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Verma v Prasad [2024] FJHC 158; HBA03.2022 (4 March 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Appeal Action No: HBA 03 of 2022
(Nausori Civil Case No 107 of 2019)

BETWEEN:

SANJAY SINGH VERMA
APPELLANT

AND:

JACK JANENDRA PRASAD
RESPONDENT

BEFORE:
Banuve, J

COUNSEL:
Appellant in Person

Date of Ruling:
04 March 2024

RULING

1. Introduction
   

1. This is a matter which was initiated in the Small Claims Tribunal on 2^nd October 2019 (Claim No 1348/19). It concerned an agreement to sell a concrete mixer by the Appellant to the Respondent. By “mutual agreement” the matter was transferred to the Nausori Magistrate Court on 7^th November 2019 (Civil Case No. 107 of 2019).
   
2. It appears from the Record of the Magistrate Court, Nausori dated 1^st March 2022, that a Default Judgment was entered against the Respondent on 25^th August 2020. The Appellant was represented by counsel on that date. No appearance was entered for the Respondent.
   
3. A Judgment Debtor Summons was issued on 23^rd October 2020.
   
4. Between 14^th December 2020 and 6^th April 2021, the matter was called on 3 occasions in the Magistrates Court;
   

14/12/20

Court: Upon perusal of the court record it appears that a default judgment is

entered in this case on 25/8/2020. But it appeared that the said judgment

is entered by the court at the request of the counsel for the Plaintiff and

no affidavit of service is filed.

Counsel for the Defendant submit that he is moving the court to set

aside the default judgment on the grounds of breach of natural justice

and (move) further time to make a formal application for the same.

Adjourned to 01/03/2021

Sgd: L. Chaminda

Resident Magistrate

01/03/21

Court: RM on leave

Case adjourned to 05/03/21

Clerk

06/04/21

Court: Copy of the application is given to the Plaintiff for response on

05/05/2021.

Sgd: l.Chaminda

Resident Magistrate.

5. The Record, shows that on 14^th December 2020, (relevant parts underlined),that whilst the Resident Magistrate expressed a view on the manner the default judgment was obtained on 25/8/20, he did not issue an order or judgment setting aside the default judgment, for the obvious reason that no application to do so. had been filed on that date. This is confirmed by the Respondent seeking further time to make a formal application for the same. A direction was issued to that effect. No objection is recorded from the Appellant against the direction issued, on that date.
   
6. An Inter-Parte Notice of Motion (To set aside default judgment and judgment debtor summons), with an Affidavit in Support was filed on 6^th April 2021, and a copy was given to the Appellant, on the same date, to respond to by 5^th of May 2021. ^[1]
   
7. No response was filed as directed, rather , the Appellant filed an appeal on 8^th January 2021, against the direction of the Resident Magistrate, specifically;
   
   • (i) THAT the Learned Resident Magistrate erred in law and in fact by allowing the Respondent 4 months to file any application for setting aside Default Judgment. Four months is too excessive and unreasonable delay.
   • (ii) THAT the Learned Resident Magistrate erred in law and in fact by failing to conduct Means Test on 14^th December 2020 and allowing the Respondent 4 months to file necessary applications.
   • (iii) ...................
     
8. The appeal was transferred to the High Court on 1^st March 2023.
   
   2. THE APPEAL
      
9. On 23^rd March 2023, when the matter was called before Justice Liyanage, the Appellant, who attended in person, was informed that there were no orders made by the Resident Magistrate, that could be the subject of the appeal filed, and he was granted further time to consider his position. A hearing date was assigned for the appeal on 31^st July 2023, which did not eventuate, because the Appellant was undergoing medical treatment, overseas. Written submissions were ordered to be filed 3 days before the hearing.
   
10. The hearing schedule for the appeal was vacated because of the departure of Justice Liyanage, from the jurisdiction, and the matter was re-assigned.
    
11. On 19^th February 2024, when the matter was called before me, the Appellant, who appeared in person agreed that the appeal could be determined on the basis of written submissions, he had filed. The Respondent did not appear on that day, nor file any submissions.
    
    100. DETERMINATION
         
12. This appeal can be dealt with quickly.
    

Section 36 of the Magistrates Court Act [Cap 14] states;

(1) Subject to the provisions of this Act, an appeal shall lie to the High Court from a resident magistrate in the following cases:-

• (a) from all final judgments and decisions; and
• (b) from all interlocutory orders and decisions made in the course of suit or matter a magistrates’ court
  

13. The position conveyed by the Court on 23^rd March 2023 to the Appellant, that there were no orders issued by the Resident Magistrate on 14^th December 2020 that could be the subject of the appeal, was sound. It was not heeded by the Appellant.
    
14. The directions issued, by the Resident Magistrate on 14^th December 2020, or on 6^th April 2021 could not be construed as a final judgment^[2] or decision nor an interlocutory order^[3] or decision to be the subject of a valid appeal to the High Court, pursuant to section 36 of the Magistrates Court Act [Cap 14]. This proposition, is self-evident, given that the Inter-Parte Notice of Motion – (To set aside default judgment and judgment debtor summons) filed by the Respondent on 6^th April 2021, was never heard by the Resident Magistrate. The delay in the hearing of this Application, in the Court below is caused by the filing of this appeal and by the Appellant not filing a response to the Application on 5^th May 2021.
    
15. This means that the Judgment in Default which the Appellant obtained on 25^th August 2020 still subsists, and will remain so, unless and until ordered otherwise by the Court.
    
16. Rather than providing a response to the Application to Set Aside the Default Judgment, and despite being granted further time on 23^rd August 2023, to reconsider his position, the Appellant persists in maintaining the appeal, despite there being no decision or order made by the Resident Magistrate on 14^th December 2020, that could be the subject of an appeal pursuant to section 36 of the Magistrates Courts Act [Cap 14].
    
17. The appeal is dismissed and costs awarded against the Appellant for persisting with this futile appeal.
    

ORDERS

1. The Appeal filed by the Appellant in the Magistrates Court on 8^th January 2021 and registered in the High Court on 9^th March 2022 is dismissed in its entirety.
   
2. The Appellant, to pay costs of $200 (summarily assessed) to the High Court within seven days from the date of this ruling.
   
3. Civil Case Number 107 of 2019 is remitted to the Nausori Magistrates Court.
   

Savenaca Banuve
Judge

At Suva
04^th March, 2024

^[1] The Appellant did not disclose to the Court that an appeal had already been filed on 8^th January 2021.
^[2] The judgment in civil proceedings that ends the action , usually the judgment of the court at trial. –Oxford Dictionary of Law(9^th Ed, 2017), also see Rasoki v AG & Others- [2022] FJSC 23.
^[3] A decision by the court in civil proceedings that only deals with part of the matter in dispute.(ibid) also see Totis Incorporated Ltd & Others v Clark & Others – Civil App 35/1996S (Tikaram JA)