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Manan v Khan [2008] FJHC 285; HBC338.2007 (11 April 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 338 OF 2007

BETWEEN

ABDUL MANAN
Plaintiff

AND

MOHAMMED MUNIF KHAN and MOHAMMED SHAMEEM KHAN
1st Defendants

AND

THE OFFICIAL RECEIVER
2nd Defendant

AND

ATTORNEY GENERAL OF FIJI
3rd Defendant

Appearances: Haroon Ali Shah Esquire for the Plaintiff/Respondent
Vijay Naidu & Associates for the 1st Defendant/Applicant
Mishra Prakash & Associates for the 2nd Defendant
Mr. R. Green for the 3rd Defendant

Date of Hearing: 7 March 2008
Date of Ruling: 11 April 2008

RULING

[1] On the 19 November 2007 the following orders were made in respect of an interlocutory summons brought by the plaintiff dated 6 November 2007:

"IT IS THIS DAY ORDERED BY CONSENT AS FOLLOWS:-

i) Township Lease No. 107544 be sold by tender to the highest bidder.

(a) The sale is to be supervised by the Official Receiver;

(b) Tenders are to be received by the Deputy Registrar of the High Court Lautoka, Fiji and shall be opened and scrutinized in the presence of Solicitors for the parties three (3) days after the close of tenders.

(c) The Official Receiver do advertise the property for sale of Lease 107544 in the Fiji Times and/or Fiji Sun twice with the tenders to close on the 5th day of December, 2007.

ii) The First Defendant do deposit the Original Provisional Lease No 107544 with the Official Receiver within three (3) days.

iii) The Plaintiff and the First Defendant do all things necessary and execute all documents to perfect the sale without delay.

iv) The Summons is stood over till Friday the 14th day of December, 2007 at nine (9) am for Hearing and further orders."

[2] The first defendants have applied to set aside the above order. It is clear from the affidavits filed by and on behalf of the first defendants that the first defendants did not consent to the making of the consent order. On the returnable date of the summons upon which the consent order was entered, I erroneously recorded learned counsel for the Official Receiver as appearing on behalf of all the respondents to the summons, including the first defendants. Mr. Mishra, counsel for the Official Receiver did not hold instructions for the first defendants and the entry of the appearance by him on behalf of the first defendants was irregular, which irregularity cannot be permitted to stand given that the order made could not have been made with the consent of the first defendants. It is apparent that the order was made without the consent of the first defendants and in the circumstances the court has discretion to set aside the order where grave injustice would be done by allowing it to stand. Although the order has been perfected, I am satisfied that the consent lacked authority by the first defendants and it would be inequitable and unjust to allow the consent order to stand. The lack of consent by the first defendants renders the consent order irregular and as such the first defendants are entitled to have it set aside as of right. The court may entertain an application to set aside an order by consent, which has been perfected, if it is satisfied that the consent lacked authority and the application is made in reasonable time.[1] The application was made within reasonable time of the order being perfected.

Orders

i) The consent order made on 19 November 2007 is set aside;

ii) The summons dated the 6 November 2007 is to be heard afresh.

Gwen Phillips
Judge

At Lautoka
11 April 2008

^[1] Marsden –v- Marsden [1972] 2 All ER p.1163 at page 1167