Tiko v Tubu [2016] FJMC 163; Civil Case 20.2015 (27 June 2016)

IN THE MAGISTRATE’S COURT

AT NAUSORI

IN THE CENTRAL DIVISION

REPUBLIC OF FIJI ISLANDS

Civil Case No.20 of 2015

Between:

Josefa Tiko

Plaintiff

[Respondent in this application]

And:

Joeli Tubu

Defendant

[Applicant in this application]

Appearances and Representation

For Plaintiff : Vakaloloma and Associates

For Defendant : Mr Emosi Koroi

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RULING – Setting Aside

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Introduction/Application

On 5^th November 2015, the Defendants through its Solicitors filed a Notice of Motion seeking to set aside the Order (Judgment by Default) of this Court entered on 21^st October 2015.

Brief History of Action

On 16^th March 2015 the Plaintiff’s filed a writ of summons, together with a notice of notice and affidavit of Elena Ratukalou seeking that a truck registration RSL 677/FR115 be impounded by the Plaintiff until satisfaction and payment of the debt of $25, 649.50, that in the alternative the Plaintiff is allowed to carry out the usual business transaction on the purported truck registration RSL677/FR115 so that it earns monies and updates the loan requirements with Merchant Finance Investment Limited, the Defendant repays the Plaintiff the debt of $25, 649.50 as special damages or in the alternative transfer the vehicle registration RSL 677/FR115 forthwith.

The writ was served on the Defendant. On 22^nd April when the motion was listed for hearing. The defendant asked time to get counsel to Court. He was given 14 days to file statement of defence and respond to motion. On 10^th August 2015, Mr Koroi informed the Court that he might withdraw as counsel as he was not receiving instruction. The matter was set for hearing 21^st October 2015.

On 21^st October 2015 when the matter was set for hearing. The Plaintiff informed the Court they had not received a defence from the Defendants. Mr Koroi informed the Court that his client had not seen him. The Plaintiff sought judgment by default. The Court noting that no statement of Defence was filed on hearing date granted judgment by default.

The Law

Rule 3 of Order XXXIV of the Magistrates’ Courts’ rules is the relevant provision in this application. It states that:

"if a defendant in any suit makes such default or failure the court, may give judgment by default against such defendant, or make such other order as to the court make seem just".

"Provided that any judgment by default, may be set aside by the court upon such terms as to cost or otherwise as the court may think fit".

The Rule 3 of Order XXXIV confers the discretion to the magistrates’ court both in respect of the giving of a judgment by default or in the making of such other order and discretion in like terms to set aside the judgment by default as per the proviso of the said Rule 3 of Order XXXIV.

The Court is further guided by the decision in Wearsmart Textiles Ltd v. General Machinery Hire Ltd [1998] FJHC 26; Abu0030u.97s (29 May 1998) where the Fiji Court of Appeal has addressed the question of setting aside judgmThe Fiji Court of t 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 set out in the White Book,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) 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 jnt, the defe 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 Eag986) 2 Lloyd's Rep. 221, C.1, 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 lt judgment Shir>Shiri Dutt v FNPF [1988] 34 FLR67.”

This Court has also considered the law which has been conveniently set out by Conn in Rosedale Ltd v Kelly [2004] FJHC 429; HBC0323.1997L (11 June 2004):

"The issues for consideration by the court on an application to set aside the judgment entered after trial are set forth in Shocked and Another v Goldschmidt and Others [1998] 1 All E.R. 372. The leading judgment of the court was given by Leggatt LJ who said at page 377: -

"The cases about setting aside judgments fall into two main categories: (a) those in which judgment is given in default of appearance or pleadings or discovery, and (b) those in which judgment is given after a trial, albeit in the absence of the party who later applies to set aside. Different considerations apply to these two categories because in the second, unless deprived of the opportunity by mistake or accident or without fault on his part, the absent party has deliberately elected not to appear, and an adjudication on the merits has thereupon followed."

Jenkins LJ in Grimshaw v Dunbar [1953] 1 All E.R 350 at 355 said:

"...a party to an action is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent’s case and cross-examine his opponent’s witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. If by mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that the litigant who is accidentally absent should be allowed to come to the court and present his case, no doubt on suitable terms as to costs..."

Leggatt LJ in Shocked after considering the authorities then set out at p. 381 a series of propositions or "general indications" which are: -

"(1) Where a party with notice of proceedings has disregarded the opportunity of appearing at and participating in the trial, he will normally be bound by the decision.

(2) Where judgment has been given after a trial it is the explanation for the absence of the absent party that is most important: unless the absence was not deliberate but was due to accident or mistake, the court will be unlikely to allow a rehearing.

(3) Where the setting aside of judgment would entail a complete retrial on matters of fact which have already been investigated by the court the application will not be granted unless there are very strong reasons for doing so.

(4) The court will not consider setting aside judgment regularly obtained unless the party applying enjoys real prospects of success.

(5) Delay in applying to set aside is relevant, particularly if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it.

(6) In considering justice between parties, the conduct of the person applying to set aside the judgment has to be considered: where he has failed to comply with orders of the court, the court will be less ready to exercise its discretion in his favour.

(7) A material consideration is whether the successful party would be prejudiced by the judgment being set aside, especially if he cannot be protected against the financial consequences.

(8) There is a public interest in there being an end to litigation and in not having the time of the court occupied by two trials, particularly if neither is short."

The Lord Justice then said that the predominant consideration is the reason why the party against whom judgment was given absented himself.

"It is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case" – Rich J in Cameron v Cole [1944] HCA 5; 68 C.L.R. 571 at 589.

Most recently, the issue has been considered by the Supreme Court of New South Wales Court of Appeal in Murphy v Doman (as representative of the estate of Simpson (dec’d)) – unreported [2003] NSWCA 249 – 11 September 2003 where at paragraph 48 Handley JA said: -

"Taylor v Taylor [1979] HCA 38; [1979] 143 CLR 1 and Allesch v Maunz [2000] HCA 40; [2000] 203 CLR 172 are decisions to the same effect. They establish that where judgment had been given in the absence of a litigant who has been denied a hearing through no fault of his own and where his absence has been adequately explained, that litigant has a prima facie right to have that judgment set aside to permit a re-hearing on the merits."

Submission

The Parties have made written submissions which this Court has considered.

Analysis

The Court has noted the law on setting aside. The Court further notes that the judgement was regularly entered. The Counsel for the Defendant was present. He was not properly instructed by the Defendant. No statement of defence was filed on behalf of the Defendant. In seeking to set aside the default judgment the Defendant has not filed an affidavit of merits, i.e. an affidavit stating facts showing a defence on the merits. No grounds of defence have been laid out even now. Apart from mentioning that the Defendant has a strong defence he does not state what actually the defence is. He also states that he was not able to properly instruct his solicitor due to reasons beyond his control. Again this situation is not explained.

The Court cannot take flimsy arguments where no clear reasons are given. The Court must be given good cogent reasons in application to set aside a default judgement. There is none in this case.

The Court will not set aside the Judgement by Default entered by this Court.

Orders

1. Motion dismissed
2. No order as to costs.
   

Chaitanya Lakshman
Resident Magistrate
27^th June 2016