Vodafone Fiji Ltd v Chand [2010] FJMC 92; Civil Case 72 of 2009 (16 July 2010)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Civil Case No: 72 of 2009

VODAFONE FIJI LIMITED
Plaintiff

And

SOM SUNDRAM CHAND
Defendant

Before: C. Lakshman
Resident Magistrate

For Plaintiff: Ms. King (Lateef & Lateef)
Defendant: Mr. Daveta (Nacolawa & Daveta)

Ruling

Application

On 17th February 2010 the Defendant filed a Notice of motion seeking to set aside the Order (judgment by Default) of this Court entered on 3rd November 2009.

History of Action

The Plaintiff filed a writ of summons in Court on 15th September 2009. The affidavit of service was filed in Court on 30th September 2009. The case was called on 3rd November 2009. The Plaintiff was represented by counsel and there was no appearance of the Defendant. The Plaintiff’s Counsel sought judgment by default and was granted judgment by default by the Court.

The Law

In Wearsmart Textiles Ltd v. General Machinery Hire Ltd [1998] FJHC 26; Abu0030u.97s (29 May 1998) the Fiji Court of Appeal has addressed the question of setting aside judgment. The Fiji Court of Appeal in Wearsmart stated that 'The general principles upon which a Court should act on an application to set aside a judgment that has been regularly entered, are set out in the White Book, i.e. The Supreme Court Practice 1997 (Volume 1) at p.143. They are as follows:

"Regular judgment – if the judgment is regular, then it is an (almost) 13/9/5 inflexible rule that there must be an affidavit of merits, i.e. an affidavit stating facts showing a defence on the merits (Farden v. Richter [1889] UKLawRpKQB 79; (1889) 23 Q.B.D. 124. At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason," per Huddleston, B., ibid. p.129, approving Hopton v. Robertson (1884) W.N. 77, reprinted 23 Q.B.D. p. 126 n.; and see Richardson v. Howell (1883) 8 T.L.R. 445; and Watt v. Barnett [1878] UKLawRpKQB 21; (1878) 3 Q.B.D. 183, p.363).

For the purpose of setting aside a default judgment, the defendant must show that he has a meritorious defence. For the meaning of this expression see Alpine Bulk Transport Co. Inc. v. Saudi Eagle Shipping Co. Inc., The Saudi Eagle (1986) 2 Lloyd's Rep. 221, C.A., and note 13/9/14. "Discretionary powers of the Court," below.

On the application to set aside a default judgment the major consideration is whether the defendant has disclosed a defence on the merits, and this transcends any reasons given by him for the delay in making the application even if the explanation given by him is false (Vann v. Auford (1986) 83 L.S. Gaz. 1725; The Times, April 23, 1986, C.A.) The fact that he has told lies in seeking to explain the delay, however, may affect his credibility, and may therefore be relevant to the credibility of his defence and the way in which the Court should exercise its direction."

A defendant applying to set aside a default judgment must satisfy the following in order to succeed:

a. a meritorious defence which has a real prospect of success and carry some degree of conviction. It must have a realistic as opposed to a fanciful prospect of success. A supporting affidavit disclosing the condescending particulars of a meritorious defence is mandatory: Wearsmart Textile Limited v General Machinery Hire Limited and Anor Civil Appeal No. ABU 0030/1997.

b. some explanation as to why the default judgment was allowed: Evans and Bartlam [1937 2 All ER 646.

(i) some explanation for the delay in making an application to set aside: Pankanj Bamola & Anor v Moran Ali Court of Appeal Civil Appeal No. 50/90.

(ii) that the Plaintiff will not be prejudiced that may be caused to the Plaintiff as a consequence of setting aside the default judgment Shiri Dutt v FNPF [1988] 34 FLR67.

Application of the Law and the Parties Submission

The Defendant in the affidavit in support of the motion states that the reason for not appearing was due to recurring sickness. The Defendant told the Court he had diahorrea, was very sick and not able to walk. He also states that he has an arguable defence as to the claim against him.

The Plaintiff's argue that no medical certificates were tendered and no proposed statement of defence was enclosed. The Plaintiff's also argue that since the date of judgment the Defendant failed to show interest or contest the proceedings. The Plaintiffs have gone onto proceed with bankruptcy.

The Court finds that the judgement by default was a regular judgment.

The Court from the Defendants affidavit, evidence and submission notes that there is no supporting affidavit disclosing the condescending particulars of a meritorious defence which is mandatory: Wearsmart Textile Limited v General Machinery Hire Limited and Anor Civil Appeal No. ABU 0030/1997. It is not acceptable to state that you have a defence. The Defendant needs to disclose the defence.

The Court also notes the delay and there is no reasonable explanation for the delay in making an application to set aside. Except to state that he had recurring sickness, which the Court expects would be his initial sickness. The Defendant states he had diahorrea, he says he was very sick and not able to walk on the date he was to appear in Court. He offers no explanation about what steps he took to set aside the default judgement entered some 3 months earlier.

The Court notes that the Plaintiff will be prejudiced as a result of the delays caused by the Defendant and the Defendant is showing no meritorious defence to set aside the default judgment.

For the foregoing reasons the Court refuses the Defendants application to set aside the default judgement.

THE ORDERS

Application to set aside default judgment refused.

Chaitanya Lakshman
Resident Magistrate

16/07/10