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Digicel Fiji Ltd v Attorney General [2018] FJHC 618; HBC14.2014 (18 July 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 14 of 2014

BETWEEN : DIGICEL FIJI LIMITED a limited liability company having its registered office at Kadavu House, Victoria Parade, Suva.

PLAINTIFF

AND : ATTORNEY GENERAL 1^ST DEFENDANT

AND : THE PERMANENT SECRETARY, Ministry of Health & Medical Services, Suva.

2^nd DEFENDANT

BEFORE : Master Vishwa Datt Sharma

COUNSEL : Ms. Lagilevu S. with Mr. A. Pal - for the Plaintiff

Ms. Ali. S - for the Defendant

DATE OF RULING : 18^th July, 2018 @ 9am

DECISION
(Summons by Plaintiff for leave to enter Default Judgment against the Defendants pursuant to Order 32 Rule 1, Order 19 Rule 2, and Order 77 Rule 6 of the High Court Rules, 1988 and the inherent jurisdiction of the Honourable Court)

INTRODUCTION

1. This is the Plaintiff’s Summons for leave to enter Default Judgment against the Defendants and sought for the following orders-
   • (i) Leave to be granted for the Plaintiff to enter Default Judgment against the Defendants;
   • (ii) Costs of this application on a Solicitor – Client indemnity basis; and
   • (iii) Any other orders that this court deems just and reasonable.
2. Both Defendants failed to file and serve the Statement of Defence as per the requirement of the High Court Rules, 1988.
3. The application is made pursuant to f Order 32 Rule 1, Order 19 Rule 2, and Order 77 Rule 6 of the High Court Rules, 1988 and the inherent jurisdiction of the Honourable court.

The LAW

4. Judgment in default (O.77, r.6)
   
   6.-(1) Except with the leave of the Court, no judgment in default of notice of intention to defend or of pleading shall be entered, against the State in civil proceedings against the State or in third party proceedings against the State.
   
   (2)....
   (3)....

ANALYSIS and DETERMINATION

5. This court needs to determine the following issues-
   • (i) Whether leave be granted to the Plaintiff to enter Default Judgment against the Defendants; and
   • (ii) Costs on a Solicitor- Client indemnity basis.
6. The Plaintiff filed the Writ of Summons together with the Statement of Claim on 21^st January, 2014.
7. Acknowledgment of Service was filed by the 2^nd Defendant on 24^th January, 2014. Court noted that No Statement of Defence was filed by both Defendants.
8. The Plaintiff filed the Current Summons and sought for an order to enter Default Judgment against the Defendants and subsequently the Defendants filed the Affidavit in Opposition annexing a draft Statement of Defence.
9. In its draft Statement of Defence, the Defendants states as follows-
   • Denies the Plaintiff’s claim;
   • Puts the Plaintiff to strict prove of the claim;
   • The 2^nd Defendant strongly denies entering into any such Agreement with the Plaintiff and either it or its representative supplied any instructions for the supply of hand set (Cell phones) and phone number; and
   • The Plaintiff is seriously mistaken as to who owes the Plaintiff for any charges it has accumulated for the use of its services. Quite clearly it is certainly not the 2^nd Defendant, given that the 2^nd Defendant as the Government’s authorising authority did not enter into any agreement with the Plaintiff to provide mobile services to its agents or servants.
10. The 2^nd Defendant as an agent of the State and as a consequence that the Crown Proceedings Act (Chapter 24) will apply to these proceedings. It is also to be borne in mind that Order 77 of the High Court Rules, 1988, dealing with proceedings by and against the State, and Specifically Order 77, Rule 6, dealing with Judgment in Default, would apply to these proceedings.
11. The Plaintiff’s contention in brief are as follows-
    • The 2^nd Defendant entered into a mobile Service Agreement with the Plaintiff for a minimum of 12 months;
    • The Defendant was supplied with phones and phone numbers;
    • As per the Agreement, a monthly invoice will be issued for payment to be made for the services;
    • From 22/07/2011-21/08/2013, the Defendants accumulated a bill of $52,566.78;
    • The Plaintiff made a demand for payment and no payment was received;
    • The Defendant filed an Acknowledgment but failed to file any Defence, thus current leave application made seeking an order to enter Default Judgment.
12. It cannot be denied by the Defendants that the Statement of Defence was not filed.
13. Further, this court notes from the court records that the Defendants after realising that they have failed to file and serve any Statement of Defence that they were subsequently prompted to defend the Plaintiff’s Summons seeking an order for leave to enter Default Judgment against the Defendants for the liquidated sum as claimed within the Statement of Claim.
14. Thereafter, the Defendants thought fit and proper to file and serve a Summons seeking an order for leave to file their Defence out of time which application is impending court’s decision.
15. I find that there are triable issues which need to be fully deliberated upon and accordingly determined at a hearing.
16. Leave to enter Default Judgment against the Defendants is not the answer to this proceeding and should not be dealt with summarily taking into consideration the prima facie merits within the draft statement of defence herein.
17. Therefore, having perused and taking into consideration the affidavit evidence, draft Statement of Defence, and oral and written submissions of both parties to this proceedings, and no doubt there being triable issues raised and the court being appraised of the same, that I am inclined to exercise my discretion and accordingly decline the Plaintiff leave to enter Default Judgment against the Defendants at this stage of the proceedings, pursuant to Order 77 Rule 6 of the High Court Rules, 1988.
18. Since, the leave to enter Default Judgment against the Defendants has been declined, in the circumstances it is only appropriate and I will allow an extension of 14 days’ time to the Defendants to file and serve their Statement of Defence on the Plaintiff. This application has nexus with the 1st application filed by the Plaintiff seeking an order for leave to enter Default Judgment against the Defendants.
19. In light of above rational, it is only appropriate that I make no order as to costs.
20. In Conclusion, I now proceed to make the following final orders:

FINAL ORDERS

1. Plaintiff’s Summons for leave to enter Default Judgment against the Defendants fails and is accordingly declined.
2. The Defendant is hereby granted an extension of 14 days time to file and serve their Statement of Defence onto the Plaintiff.

100. There will be no order as to any Costs.

4. Orders accordingly.
   

Dated at Suva this 18^th Day of July, 2018

............................................
Master
Vishwa Datt Sharma

cc: A. P Legal, Suva
Attorney Generals Chambers, Suva