Cokationo v I Taukei Land Trust Board [2016] FJHC 463; Civil Appeal 04.2016 (30 May 2016)

In the High Court of Fiji
At Suva
Civil Jurisdiction Civil Appeal No. 04 of 2016

Between: Josaia Cokationo

And: Joana Sekinairai

Appellants

And: I Taukei Land Trust Board

Respondent

Appearances: Mr N.Tuifagalele for the appellant

Ms Q.Vokanavanua for the respondent

Date of hearing: 30^th May, 2016

Judgment

1. The appellant appeals from a judgment of the Magistrates Court on the following grounds of appeal :
   1. That the Learned Magistrate erred in law and in fact when she allowed the Respondent to file its setting aside of default judgment application for the second time after she made a ruling to dismiss the Respondent’s first setting aside application.
   2. That the Learned Magistrate erred in law by misinterpreting Section 36(1)(b) of the Magistrates Court Act Cap 14 allowing the Respondent to file its second setting aside application after the first setting aside application was dismissed when the only option available to the Respondent was to appeal the learned Magistrates ruling to the High Court.
   3. That the Learned Magistrate erred in law by continuing to preside over the proceedings in the Magistrates Court making her functus officio under Section 36(1)(b) after she delivered her ruling by dismissing the Respondent’s setting aside application.

The proceedings in the lower court

2. On 2^ndSeptember,2014,the appellants filed amended statement of claim in the Magistrates Court claiming compensation from the respondent, the iTLTB for destruction of the their crops.
   
3. On 22^ndDecember,2014,default judgment was entered against the respondent.
   
4. On 9^th January,2015, the respondent filed notice of motion and affidavit in support to set aside the default judgment under “Order XXX11 Rule 11 of the Magistrates Court Rules”.
   
5. The Learned Resident Magistrate, in her Ruling of 18^th March,2015, made Order that the “motion filed by the Defendantfor this matter to be reinstated pursuant toOrder XXX11 Rule 11 is procedurally wrong” and dismissed the motion .
   
6. On 25^thMarch,2015, the respondent filed a second notice of motion and affidavit to reinstate the matter under Order XXX Rule 5.
   

The Ruling of the Learned Resident Magistrate of 2^ndMarch,2016,

7. On 2^ndMarch,2016, the Learned Resident Magistrate allowed the second application and set aside the judgment by default on the ground that the respondent had a satisfactory explanation for non appearanceon the day default judgment was entered and a substantial ground of defence.
   
8. In her Ruling, the Learned Resident Magistrate held that the submissions of the plaintiff (appellant) that the Magistrates Court is functus officio and the defendants’(respondent) application is an abuse of process, do not “qualify to be considered”.
   

The appeal

9. The grounds of appeal raise the simple question whetherthe Learned Resident Magistrate could have entertained the respondent’s second notice of motion and set aside the default judgment,whenher first Orderof 18^th March,2015, dismissing the motion was not vacated.
   
10. At the hearing, Mr Tuifagalele counsel for the appellant submitted that the lower court was functus and the only option available to the respondent was to appeal from the Order of 18^th March,2015, under section 36(1)(b) of the Magistrates Court Act.
    
11. The riposte of Ms Vokanavanua, counsel for the respondentwas that multiple applications could be made by a defendant to set aside a default judgment.
    
12. I disagree. In my judgment, the Learned Resident Magistrate was functus and could not entertain the second application, as her Ruling of 18^th March,2015, was not set aside.
    
13. In my judgment, the appeal succeeds on the first ground of appeal.
    
14. I do not find it necessary to deal with the second and third grounds which urge that the lower court misinterpreted section 36(1)(b) of the Magistrates Court Act. I find thatthe Learned Resident Magistrate had not considered that provision in her Ruling.
    
15. Orders
    • (i) The appeal is allowed.
    • (ii) The respondent shall pay the appellants a sum of $ 750, as costs summarily assessed.
      

A.L.B. Brito-Mutunayagam

Judge

21^st June , 2016