Chand v Koroi [2005] FJHC 587; HBC0317.2004 (3 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0317 OF 2004

BETWEEN:

BIJESH CHAND
PUSHPA RAJ
RAJENDRA PRASAD
ANITA RAJ
PLAINTIFFS

AND:

JOKAPECI KOROI
1ST DEFENDANT

MAHENDRA PAL CHAUDHARY
2ND DEFENDANT

SUBAH VERMA
3RD DEFENDANT

DR. GANESH CHAND
4TH DEFENDANT

Mr Iqbal Khan for the Plaintiff
Messrs Kohli & Singh Solicitors for the 1^st Defendant
2^nd, 3^rd and 4^th Defendants in Person.

Date of Hearing: 24 June 2005
Dates of Submissions: 8 July, 22 July and 29 July 2005
Date of Ruling: 03 August 2005

INTERLOCUTORY RULING OF FINNINGAN J

On 15 October 2004 the Plaintiff by writ commenced an action in defamation against the Defendants. He wanted damages and an injunction so that they would not defame him again The same day he filed an ex-parte motion for that injunction and a judge declared that application should proceed on notice. On 21 January he again applied ex-parte for that injunction and it was granted. The Defendants were ordered by the Court not to defame the Plaintiff. That order lasted until 15 April 2005 whereafter it was forgotten and the need for it was proved by its demise.

What I have been asked to decide is an application to set aside an interlocutory judgment that was entered against the 2^nd, 3^rd and 4^th Defendants on 21 February 2005. There is actually before me a motion filed on 24 February 2005 by the 4^th Defendant to set aside the judgment against him. With it is an affidavit in support sworn by the 3^rd Defendant and annexing his proposed statement of defence said to be in support of his motion to set aside the judgment against him, but that motion is not on the file. On 15 March 2005 the 2^nd Defendant filed an affidavit said to be in support to his application to set aside the judgment against him. It annexes his proposed statement of defence, but there is no motion on the file.

As one might expect, in these first steps taken the 2^nd Defendant he raises the primary issue of whether he has been served with the proceedings. Both the 2^nd Defendant and 4^th Defendant are described in the entituling as “Parliamentary leader” and “Member of Parliament” respectively.

I have not been advised in the submissions or otherwise about the law governing service of Court documents on parliamentarians while the House is sitting. I do know from the affidavits that a firm of lawyers in Suva sent a clerk to Parliament House on 16 November 2004 to serve the 2^nd Defendant and that the clerk claims she was advised by the 2^nd Defendant that nobody was allowed to serve any documents on him in the Parliament House and if anybody made an attempt to do so he would call the police. From another affidavit I learn that another firm of Suva lawyers sent a Bailiff to Parliament House on 19 October 2004 and there served the 1^st Defendant. They said they were unable to serve the other Defendants because “Parliament was in Session”. Subsequently this Court made an order for service on all 4 Defendants by one advertisement in the Fiji Times.

All 4 Defendants have now taken one step or another in the action. The 1^st Defendant filed a statement of defence. The service issue is probably academic, but it is important nonetheless.

It would be a very serious issue if the judgment were to remain, but clearly it cannot. Any of the authorities governing the entry of default judgment and setting aside the same will support the proposition that the concern of the Courts for justice is greater then their concern for the rules of procedure. The Plaintiff has filed a substantial claim setting out the details of his grievance and the responsibility which he claims each of the Defendants bear for it. He quantifies his claim in money terms at 1 million dollars. All of the Defendants are high profile public figures. There were special requirements of service which may have been overcome by a single advertisement in a Daily Newspaper. To uphold a default judgment in liability under those circumstances would contrary to all principle.

I have considered all of the submissions and the affidavits. The default judgment against the 2^nd, 3^rd and 4^th Defendants is set aside.

Costs on this interlocutory application will lie where they fall and I made no order.

The matter will be called in the callover on 25 November 2005 and it will be given a hearing date. Counsel should now proceed with pre-trial steps and if necessary directions can be sought and given at the hearing on 25 November 2005.

D.D. Finnigan
JUDGE

At Lautoka
03 August 2005