Hanif v Ali [2011] FJHC 86; HBC478.2007 (21 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 478 of 2007

BETWEEN:

MOHAMMED HANIF (f/n Mohammed Gani) of Suva in Fiji, Police Officer
PLAINTIFF

AND:

MASUK ALI (f/n Akbar Ali) of Lot 3, Niudamu Road, Nakasi, Stock Controller
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: IQBAL KHAN & ASSOCIATES for the Plaintiff
NEEL SHIVAM LAWYERS for the Defendant

Date of Hearing: 20th January, 2011
Date of Ruling: 21st February, 2011

RULING

1. INTRODUCTION
   

1. This is an application by the Defendant to set aside the default judgment entered against him on 12th February,2008 and the application to set aside has been filed on 3rd April, 2008 no affidavit in opposition was filed for this application.
   

B. LAW AND ANALYSIS

2. This application is brought in terms of the Order 19 rule 9 of the High Court Rules, which states as follows:

"The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this order"

3. In Fiji National Provident Fund V Shri Datt (1988) 34 FLR 67 Justice Fatiaki held that in setting aside of the default judgment following tests has to be applied

a. Whether the defendant has substantial ground of defence to the claim

b. Whether the Defendant has satisfactory explanation for his failure to enter an appearance to the writ.

c. Whether the plaintiff will suffer irreparable harm is the judgment is set aside.

4. The Plaintiff's claim is based on slander, upon a statement to the police by the Defendant alleging certain misconduct of the Plaintiff, which he had denied.

5. The Defendant in his proposed defence has stated that what he had stated to the police was a truth, hence pleads a defence of truth to alleged slander. Hence, the Defendant has a defence that has to be tried by the court in a trial through oral evidence.

6. The affidavit filed on 3rd April, 2008 described the circumstances that led to the entering of the default judgment and the present application was made to the court within 2 months of the default judgment. Plaintiff has not taken any step to execute the default judgment so far and would not be prejudiced and no irreparable harm to the Plaintiff is the judgment entered in default is set aside.

100. CONCLUSION
     

7. The default judgment entered on 12th February, 2008 is set aside and the Defendant is granted 7 days to file and serve the statement of defence.

8. The cost of the present application will be cost in the cause.

Dated at Suva this 21st day of February, 2011

Mr. Deepthi Amaratunga
Acting Master of the High Court

Suva