Gangaiya v Dutt [2008] FJHC 276; HBC163.2006L (11 February 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 163 OF 2006L

BETWEEN

GANGAIYA
f/n Ram Sami
Plaintiff

AND

DAVENDRA DUTT
f/n Ram Dutt
1st Defendant

AND

ABDUL WAHAB
f/n Rahim Tullah
2nd Defendant

Appearances: Chaudhary & Associates for the Plaintiff
Haroon Ali Shah Esquire for the Defendant

Date of Hearing: 11 February 2008
Date of Decision: 11 February 2008

EX-TEMPORE RULING

[1] Before me is a summons to set aside the default judgment and assessment award herein. The summons, dated 2 October 2007 was filed by the 1st defendant who claims he was also authorized by the 2nd defendant to make the application. The default judgment and assessment award is against the 1st defendant only. The application is opposed.

Grounds

[2] The affidavit in support, by the 1st defendant raises the following grounds:

(i) his former solicitors are at fault for failing to file a defence to the claim

(ii) the defendants have a valid defence to the claim. The following particulars are alleged:

a) that the accident on 15 January 2006 was caused solely due to the negligent driving of the plaintiffs driver, one Praneel Vikash, now deceased

b) the 2nd defendant had almost completed his turn into a side road when the said deceased came at an excessive speed and struck the side of truck No. DSO 37

c) that Abdul Wahab, the 2nd defendant pleaded guilty to several counts arising from the collision due to police pressure, namely, representation to the effect, "Plead guilty you are a first offender, nothing will happen to you", and to save the time of court

d) that the said Abdul Wahab did not have the benefit of legal representation before his plea of guilty

(iii) that in my event, the plaintiffs assessment award is too high bearing in mind, that a comparative vehicle such as the plaintiff’s was at the time of the accident worth no more than $5, 000.00 (Five Thousand Dollars).

Chronology

[3] The chronology of steps taken, or the lack thereof, from the time of issuance of the writ have been set out in the written submissions of counsel for the plaintiff and need not be repeated here. What is apparent is that the procedural defaults by the 1st defendant, attributed to his former solicitors, continued for a period in excess of 12 months. The 1st defendant cannot rely on the defaults of his solicitor. He also had an obligation to keep himself informed of the proceedings against him which he clearly failed to do. Recourse for his former solicitors claimed negligence does not lie against the plaintiff but against his previous legal advisors.

Relevant principles

[4] The recognized tests for an application to set aside judgment entered in default of appearance
or defence are:

a) whether the defendant has a substantial ground of defence to the action

b) whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ, and

c) whether the plaintiff will suffer irreparable harm of the judgment is set aside.[1]

Proposed defence

[5] The 1st defendant has deposed to information in regard the proposed defence which he is not of his own knowledge able to prove. Moreover the sources of this information has not been disclosed. The affidavit is defective. For these reasons I have declined to have regard to each of the matters deposed to in paragraph 11 of his affidavit. In any event, the material contained in the plaintiffs affidavit indicates to me that the proposed defence is a mere sham. The Summary of Facts contained in the Magistrates, Court record exhibited in the plaintiffs affidavit shows that the 2nd defendant made a right turn in the face of an oncoming vehicle. That was how the accident happened. The claim by the 1st defendant that the plaintiff’s driver was solely negligent is farfetched in the extreme. If the 2nd defendant was aware of oncoming traffic, he should not have proceeded to make the right turn. I have serious doubts about the bona fides of the proposed defence and the allegation of high speed on the part of the plaintiffs driver given the complete failure to put before me any credible evidence supporting these claims. Suffice it to say that the defence that the plaintiff’s driver was solely responsible for the mishap is not supported by any credible evidence whatsoever. The defendants have not disclosed a defence on the merits.

Failure to enter appearance

[6] I have already stated my dissatisfaction with the justification relied on. The 1st defendant had an obligation to keep himself informed of the proceedings against him. His failure to do so, over such a long period of time, is to his detriment.

Prejudice

[7] The prejudice to the plaintiff is only that caused by the prospects of further delay. However, given my findings on the first two factors, this factor is not significant.

Orders

Summons to set aside dismissed with costs of $550.00 to the plaintiff.

Gwen Phillips
JUDGE

At Lautoka
11 February 2008

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^[1] Connors J in Pranil Kumar –v- Sabeto Valley Investments Ltd & Reiaz Ali,
Civil Action Nos. HBC 345 & 392 of 2001 at p.4