Sharma v Prasad [2011] FJHC 253; HBC103.2006 (10 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 103 of 2006

BETWEEN :

VANITA DEVI SHARMA
(father's name Baswanand Sharma) of Voivoi Legalega, Nadi, School Teacher
Plaintiff

AND :

JAGDISH PRASAD
(father's name Shiu Narayan) of Legalega, Nadi, School Teacher.
Defendant

Before : Master A. Tuilevuka
Counsel : Mr. Koya for the Plaintiff
: No Appearance – Defendant

Date of Hearing : 09th of May 2011
Date of Ruling : 10th of May 2011

RULING

[1]. The plaintiff filed her writ of summons and statement of claim on 19th of August 2003.

[2]. The gist of the claim was succinctly summarized by Finnigan J in his ruling dated 10th of May 2006. That ruling was made after the plaintiff formerly proved her case on the same day 10th of May 2006. Below I reproduce paragraphs 1, 2, 3, 4 and 5 of the said ruling.

[1] The matter was set down for hearing on the application of the plaintiff last November 25, 2005 and that time Mr. Sheik Shah was on record for the defendant but he did not appear although the matter was set down on Notice. He had previously not appeared on 30th September and the defendant has apparently taken very little interest in the action for some time. Today the defendant was called, the matter having moved from yesterday and neither yesterday nor today has the defendant been present. No application has been made to strike out his Statement of Defence or his counterclaim and on those I shall give judgment for the plaintiff.

[2] On the evidence of the plaintiff and of Mr Mohammed the Assistance of the Westpac Bank in Nadi and of the plaintiff's mother Satya Wati I have no doubt at all that on 22 November 2001 the plaintiff advanced to the defendant the sum of $22,000.00 and of that amount $18,738.35 was paid by Mr. Mohammed in the presence of both parties into the defendant's loan account at the Westpac Bank and that discharged her loan. I am satisfied to the same high standard that the balance of the money which is $3,261.65 was paid in cash by the plaintiff to the defendant and that the defendant showed this money to the plaintiff's mother the evidence of the plaintiff and the bank officer alone established that and the mother's evidence confirms it.

[3] There is no way on this evidence that the plaintiff can be refused judgment on her claim for $22,000.00 and I shall give judgment accordingly. On that amount, Mr. Koya seeks interest at 5% and I shall award interest at that rate from the date of filing the Writ 19 August 2003 until today the date of judgment 10 May 2006, which by my calculation is 2 years and nine months. The interest rate will be 5% simple per annum.

[4] Mr. Koya has realistically abandoned his claim for damages and has acknowledged that his extra remedy against the defendant for loss of use of the money would be in the award of interest. However, in respect of costs he seeks solicitor and client costs that are for indemnity. He assures me that the plaintiff's solicitor ad client costs will be $2,000.00 ad no more so that there will no deduction from what has been awarded to the plaintiff if the court is going to order that amount. In my view in the circumstances of this case where the defendant is a distance relative and a neighbor and obviously was a trusted friend of the plaintiff I have no doubt at all that the plaintiff is entitled some solace and can give her that in the form of full indemnity costs which I believe are merited in the circumstances of the case. I summarily assess the costs at $2,000.00.

[5] In summary I made the following orders:

1. Judgment against the defendant in the sum of $22,000.00
2. Interest on that amount at 5% per annum simple from 19th August 2003 until 10 May 2006 (2 years 9 months) and Mr. Koya will do the calculation and insert in the draft order which he (sic) will file for sealing
3. An order for costs against the defendant, which I assess summarily at $2,000.00.
   

[3]. From the file records, I see that following the filing of the writ of summons and statement of claim, the plaintiff had filed an ex parte motion on 19th August 2003 seeking to prevent the defendant from leaving Fiji.

[4]. Order in terms were granted by Justice Kishore Govind on the same day.

[5]. On 1st September 2003, Sheik H. Shah Esquire filed an acknowledgment of service. Shah then filed the defence and counterclaim on 14th November 2003.

[6]. On 30th September 2003, Shah filed an application under Order 8 Rule 3 of the High Court Rules 1988 seeking to dissolve the order of Govind J dated 19th of August 2003. The application was supported by an affidavit of the defendant.

[7]. It appears that from the records that the defendant was interested in travelling overseas. And so, on the 4th of February 2004 the defendant provided a surety namely Mohammed Faiz Hussein of Northern Press Road, Nadi, Air Freight Officer. On the 9th day of February 2004, Connors J dissolved Govind J's orders of 19th of August 2003 upon the surety of Hussein.

[8]. Thereafter, the matter appeared to take its normal course. Summons for Directions were filed and order in terms granted on the 26th day of May 2004 by the Deputy Registrar.

[9]. On the 26th of October 2004, the reply to defence was filed and on the 27th of October 2004 the plaintiff filed her list of documents.

[10]. On 27th October 2004, the plaintiff filed an ex parte motion seeking an order that the surety Mohammed Faiaz Hussein be restrained from leaving the country.

[11]. The defendant filed his affidavit verifying list of documents on the 9th of November 2004 vide Sheik H. Shah. Thereafter the matter was called in court 12 times between Monday 19th of January 2004 to 25th of November 2005.

[12]. On 25th of November 2005, two trial dates were set for the case (i.e. 9th of May 2006 and 25th of July 2006).

[13]. Then, on the 28th of June 2005, Sheik H. Shah Esquire filed a notice of motion seeking an order that the order dated 28th of October 2004 and the Writ of Exeat Civitate dated 2nd November 2004 be wholly dissolved upon the grounds.

[14]. On Friday the 1st of July 2005, Finnigan J granted order in terms of the application upon the provision of surety of Ashok Kumar father's name Babu Ram of Nadi, businessman t/a A.K. Digging Works and Mohammed Aiyub Khan of Lautoka, businessman t/a Mega Builders and Joinery Works.

[15]. Thereafter the matter appears to take its normal course.

[16]. Copy pleadings were filed on the 16th of February 2006.

[17]. On the 9th day of May 2006 (trial date), Mr. Koya appeared but there was no appearance by the defendant or his counsel Mr. Shah. The case was then adjourned to the following day 10th of May 2006 for trial.

[18]. Trial proceeded on the 10th of May 2006 without the defendant or his counsel appearing and it was on that hearing that Finnigan J's judgment (see paragraph 2 above) was entered.

[19]. It is now exactly 5 years later and the plaintiff is now back in court seeking the same judgement.

[20]. What happened was that, some nine (9) months after the 10th of May 2006 judgement, Patel & Sharma of Nadi filed on the 26th of February 2007 an application to set aside unconditionally the judgment of Finnigan J.

[21]. On the 20th of April 2007, Philips J by consent, granted leave to Patel & Sharma to amend the application and the amended notice of motion was filed on the 30th of May 2007.

[22]. On the 13th of July 2007, the matter was again called before Phillips J. Mr. Singh from Patel & Sharma appeared for the defendant and advised the court that they were trying to settle with Koyas for the plaintiff.

[23]. The matter was again called on the 14th of September 2007 before Phillips J and was then adjourned to the 19th of October 2007 before the Master to fix a hearing date on the amended motion.

[24]. Thereafter the matter was called 14 times between 11th of December 2007 to 14th of May 2008. On the latter date, Mr. Singh appeared and informed the court that settlement talk has broken down. Finnigan J delivered a ruling on the 14th of May 2008 and which I reproduce below.

EX-TEMPORE RULING OF FINNIGAN J

[1] I have before me an application by the defendant for leave under High Court Rules o.3 r.4 to make an application well out of time for setting aside a judgment entered against him on 4 August 2006. I have had submissions from Mr. Singh for the applicant/defendant and Mr. Sailo for the respondent/plaintiff.

[2] I have some memory of hearing the evidence of the plaintiff on 10 may 2006 and I see on the file my notes of her evidence taken on oath on 10 May 2006.

[3] The defendant has filed an affidavit in which he attempts to explain why the hearing went ahead without him. Si I have to consider that to see whether there is adequate explanation for his non appearance. The next thing I have to consider is the delay in making this application and the reasons for it. The third thing I have considered is the overall justice of the matter. Having read his brief affidavit I think there is adequate explanation for his non appearance ad for the delay. I know also that there has been executed a surety for the full amount of the judgment for the time he was out of Fiji and that he has returned to Fiji certainly before he swore this affidavit on 5 February 2007.

[4] The overall consideration for me is the justice of the matter. There is an authority in the Fiji Court of Appeal which directs me to put the justice of the matter first and to consider whether a fair trial is still possible and if so give the defendant his day in court. I am unable to recall it to mind at present but I set it out fully in a written ruling I gave in a matter last week. I shall find that previous ruling and corporate this citation. This is Pratap –v- Christian Mission Fellowship [2006] FJCA 41; ABU93/2005.

[5] I have no doubt that from the statement of defence filed and from the presence of the defendant in Fiji that a fair trial of the issue between these parties is possible and in fact should take place in the interest of justice. I therefore grant leave to set aside unconditionally the judgment entered against the defendant on 10 May 2006 in an oral judgment which I delivered on that day. The order was sealed on 4 August 2006.

[6] The plaintiff is at liberty to encumber the title to the property concerned by lodging a caveat if she wished. The matter will now be prepared for trial. After consulting counsel I directed this file now be placed before the Master next Friday 16 May 2008 so that it may proceed towards trial.

[7] Costs are awarded against the defendant/applicant he has been successful. I fix those in the sum of $500.00.

[25]. The records will show that after the above ruling, the case was called before me some six (6) times between 14th September 2009 to 5th November 2010. Pre-trial conference was completed during this time and copy pleadings filed in court.

[26]. On 25th February 2010, Koyas filed another ex-parte application seeking orders to restrain the defendant be restrained from leaving Fiji should he attempt to do so and to surrender his travel documents. Thereafter, the case was called four (4) times before Fernando J between 26th February 2010 to 06th of May 2010. On the latter date, Fernando J dismissed the application with no order as to costs following an application from Mr. Koya seeking leave to withdraw it. Thereafter – the matter was called before me four(4) times between 14th May 2010 to 08th of July 2010.

[27]. On 09th of July 2010, Patel & Sharma filed an application seeking leave to withdraw as counsel for the defendant on the ground that the defendant has retired from employment as a teacher at Nadi Muslim School and not been in contact with Patel & Sharma for a few months and had left no forwarding address or phone contact. His whereabouts are not known to Patel & Sharma.

[28]. Order in Terms was granted on the application following an advertisement of service in the Fiji Sun dated 02nd September 2010.

[29]. Mr. Singh did appear in Court on 03rd of November 2011 and informed me that he has since received a telephone call from the defendant who then resided in the US.

[30]. Since then – this case has been adjourned several times for Mr. Koya to formally prove his case. This – Mr. Koya did yesterday before me.

[31]. Although Mr. Koya had all his witnesses in Court yesterday to give evidence, Mr. Koya made a preliminary submission before me that – as an alternative to going through all the witnesses again, I could still adopt the findings and the conclusions of Finnigan J (see paragraph 2 above). Either way – he was prepared to proceed.

[32]. Having reviewed the history of this case, and the pleadings, and having read the judgement and ruling of Finnigan J, I am convinced that the defendant's attitude and conduct in this case has been anything but bona fide. Also – I see no reason why I should not adopt Finnigan J's judgement above and accordingly I make the following orders (note the increased costs):

1. Judgment against the defendant in the sum of $22,000.00
2. Interest on that amount at 5% per annum simple from 19th August 2003 until 10th of May 2011 (7 years 9 months) and Mr. Koya will do the calculation and insert in the draft order which he will file for sealing
3. An order for costs against the defendant, which I assess summarily at $3,500.00.
   

.........................................
Anare Tuilevuka
Master

At Lautoka
10th of May 2011.