Merchant Finance & Investments Company Ltd v Uluiviti [2014] FJMC 76; Civil Action 62.2012 (9 May 2014)

IN THE FIRST CLASS MAGISTRATES COURT
AT SUVA
CIVIL JURISDICTION

Civil Action No. 62/2012

BETWEEN:

MERCHANT FINANCE & INVESTMENTS COMPANY LIMITED a limited liability company having its registered office in Suva.
PLAINTIFF/RESPONDENT

AND:

JOSUA TUBU ULUIVITI of 3 Kurusiga Place, Hunter Street, Suva
DEFENDANT/APPLICANT

Date of Ruling: 09th May 2014

RULING

1. The Default Judgment was given in favor of the Plaintiff/Respondent (hereinafter referred to as Plaintiff) on 30th May 2012 and the Defendant/Applicant (hereinafter referred to as Defendant) filed an Inter parte motion supported with an affidavit seeking to set aside that judgment as well as to allow them to file the statement of defence.
   
2. The defendant in his affidavit dated 24th October 2013 deposed that he failed to appear in the Court as he was unaware of this case and he has a meritorious defence.
   
3. The Plaintiff filed Affidavit in opposition of Semantha Naicker, the Assistant Manager of the Plaintiff company dated 17th December 2013 in which she deposed that the defendant was served with the writ of summons and therefore he was aware about this case. The affidavit of service was annexed as MF1 to this affidavit.
   
4. Both parties agreed on 27th March 2013 that the this matter to be decided by way of written submissions and therefore both parties were granted time to file submissions.
   
5. When this was called on 08th May 2014 the Court noticed that only the plaintiff has complied with the direction and filed their submission. The defendant has not filed their submission and also failed to appear in this case. Therefore based on the affidavits of both parties as well as the written submission of the plaintiff I would pronounce my ruling.
   
6. An application to set aside a default judgment can be made pursuant to Order XXXII Rule 11 of the Magistrates court Rules which provides:
   

"Any judgment by default maybe set aside by the court or a magistrate upon such terms as to costs or otherwise as the court or magistrate may think fit"

7. The basic principles applicable to setting aside judgments in the exercise of Court discretion are set out in Halsbury's Laws of England Vol 37, 4th edn, para 403, inter alia, thus:
   

'In the case of a regular judgment, it is an almost inflexible rule that the application must be supported by an affidavit of merits stating the facts showing that the defendant has a defence on the merits. For this purpose it is enough to show that there is an arguable case or a tribal issue.

8. In Coral Sun Ltd v Hire Ltd [1998] FJCA 26 the grounds for setting aside of the default judgment rules were summarized as follows:
   

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

1. Meritorious defence which has real prospect of success and carry some degree of ..... . 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 Textiles Ltd v General Machinery Hire Ltd [1998] FJCA 26;
   
2. Some explanation as to why the default judgment was allowed; Evans and Bartlam [1937] 2 All ER 646:
   
   1. Some explanation for the delay in making an application to set aside Pankaj Bamola & Anor v Moran Ali Court of Appeal Civil Appeal No. 50/90.
      
   2. That the Plaintiff will not be prejudiced as a consequence of setting aside the default judgment Shri Dutt v FNPF (1988) 34 FLR 67.'
      

9. The default judgment was entered on 30th May 2012 and this application was made on 01st November 2013 almost after one and half years. The defendant in his affidavit neither failed to give any reason for this delay nor failed to explain the reason when he appeared in this Court.
   
10. Also from his affidavit I note that the only reason given by the defendant for not appearing on 30th May 2012 was because he was unaware of date. But the plaintiff filed with his affidavit in opposition the affidavit of service marked as MF1. In that it clearly states that on 20th April 2012 a copy of the writ was personally served to the defendant. This has not been disputed so far by the defendant.
    
11. Finally I would consider if there is any meritorious defence for the defendant to set aside this judgment. In his affidavit in support he has deposed about that. But apart from that he has failed to elaborate about that and failed to annex any documents to support his contention.
    
12. Therefore I find that there are no valid grounds to set aside this default judgment. Accordingly I proceed to strike out and dismiss this application with a cost summarily assessed of $300.00
    

Orders:
(i) The application to set aside the default judgment entered against the Defendant on 30th May 2012 is struck out and dismissed; and

(ii) The Defendant must pay cost to the Plaintiff in the sum of $300.00 which is summarily assessed.

H.S.P.Somaratne
Resident Magistrate , Suva