Sakur v Khan [1992] FJHC 46; Hba0005j.92 (6 October 1992)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CIVIL APPEAL NO. 5 OF 1992

Between:

MOHAMMED SAKUR
s/o Mohammed Kasim
Appellant

- and -

TAHIR KHAN
s/o Nasir Dar
Respondent

Mr. A. Sen for the Appellant
Mr. A. Kohli for the Respondent

JUDGMENT

This is an appeal against the order of the Magistrate Court, Labasa setting aside a default judgment entered against the respondent (hereafter referred to as the 'defendant') in the sum of $2,195 inclusive of costs.

The appellant's sole ground of appeal reads:

"That the learned Magistrate erred in law and in fact in setting aside the judgment in favour of the Defendant when prima facie there was no defence."

It is convenient to briefly outline the facts of the case. On the 14th of April 1989 the appellant (hereafter referred to as the 'plaintiff') issued a Writ of Summons in the Magistrate Court, Labasa in which the following Particulars of Claim was endorsed:

"The Plaintiff claims to recover from the Defendant the sum of $2,120.00 being the amount due and owing by the Defendant to the plaintiff under a certain agreement.

Particulars whereof are well known to the Defendant.

WHEREAS demand for payment has been made but the Defendant has failed to pay the same. And the Plaintiff further claims the costs of this action."

The Writ was served personally on the Defendant on the 24th of April 1989 and on the 3rd of May 1989 default judgment was entered against the Defendant as no 'notice of defence' had been served by the Defendant in terms of Rule 6 of the Magistrate Court Rules.

Nothing happened thereafter until the 21st of January 1991 (i.e. 21 months later) when the plaintiff issued a Judgment Debtor Summons (hereafter referred to as the 'JDS'). The JDS was then adjourned for mention on numerous occasions until the 4th of October 1991 when the Defendant eventually applied to set aside the default judgment.

The application was supported by an affidavit deposed by the Defendant explaining the reason for his non-appearance (on time) on the date fixed for the hearing of his case. It also annexed a Statement of Defence which contained what has been described as a 'bare denial' in the following terms:

"1. THAT he denies being indebted in the sum of $2,120.00 or at all."

Prior to the application however it appears that the Statement of Defence had been wrongly accepted in the Magistrate Court registry on the 26th of August 1991. Be that as it may this irregularity was "cured" when the learned Magistrate ruled on the 22nd of May 1992 in favour of the Defendant's application setting aside the default judgment.

In so ruling the learned Magistrate dealt with the affidavit of the Defendant filed in support of the application to set aside the default judgment and said:

"The counsel for the plaintiff/respondent did not contest any of the matters contained in the affidavit and supported by the defendant/applicant's counsel except stating that the defence is a general defence and not a detailed one. Even the claim of the plaintiff states that the defendant owes a certain sum of money on an agreement and does not give any details. In these circumstances the defendant can do nothing but make a general defence.

I accept the reason given by the defendant for being absent from Court and hold that he has a valid defence."

Learned counsel for the appellant prefaced his submissions on appeal by referring to and reading from Order XVI rules 3(d); (e) and (f) which deal in part with Pleadings in Magistrate Court actions. This reference however is misguided as no pleadings were ever "... ordered to be filed" in this case other than in the learned magistrate's order for the defendant to file a Defence within 14 days in his above-mentioned ruling.

In my view the appropriate Magistrate Court Orders relevant to this present appeal are Order IX which deals specifically with "PARTICULARS OF CLAIM" (which was the procedure adopted by the Plaintiff in this action) and Order XXX rule 5 which specifically empowers the Magistrate Court to set aside any judgment obtained against any party in the absence of such party on sufficient cause being shown.

It will be noted that the discretion thus given to a Magistrate Court to set aside a default judgment is not in terms entirely "unlimited". The discretion can only be exercised "... on sufficient cause (being) shown ..."

In this latter regard learned counsel for the appellant observed that the defendant had not sought further and better particulars of the plaintiff's claim as he could have done under Order IX rule 2 but, more particularly, the defendant had failed to deny the agreement under which the monies were alleged to be owing to the plaintiff. Indeed on being pressed learned counsel for the appellant accepted that if the defendant had denied the existence of the agreement then there would have had no cause for complaint.

Such a submission however completely ignores the possibility that the Defendant may well have accepted that an agreement did exist between him and the plaintiff but he denied its enforceability.

Must the defendant in addition to denying liability, specifically admit the agreement when the general 'rule of pleading' encapsulated in Order XVI rule (e) (and referred to by counsel for the appellant) renders such an admission redundant? With all due respect to learned counsel's submission, I think not.

It will be noted that in filing a claim under Order IX rule 1 the primary onus is on the plaintiff to lodge with his general claim "... particulars of his demand in any form which shall give the defendant reasonably sufficient information as to the details of his claim". (my underlining)

In this regard the plaintiff's claim that the monies are owed "under a certain agreement" without any attempt to supply "details" sufficient to identify its origin, terms and duration, fails in my view to give the defendant "... reasonably sufficient information" required by the above Rule.

In such circumstances a plaintiff can hardly be heard to complain about a Statement of Defence which contains a bare denial nor is it proper having failed to discharge a "primary obligation", for such a plaintiff to then seek to shift the "onus" (so to speak) onto the defendant to seek further and better particulars of the claim so as to better inform himself of the plaintiff's case.

Then learned counsel drew the court's attention to the decisions of Wallingford v. Mutual Society (1880) 5 A.C. and Re General Rail Syndicate, Whiteley's Case (1900) 1 Ch. D. which plainly establish that a mere general denial that the defendant is indebted will not suffice in a contested application for summary judgment under Order 14 of the High Court Rules. Needless to say in such an application there is normally no Statement of Defence filed and the court only has before it the defendant's affidavit which must "condescend upon particulars".

Again with due respect to learned counsel for the appellant the more helpful cases would be those decided under the equivalent order of the High Court Rules, namely, Order 13 rule 10.

In the leading authority of Evans v. Bartham (1937) A.C. 473 Lord Atkin said of the U.K. equivalent of our Order 13 r.10 of our High Court Rules which closely mirrors Order XXX r.5 of the Magistrates Court Rules in an oft-cited passage at p.480:

"The discretion is in terms unconditional. The Courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that where the judgment was obtained regularly there must be an affidavit of merits, meaning that the applicant must produce to the Court evidence that he has a prima facie defence ... The principle obviously is that unless and until the Court has pronounced a judgment on the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained by a failure to follow any of the rules of procedure.

But in any case in my opinion the Court does not, and I doubt whether it can, lay down rigid rules which deprive it of jurisdiction. Even the first rule as to affidavits of merits could, in no doubt rare but appropriate cases, be departed from."

More recently and in similar vein Burns v. Kondel (1971) 1 Lloyds Rep. 554 Lord Denning M.R. said at p.555:

"We all know that in the ordinary way the Court does not set aside a judgment in default unless there is an affidavit showing a defence on the merits. That does not mean that the defendant must show a good defence on the merits. He need only show a defence which discloses an arguable or triable issue. In an accident case, it is sufficient if he shows that there is a triable issue of contributory negligence." (my underlining)

I am satisfied having regard to the manner in which the plaintiff has chosen to plead his claim that the Defendant has not only raised an arguable defence disclosing a triable issue but also that the learned Magistrate did not err in the manner in which he exercised his discretion in the matter.

Accordingly the appeal is dismissed.

(D.V. Fatiaki)
JUDGE

At Labasa,
6th October, 1992.

HBA0005J.92B