IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 249 Of 2005

BETWEEN:

INOKE KOROI, MOSESE NACAKE and ILAITIA BULI
all of WAYA Island, Yasawa suing for and on behalf of the MATAQALI VUNABUEVU of Waya Island, Yasawa
Plaintiffs

AND:

NATIVE LAND TRUST BOARD 
a body corporation duly constituted under Native Land Trust Act (Cap.134) and having its head office at 432 Victoria Parade, Suva.
1st Defendant

AND :

LIKILIKU BAY LIMITED 
a limited liability company having its registered office at Ernst & Young Chartered Accountant Provident Plaza, Level 3, Module 3, 33 Ellery Street, Suva
2nd Defendant

JUDGMENT

Judgment of : Ms Dias Wickramasinghe J.
Counsel : Mr. Young for the plaintiffs 
Mr. Inoke Lutumailagi for the defendants
Solicitors : Messrs Young & Associates for the plaintiffs
Messrs NLTB Legal for the defendants
Date of Judgment : 13 April 2012

Keywords: reinstatement vis a vis appeal; O. 59 r.4 of the High Court 

INTRODUCTION

[1]	The Master by his detailed ruling dated 7 March 2011 referred the matter to a single judge for a decision under 0.59 r.4 of the High Court Rules 1988 to consider the application of the first defendant.

[2]	Both parties agreed that I dispose this matter on the written submissions that were filed by them. 

[3]	Briefly, the facts are as follows. 

[4]	The plaintiff filed a writ of summons seeking inter alia a declaration that the lease relating to "Nasa" property was executed fraudulently, in violation of the fiduciary duties and in breach of ss. 8, 9, and 16 of the Native Land Trust Board Act. (Now the itaukei Act)

[5]	On 28 September 2005, the Deputy Registrar entered default judgment against both defendants. Clearly, this is before the expiration of the 28 days permitted in O.18 r.2 read with O.12 r.4 the High Court Rules, 1988 to file a statement of defence. On 4 October 2005, i.e., one day after the statutory period of 28 days, the first defendant filed his statement of defence, but on the same date, Young & Associates also filed a search for defence. The Deputy Registrar not having found a defence entered a 'second judgment by default' against the first defendant. It appears that the Registry had subsequently accepted the statement of defence. 

[6]	It is noteworthy that unlike the first defendant there is only 'one judgment by default' entered against the second defendant. The judgment against the second defendant was therefore made clearly within the statutory period of 28 days, unlike the judgment against the first defendant, where a 'second judgment by default' was entered on 4 October 2005.

[7]	The first defendant then filed summons to set aside the 'second judgment by default' entered on 4 October 2005. The first defendant admits that the statement of defence was filed one day later than the due date.

[8]	Justice Finnigan then heard the matter, and dismissed the summons after giving reasons in his ruling dated 7 March 2006. However, he noted that the defendant's case is still open, as the plaintiffs have to prove their case on fraud and breach of fiduciary duties with substantial evidence in support for exemplary damages and the claim for declaration. 

[9]	The defendant's did not appeal against Finnigan J's decision. Instead, almost after one and a half years, on 2 November 2007, they filed a second summons, seeking to set aside the default judgment entered by the Deputy Registrar on 4 October 2005. The Master in his ruling stated that the second summons was filed with 33 supporting affidavits. On 3 October 2008, almost after one year after the filing of the 2nd application to set aside, the second defendant also filed, a summons with a supporting affidavit to set aside the judgment by default entered against it on 28 September 2005. 

[10]	The second application of the first defendant was also struck out by the Master in December 2009 for want of appearance. I am unable to locate the minute sheet for the date in the case record, but will accept that the matter was struck out as the first defendant admitted it in the written submissions. The first defendant once again filed a summons dated 2 June 2010, to reinstate the setting aside application filed by the first defendant.

LEGAL MATRIX

[11]	Mr. Young argues that this court is functus relating to the re-instatement application for default judgment after Finnigan J's decision dated 7 March 2006. In support he cites R v Cross [1973] 2 All ER 920; Bailey v Marinoff [1971] 125 CLR 529 at 530 and Halsbury's Laws of England, 4th Edition, Vol 26, para 3 556.

[12]	The first defendant in its written submission submits that, it ought to have made an application to a single judgment against the Master's decision to strike out made in December 2009 and cites Yentamma v Colonial Mutual Life Assurance Services Ltd [2011] FJHC 57 a judgment delivered by me in support. The first defendant in its written submissions invited the Court to accept the current documents before it and consider the application as an appeal. I must place on record that the counsel had totally misinterpreted my aforesaid judgment.

[13]	It is a well-rooted legal principle that the court has no power to amend or set aside its judgment or order, even if it has come to an erroneous decision on facts or law. If a party is aggrieved by a court decision, then relief must be sought by way of an appeal. Therefore, the defendants must first agitate their grievances against Finnigan J's decision in the Court of Appeal. When Finnegan J. delivered the judgment, the first defendant should have necessarily appealed against that order, if it was aggrieved by it. Instead, the defendant totally disregarded the decision of Finnegan J, and filed another set of summons before the same court to reconsider the default judgment. 

[14]	It appears to me that the defendants are endeavouring to overcome the inordinate delay in filing an appeal, by seeking a new decision from the Master or myself and then canvassing that decision in appeal. In my opinion, the second set of summon is nothing more than an attempt to open doors of appeal, which otherwise would be closed to the defendants due to the inordinate delay. 

[15]	The second set of summon filed by both defendants are a clear abuse of the court process.

[16]	I have no jurisdiction to amend or disregard a decision made by Finnegan J who sat in the same seat when he delivered the judgment on 7 March 2006.

[17]	Accordingly, I dismiss the summons of the first defendant dated 2 November 2007 and 2 June 2010 and the summons of the second defendant dated 3 October 2008.
[18]	I summarily assess costs of this application as $2000, and order both defendants to pay $1000 each to the plaintiff within 21 days hereof.

[19]	The Registry is directed to transfer the file back to the Master to hear the other matters of Finnigan J's decision.

[20]	Orders accordingly. 

……………………………………………………
D. Dias Wickramasinghe
Judge