Delai v Narayan [2012] FJMC 11; Civil Case 18.2008 (7 February 2012)

IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Case No. 18/2008

BETWEEN:

APAKUKI DELAI of Lot 29 Tomanu Road, Nadera, Nasinu in the Republic of Fiji Islands, Customs Officer.
Plaintiff

AND:

JAGDISH NARAYAN (f/n Prem Narayan) of Lot 20, Tuirara Subdivision, Makoi, Nasinu in the Republic of Fiji Islands, Contractor.
Defendant

Mr. Semi Titoko (Naco Chambers) for the Plaintiff
Mr. Haroon Ali Shah for the Defendant

Ruling on setting aside default Judgment

Facts

[1] The Plaintiff filed this action by way of writ of summons seeking sum of $9500 being the balance of monies owed by the Defendant to him under an acknowledgement of debt dated 4th April 2006.

[2] The Defendant was duly served with the Writ and all documents. The Defendant was initially represented by Mr. Irshad Samad.

[3] The defendant filed statement of defence and matter was ready for hearing. Then, the Defendant raised an objection that matter has already been adjudicated in Suva Magistrates Court Civil file no 189/2006 and it was struck out and this case is Res Judicata. This objection was raised on 25th June 2008 and the counsel for the Plaintiff moved an adjournment to consider this situation. By consent several dates were adjourned to consider this point. On 24th November 2008 and 24th December 2008 the plaintiff was not present in open court. The Defendant was present on both days and he asked that matter be struck out. Accordingly matter was struck out on 24th December 2008. On the very first date Mr. Naco came late, applied for reinstatement. But the Defendant was not present when he made that application. After two months the Plaintiff asked for substituted service and it was allowed. To get this substituted order the Plaintiff did not file any affidavit to say the Defendant cannot be located in his last known address. But substituted service was allowed and later it was published in Fiji Sun on 26th March 2009. The Defendant did not come and matter was formally proved on 16-10-2009. The default Judgment was entered against the Defendant on 11th March 2010.

[4]The Defendant thereafter filed notice of motion to vacate the default judgment on 14th June 2011. He seeks following orders;

a) That the default judgment entered the 11th March 2010 be set aside

b) That the order for reinstatement of the Plaintiff’s claim be set aside

c) That the order for substituted service of the writ of summons be set aside.

d) Alternatively, the Defendant be granted leave to defend as per his statement of defence

[5] This application was supported by an affidavit. The Plaintiff filed affidavit in response and objected to the defendant’s application. I have carefully considered both affidavits and pertinent documents to this application.

Law

[6] Magistrates Court Rules Order XXX Further provides Setting aside of judgment made in absence of party. Order 30 Rule 5 says;

“ Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court, upon such terms as may seem fit.”

[7] I now turn to the basic principles of the setting aside a judgment. The Law of this area enriched by galaxies of decided judgments. In Burns v. Kondel [1971] 1 Lloyds Rep 554 the English Court held that the Defendant does not need to show a good defence on the merits but ... need only show a defence which discloses an arguable or triable issue. In Evans v. Bartlam [1937] AC 473, at 651 the court expressed that the Applicant must produce to the court ‘evidence that he has a prima facie case’. In Fiji National Provident Fund v Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988), the court enunciated three "test" to be considered in this regard namely;

(a) whether the defendant has a substantial ground of defence to the action;

(b) whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and

(c) whether the plaintiff will suffer irreparable harm if the judgment is set aside.

Determination

[8] In line with the above legal principles, I now deal with the merits of this application. The defendant said the Plaintiff's action was struck out and the order for substituted service has not properly been done. It is clear on the application of the Defendant the matter was struck out due to want of prosecution. By that time the Defendant has filed the statement of defence and ready to proceed with the trial. He then took a jurisdictional objection and plaintiff dragged several dates to counter this and later disappeared. Then matter was again asked for reinstatement on the very first day it was struck out. This was an oral application of the counsel for the Plaintiff and application for reinstatement not properly been informed to the Defendant. It should be noted the original writ was served normally (manually) and reinstatement application was done by substituted service. There is no affidavit was filed to support that the Defendant cannot be located. The defendant in his statement of defence denied the claim and said the Plaintiff by threat of violence forced him to sign an acknowledgement of debt. Therefore, these matters are to be adjudicated on merits. I hold that the defendant has an arguable defence.

[9] Whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ? The defendant appeared and already filed the statement of defence. It was only the Plaintiff's mistake the matter was struck out. He said he came to know that there was a default judgement against him in the Month of May 2011. I note although the default judgement has been entered in March 2010 the order signed and sealed on 06th May 2011 (after one year 2 months). Thus, the defendant has filed vacation papers within one month. He said he did not know about the reinstatement. The paper advertisement did not say anything about reinstatement. The Paper advertisement itself is wrong because the defendant has already filed the statement of defence and showed desire to defend the action. The Paper advertisement did not contain any averment regarding reinstatement. The advertisement was misleading. Therefore, I hold there is satisfactory explanation for his absence and delay of filing vacation papers.

[10] Whether the plaintiff will suffer irreparable harm if the judgment is set aside. The Plaintiff has not adduced anything about this. As I mentioned above, this action has to be adjudicated on merits for the interest of justice. I therefore disregard the irregularities of the reinstatement procedure and parties to have full trial.

[11] I therefore make following orders;

1. The Application for judgment by default be set aside is hereby allowed.
   
2. The judgment by default dated 11th March 2010 is hereby vacated/ quashed.
   

100. The Defendant's Application for dismissal of substituted service and reinstatement of the application is also hereby dismissed.
     

4. Parties will bear the cost of this application.
   
5. Parties to file their agreed facts and bundle of documents to proceed for hearing
   

Orders accordingly.

On 07th February 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate