of the deponent and her capacity have been disclosed, neither was any acknowledgment of service, by the respondent, exhibited.
- In consequence I make the following orders:
(a) the petitioner be at liberty to comply with the procedure for service as set out in DMPR 1980.
(b) the deputy registrar to ensure that all the requirements under the Matrimonial Act and Rules have been duly complied, with before the matter is fixed for hearing.
Source: Wong Chiok Sing (F) v Lau Kah Ngiek [2009] MLJU 66. Haji Hamid Sultan bin AJI HAMID SULTAN BIN ABU BACKER, JC
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