Some defendants cannot be found, and some make sure they cannot. Section 48 stops a case from stalling because of it, while still requiring the Court to be satisfied that the defendant has a real chance of learning about the hearing.
The power
If, by statement on oath or by affidavit, it is made to appear to a Court before which a summons is returnable, or to a Magistrate, that, for any cause, service in accordance with Section 47 cannot be promptly effected, the Court or Magistrate may extend the time for hearing and make an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise.
Three elements: sworn evidence, a finding that ordinary service cannot promptly be effected, and an order that both extends the return date and prescribes the substitute. The order is made by the Court to which the summons is returnable or by any magistrate, so it can be obtained from the Clerk’s magistrate without waiting for the hearing date.
What the evidence must show
The Act says “for any cause”, so the reason need not be evasion; it may simply be that the defendant has moved and the new address is unknown. But the Court will want to see that the ordinary methods in section 47 have genuinely been tried. The affidavit should set out:
| Matter | Why it matters |
|---|---|
| The attempts at personal service: dates, places, what happened | Section 47(1)(a) requires personal service first, and service at the abode only if the defendant “cannot be found” |
| Whether the last known place of abode was visited and who was there | Service on an apparent inmate aged 16 or over may already have been available |
| What is known of where the defendant now is, works, or can be reached | The substitute must be one likely to bring the summons to the defendant’s notice |
| For a company, what the registered office shows | Service on a company is governed by the Companies Act, not by section 48 |
What the Court can order
The section gives the Court a free hand. Common orders are service on a relative or employer known to be in contact with the defendant, service by leaving the summons at a workplace, service by registered post to an address the defendant is known to use, and, where nothing better is available, notice by advertisement in a newspaper or on a notice board at the court or the defendant’s village. Regulation 8 requires the order to be endorsed on the original summons and signed by the magistrate or the Clerk, so that the served copy carries the order with it. Regulation 46 permits the Court to look to National Court practice, and the National Court’s substituted service rules in Order 6 of the National Court Rules are a useful guide to what has been found acceptable.
Section 48 pairs the substituted service order with an extension of the time for hearing, because substituted service takes longer and the defendant still needs the 72 hours’ notice that section 47 contemplates. Regulation 20 requires the new date to be written on the summons with the magistrate’s or Clerk’s name in the margin.
The effect of compliance
Where the defendant does not appear, if it appears to the Court on oath that (i) the summons was duly served at least 72 hours before the time appointed; or (ii) an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise was duly complied with; and no sufficient grounds are shown for an adjournment, the Court may proceed ex parte or adjourn.
So compliance with a substituted service order stands in the place of personal service for the purpose of an ex parte hearing. The complainant must still prove the compliance on oath, which means a further affidavit describing exactly what was done under the order. The same applies to an ex parte order on a complaint, which the defendant can later apply to set aside under section 25 on showing a defence on the merits and a reasonable explanation for the absence; see setting aside an ex parte order.
Criminal cases
Section 48 applies to any summons, including one on an information. But its usefulness in criminal cases is limited by the Constitution. Section 37(5) forbids trial in the defendant’s absence except for an offence whose maximum penalty does not include imprisonment, and section 125 reflects that: for anything carrying imprisonment the Court’s response to non-appearance is a warrant, not an ex parte hearing. Substituted service of a criminal summons therefore founds a warrant under section 125(b) rather than a conviction in absence. See ignoring a summons.
Dispensing with service altogether
Section 48 substitutes one form of service for another; it does not dispense with service. The Act allows service to be dispensed with only in narrow cases: section 94(6) lets the Court waive service of committal documents where expedient, and section 179(e) lets the parties to an interpleader summons consent to dispense with service. A defendant who has never been notified in any form has not been served, and an order made against him is liable to be set aside, as in Philipae v Igaso (2011) N4366.
The District Courts Act and Regulation are not on PacLII; both are on vLex (Act, Regulation).
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.