Motiram v Devi [2023] FJHC 546; HBC378.2019 (1 August 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC 378 of 2019

BETWEEN : MAHENDRA KUMAR MOTIRAM

RAJENDRA JAGMOHAN NARSEY

HEMANT JAGMOHAN NARSEY

HARI KRISHNATHAKOLAL NARSEY

PLAINTIFFS

AND : SHAKUNTLA DEVI

DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFFS : Mr. S. Nand [Nands Law]
DEFENDANT : In Person
RULING BY : Master Ms Vandhana Lal
DELIVERED ON : 01 August 2023

INTERLOCUTORY RULING
[Setting Aside Default Judgment]

1. The Plaintiffs on 12^th November 2019 initiated proceedings against the Defendant claiming sum of $26,766.75 made up of outstanding rental at $340 per month from September 2014 till June 2018 and $6,926.75 for damages done to the premises which the Defendant occupied as a tenant together with costs of $2,500 awarded by court in the application for eviction filed by the Plaintiffs.
   
2. Records shows the writ and acknowledgement of service was served on the Defendant on 17^th December 2019.
   
3. On 05^th March 2020 the Plaintiffs filed search and praecipe to enter judgment by default.
   
4. The default judgment was sealed on 06^th March 2020 and the same was served on the Defendant on 20^th May 2020.
   
5. On 17^th June 2020 the Defendant made this application to have the default judgment set aside.
   
6. In her affidavit in support, the Defendant denies being served with the Writ.
   
7. As per the affidavit of service filed on 30^th December 2019 the server states he personally served the Defendant on 17^th December 2019 with the writ and acknowledgement of service and had endorsed on copy that the Defendant refused to sign.
   

Whether the Plaintiff’s claim for damages to the property is a liquidated claim?

8. In Odume v Nuachi [1964] 1 ALL NLR 329, the court held the factors for determining a liquidated sum:
   • (1) The sum must be arithmetically ascertainable without further investigation;
   • (2) If it is with reference to a contract, the parties to the contract must have mutually and unequivocally agreed on a fixed amount payable on breach;
   • (3) The agreed and fixed amount must be known prior to the breach.
     
9. The claim for $13,600 is made up of rental of $340 per month from September 2014 till June 2018 i.e. $340 x 40 months = $13, 600.
   
10. This a liquidated claim and the Plaintiff could obtain default judgment for this sum.
    
11. However, based on the factors outlined above the claim for damages done to the property cannot be stated to be a liquidated claim.
12. The Plaintiff has not particularized the claim of $6,926.75 outlining the nature of damages.
    
13. The Plaintiff ought to have entered an interlocutory judgment with damages to be assessed.
    
14. The Defendant in her affidavit in support has failed to outline her defence on merits.
    
15. With no defence shown on merits I refuse to set aside the default judgment wholly.
    
16. The default judgment sealed on 06^th March 2020 is set aside and Plaintiff is to file an interlocutory judgment for $13,600 for rental outstanding with damages to be assessed for damages done to the property by the Defendant.
    
17. As far as the claim for $2,500 for court costs is concerned, the claim is to be dismissed as court orders already exists in respective files and the Plaintiffs are at liberty to execute those orders in the respective actions to recover the costs so awarded.
    

.........................
Vandhana Lal [Ms]
Master
At Suva.

01 August 2023

TO:

1. Suva High Court Civil File No. HBC 378 of 2019;
2. Nands Law, Solicitors for the Plaintiffs;
3. Shakuntla Devi appearing in person.