Naidu v Native Land Trust Board [2009] FJHC 372; HBC52.2008 (16 September 2009)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION HBC 52 OF 2008

BETWEEN:

SANMOGAM NAIDU
PLAINTIFF

AND:

NATIVE LAND TRUST BOARD
DEFENDANT

Mr A Sen for the Plaintiff
Mr A Ram for the Defendant

DECISION

This is an interlocutory application by the Defendant seeking an order to set aside judgment entered in default of defence and seeking leave to serve a defence. The application was made by summons dated 20 April 2009 and was supported by an affidavit sworn by Ela Manuku on 22 April 2009.

The Plaintiff opposed the application and filed an affidavit sworn by Samogam Naidu (the Plaintiff) on 16 July 2009.

The Writ of Summons in this action was filed on 9 December 2008 and was served on the Defendant on the same day. This appears to be the position as stated in paragraph 3 of the Defendant's supporting affidavit.

The Defendant's Acknowledgment of Service was not filed until 30 December 2008 and was then served on 8 January 2009.

Although the Acknowledgement was filed outside the time prescribed by Order 12 Rule 4, such late filing was not fatal because of Order 12 Rule 5 (2) that states:

"Except as provided by paragraph (1), nothing in these Rules or any writ or order thereunder shall be construed as precluding a defendant from acknowledging service in an action after the time limited for so doing, but if a defendant acknowledges service after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other act later then if he had acknowledged service within that time."

In the present case, the Defendant's Acknowledgment was required to be filed within 14 days of service of the Writ, i.e. 23 December 2008. The Acknowledgment was not filed until 30 December 2008. The Plaintiff had not obtained judgment between 23 and 30 December 2008.

The Defendant was therefore at liberty to acknowledge service on 30 December 2008 but was required to deliver its defence within 14 days from the 23 December 2008, i.e. 6 January 2009. This the Defendant did not do. No defence has been served.

As a result the Plaintiff entered judgment in default of defence on 2 April 2009 in the sum of $40,000 for special damages and for general damages to be assessed together with costs.

In its affidavit the Defendant does not state when it became aware that a default judgment had been obtained by the Plaintiff. During the course of his submission, Counsel for the Defendant indicated that the Defendant became aware of the default judgment on about 8 April 2009. Counsel for the Plaintiff did not appear to take issue with that assertion. As a result the 12 days that elapsed between knowledge of the default judgment on the part of the Defendant and the date of the Defendant's summons is not unreasonable nor excessive and does not require any investigation.

The length of time between the date when the defence should have been served (6 January 2009) and the date of the summons (20 April 2009) is considerable. However that was due to the fact that the Plaintiff, although entitled to enter judgment at any time after 6 January 2009, did not do so until 2 April 2009. The delay is not entirely due to the Defendant.

The explanation for not having delivered a defence on or before 6 January 2009 was not entirely clear and appeared to be inconsistent.

I am satisfied that judgment was properly entered in default of defence. I am also satisfied that no irreparable harm will be done to the Plaintiff due to the lapse of time. (See Atwood v. Chichester [1878] UKLawRpKQB 4; [1877] 3 QBD 722). Interest payable by the Defendant on any amount that may be awarded by the Court is usually regarded as adequate compensation for the delay in such cases. However the Defendant is required to satisfy the Court that it has a good defence on the merits. The defendant has annexed to its supporting affidavit a draft defence.

The defendant alleges that the land that is the subject matter of the action was part of what was known as Schedule A land and reverted as Native Land to the Defendant in 2001. The defence appears to relate to issues concerning legal duties and obligations as a result of the reversion to native land.

Although the Plaintiff sets out in some detail the dealings that he had with various entities, his dealings with the Defendant since 2001 appear to be limited to paragraphs 18 to 20.

I am satisfied on the material that the Defendant does have a good defence on the merits and that the action should proceed. In reaching this conclusion I consider the statement of Lord Atkin in Evans –v- Bartlam [1937] AC 473 at page 480 to be particularly appropriate to the present case:

"The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure".

Accordingly, I order that the judgment in default of defence entered on 2 April 2009 be set aside. I order that the Defendant have leave to file and serve its defence within seven days from the date of receipt of this decision and that thereafter the action proceed in accordance with the Rules.

I do further order that the costs of and occasioned by the obtaining and the setting aside of the default judgment are to be the Plaintiff's costs in any event. Such costs are to be determined at the conclusion of the trial.

W D Calanchini
JUDGE

16 September 2009
At Suva