Hussain v Sovakiwai [2016] FJHC 651; HBC03.2015 (19 July 2016)

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 03 OF 2015

BETWEEN : TAIYAB HUSSAIN t/a Hussain’s Hire Plant having

its registered office at Nasea, Labasa

PLAINTIFF

AND : AISAKE SOVAKIWAI of Nabunawai, Nasolo

1^ST DEFENDANT

AND : BUA PROVINCIAL COUNCIL statutory body

established under Laws of Fiji

2^ND DEFENDANT

Appearances: Mr. A Sen of Maqbool & Co for the plaintiff

No appearance for the 1^st defendant

RULING ON ASSESSMENT OF DAMAGES

Introduction

[1] The plaintiff by a writ of summons and a statement of claims dated the 19 February 2015 claims from the defendant the following:-

1. Specific Performance of the agreement entered into between them on the 7 March 2014;
2. Special Damages in the sum of $11,196:95;
3. General Damages in the sum of $100,000:00;
4. An injunction restraining the defendants whether by themselves or though their servants or agents or howsoever allowing any persons to extract river gravel from Nasolo River until the final determination of this action or preventing the plaintiff from obtaining a licence to extract gravel from Nasolo river.
5. Costs on indemnity basis.

[2] The above claims arose from an agreement entered into between the parties sometimes in March 2014 which the plaintiff the right to

extract gravel from the Nasolo River in Bua for use in the construction of roads within the province of Bua. The defendant at the time was the representative of the Mataqali Navuniwai of Bua who are the traditional owners of the land near the river systems and provides access to the Nasolo River.

[3] In reliance on the said agreement the plaintiff paid costs to the Department of Environment for the necessary consent and incurred further costs for the engagement of consultants. The plaintiff further entered into an agreement with the Fiji Roads Authority to construct roads in the district of Bua and has purchased machinery for such construction.

[4] In June of the same year however the 1^st Defendant withdrew his consent for the issuance of the licence for the extraction of gravel and that the licence would be issued to another person not known to the plaintiff. That the withdrawal of the licence was contrary to the agreement and the 1^st defendant was aware that the plaintiff had incurred costs and damages.

[5] The plaintiff now claims from the defendant the damages referred to above. The initial statement of claim showed the Bua Provincial Council as the 2^nd Defendant and the service of the writ was then affected against both the Defendants at the Bua Provincial Council’s Office at Bua.

[6] The acknowledgement of service showed that it was signed by the both the 1^st Defendant and 2^nd Defendants at Bua and carries the Bua Provincial Council stamp. This is so because the 2^nd defendant was at the time one of the defendants. The plaintiff withdrew any claims against the 2^nd Defendant on the 9 July 2015 and the order was sealed on the 20 July 2015.

[7] Therefore from the 9 July there was only one defendant, that is, Mr. Aisake Sovakiwai of Nabunawai Village, Nasolo. In my view the service of all the documents should now be at the address of service of the 1^st Defendant.

[8] On the 19^th June 2015 a Mr. Mohammed Firoz Khan Tahib personally served Mr. Aisake Sovakiwai and Roko Tui Bua at the Bua Provincial Council with a copy of the amended summons. Two questions arose from this service, the first is why was the amended summons served on the Roko Tui Bua who is not a party to the proceedings and secondly was it really served on the 1^st Defendant. There appears to be some confusion because the person known as Aisake Sivonadamu works at the Bua Provincial Council and had appeared in Court on the 24 June 2015. He was not the 1^st defendant. The second question which arose is that the summons served was not served with the accompanying affidavit in support, this affidavit was with the original summons and the affidavit itself showed that the summons only was served to the Roko Tui Bua and another person.

[9] What is clear then is that the first defendant may not be aware of these proceedings at all. On the 10 August 2015 Justice Alfred granted the two reliefs sought in the claim by relying on the summons filed on the 6 May 2015. The Order of 10 August specifically states that it is the reliefs sought on the summons which was granted. What this means is that the “amended summons” of 8 June 2015 has not been dealt with. This amended summon was filed pursuant to the leave obtained by the plaintiff’s counsel on the 27 May 2015. Leave was obtained to enable the plaintiff to quote the correct order in the summons.

[10] Nonetheless Justice Alfred’s Order gave the plaintiff judgment for specific performance of the contract and for injunctive relief. Justice Alfred had satisfied himself from the affidavits filed that the summons had been correctly served.

[11] However the summons for assessment of damages appeared to have been served on the Roko Tui Bua and Aisake Sovakiwai at the Bua Provincial Council office. Mr. Aisake Sovakiwai does not reside or works at the Bua Provincial Council Office, the only person whose name was similar to that works at the Bua Provincial Council and who had appeared in Court on the 24 June 2015.

[12] A further important fact is that the person who served the writ on the 24 of February 2015, Shafiz Zynal Hussain of Tuatua Labasa, states in his affidavit that he “personally served the 1^st defendant, Aisake Sovakiwai, by leaving a copy at his doorstep and the Roko Tui Bua at Bua Provincial Council office with a true copy of the Writ of Summons”. There is no statement about the whether the process server had satisfied himself that the 1^st defendant resides at the Bua Provincial Council so that the document could be served at his doorstep there. The 1^st defendant’s address on the writ is stated as Nabunawai Nasolo, and I am certain that is not the same place as the Bua Provincial Council’s office.

[13] But the above is not all that appears inconsistent, the Acknowledgement of Service” was filed by the plaintiff’s solicitor and is therefore in direct conflict with the plaintiff’s interest. Apart from the conflict issue which now arises the other implication of this is that under Order 12 rule 2(2) the address of service to the defendant now becomes that of the plaintiff’s solicitor. Order 12 rule 2(2) states:-

(2) An acknowledgment of service must specify-

(a) in the case of a defendant acknowledging service in person, the address of his place of residence and, if his place of residence is not within the jurisdiction or if he has no place of residence, the address of a place within the jurisdiction at or to which documents for him may be delivered or sent; and

(b) in the case of a defendant acknowledging service by a solicitor, a business address of his solicitor's within the jurisdiction;

and where the defendant acknowledges service in person, the address within the jurisdiction specified under sub-paragraph (a) shall be his address for service, but otherwise his solicitor's business address shall be his address for service.

[14] There was no address of service for the 1^st defendant given except the address of the plaintiff’s solicitor as given in the acknowledgement of service. The provision of Order 12 rule 2(2) states that it must specify an address within the jurisdiction to which documents for him could be delivered or sent. I am certain that this is an oversight by the plaintiff’s solicitor in its endeavour to satisfy itself of the service of the documents and it is not the first time I have sighted this oversight in another matter the Court had dealt with. However that oversight had in my view snowballed into a situation beyond what is necessary to determine the matter justly and is therefore fatal.

[15] The first rule of service under Order 10 is that a writ must be served personally on each defendant by the plaintiff or his agent. There are variations to the above, in that applications for other forms of service is made available by the exercise of the Court’s discretion or under the rules. Further if the writ was not duly served but was acknowledged by the defendant the writ is deemed to be served subject to jurisdictional disputes. I have no doubt that the writ was served and acknowledged but the lack of an address for future service on the 1^st defendant and the filing of the acknowledgement of service by the plaintiff’s solicitor raises legitimate questions not only of conflict but on whether further service on the defendant was ever affected.

[16] The underlying principle of personal service is that the identity of the person to be served must first be established and an affidavit as to the person’s identity filed or included in the statement of service. None of this was apparent from the affidavits of service filed and at no point was the identity of the 1^st defendant established, this is important when a person who bears a name almost similar (at least the first name was and the second name was close) had appeared for the 2^nd defendant in court. When the action against the 2^nd defendant was withdrawn, service of further documents was still being affected at the Bua Provincial Council including the service on the Roko Tui Bua who was never a party to the proceedings.

[17] The onus to satisfy the Court of the correct service of document is always on the plaintiff or the Counsel if represented. The Court should not be put into a position to question whether service has been properly effected, it is the duty of solicitors as officers of the court to bring to the court every piece of evidence necessary to prove effective service. Very often the court accepts the affidavits filed as proof of service until questions arise regarding service although no question arose regarding this matter, the service of the documents on a person who was not a party and the lack of an address for service on the acknowledgement of service raised the court’s curiosity. This is so because the proof of service of the summons for assessment of damages was necessary before any assessment could be made.

[18] I have raised this point at this juncture to prevent the matter from snowballing into a situation where it is revisited through the appeals procedures. The re-hearing of the assessment of damages can be revisited and the balance of whether or not this should be so is weighed in favour of what is just.

Conclusion

[19] From the above the Court is not satisfied that the summons for the assessment of damages and the default judgment was served on the defendant. As a result the Court directs that the defendant be served with the documents and the matter to proceed to a hearing on assessment of damages afresh.

Orders

1. That the Default Judgment and the Summons for assessment of damages be effectively served on the defendant at the address specified on the writ.
   
2. That the matter to proceed on its normal course thereafter and for that purpose be adjourned before the Master on the 25 August 2016 for mention.
   

H Robinson

Master, LABASA

19 July 2016