Tubulurua v iTaukei Land Trust Board [2018] FJHC 551; HBC49.2018 (25 June 2018)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA

CIVIL JURISDICTION

HBC NO. 49 OF 2018

NETANI TUBULURUA
PLAINTIFF

V

ITAUKEI LAND TRUST BOARD
1^ST DEFENDANT

A N D

ASERI TASERE NAUCABALAVU
2^nd DEFENDANT

Appearance : Plaintiff absent and unrepresented.

: Mr. J. Cati for the 1^st Defendant.

: 2^nd Defendant absent and unrepresented.
Date of Hearing : 25^th June 2018

Date of Ruling : 25^th June 2018

RULING

1. Introduction:
   
   1. This ruling is made in relation to the application of the Plaintiff dated 17^th May 2018, made by way of “Summons to enter judgment” supported by the affidavit of the Plaintiff, namely, NETANI TUBULURUA.
   2. This application is made pursuant to Order 13 Rule 6 and Order 14 Rule 1 & 2 of the High Court Rules 1988.
      
2. Background & Discussion
   
   3. The Plaintiff filed his writ of summons and the statement of claim moving for certain declaratory relief and orders against the 1^st and 2^nd Defendants.
      
   4. The writ of summons being served on the 1^st Defendant, iTaukei Land Trust Board on 16^th March 2018, the acknowledgment of service, expressing its intention to contest the proceedings, was filed on 04.04 2018 and no statement of Defence was filed within the stipulated period .
      
   5. Though, the Summons on the 2^nd Defendant too was, reportedly, served on him, he is said to have refused to sign same and no statement of Defence has been filed by him.
      
   6. Under these circumstances, the solicitors for the Plaintiff, having done a search for the Defence by the 2^nd defendant, filed the Summons in hand to enter judgment as follows.
      
      1. For a judgment against the 1^st Defendant under Order 13 Rule 6.
         
      2. For a judgment against the 2^nd Defendant under 14 Rule 1 & 2.
         
   7. The matter being referred to my Court as per the Order of the learned Master, required NOAH was issued to the Solicitors for parties returnable on 25^th June 2018. Accordingly, when the matter was mentioned before me on 25^th June 2018 with the appearance of the learned Counsel for the 1^st Defendant, neither the Plaintiff nor the Solicitors for the Plaintiff was present in court.
      
   8. However, on perusal of the record, I find that since the 1^st Defendant has duly filed the acknowledgment of service, the Order and rule under which the Plaintiff can move for default judgment against the 1^st Defendant is not Order 13 Rule 6. This Order 13 and any rule under it come into play only when the acknowledgement of service is not filed by the Defendant. The appropriate Order under which the application should be made is Order 19 and the applicable rule has to be decided considering the nature of the claim.
      
   9. Accordingly, I find that the plaintiff cannot rely on the Order 13 and Rule 6 for the default judgment against the 1^st defendant and the application has to be rejected.
      
   10. As far as the 2^nd Defendant is concerned, the plaintiff moves for Judgment under Order 14 Rules 1 & 2 of the High Court rules. The Order 14 Rules 1 & 2 comes into play only when the relevant Defendant has filed the Notice of Intention to defend the action. Once the Defendant files the notice of intention to defend the action, the plaintiff may, on the ground that the Defendant has no defence to claim included in the writ, or to a particular part of such claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against the defendant. Vide Order 14 Rule 1 of the High court Rules.
       
   11. In the absence of the Notice of intention to defend the action filed by the defendant, the Plaintiff cannot move for summary judgment against the 1^st defendant hereof in terms of Order 14 Rule 1 – 2.
       

100. Outcome
     
     1. The application of the plaintiff is made under wrong Orders and Rules of the High court rules. Accordingly, I dismiss the application on the basis of irregularity.
        
     2. This ruling may be conveyed to the solicitors for the Plaintiff by placing it on the folder and by way of Telephone or fax.
        
     100. The 1^st Defendant shall be entitled for a summarily assessed cost of $200.00.
          
     4. The Plaintiff shall be at liberty to seek for further directions.
        

......................................
A.M. Mohamed Mackie
Judge

At Lautoka
25^th June, 2018