IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Case No. 30/2012

BETWEEN:

AUTOWORLD TRADING (FIJI) LIMITED a limited liability company having its registered office at 21 Vira East Vatuwanqa , Fiji.
Plaintiff

AND:

SESELEKA IMO SAGOA of Lot 69,Damu Road ,Nepani , Nasinu, Fiji.
Defendant

Mr. Reddy J (Reddy & Nandan Chambers) for the Plaintiff
Ms.Mataiciwa. for the Defendant 

Ruling on setting aside default Judgment

Facts

[1] This is an application by the Plaintiff for setting aside Default Judgment entered by this Court against him on the 16th day of October 2012. The Motion is supported by the Affidavit of the Plaintiff Revindra Lal.

[2] The plaintiff has preyed since all pleadings in the mater had been finalized and a hearing date had to be fixed for the matter to be heard on merits rather than being knocked out on technicalities. Further submitted that the Plaintiff had a genuine claim against the Defendant and also had a meritorious defence against the Defendant’s Counter Claim and this matter should have been heard on merits.

[3] The defendant filed affidavit in opposition to setting aside application. Then, on the 6th August 2013 both counsels made their oral submissions before this court, tendered written submissions respectively.
 
[4] The sole issue before this court is whether 

 a) That the default judgment entered the 16th October 2012 is be set aside or not? And 

 b) If “yes” what are the remedies available for the defendant? 

 [5] This application was supported by The Plaintiff 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.”

To use above mentioned rule it is necessary to have an interpretation of the same. I found that the above section is bit uncertain since it s not defining that limits of the same as whether all the default judgments would be set aside on sufficient cause shown or a limited range of judgments may be set aside after sufficient cause shown? It is the opinions of this court that default judgments must be issued only at the situations where one party has not shown any interest on the matter at all or failed to appear before the court to present their case at the hearing date. If it is just a calling date for mention or filing affidavit of summons etc, it is too harsh and unfair to issue default judgments in fever of the party whom appearing before the court. But it must be noted that there should be a proper rule in this regards.

 [7] The court must see the direct consequent of non appearance before issue default judgments .if it is only pretrial date of filing statement of defence or PTC or counter response and the plaintiff is not appearing then the court must not come for a conclusion that plaintiff’s case is a baseless or incorrect when comparing with the respondent. Still the respondent has to prove his case by way of ex parte trial or formal proof. Especially if the subject amount of the case is high the court must act judicially and must ascertain the real entitlement of party whom is appearing before the court. Even at the absence of one party It is duty of the Court to maintain the claims with in realistic level since the utmost aspect of this system of court is to find what is just and reasonable for the parties in issue. 

 [8] The correct test to be adopted by the court on granting default judgment must be ascertaining direct consequence of absence of the party with the final judgment and not to consider and rely on the fact of absence. If one party failed to filed their statement of defence the court must not grant default judgment but order on date for formal proof of or ex parte proceeding to be carried out. According to the maxim of audi altera patetum . Even at this formal proof day the default party may come to court and contest the claims against them by cross examination the other party before the court since it is the duty of court to hear both parties. 

[9] 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 tribal 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

[10] In line with the above legal principles, I now deal with the merits of this application. Both The Plaintiff and Defendant admit and not contesting that 16th October 2012 this matter was called for pre trial conferences and bundle of documents and not for the hearing of the matter. The action was struck out and default judgment entered in fever of the defendant. It is clear on the application of the plaintiff that the matter was struck out due to non appearance of the consoles which out of the control of the plaintiff of this action. This court is a court of justice and therefore which is more reluctant to find what is justice and not the hard and fast rules which preventing justice.

[11] especially when considering the statutory provisions this courts finds that main concern of law is finding out the just and equitable answerers to the matters of the public and therefore the court has been granted wide discretion on setting aside default judgements. 

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;

a)	The Application for judgment by default be set aside is hereby allowed.

b)	The judgment by default dated 11th March 2010 is hereby vacated/ quashed. 

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

d)	Parties will bear the cost of this application.

e)	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