Kumari v Ram [1999] FJHC 42; Hbc0632d.98s (4 June 1999)

Fiji Islands - Kumari v Ram - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 632 OF 1998

BE:

:

DEO KUMARI
f/n Bhaghirati Maharaj
Plaintiff

AND:

BHAGAT RAM
f/n Ram br> Defendant

Mr. gin for the Plai PlainPlaintiff
Mr. V. Maharaj for the Defendant

DECISION

By writ of summons dated 26 November 1998 DEO KUMARI (the "plaintiff") is seeking the following orders:-

(a) the consent order made on 30 July 1997 be set aside

(b) the Nausori Magistrate's Court Action No. 60 of 1996 proceed to trial in the normal manner.

(c) the defendant do pay to the plaintiff costs of this action.

The present application by Motion dated 26 November 1998 is for a 'stay' of the said consent order pending the hearing and determination of this action. An Affidavit in Support has been filed by the plaintiff.

Background facts

This action concerns land of which the defendant is the registered proprietor being agricultural freehold land known as Lot 3 on D.P. 3508 having an area of 12 acres 19 perches situated at Dawasamu, Tailevu as more particularly described in C.T. 18783.

In respect of this land an order for vacant possession was made by consent in the Magistrate's Court at Nausori in Civil action No. 60/96.

The history of litigation surrounding the land in question in this action is fully set out in the Writ herein, in the affidavit of the Plaintiff (who was the defendant in the said Case No. 60/96 in the Magistrate's Court at Nausori) sworn 26 October 1998 and in the affidavit of the defendant herein in reply to plaintiff's affidavit filed 27 January 1999.

In support of her application the plaintiff refers to the said affidavit of 26 October 1998 (filed on 30 October) which she says shows "the circumstances and the reasons for the present application for stay". She further states that she is advised and verily believes "that the only way a consent order can be set aside is by way of a fresh action and this is why a fresh action has been instituted. This is in line with the judgment of the Honourable Mr. Justice Pathik in Civil Appeal No. 25 of 1997".

There was an appeal to this Court from the said consent order which was dismissed by me on 14 October 1998 wherein I stated, inter alia, that "the idea of appealing against the consent order is misconceived. The proper course was to proceed by way of fresh action for the purpose".

Determination of the issue

(i) Setting aside consent Order

I have given due consideration to the submissions made by both counsel.

The plaintiff's complaint essentially is against her former counsel Mr. Eroni Veretawatini (who appeared for her in the lower Court when he agreed to the consent order) on the ground, inter alia, that he acted without instruction from her to consent to an order for vacant possession. This is the Order about which the plaintiff is unhappy about.

In paragraph 16 of the said affidavit of 26 October 1998 the plaintiff stated that in the Appeal judgment the Court said that she "should have made an application in this Court", meaning the High Court, "to have the matter-set aside". I said nothing of the sort.

The action regarding the subject-matter of the land in question commenced in the Magistrate's Court. In order to set aside the consent order the proper forum for it is the Magistrate's Court where the consent order was made and not the High Court. Why it has commenced here I fail to understand.

It is pertinent to note, however, that following the dismissal of the said Appeal, the plaintiff filed an application in the Nausori Magistrate's Court on 30 October 1998 in the 'guise of a fresh action' seeking to set aside the said Consent Order. This fact the plaintiff failed to disclose in the present action. That application was dismissed with costs of $180.00 which remains outstanding.

On setting aside of consent order, in Halsbury 4th Ed. Vol. 26 p.286 it is clearly stated:

"Unless all the parties agree, a consent order, when entered, can only be set aside by a fresh action, an application cannot be made to the Court of first instance in the original action to set aside the judgment or order." (emphasis added)

The plaintiff did not do as required. In dismissing the application that was before the learned Magistrate he said in his Ruling on page 2 that the High Court had "discussed the issue of consent order and counsels lack of authority" and that it said that "all his arguments in this regard are devoid of any merit". He concluded by saying that "it seems Justice Pathik has already ruled on the matter". It is true that I dealt with the law relating to consent order and this is contained on pages 9 and 10 of my judgment in the Appeal.

For these reasons, in all the circumstances of this case, if it was still open to the plaintiff, in the light of his subsequent application to the Magistrate's court which was dismissed, to set aside the said consent order, bearing in mind this Court's judgment on Appeal, then it should have been brought in the Magistrate's Court and not in this Court by way of fresh action as Halsbury (supra) has stated for I consider that the lower Court is the proper forum in the matter of setting aside the order that was made there.

(ii) Stay

Having held that the writ could not have issued in the High Court, the same comments as above apply in regard to the application for 'stay'.

As Mr. Maharaj submits, the execution of the consent order has been completed and there is nothing to stay as the house occupied by the plaintiff has been pulled down by the Sheriff. Mr. Maharaj says that the plaintiff is still on the land with her son in another house and occupies the property which she admits and this he says is in contempt of Court. Therefore he says that she cannot be heard unless she purges her contempt and has asked for the dismissal of the application on this ground alone. In support of this argument he has referred the Court to the following passage from the judgment of ROMER L.J. in HADKINSON v HADKINSON [1952] p 285 at 288:

"It is the plain and unqualified obligation of every person against, or in respect of whom, an order is made by a court of competent jurisdiction, to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void. 'A party who knows of an order, whether null and void, regular or irregular, cannot be permitted to disobey it... It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null and void - whether it was regular or irregular. That they should come to the court and not take upon themselves to determine such a question: that the course of a party knowing of an order which was null and irregular and who might be affected by it was plain. He should apply to the court that it might be discharged. As long as it existed it must not be disobeyed." (Per Lord Cottenham L.C. in Chuck v. Cremer).

(emphasis added)

I adopt entirely the above proposition. There is no doubt that the plaintiff is disobeying the Court's Order and as Romer L.J. said in Hadkinson (supra) at 288-289 that:

"Such being the nature of this obligation, two consequences will, in general, follow from its breach. The first is that anyone who disobeys an order of the court (and I am not now considering disobedience of orders relating merely to matters of procedure) is in contempt and may be punished by committal or attachment or otherwise. The second is that no application to the court by such a person will be entertained until he has purged himself of his contempt. It is the second of these consequences which is of immediate relevance to this appeal. The rule, in its general form, cannot be open to question."

Conclusion

In the light of my judgment on appeal the institution of this action is an abuse of the process of the Court as there has already been a decision in the matter and execution has been levied on the consent order after an appeal to this Court and after an application made in the lower Court and dismissed in relation to the same subject-matter. Hence, in these circumstances the plaintiff could not relitigate the issue and could now claim to have the consent judgment set aside. (CHAMBERLAIN v DEPUTY COMMISSIONER OF TAXATION 98 ALR 617). It is an abuse of the process of the Court to relitigate the issue, an issue which ought to have been raised in the proceeding below. It could not now subsequently under this writ be raised between the parties in a subsequent proceeding.

To conclude, for these reasons the applications to set aside the consent Order and for a 'stay' of execution of the said order are dismissed with costs against the plaintiff which I fix at $250.00.

D. Pathik
Judge

At Suva
4 June 1999

Hbc0632d.98s