Naidu v Native Land Trust Board [2010] FJHC 289; Civil Action 52.2008 (10 August 2010)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION No: 52/08

BETWEEN:

SANMOGAM NAIDU
f/n Tangvellu of Namara, Labasa
PLAINTIFF

AND:

NATIVE LAND TRUST BOARD
a body corporate duly constituted under the Native Land Trust Act. Cap. 134.
DEFENDANT

DECISION

BACKGROUND

This is an application by the Defendant to set aside default judgment made against it on the 29 October 2009. This is the second application made by the Defendant to set aside default judgment against it. The first application was heard before Honourable Justice Calanchini on the 20 August 2009. After the hearing of that application in Labasa His Honour indicated that the ruling would be on notice. On the decision on 16 September his honour made his decision setting aside the default judgment on the following conditions:-

1. That the Defendant is given leave to file and serve a Defence within 7 days from the date of receipt of the decision;

2. That thereafter the action to proceed in accordance with the rules; and

3. That the costs occasioned by the obtaining and setting aside of the default judgement are to be the Plaintiffs costs which is to be determined at the conclusion of the trial.

The Order was sealed by the Plaintiff on the 29 October 2009 and the 2nd Default Judgment entered against the Defendant on the same date. On the 13 November the Defendants were served with the 2nd Default Judgment and thereafter they made this application to set aside this judgment.

In support of its Summons seeking an order setting aside the default judgement the filed an affidavit sworn on the 7 December 2009 by Mr. Joreti Dakuwaqa, Manager Native Land Trust Board, Labasa.

The affidavit states the following grounds:-

(i). That it was served with a copy of the Courts decision given in Suva on the 29 October 2009 together with the Judgement Orders on the 13 November 2009;

(ii). That they wrote to the Chief Registrar on 18 November 2009 advising her that they were not made aware of the date of decision.

(iii). That the matter was heard in Labasa and that after the hearing they were informed that judgement was to be by notice;

(iv). That they did not receive any notice;

(v) That the name of the wrong counsel was noted on the decision which may account for their not being informed of the decision.

That they have a good defence and that had they been informed of the date of the Court’s decision they would have complied with the Court’s decision. In its submission before the Court the

Defendant supported the matters raised above by reference to the decision of Justice Fatiaki in FNPF –v- Shri Dutt 34 FLR 67 in which Justice Fatiaki listed the test for setting aside as follows:-

(i). whether the Defendant has a substantial ground of Defence;

(ii). whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and

(iii). Whether the plaintiff will suffer irreparable harm if the judgment is set aside.

It states that the Court has previously ruled in favour of the Defendant in setting aside the judgment in default entered on April 2009 in which his Lordship Justice Calanchini came to the conclusion that the Defendant does have a good defence on the merit. That its failure to file its defence within the time specified in the judgment was that they were not informed of the date of the decision. Further the Plaintiff has not shown that it would be prejudiced by the setting aside of the default judgment.

The Plaintiff did not file ant submission although simultaneous filing of submission was requested from both parties. However in its affidavit in opposition it opposes the application on the grounds that:-

(i) that he was advised and he verily believed that the Court Registry advised all parties of the date of the delivery of the judgment;

(ii). that he was advised and he verily believed that the judgment the judgment was received by the defendant who were present through their agents at the time of delivery;

(iii). that the letter written by the Defendants to the Chief Registrar and which is annexed in their affidavit in support of their application is a lame excuse a blatant lie and misrepresentation to the Court in an attempt to set aside a judgment which is regularly entered pursuant to the rules of the Court;

(iv). that the said letter is deliberately designed to mislead the Honourable Court and the contents of which are false;

(v). that the allegations by the Defendant that the judgment was delivered in Suva was another blatant misrepresentation to this honourable Court as His Honour Justice Calanchini was very much physically present here in Labasa when he delivered the decision and that he conducted other cases at Labasa High Court;

(vi) that the excuses forwarded by the Defendant are baseless and designed to seek sympathy from this Court under misrepresentation, that the Defendant has not learnt from past lesson and have not give heed to the Orders of this Honourable Court; and

(vii). That the defendant have escaped the costs on previous occasion despite his being inconvenienced and had incurred several thousand dollars costs in having this matter completed before the Court.

It appears to me that the only way I could make a decision in this matter is to see whether notice was given to the Defendant about the day of the decision to enable it to appear in Court on the 16 September 2009. The issues regarding whether the Defendants have good defence on the merits and the issue regarding delay and explanation of that delay, etc has already been dealt with by His Lordship Justice Calanchini in his judgment in the first application, and I do not wish to deal with that here. What I need to know to is whether or not the Defendants were informed of the date on which the matter is called in Court at Labasa so as to establish whether they had a good explanation for not filing their defence in time. The registry record shows that on the 16 September 2009 Justice Calanchini appeared in the Labasa High Court. In fact I am informed by the Deputy Registrar that Justice Calanchini sat at the Labasa High Court from the 16 to the 25 September 2009.

Notwithstanding that the bottom of the last page of the decision states “16 September 2009 At Suva” the decision has a Labasa High Court stamp. The records show that the Honourable Judge stated on the 20 August when the matter was called in the presence of the Plaintiff’s Counsel Mr. Sen and the Defendants Counsel Mr. Tuifagalele, that ruling would be on notice. However the Court records does not show that a “Notice of Adjourned Hearing” was given to either Counsels nor is there a head sheet showing that the matter was called on the 16 September 2009. I am therefore satisfied that in the absence of any records in the file of a Notice of Adjourned hearing being given that the Defendants were not aware of the date at which the judgment was given and therefore they should be allowed to file a defence and the matter to take its normal course. I am also of the view that the Defendants, notwithstanding the above, ought to have been more diligent in their effort to ensure that they keep track of their matters that are before the Court given the time lapse between the date of judgment and the sealing of the judgment.

One important issue needs to be addressed before we conclude and that relates to the default judgment being framed as a “final Judgment”. This matter was touched slightly in paragraph 17 of the Defendant’s submission but not addressed at length. In his decision His Lordship Justice
Calanchini said in the third paragraph on page 3 that he was ...”satisfied that judgment was properly entered in default of defence”. In other words the default judgment in default of defence procedurally was properly entered and that is indeed true, but the question that ought to be asked in view of the nature of the claim is whether the judgment as stated can be a final judgment. I think not, and the reason is that the claim to which the judgment in default refers is not a liquidated sum and could not be final without proof or rather without further evidence being adduced.

The Statement of Claim states in paragraph 16 as follows:-

“That at the time of such breach, the leasehold market value of the said lease (being part of Crown Lease No: 7544, ref No: 4/9/17291, containing an area of 1078 sq.m. was in the sum of $40,000:00 and the Plaintiff was entitled to same”...

WHEREFORE the Plaintiff claims from the Defendant:-

(a). The sum of $40,000:00 being special damages.

It is clear that the claim in paragraph 16 refers to the “market value” of the property which is not a liquidated sum. The best that the Plaintiff could achieve in the absence of a defence is a judgment with damages to be assessed.

In Knight v Abbot (1882) 10 QB 11 it was held that:

"A liquidated demand is in the nature of a debt i.e. a specific sum of money due and payable under a contract. Its amount must be ascertained or ascertainable as a mere matter of arithmetic."

And to like effect is a dictum in Workman Clark & Co. Limited v. Lloyd Brazileno [1908] UKLawRpKQB 42; (1908) 1 K.B. 968 (C.A.):

"A claim is unliquidated, where even though specified or named as a definite figure, its ascertainment requires investigation beyond mere calculation".

Halsburys Laws of England, Volume 37: Practice and Procedure, 4th Edn. Para 397 reads:

"A liquidated demand is a debt or other specific sum due and payable by the Defendant to the Plaintiff. It must be ascertained or capable of being ascertained as a mere matter of arithmetic. It does not extend to unliquidated damages, whether in contract or tort, and such a claim does not become liquidated merely because it is expressed as a definite or specific figure..."

Under O19 r2(1) final judgments can only be entered in the absence of a defence in liquidated
demand only.

In view of the above the Court therefore allows the application to set aside the Judgments entered against the Defendant on the 29 October 2010. And the Court therefore makes the following Orders:-

(i). Judgments against the Defendant as per Paragraphs (a) to (e) of the final judgment be set aside;

(ii). The Defendants are to file a Defence within three days of the date of this judgment;

(iii). The Defendants are to pay costs to the Plaintiff to the sum of $350:00; and

(iv). The Matter to take its normal Course and for that purpose the matter is to be called before me for mention and further direction on the 17 August 2010.

H A ROBINSON
MASTER

10 AUGUST at LABASA.