Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Brij v Nawalowalo [2004] FJHC 348; HBC0092.2003 (3 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0092 OF 2003

BETWEEN:

RAM BRIJ AND SUNAINA VENUS RAM
Plaintiff

AND:

RATU JOSATEKI NAWALOWALO
Defendant

Date of Hearing: 3rd June, 2004
Date of Judgment: 3rd June, 2004

Counsel for the Plaintiff – Mr. Michael Singh
Counsel for the Defendant – Mr. Sevuloni Valenitabua

EX TEMPORE JUDGMENT

This is an application by the Defendant (“the applicant”) for orders as follows:

(a) That the judgment in default ended against the defendant on the 19th of May, 2003 be set aside.

(b) The execution of the judgment be stayed until the final determination of this application.

(c) That the defendant be granted unconditional leave to defend the plaintiff’s claim.

A judgment in default was entered against the applicant on the 19th of May 2003.

The Applicant’s Case

The applicant claims he did not know about the judgment until a bankruptcy proceedings notice against him was advertised in the Fiji Times on the 11th of February 2004. He claims that the writ of summons commencing this Civil Action (CA 92 of 2003) was never served on him.

In terms of setting aside he relies on the classic restatement of the Law in Order 19 Rule 9 of the High Court Rules 1988 wherein the Court may on such terms as it thinks just set aside or vary any judgment entered in pursuance of the default judgment order.

His counsel in very helpful submission refers to the English House of Lords decision of Evans v Bartlam [1937] A.C. at 480 where Lord Atkin said:

“The principle obviously is that unless and until the Court has pronounced judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained by a failure to follow any of the rules of procedure.”

In support of this argument counsel also refers to the Fiji Court of Appeal in Pankaj Bamola & Another v Moran Ali decision 050 of 1990 an unreported judgment of Helsham Tikaram and Amet JJ at page 7 where their Lordships said:

“.......in order for the Court to properly exercise the discretion whether or not to set aside such a regularly obtained Default Judgment, it has been consistently held that certain basic preconditions must be fulfilled by the party making the application. These are:

1. Reasons why judgment was allowed to be entered by default.
   
2. Application must be made promptly and without delay.
   
3. An Affidavit as to facts that show that the Defendant has a defence on the merits.”
   

Essentially under this first head the applicant argues that as he was never served with the proceedings he is now entitled prima facie to have the default judgment overturned.

This requires my decision as to whether or not I accept his affidavit and the submissions advanced upon it that he was never served with the court papers.

In that regard he simply denies ever receiving the papers. However the plaintiff’s bailiff who filed the affidavit of service was called before me.

This gentleman impressed me as a bailiff of some considerable experience. He has served hundreds of documents. He knew the defendant prior to the service of these proceedings. Although I place little reliance on it he was able to complete a “dock identification” of the defendant.

I find as a matter of fact despite what the applicant says in his affidavit that he was in fact served with these court documents as detailed by the registered bailiff in his affidavit.

This has two effects. First it cures any criticism the applicant may make of some error in the procedure of obtaining the judgment by default.

Secondly it also has the effect of a finding against the applicant in terms of his credibility. That is important because I also need to consider whether or not I accept there is an arguable or triable issue. When doing so I am entitled to take findings of credibility into account.

Is there an issue?

Is there a meritorious defence?

Essentially the applicant says in his affidavit and his counsel strongly submits on his behalf that there was an oral agreement between the parties relating to the subject property. It is said that this agreement flowed out of the fact that the applicant was indeed a tenant in the property. That he did indeed default in rent and various other obligations but that this was cured by a subsequent agreement between the tenant applicant and the landlord respondent where it is said they agreed effectively to “wipe the slate clean” by entering into an oral agreement for the sale and purchase of the subject property at a consideration of a $160,000.00.

In support of this contention the applicant in his affidavit refers to approaches he made to the Housing Authority to obtain finance. He annexed to his affidavit two letters written by the Authority to the then solicitors for the plaintiff respondent where in the Housing Authority was seeking from those solicitors their client’s confirmation that there was in fact an agreement for sale and purchase.

By this device the applicant argues that the principles of the Statute of Frauds which requires agreements for sale and purchase of land to be reduced to writing can be avoided as there was some kind of memorandum or agreement between the parties that evidenced the oral agreement between them.

Although this is an Extempore Judgment it comes close on the heels of my consideration of this issue in a more timely fashion in Civil Action 246 of 2000 wherein I drafted a judgment but it was not necessary for me to deliver it because the parties ultimately settled the matter between themselves.

It has long been held that agreements for sale and purchase of land should be reduced to writing. That is the position in Fiji the relevant section reads:

“59. No action shall be bought: .........(d) upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them unless the memorandum upon which such action is to be bought or some memorandum or note thereof in writing and signed by the party to be charged therewith.”

It follows as a general rule that any agreement for sale and purchase affecting land or any interest in land must be in writing to be enforceable. The terms of an agreement may be recorded in a written contract or in a memorandum or note which records the relevant detail. There is therefore no magic in the form. It must however contain the essential terms. These are often described as the five ps i.e. parties, property, price, payment and possession.

I find; even giving the correspondence from the Housing Authority the widest possible scope; that it does not contain sufficient information to define a contract for the sale and purchase of land. I also find that it is not of the type of note or memorandum designed to circumvent the rule. These were letters no doubt inspired by the defendant applicant but written by a third party to enquire as to whether or not there was an agreement. That being so the applicant has failed to demonstrate a defence on the merits.

During the course of his application before me Counsel for the applicant was prepared to modify his argument. In effect he argued in the alternative that if I did not accept those letters from the Housing Authority as amounting to a memorandum sufficient upon which to operate as an exclusion to the rule I should nonetheless find the letters as persuasive of their being an oral agreement between the parties. He submitted this should allow some measure of liberty for him to argue on his client’s behalf that there could be an equitable and meritorious defence.

From my earlier research I read the case of the Supreme Court of Fiji Western Division at Lautoka under Action No. 34 of 1979 and I refer to the Judgment of Williams J. where at page 2 he said:

“It was well established that in the absence of writing her contract for the sale of land is not enforceable at Law but equity allows an action to be bought where has been some substantial act of part performance of the contract even though there is no sufficient written evidence to support it at Law. The general rule is to what amounts to such an active part performance is that the parties must by reasonable action relied upon be in a position unequivocally different from that in which according to the legal rights they should have been in if there was no contract.”

His Honour in that extract was referring to Roska’s evidence on Civil Actions 12th Edition (page 271). I adopt that principle.

The Courts of Equity have developed a doctrine of part performance out of the principle that a statute may not be used to give rise to a fraud for various circumstances such as this. However, I do not accept any merit in a defence that there was part performance of some oral agreement upon these pleadings and evidence that cannot be so. In that regard my finding of credibility on the issue of whether or not the documents were served on this defendant applicant plays some small part.

The plaintiff respondent drew to my attention the fact that on other occasions this defendant applicant has sought to avoid due process by making this same argument before the Courts.

It was submitted by the plaintiff applicant’s counsel and I accept that similar arguments have been raised by this defendant on other occasions including twice before a Magistrates Court in Civil Action No. 1428 of 2001.

When considered in the light of the applicable principles I find no merit in the pleaded defence and affidavits that would be such as to motivate me to grant the requested relief. Accordingly I decline the defendant’s application to the Court to set aside the judgement in default entered against him on the 19th of May 2003.

I refuse the application and I will now hear argument from counsel as to costs.

I have now heard from Counsel on the issue of costs. The plaintiff respondent quite properly concedes that costs can be modest in the circumstances. The defendant applicant through counsel argues that he is not in employment. The applicant does receive some income from various Government positions he holds but is otherwise of modest means.

Accordingly I reduce the usual costs award I would make. I order nominal costs against him in the sum of $200.00 and I fix those costs to include all of the costs the plaintiff respondent may have incurred as a result of the defendant’s application in respect of this matter. Those costs are to be paid within 14 days of the date of the delivery of the Judgment.

Gerard Winter
JUDGE

At Suva
3rd June 2004