Prakash v Prakash [2005] FJHC 684; HBC0349.2003L (14 February 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0349 OF 2003L

BETWEEN:

DEO PRAKASH
f/n Deo Narayan
Plaintiff

AND:

JAI PRAKASH
f/n Deo Narayan
1st Defendant

AND:

THE DIRECTOR OF LANDS
2nd Defendant

Counsel for the Plaintiff: Mr. S. Maharaj
Counsel for the 1st Defendant: Mr. S. Nandan
Counsel for the 2nd Defendant: Ms. S. Tabaiwalu

Date of Hearing & Ruling: 14 February 2005

EXTEMPORE RULING

This matter comes before the court by way of an Originating Summons filed on behalf of the plaintiff on the 16^th October 2003. That application is supported by an affidavit of the plaintiff to which is annexed an affidavit of his wife and an affidavit of Poate Rakanace sworn on the 8^th October 2003. These last two affidavits were affidavits sworn for the purposes of a proposed Notice of Motion before the Agricultural Tribunal.

The Originating Summons is opposed.

The 1^st defendant has served and relies upon an affidavit as does the 2^nd defendant.

The court has had the benefit of written submissions filed on behalf of the applicant and oral submissions on behalf of the 1^st defendant and the 2^nd defendant submits to the order of the court.

The background of the proceedings is that the 1^st defendant commenced proceedings before the Agricultural Tribunal and those proceedings were dealt with before the Tribunal at Lautoka on the 2^nd October 2003. It would appear from the affidavit evidence that the Tribunal referred the proceedings to a clerk to facilitate settlement discussions between the parties. Those settlement discussions initially involved the plaintiff and 1^st defendant and subsequently involved the plaintiff, 1^st defendant and a third brother and then after a break appeared to have ultimately involved the plaintiff, his wife, the 1^st defendant and a brother.

“Settlement “was ultimately reached and reduced to writing. The terms of that settlement were then executed by the applicant and the 1^st respondent to those proceedings and by counsel for all parties.

The application before the court seeks to set aside those terms of settlement upon the basis set out in the Originating Summons which might be summarized as being that they were entered due to force coercion and duress. The law appears to be that the only facility for setting aside a judgment, even one entered by consent, is by the bringing of a fresh action such as has been done here – Ainsworth v Wilding [1986] 1 CH 673 which has been followed in this Court by Deo Kumari v Bhagat Ram [1999] FJHC 14^th October 1998.

The court has the capacity to set aside a judgment or order entered by consent even where the party/applicant was represented by counsel – Gatty v Shoosmith [1939] 3 All E.R. 916.

There is effectively before the court three affidavits in support of the Originating Summons. They are the affidavit of the plaintiff, his wife and one by a person apparently who was intended as a witness before the Agricultural Tribunal. Not surprisingly each of those affidavits describes the events in a similar way before the Tribunal and there is the affidavit of the defendant setting forth his version of events.

It is submitted by counsel for the 1^st defendant that for the court to make any determination of the matter, it requires there to be oral evidence and in support of this submission, the 1^st defendant relies upon Order 5 (2) (b) which order requires that where a claim is based on an allegation of fraud then the proceedings must be commenced by writ of summons. It would appear to me that the allegation here as pleaded in the Originating Summons is based not upon fraud but upon force coercion and duress. I don’t think they are synonymous and it seems therefore appropriate for a determination to be made based upon the affidavit evidence that has been filed in support and in opposition of the application.

Looking at the evidence that is before the court, it appears to me that on the balance of probabilities the terms of settlement were executed in an environment and in circumstances where one can conclude there was coercion, where again on balance the terms will not have been entered at the free will of the applicant plaintiff and for those reasons, it seems to me that the terms of settlement should be set aside.

Orders of the Court

1. Terms of Settlement dated 2^nd October 2003 are set aside.

2. The matter is referred to the Agricultural Tribunal for hearing according to law.
   

3. Costs to be costs in the cause.

JOHN CONNORS
JUDGE

At Lautoka
14 February 2005