Credit Corporation (Fiji) Ltd v Doi [2012] FJMC 263; Civil Case 112.2010 (2 October 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Civil Case No 112/10

BETWEEN

CREDIT CORPORATION (FIJI) LTD
Plaintiff

AND

MALAKAI VONU DOI
Defendant

RULING

1. The Defendant filed a notice of motion on the 3rd December 2011 seeking to set aside the default judgement entered on the 03rd August 2011.
   
2. In the affidavit supporting the motion the defendant has stated that he was served with a bankruptcy notice on the 21st September 2011 by some one believed to be a Bailiff. Then he has sought legal action and upon inquiry from the Magistrate's Court registry the Defendant has been given a copy of the Formal Decree according to his affidavit. Further the defendant has stated that he was unaware of any proceedings against him until he was served with a copy of the bankruptcy notice. Thus the defendant has sought the following orders;
   
   1. That formal decree dated 30th August 2011 be set aside.
   2. That bankruptcy proceedings by way of bankruptcy notice dated and filed on 19th September 2011 be immediately terminated
   100. That proper service of all documents pertaining to Civil Action No MBC 112 of 2010 be made to the Defendant
   4. That subsequent to this order for service the matter should take its normal course
   5. Cost of this action be cost in the cause
   6. Other order this honourable Court deems fit
      
3. In reply to the notice of motion an affidavit from the bailiff who served the documents was filed by the Plaintiff. The bailiff, Krishna Sami Goundar has stated in the affidavit that sometimes in July 2010 he served the writ of summons of this action on the Defendant at his house at Tawakubu stage 6. He has stated that he verified the Defendant and gave a copy of the writ of summons, which was dropped on the floor by the Defendant. He has stated that on the 31st August 2010 at about 6.10 am he served a copy of the formal decree at the Defendant's house. The Bailiff has further stated that he served a bankruptcy notice to the Defendant on the 21st September 2011. The bailiff has referred to his affidavits of services to confirm proper service of writ of summons and service of formal decree on the defendant.
   
4. Later the parties filed written submissions and at the request of the Court the Defendant and the bailiff were called to give evidence.
   
5. Order xxx rule 5 of the Magistrate's Court rules stipulates that Any judgement 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 deem.
   
6. The Court has discretion to set aside a regular judgement entered. In this case the writ of summons is filed on the 19th July 2010 and the affidavit of service is filed on the 02nd August 2010. Due to the non appearance of the Defendant the case has been taken up for formal proof on the 03rd November 2011. Apparently the judgement so entered is regular and the Court has to be satisfied about the grounds on which the Defendant seek to set aside the judgement so made.
   
7. An application to set aside a judgement must be made promptly and without delay. Due diligence signify that the party so applies has a genuine interest and it is not another attempt to delay the proceedings.
   
8. There is no rigid rule requiring the applicant to explain why he allowed judgement to go by default, but nevertheless, at least in the case of regular judgement, such explanation is obviously desirable to enable the court to exercise its discretion, especially as to any and if so what terms should be imposed. (Pravin Gold Industries Ltd v. The New India Assurance Company Ltd [2003] FJHC 298)
   
9. The defendant has to convince the court that he has a real prospect of succeeding. The defendant has to file an affidavit deposing to facts that show that the defendant has a defence on the merits. ( Suva City Council v Tabu [2004] FJCA 42)
   
10. It was stated in Nand v. Chand [2008] FJHC 310 that to convince the court of real prospects of succeeding it could be enough to show that there is an arguable case or a triable case.
    
11. First I will consider whether the Defendant has come before Court without delay. As per the affidavit of the Defendant he has come to know about the case against him only when he was served with the bankruptcy notice on the 21st September 2011. Further it appears on the perusal of the record that the Defendant had applied for a copy of the judgement on the 22nd September 2011. Thus it appears that the Defendant had been well aware about the judgment at least by the 22nd September 2011. However the Defendant has filed the notice of motion to set aside the judgement only on the 3rd December 2011, which is more than 2 months later.
    
12. The Defendant did not explain as to why it took so long for him to make this application without delay. In absence of a reasonable explanation for this undue delay I am not satisfied that the Defendant has shown a genuine interest and due diligence in bringing up this application.
    
13. Secondly it was observed that the Defendant's affidavit and the evidence given by him is totally contradictory to each other. In his affidavit the Defendant has specifically stated that he was only served with the bankruptcy notice on the 21st September and he was given a copy of the formal decree by the Court registry. However in contrary to this position the Defendant gave evidence that he was served with documents at two times and he cannot recall when he was served. Further he said he gave those documents to his lawyer. During the cross examination the Defendant admitted that he was served with a formal decree on the 31st August 2011 by the bailiff. In re examination the Defendant confirmed that he was served with a formal decree and said he was not served with a writ of summons.
    
14. As per the Defendant's own evidence it appears that he came to know about this case when he was served with the formal decree on the 31st August 2011 which is contrary to what he has stated in his own affidavit.
    
15. Although the Defendant said that he was not served with the writ of summons, I am not convinced regarding his claim as his evidence lacked credibility.
    
16. The Bailiff gave evidence and confirmed that he properly served the writ of summons on the defendant. Although the bailiff was briefly cross examined by the defendant's counsel his evidence could not be challenged.
    
17. Apart from the above observations it should also be noted that the Defendant did not show this Court that he has an arguable case.
    
18. In view of the foregoing reasons I am not satisfied as to why the default judgement should be set aside. As it was earlier stated that it is the discretion of the Court to set aside default judgements. However for the Court to exercise its discretion the applicant has to satisfy the Court that he deserves the judgement to be set aside.
    
19. It should also be noted that the conduct of the Defendant amounts to nothing less than delaying the process and to obstruct ends of justice by not allowing the Plaintiff to reap the fruits of the judgement obtained by him.
    
20. In the circumstances I dismiss the motion filed by the Defendant seeking to set aside the judgment and order 300 dollars cost to be paid to the Plaintiff.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

02.10.2012