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Chand v Chand [2012] FJHC 3; HBC02.2011 (16 January 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 02 of 2011

BETWEEN:

GANESH CHAND (father's name Hira Lal) Vice Chancellor of the Fiji National University, Kings Road, Nasinu in the Republic of Fiji Island.
PLAINTIFF

AND:

PUSHP CHAND (father's name Shiu Narayan) of 113 Rewa Street in Suva in the Republic of Fiji Island.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. V. Kapadia of Sherani & Co. for the Plaintiff
Defendant In person

Date of Hearing: 24th November, 2011
Date of Ruling: 16th January, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff filled this action against the Defendant for alleged defamation. The Defendant wrote a letter to the Prime Minister (and it was referred to various agencies including Fiji Independent Commission Against Corruption (FICAC) alleging certain abuses and corrupt practices of the Plaintiff. The Plaintiff is the Vice Chancellor of the University, where the Defendant was employed. The Plaintiff filled this action for defamation and obtained default judgment against the Defendant and at the time of assessment of damages Defendant filled this summons for setting aside of the default judgment.
   

2. LAW AND ANALYSIS
   

2. The law relating to setting aside of the default judgment is well settled in Fiji. In Fiji Court of Appeal in Wearsmart Textilts Ltd v General Machinary Hire Ltd [1998] FJCA 26 the grounds for setting aside of the default judgment was adopted in the case of Coral Sun Ltd v Whippy [2009] FJHC 254 where the rules were summarized as follows:
   

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

Meritorious defendant which has 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 Textilts Ltd v General Machinary Hire Ltd [1998] FJCA 26;

Some explanation as to why the default judgment was allowed; Evans and Bartlam [1937] 2 All ER 646:

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.

That the Plaintiff will not be prejudiced that may be cause to the Plaintiff as a consequence of setting aside the default judgment Shrir Dutt V FNPF (1988) 34 FLR 67.'

3. The meaning of "defence on the merits" was explained by Sir Roger Ormond in Alpine Bulk Transport Co. Saudi Shipping Co. Inc (1986) 2 Lioyd's Rep, 221. His Lordship explained that the defence put forward by the Defendant must be one with a reasonable chance of success, in this judgment it was quoted the following passage of the said judgment of Alpine Bulk Transport Co. Saudi Shipping Co. Inc (1986) 2 Lioyd's Rep, 221.
   

"(a) It is not sufficient to show a merely "arguable" defence that would justify leave to defend under Order 14; it must both have "a real prospect of success" and " carry some degree of conviction". Thus the court must from a provisional view of the probable outcome of the action.

(b) If proceedings are deliberately ignored this conduct, although not amounting to an estoppel at law, must be considered "in justice" before exercising the court's discretion to set aside."

4. In Wearsmart Textilts Ltd v General Machinary Hire Ltd [1998] FJCA 26 it was further held
   

"Notwithstanding the Court of Appeal's latter decision in Allen v Taylor [1992] PIQR 255 which purports to dilute the principles emerging from Saudi Eagle, we subscribe to the White Book's preferred view that 'unless potentially credible affidavit evidence demonstrates a real likelihood that a defendant will succeed on fact no "real prospect of success" is shown and relief should be refuse'

5. In the Wearsmart Textilts Ltd v General Machinary Hire Ltd quoted the case of Evans v Bartlam [1937] A.C at p 480 as follows
   

"In Evans v Bartlam [1937] A.C at p 480 the House of Lords (per Lord Atkin) stated-

"The principle obviously is that unless and until the Court has pronounce judgment upon 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."

A Judgment in default is not a judgment 'upon merits'. See Oppenheim v Mohammed [1922] 1 AC 482" was not followed in Wearsmart Textiles Limited v General Machinery Hire Limited & Anr and followed the Fiji Court of Appeal in the case of Wearsmart Textiles Limited v General Machinery Hire Limited & Anr, Civil Appeal No. ABU30/97, at page 11, stated with approval from the Supreme Court practice, Vol 1 at page 143 that:

"It is an (almost) inflexible rule that there must be an Affidavit of merits, i.e. an Affidavit stating facts and showing a defence on the merit." (emphasis added)

6. The proposed statement of defence is annexed to the affidavit in support and in paragraph 4 of the statement of defence state as follows
   

'4. That in reply to paragraph 4(a) to (q) of the plaintiff's statement of claim I state that the meaning of my letter has been twisted and turned to make it look defamatory, further more writing any letter to the Honourable Prime Minister or FICAC should not be tried in the Court of Law, but proper investigation should have taken place to justify my grievances therefore I deny the same.'

7. The Defendant had worked under the Plaintiff and he is also the author of the alleged defamatory letter and has to be considered as a witness to the alleged irregularities. He also alleged that he was directly aggrieved by the conduct of the Plaintiff. So the evidence of the Plaintiff is crucial for the ascertainment of the truth of the statements alleged in the said letter. The Plaintiff has not annexed the said defamatory letter to the affidavit in opposition to this application. The merits and demerits of the said letter and its content cannot be analysed at this stage.
   
8. The above mentioned paragraph in the proposed statement of defence admits writing a letter to the Prime Minister and also state the contents were not defamatory and further investigations were needed to ascertain the truth of the allegations and his main reason for writing the said letter was to 'justify' his 'grievance'.
   
9. The said proposed defence filled in person indicates a defence of justification and in such circumstances where the Defendant is also a witness to the alleged incidents, I cannot on affidavit evidence evaluate the merits of the defence and reject it, on the basis that there is no merits in the defence. The Defendant has worked in the said university where the Plaintiff is Vice Chancellor. It is clear that when a party pleads justification in an action for defamation where the Defendant is also a witness to alleged incidents, the said defence needs to be tested in a trial and cannot be rejected at this stage as having no merits.
   
10. The reason given for the delay in filing a statement of defence that resulted a default judgment being entered is the ignorance of the procedure by the Defendant who has filled the acknowledgment of service without an assistance from a solicitor. He is appearing in person for this application to set aside the default judgment. Though this cannot be a reason for default, the explanation for default can be accepted.
    
11. The Defendant had appeared in court to the summons for assessment of .damages and has filled this application to set aside the default judgment on 30th August, 2011. There is no affidavit of service of default judgment, which was entered on 10th March, 2011. The summons for the assessment of damages was served on the Defendant and an affidavit of service was also filled. The Plaintiff did not turn up for hearing on any of the dates for assessment of damages and the hearing did not commence. The application for setting aside the default judgment cannot be considered as an inordinate delay.
    

100. PREJUDICE TO THE PLAINTIFF
     

12. The Plaintiff has followed the procedure correctly and obtained default judgment and it is a regular default judgment. If the default judgment is set aside there is a delay, but even if that is not set aside still the Plaintiff needs to prove damages and assessment of damages needs to be proved with necessary oral and or documentary evidence. In the circumstances, if the default judgment is set aside it cannot be considered as a prejudicial to the Plaintiff, other than delay. The delay can be compensated by an award of cost against the defaulting party. Considering the circumstances of the case, I will allow the application to set aside the default judgment subject to a cost of $ 500 being paid by the Defendant to the plaintiff.
    

4. CONCLUSION
   

13. The proposed statement of defence alleges justification which is a legally acceptable defence for a claim against defamation. The defence of justification needs to be tested with proper evidence, subject to cross examination and this can only be done in the trial. The Defendant who had worked under the Plaintiff has alleged certain irregularities in the institution and this evidence needs to be tested in the trial. The default judgment needs to be vacated in the circumstances. There is no prejudice alleged by the Plaintiff, that cannot be compensated by an award of the cost. The Default judgment entered on 10th March, 2011 is set aside. The Defendant is ordered to pay a cost of $500 to the Plaintiff within 14 days and to file and serve the statement of defence within 14 days from today.
    

5. FINAL ORDERS
   

1. The Default Judgment entered on 10th March, 2011 is set aside.
   
2. The Defendant is ordered to pay a cost of $500 within 14 days from today.
   

100. The Defendant is ordered to file and serve the statement of defence within 14 days from today.
     

4. There after the matter will take normal cause.
   

Dated at Suva this 16th day of January, 2012.

Mr. Deepthi Amaratunga
Master of the High Court
Suva