Vere v Vueti [2004] FJHC 527; HBC0511R.2002S (25 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

ACTION NO. HBC0511R OF 2002S

BETWEEN:

NAIPOTE VERE
of Lot 1 Princess Road,
Nausori and farmer.
PLAINTIFF

AND:

MALAKAI VUETI
of Namata Bau,
Tailevu, labourer.
DEFENDANT

Counsel for the Plaintiff: In Person
Counsel for the Defendant: A. Singh: Mishra Prakash & Assoc.

Date of Ruling: 25 May, 2004
Time of Ruling: 9.30 a.m.

RULING

This is an application by the Defendant to set aside the Default Judgment entered against him by the Plaintiff on 13 March 2003.

On 5 December 2002, the Plaintiff filed his Writ of Summons against the Defendant alleging the latter of stopping him and his family from using the anchorage and landing known as 'Matadawa' landing along the Namata River in Tailevu, for the purpose of mooring. The Plaintiff owns a boat which provides him and his family’s only access to his two farms in the area. The action is in harassment and nuisance and breach of his individual right and freedom of access and enjoyment, the particulars of which are set out in his Writ. The Plaintiff claims special and exemplary damages with general damages not exceeding $100,000.00.

On 6th December 2002, the Defendant according to the Plaintiff’s affidavit of service, was personally served with the Writ at Goodenough Street in Suva, but he refused to accept it, and according to the process server, 'threw it away'. However, the Defendant was subsequently served through registered mail and the receipt is attached to the affidavit of service. The Defendant’s argument is that the Post Office Box, to which the documents were sent, did not belong to him, but to the Village in which he resides. He nevertheless conceded that he had received some legal documents, but because he was not well educated, he had paid little regards to them.

On 19 March, 2003, the Plaintiff entered default judgment, there being no appearance made by the Defendant. Summons for assessment of damages was filed on 28 March 2003 and served on the Defendant in person on 4th April, 2003. The Defendant finally made an appearance, in person, before the Registrar on 15th April, where he agreed to file submissions on damages.

Mr Rameshwar Prakash of Mishra Prakash & Associates filed a Notice and entered an appearance for the Defendant on 4 August 2003. On 14 August Counsel filed the Defendant’s Summons to set aside the default judgment, and:

'2. That leave be granted to the Defendant to file a Statement of Defence and defend the Claim;

3. That all further proceedings for Assessment of Damages and Execution of Judgment be stayed until the determination of this application.'
   

The application is supported by the Defendant’s affidavit and relies on Order 19 r. 9 and Order 47 rule 1 of the High Court Rules.

Court’s Consideration

As to whether proper service had been made on the Defendant, the Court concludes from the evidence before it that this had been done and that the requirement of Order 10 of the High Court Rules had been complied with by the Plaintiff. In the first place, there does not appear to be any doubt that the Defendant had actually taken possession of the Court documents when given him at Goodenough Street in Suva on 6 December, 2002. The fact that he, the Defendant, immediately thereafter 'threw it away' as described by the Plaintiff, is his own problem and does not negate effective service. This Court notes with concern, the increase in the number of incidents where recipients have, as a show of defiant thrown away, in the face of process servers, legal documents served on them. This Court takes a serious view of such acts, which can constitute of their own, contempt of Court.

Even if personal service on the Defendant of 6 December 2002 was to be deemed ineffective, then the postal service by registered mail to the Defendant’s last known address namely, to his village at Namata, Tailevu was sufficient. It matters not that the post office box did not belong to the Defendant in person but registered to the Village headman ('Turaga ni Koro') on behalf of the members of the village. A common P.O. Box for all the members of the village, meets the legal requirement for postal service.

A corollary to the finding that there has been effective service is that, subject to the Plaintiff observing the requirements of time for response, a regular default judgment maybe entered at his pleasure. In this instance, the Court finds that the judgment of 19 March, 2003 was regularly obtained. Under the circumstances, the Defendant does no longer have the right to have it set aside. It becomes a matter for the exercise of the Court’s discretion.

In the light of this finding, the Court will proceed to consider other grounds advanced by the Defendant, which may constitute matters that, in the Court exercise of its discretion, favours the Defendant’s submission. In Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc; (The Saudi Eagle) [1986] 2 Lloyd’s Rep. 221, the Court laid down the guideline in respect of the exercise of the Court’s discretion as follows: (at p.223):

'It is not sufficient to show a merely 'arguable' defence that would justify lease to defend under Order 14; it must both have 'a real prospect of success' and carry some degree of conviction.'

In support of his case to set aside the Defendant argued that there were valid and adequate reasons why the judgment was allowed to be entered by default; that he had acted promptly to apply to set aside the judgment; and at any rate there was merit in his defence.

1. Adequate Reasons for Judgment to be Allowed to be Entered by Default
   

In respect of the first ground, Counsel had attempted to show that the Defendant was not well educated and therefore not familiar with the Court processes and especially, the need to file appearance and defence to the action against him. However, as clearly shown from the Plaintiff’s affidavits and also from the Defendant’s affidavit himself of 3 December 2003, the Defendant did not seem to care much for legal documents served on him. He certainly did not make any attempt to find out what they were or meant. Even an illiterate under the Defendant’s circumstances, would have consulted a solicitor, or at the very least, someone who was in a position to explain the contents of the documents to him. The truth of the matter is that the Defendant failed to appreciate the contents of the documents served on him because he just simply refused to have any dealings with the Plaintiff. He cannot now come before this Court and plead innocence as the reason why he was unable to enter appearance and file his defence on time. This ground fails.

2. Whether the Action to Set Aside was Made Promptly
   

The Summons to set aside was filed by the Defendant’s solicitors, 5 months after default judgment had been entered. This was after the Defendant had appeared before the Registrar on the Plaintiff’s Summons for assessment of damages, and agreeing to file submissions. While there had been delay as the Defendant to act, the solicitors who finally received the Defendant’s brief, did not. The Defendant’s application was filed 10 days after appearance. The Court is satisfied that the Defendant’s application had been made promptly.

3. Merits in the Defence

The Defendant’s draft Statement of defence is premised on his denial that he owed a duty of care to the Plaintiff and in any case, even if he did, the losses suffered by the Plaintiff did not result from the breach of duty. There is also the issue of whether the anchorage and landing at which the incident occurred, is private or public property. These are mixed issues of facts and law upon which the question of liability or otherwise of the Defendant ultimately depends. I am satisfied that the Defendant has raised trialable issues which in turn satisfies the requirement of merit in the defence.

Counsel for the Defendant also argued that the Defendant will not suffer irreparable harm if the judgment is set aside. The facts of the case supports this contention. The Plaintiff may have initially suffered setbacks from the alleged breach committed by the Defendant, to his farming activities, but such a disruption would not have paralysed completely the Plaintiff’s mobility to continue to service his farm from elsewhere. The Court agrees that the Plaintiff will not suffer irreparable harm should the default judgment be set aside.

Finally there is the question, whether the Plaintiff, in accepting, after default judgment had been entered, the Fijian traditional rite of apologies and thereafter agreeing to a lesser sum of damages, had in fact approbated the judgment. 'The foundation of doctrine of approbation and reprobation is that the person against whom it is applied has accepted a benefit from the matter he reprobates' [Editorial Note: Evans v. Bartlam [1937] 2 All ER 646]. While the Fijian traditional apologies cannot be equated strictly to English law concept of guilt and responsibilities; it does nevertheless tend to indicate blameworthiness between the parties. The fact of this case is that the Defendant had apologised through Fijian customary way for any wrongs that he may have been deemed to have committed against the Plaintiff. In return, the Plaintiff has accepted the apologies albeit partially, on the understanding that the damages allegedly caused by the Defendant will be reduced. In the circumstances, that I have explained, this Court believes that it is only appropriate that its discretion should be exercised in favour of the Defendant to set aside the judgment. I will however award costs to the Plaintiff as this process could have been easily avoided if the Defendant had not been obstinate and had asked for legal assistance much earlier.

In the final, this Court orders that the judgment of 19 March 2003 be and is hereby set aside. The Defendant is to file his defence within 14 days.

Costs of $200 against the Defendant to be paid within 14 days.

F. Jitoko
JUDGE

At Suva