Nisha v Sekove [2006] FJHC 94; HBC 380.2004 (3 February 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL JURISDICTION

ACTION NO. HBC380 OF 2004

NO. 05/2006

BETWEEN

ATRUL NISHA daughter of Mohammed
Buksh of Navatu, Ba, Fiji, School Teacher.
PLAINTIFF

AND

SEKOVE of Navatu, Ba,
Fiji, Field Officer
FIRST DEFENDANT

FIJI SUGAR CORPORATION LIMITED
a body corporate constituted under
the Fiji Sugar Corporation Limited
Act (Cap 209) having its registered
office at Western House,
Private Mail Bag, Lautoka, Fiji
SECOND DEFENDANT

Samuel K Ram for the Plaintiff (City Agents: Gordon & Co.)
Munro Leys for the Defendants (City Agents: Yash Law)

Date of Hearing: 7 October 2005
Dates for further Affidavits: 7 October and 20 October 2005
Dates of Submissions. 17 November, 1 December & 8 December
2005 (Extended to 9 January 2006)
Date of Ruling: 03 February 2006

FINAL RULING OF FINNIGAN J

I have before me a Summons on behalf of the Defendants to set aside my interlocutory default judgment on liability entered on 2 February 2005 and my final judgment in damages entered on 19 April 2005.

The total sum awarded including costs was $98,685.03. The Defendants have mounted a thorough and fully documented challenge to both the interlocutory judgment and the final judgment.

Only the Defendant (the Applicant) has filed a submission. I have read this and the annexures and the affidavits filed by both parties with close interest. It comes down to this; does justice require that the Plaintiff be deprived of the fruits of one or both judgments and that the Defendants be permitted to challenge some or all of her claims.

The Defendants have disclosed, as they were required to do, the substance of their defence in liability. There is a clear conflict about the fundamental facts from which the claims arise. The Plaintiff in her evidence said she was standing at the side of the road when a Fiji Sugar Corporation vehicle driven by Sekove ran into her at very high speed and did not stop. She said she was taken to a doctor and then to hospital and the matter was reported to the police. Sekove the First Defendant has sworn an affidavit that he came around a bend to his right, traveling at about 40 km per hour because of the poor road conditions and the glare of the early morning sun. He says that the Plaintiff crossed the road in front of him as he straightened from the bend. She came from his left and the collision was at the right side of his car. He stopped virtually at the point of impact and there were not any skid marks on the road surface. The Plaintiff was lying on the right side of the road, he turned his car round and with the assistance of two passengers from the bus which he speculates she intended to catch he put her into the car and drove her to the hospital from where he went straight to the Ba Police Station to report the accident. He returned from there to the scene of the accident with a police officer and helped the officer with measurements. He says he was subsequently charged with careless driving. At the Magistrates Court he sought legal advice about his plea from the Police Prosecutor and on that advise pleaded guilty. He says he told the Magistrate that he pleaded guilty only to save the court's time but that he disagreed with the version of the facts. Without comment on that the Magistrate fined him $100.00.

If that were the only consideration then clearly justice would require that both parties give evidence so that the court could assess their credibility and make a principled finding as to the facts. There are however other factors that I must first consider.

Why did the Defendants take no steps at all in this matter? Sekove swears that the Affidavit of Service of the Writ upon him is correct and that after receiving the writ he went to his Union official for advice. He sets out the details of that and says that as a result of his discussion he took no action to defend the claim, believing that the Corporation, his employer, and its insurers would handle the claim. Thereafter he admits that he was served personally in February 2005 with two copies of the Default Judgment and Notice of Assessment of Damages and Costs, as sworn by the Service Agent. He did nothing with or about these documents.

The Second Defendant's Chief Deponent is Mr Jagdish Raj. He has handled all legal matters pertaining to the Corporation for the last five years. He states that neither he nor anybody else in his office has any knowledge of the Writ. The Service Agent has sworn that it was posted on 20 December 2004 at Ba Post Office by Registered Post No. 2604, and she annexed the receipt for registered mail No R2604. It is initialed and date stamped 20 December 2004. In the normal course of the events all mail received is entered into an Inward Mail Register. No entry has been made in respect of this document.

In contrast, the notices of the default judgment and of the hearing for assessment of damages which also were served by registered post are recorded in the Inward Mail Register. Beyond that point however they are said to have disappeared. At about the time of receipt Mr Raj was away on other important business, He was not made aware after his return that document had arrived at the office. He has been unable to ascertain who took possession of the documents. Both Mr Raj and Mr Gayanand Singh who would otherwise handle all legal matters were fully engaged on that other important enquiry and were both absent together and have both sworn that with literally hundreds of court proceedings involving the Corporations over the years, fifty current at the present time, the Corporation has never suffered judgment by default. It has always taken initial steps to protect its position.

Decision:

I have read the judgment of the Court of Appeal in Wearsmart Textiles Limited Civil Appeal No ABU 0030/97S, Judgment 29 May 1998 and the three English authorities which Counsel for the Defendant has supplied. I accept that the Defendants did not deliberately ignore these proceedings. The First Defendant however thought it was enough to pass on his responsibilities to somebody else and when served with notice that judgment in liability had been entered him did absolutely nothing. Not only was he at risk but he knew he had been found liable but he put his head in the sand. The Second Defendant's actions are only a little more impressive. The purpose of registered mail is to enable all parties to trace a postal item from postage to delivery. The writ as a postal item is clearly identifiable and its progress through the postal system should be in the postal records. On its affidavit the Second Defendant has taken no steps to enquire where the writ ended up. The inefficiency displayed in receipt of the later notices tends to show that the absence of the writ is probably more the fault of the Second Defendant than of the Post Office. The inefficiency to which I refer is the sudden and completely unexplained disappearance of one item of mail apparently just because "the boss was out of the office". No doubt the Corporation's deponents are ashamed by what they have had to reveal but in these aspects of the matter the balance favours the Plaintiff.

Against that I must weigh the fact that the Plaintiff's version of the accident is strongly challenged and that to make after a defended hearing the findings of fact set out in the judgment on damages the Court would have to discount entirely the evidence of the driver, (as so far sworn). To do that without actually hearing that witness on his oath is a manifest injustice. I cannot go so far as to say the defence has "a real prospect of success" in the words of the Court of Appeal The Saudi Eagle [1986] 2 Lloyd's Rep 221. This is because I have no views about the Defendants' prospects of success. I do find however that the statements about the proposed defence so far made do "carry some degree of conviction".

For that reason I conclude that justice requires a re-hearing of the whole matter. Taking account of everything in the file about damages including the insurance situation I expect that Counsel may be able to settle damages if that becomes necessary. On the basis that liability only is in issue this matter can be given an early hearing date. A long delay will not be contemplated.

In the event that after a hearing liability is found against the Defendants and agreement is not possible then one option the Court will consider is payment into Court of the $98.685.03 previously awarded.

The Second Defendant has offered to pay the Plaintiff's reasonable costs on this application, and rightly so. The Plaintiff's costs in respect of the interlocutory judgment and the hearing and final judgment have been thrown-away costs. The Defendants will pay her reasonable costs and disbursements including Court fees and traveling expenses of Plaintiff as witness and of Counsel from the application for default judgment until and including sealing the final order on 19 April 2005. I expect these will be agreed without difficulty, if not they will be assessed by the Deputy Registrar.

Orders:

I now make orders setting aside the interlocutory and final judgments entered herein on 2 February and 19 April 2005. I direct that costs be settled and paid to the Plaintiff in the terms above. Payment of these costs before the hearing on liability will be a pre-condition of the Defendants' appearance at the hearing.

D.D. Finnigan
JUDGE

At Lautoka
03 February 2006

The matter will today be assigned an agreed early hearing date, or an early listing to fix a date.