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Deo v Kumar [2014] FJHC 227; HBC78.1995 (2 April 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
AT LAUTOKA
WESTERN DIVISION

[CIVIL JURISDICTION]

Civil Action No. HBC 78 of 1995

BETWEEN:

CHANDAR DEO and SURUJ WATI of both of Johnson Road, Lautoka
Plaintiff

AND:

VIJAY KUMAR, President KAMLA PRASAD, Sirdar UMESH CHAND Secretary, BISUN DEO, PRASANJIT NARAYAN Committee Members of Teidamu Lot 31 Cane Harvesting Gang sued on behalf and as representing all members of the said gang Except the Plaintiffs.
Defendant

Before : Acting Master M H Mohamed Ajmeer

Appearances:
Mr Sudakar for the Plaintiff
Mr Mukesh Chand (appeared for limited purpose) for the Defendants

Date of Hearing : 26 March 2014
Date of Ruling : 26 March 2014
Reasons for Ruling: 2 April 2014

RULING
[Reasons for Ruling]

[1] On 26 March 2014 after hearing the matter I made order dismissing and striking out the application filed by the 3rd named defendant to set aside the default judgment entered against him on 17 July 2008 with summarily assessed costs of $ 850.00 for the reasons to be delivered later. These are my written reasons for making that order.

[2] This is an application by way of inter parte notice of motion filed on 11 June 2013 by Umesh Chand, the 3rd named defendant (hereinafter sometimes may be referred to as the defendant) to have default judgment entered against him by Finnigan, J on 17 July 2008 (the application). The application is supported by an affidavit sworn by the 3rd named Defendant.

[3] Plaintiff did not file any affidavit in response to the application. Instead, he filed a summons pursuant to O.18 and O.32 of the High Court Rules 1988 (as amended) and inherent jurisdiction of the court to have the application to set aside struck out and dismissed as it is scandalous, frivolous or vexatious.

[4] Thereafter after few adjournments, the matter, with agreement of both parties, was set down for hearing on 30 January 2014. In the meantime, on 11 December 2013 the defendant filed an inter parte summons together with a supporting affidavit sworn by Salote Veitokiyaki seeking to vacate the hearing date set for 30 January 2014. The summons was taken up for hearing on 20 January 2014 and the court made orders in terms of the motion, for there was no serious objection on the part of the plaintiff. The matter was then re-fixed for hearing at 11.00am on 26 March 2014.

[5] When the matter came up for hearing today (around 11.30am), Mr Mukash Chand who has less than 2 years standing in Fiji appeared (appeared for the limited purpose of making an application for adjournment) on behalf of the defendant and made an application seeking a short adjournment on the ground that his principal (Mr P N Naidu) is attending to a funeral of one of his relatives. Mr Sudhakar, counsel for the plaintiff strongly objecting to this application stated that the plaintiff is not consenting to any adjournment as this is the second time the defendant is making application for adjournment. He said he is ready to proceed with the hearing indicating that the claim was filed in March 1995, the default judgment was entered in 2008 and the plaintiff has filed summons for sale of property and execution is awaiting execution.

[6] I had carefully considered the application for adjournment and objection raised in relation to that application for adjournment. In my view, the application for adjournment made on behalf of the defendant at the eleventh hour seems to be unreasonable and unwarranted particularly considering the long history of the case in that the action was filed in March 1995 and the application for execution is still pending. Moreover, I am unable to find any sufficient ground in the application to adjourn today's hearing. I accordingly reject the application for adjournment made on behalf of the defendant and decide to proceed to hearing the matter.

[7] At hearing, counsel for the plaintiff submitted that the application to set aside is a belated application; the delay has not been explained and the defendant has not shown defence on merit. In essence he submitted the application to set aside should be struck out and dismissed with costs.

[8] Counsel for the plaintiff did not make any application to struck out the affidavit filed by the defendant in support of the application. I would therefore consider the defendant's supporting affidavit in this ruling.

[9] The default judgment against the defendant has been entered on 17 July 2008 following formal proof. The default judgment has been entered regularly hence the defendant must show defence on merits in order to get the default judgment set aside.

[10] Above all, I must be satisfied that the application has been made promptly. The default judgment was entered on 17 July 2008. The application to set aside has been made on 11 June 2013 i.e. some 5 years after the default judgment was entered against the defendant. The defendant in his supporting affidavit states that he was never served with the default judgment. This is only his assertion. The defendant was appearing through a counsel. He knew very well that the matter was fixed for hearing on 17 July 2008. He defaulted in appearance on the hearing day and was not ready to proceed with the hearing. As such the matter was formally proved and the default judgment entered. The defendant should have known that a default judgment will be entered against him.

[11] The 5 years delay in filing the application to set aside has not been explained sufficiently and satisfactorily by the defendant. His migration will not be considered a valid ground for delay because he had a Solicitor to act on his behalf. He should have known progress of the case through his Solicitor.

[12] I now return to the issue of defence on merits. The defendant in the supporting affidavit states that he has prima facie defence on the merits against the plaintiff's claim and he also states that there are serious questions which require the court's attention. He has annexed a draft copy of the defence along with his supporting affidavit ("UC2").

[13] In the proposed statement of defence the defendant generally denies the plaintiff's claim. As to serious issue, he states that the plaintiff's claim is contrary to the Sugar Industry Act. It should be noted that the defendant merely states the plaintiff's claim is contrary to Sugar Industry Act without giving any base. Therefore, I am of the view that the proposed statement of defence annexed by the defendant does not disclose a defence on merits.

[14] The plaintiff was able obtain the default judgment against the defendant in 2008 in the action that was filed in 1995. The plaintiff would have thought that his case was concluded in 2008. If a default judgment entered in 2008 in an action that was filed in 1995 were set aside, prejudice will be caused to the plaintiff.

[15] For all these reasons, I should dismiss and struck out the application filed by the defendant to set aside the default judgment entered against him on 17 July 2008 with summarily assessed costs of $850.00.

M H Mohamed Ajmeer
Acting Master of the High Court

At Lautoka

2/04/14