Shell Fiji Ltd v Shameem [2005] FJHC 434; HBC0083D.1999B (23 November 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

ACTION NO. HBC083D OF 1999B

BETWEEN:

SHELL FIJI LIMITED
a limited liability company having its registered office at Suva.
PLAINTIFF

AND:

MOHAMMED SHAMEEM
f/n Unknown of Voloca, Dreketi Businessman trading
as Mohammed Shameem & Sons.
DEFENDANT

Counsel for the Plaintiff: Ms A. Prasad: Gibson & Co.
Counsel for the Defendant: S. Prasad: Sarju Prasad Esq.

Date of Decision: 23 November, 2005
Time of Decision: 9.30 a.m.

DECISION

This is the Defendant’s application to set aside default judgment entered by the Plaintiff on 22 November 1999. The application is by Notice of Motion filed on the 26^th September, 2003. For a variety of reasons, extension were granted by the Deputy Registrar and the Court, to both parties for filing of documents and the Court finally agreed for the parties to file submissions simultaneously and adjourned for its Decision on Notice.

This application must fail for one reason only namely, the inordinate delay in the Defendant’s making of his application. It had taken almost 4 years for the application to be made. While the Court has generally taken and interpreted the phrase “reasonable time” for making the application, under Order 2 r.2 in a concessionary way taking into account all the circumstances of the case, the fact underlying this case, is that the delay of almost 4 years is unreasonable under any condition and especially in this case where there is no reasonable explanation to satisfy this Court, as to why the judgment was allowed to go by default and thereafter why no action was taken by the Defendant. The facts of the matter is that, on 5 October 1999 the Plaintiff’s Writ was filed into Court and the Defendant was served on 8 October, 1999. No Appearance or Intention to Defend was filed and on 29 November, 1999. Judgment in default of appearance was filed.

In an affidavit filed by one Dineshwar Lal, clerk to the Defendant’s solicitors, on behalf of the Defendant, the Defendant explained that upon being served with the Writ, he remonstrated with the Plaintiff that there were Taveuni accounts that he did not incur, and this argument he used time and again to justify his not taking any other action. Surely it was in the Defendant’s own interest, if he intended opposing the default judgment, to as soon as possible, apply to set aside the judgment whilst remonstrating with the Plaintiff as to the validity of its claim. This he failed to do. But not only did he not apply to set aside, he proceeded to negotiate monthly payments of the debt owed after having been issued with a bankruptcy notice on 14 December, 1999. Two (2) installment payments of $1000.00 each were received from the Defendant in the months of February and March 2000. No further payments had since been made thus effectively rendering the bankruptcy proceedings stale. The Plaintiff argued that the scheme was the Defendant’s way of delaying the proceedings.

A second bankruptcy action followed in March 2002, which was opposed by the Defendant. In the affidavit opposing, he argued that the debt was disputed and that he did not in fact owe any money to the Plaintiff. The Petition which had been set down for hearing since July 2002 had to be adjourned time and again, until the Defendant finally moved in September 2003 to set the default judgment aside.

The law on setting aside was fully explored in this Court’s decision on Toyota Isusho (South Sea) Ltd. v. Mohammed Shameem & Ors. HBC0082.1999. In Tauz Khan v. Netani Waqanivere HBC0007.1997, the Court recognised the following general principles that will guide the exercise of its discretion to set aside a judgment, namely:

(i) whether there has been a delay in making the application,

(ii) whether the Defendant has given a satisfactory explanation for its failure to act in allowing the judgment to go by default, and in the application to set aside,

(iii) whether the Defendant can establish merits in its defence, and

(iv) the convenience and prejudice to the other parties.

As the Court has already indicated, the Defendant’s application is bound to fail on the issue of delay alone. The expiry of a period of almost 4 years before the application to set aside is totally incomprehensible. There is no merit in the explanations or reasons given for the delay and I am not convinced that the defence being put up, given the parties agreement and part payment of the debt in the bankruptcy proceedings, will stand up to closer scrutiny. In effect, the Defendant’s application to set aside the judgment, given all the circumstances of the case, is tantamount in my view, to abuse of the process of the Court.

The application to set aside is dismissed.

Costs against the Defendant is summarily fixed at $350.00.

F. Jitoko
JUDGE

At Labasa