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Kumar v Narayan [2011] FJMC 77; Civil Action 82.2009 (12 July 2011)

IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Action No. 82 of 2009

MUKESH KUMAR
Plaintiff

v

SHIU KIRAN NARAYAN
Defendant

Mr. Sunil Kumar for the Plaintiff
Mr. Anand Singh for the Defendant

Ruling on setting aside Judgment

[1] The Plaintiff filed this action seeking vacant possession and damages arising out of the Defendants unlawful possession of the land. He claims vacant possession and seeks $12,990.03 as damages.

[2] The Defendant was duly served with writ and all documents. The Defendant was initially represented by Mess; Gordon and Chaudhary.

[3] Amended Writ and Statement was filed on 05th August 2009. There was an affidavit by Bed Wati Kumar that he served amended Writ and Statement of Claim to the Defendant on 15th August 2009.

[4]The Defendant then changed her solicitors from Mess; Gordon and Chaudhary to Mess; Kohli & Singh. Till then no statement of defence was filed. On 05th March 2010 the solicitors for the defendant filed notices of change of solicitors and intention to defend.

[5] On 28th April 2010 the defendant filed Statement of Defence. The Defendant did not deny the ownership of the Plaintiff and admitted she owes S1240.03 being town council rates and denied the rest of the claim. She further averred that the Plaintiff erected a fence preventing her clearing chattels and machineries from the land.

[6] The case was called for several dates and on 20th September 2010; it was fixed for formal proof (Ex parte). On that day the court noted that the defendant has not attended the Court for previous 4 occasions.

[7] The case was called for formally proof On 22nd of October 2010. There was no appearance of the Defendant or Mess; Kohli & Singh; the Court then proceeded to hear the action on the Plaintiff’s application by way of Formal Proof. Since there was a no appearance for the defendant and it was claimed that statement of defence was not duly served to the Plaintiff; the Court then struck out that Statement of Defence. At the Formal Proof the Plaintiff gave evidence and tendered documents. Being satisfied, that the Plaintiff has proved its claim on balance of probabilities, the Court granted judgment in favour of the Plaintiff as prayed in the amended Statement of Claim.

[8] On the 19th November 2010 Judgment was sealed and entered at the Nasinu Magistrates Court and the Order was served on the Defendant.

[9] All this time there was no appearance by the Defendant in person or by Mess; Kohli & Singh until January 2011.

[10] On 11th January 2011, Mess; Kohli & Singh filed motion and affidavit to set aside judgment and was set to 25th February 2011 for hearing.

[11] On 25th of May 2011 matter was argued and thereafter both parties have filed their written submission.

[12]The learned counsel for the Plaintiff argued that there is a PROCEDURAL IMPROPRIETY and the Defendant’s application for setting aside the judgement should be thrown away in limine.

[13] The Learned Counsel for the Plaintiff argued since the Counsel for the defendant has not mentioned under which Order or Rule this application is presented to Court, as such the Court and the Plaintiff’s Counsel are placed on guessing situation . He Further Says “The Magistrates Court is a creature of statute; Volume 2 Cap 14, it does not possess inherent jurisdiction to deal with matter without specifying under which order or rule the application is made.”

[14] It is true in this application the Counsel for the defendant has not mentioned under which Order or Rule this application is presented to Court. The Counsel for Plaintiff submits that application should be submitted for want of procedure as Magistrates Court do not possess unlimited jurisdiction.

[15] The Section 3 of the Magistrates Court Act (Cap 14) constitutes the Magistrates Courts in Fiji Islands.

“(1) There shall be and are hereby constituted magistrates' courts subordinate to the Supreme Court.

(2) There shall be the following classes of magistrates:-

(a) resident magistrate;

(b) second class magistrate;

(c) third class magistrate.

(3) ....

(4) Any power, authority, function or discretion vested in a magistrates' court by this or any other Act shall be possessed and may be exercised by a magistrate having adequate jurisdiction.

(5) All magistrates' courts shall be courts of record.”

[16] Magistrates Court Rules Order XXX Further provides Setting aside of judgment made in absence of party. Order 30 Rule 5 says;

“ Any judgment obtained against any party in the absence of such party may, on sufficient cause shown, be set aside by the court, upon such terms as may seem fit.”

[17] Therefore Law of setting aside a judgment could be judicially noticed by this Court as mentioned above and I hold this procedural irregularity does not vitiate the application of the Defendant. But the Practise of the Court is to mention under what provision the application is made would ease the function of the court, but failing the applicant cannot be punished. I therefore reject that objection. It is to be noted the court comprises the Bench and the Bar and the solicitors’ prime duty is to assist the court to administration of proper justice.

[18] I now narrate the brief history. The brief history of this case according to the Defendant are as follows; The Defendant sold the piece of land described as CT No: 29783 Lot 1 Part of Nakasi containing an area of 658 sq meters in the District of Naitasiri Island of Viti Levu and CT No: 29458, Lot 2, Part of Nakasi containing an area of 628 sq meters in the district of Naitasiri of Viti Levu to the Plaintiff; Some of the machineries and chattels were remaining on the land and the defendants workmen were in the process of clamming and removing the machineries and chattels; The Plaintiff chased the workmen away and erected a fence and refused to allow the Defendants workmen to enter the land in order to clear it. The Defendant gave notice to the Plaintiff by letter dated 19th January 2009 but the Plaintiff refused also the Company which owned the digger also gave a notice by letter dated 21st January 2009 but the Plaintiff has refused to allow anyone to come and clear the land.

[19] The Defendant submits that considering the above facts and his Affidavit in Support which shows Defence on merits and therefore the Judgment by Default should be set aside. The two notices were attached to the affidavit in support. Those are notices of the Defendant who gave notice to the Plaintiff by letter dated 19th January 2009 and the Company which owned the digger which also gave a notice by letter dated 21st January 2009 to the Plaintiff. The Defendant says the she showed Defence on merits and therefore default Judgment should be set aside. The Defendant further submits that the judgment by default entered against her be set aside and the Defendant be given opportunity to file her Defence and the Court is to use its discretionary power to avoid the injustice which may be caused if the judgment by default is not set aside.

[20] In contrary, the Plaintiff says No statement of Defence was ever served on the Plaintiff or his Counsel, because the claim consisted of vacant possession it required to be formally proved and the judgment sum was by mere calculation as per amended writ which was served on the Defendant personally. The Defendant was first served with the Writ Motion and Affidavit on 15th day of August 2009 for the first time and then again with amended documents on 12th day of November 2009. She (The Defendant) never bothered to appear but they received fax from Mr Chaudhary from Gordon & Chaudhary that they were appearing for the Defendant. The case was then adjourned for several occasions to allow the Defendant to file the Statement of Defence. The Defendant had then changed her solicitor to Kohli & Singh of Cumming Street and 26th of March 2010. Mr. Singh appeared and sought time to file Statement of Defence, the case was adjourned to 16th of April 2010 there was no appearance of Kohli & Singh, the case was adjourned to 13th May 2010 for mention to fix hearing date and on four other occasions the case was adjourned there no appearance of the Defendant. The Plaintiff averred that the Affidavit filed by the Defendant at paragraph 4 states 22/10/2010 was not entered in the diary. The Plaintiff questioned whether it was not entered in whose diary? The Affidavit is deposed by the Defendant, in her diary? Or her Counsels diary. ( Court notes in her affidavit she says OUR COURT DAIRY ).The Plaintiff stressed that the Affidavit in Support of the motion does state any merit and it does not explain the reasons of non appearance of a total of 10 times. The Defendant has not disclosed any Statement of Defence on merit as a prime requirement for setting aside judgment. Therefore the Plaintiff strongly objects for setting side of the Judgment. Those are the contention of both parties.

[21] I now turn to the basic principles of the setting aside a judgment. The Law of this area enriched by galaxies of decided judgments. In Burns v. Kondel [1971] 1 Lloyds Rep 554 the English Court held that the Defendant does not need to show a good defence on the merits but ... need only show a defence which discloses an arguable or triable issue. In Evans v. Bartlam [1937] AC 473, at 651 the court expressed that the Applicant must produce to the court ‘evidence that he has a prima facie case’. In Fiji National Provident Fund v Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988), the court enunciated three "test" to be considered in this regard namely;

(a) whether the defendant has a substantial ground of defence to the action;

(b) whether the defendant has a satisfactory explanation for his failure to enter an appearance to the writ; and

(c) whether the plaintiff will suffer irreparable harm if the judgment is set aside.

[22] In Alpine Bulk Transport Co Inc v. Saudi Eagle Shipping Co inc, [1986] 2 Lloyd's Rep 221 (CA) further added; "It is not sufficient to show a merely "arguable" defence that would justify leave to defend; it must both have a "real prospect of success" and "carry some degree of conviction". Thus the court must form a provisional view of the probable outcome of the action".

[23] In line with the above legal principles, I now deal with the merits of this application. The Plaintiff says that the Defendant has not filed any defence up to now. The Defendant did not dispute this stance of the Plaintiff and asks that Default Judgement be set aside and she be given to file the Statement of Defence. But when I peruse the court record, I can find there is notice of intention to defend and the Statement of defence filed on 28th of April 2010 and it was stamped on 11 May 2010. This shows the ignorance of the Defendant. She does not know what's happening and whether she filed a Statement of Defence or not. Thus the Defendant is guilty on laches. In Paramalimgam v Sirisena [2001] 2 Sri Lanka Law Reports 239, Justice Wigneswaran (President of the Court of Appeal) articulated "Laches means negligence or unreasonable delay in asserting or enforcing a right. Two principles are to be played in this regard. That is Delay defeats equities and Equity aids the vigilant and not the indolent". It could be noted on several dates the Defendant and her counsel did not attend the Court. No reason given for these absences and her explanation was the hearing date could not be noted in "OUR COURT DIARY". In ex prate Judgements the Sri Lankan Court held the negligence of the Registered Counsel (Attorney) cannot be taken as a valid reason to set aside a default Judgement. In Attorney General v Herath [2003] 2 Sri Lanka Law Report 162, Keerthiratne v Jayasekere [1990] 2 Sri Lanka Law Report 346 court held "Negligence of counsel is not a reasonable ground to set aside a proceedings". In Samarasekere v Indrani [2007] 1 Sri Lanka Law Report 241 in open court, the counsel for the defendant mistook the hearing date and case went ex parte. But the Court of Appeal held that it is not an excuse for vacate the default judgment as counsel should act with due diligence. These commonwealth and, common law cases are persuasive for this judgment.

[24] The Defendant did not attach the draft Statement of Defence as normal practise of the Court. But she did attach two notices along with her affidavit. But I note these notices were sent before filing her statement of Defence which is in the Court Record as I earlier noticed in my judgment. But in that Statement of Defence the Defendant has not referred or requested to tender any notice later. Therefore it is very dubious that these notices existed at that time. The Defendant's contention is that she did not have the possession of the land to clear the chattels and machineries since the Plaintiff fenced the land. But the Plaintiff was in his evidence adduce that he sent several reminders to remove the chattels and machineries of the Defendant. Those were tendered as EX-1 and 2. If so, this could have been settled amicably. I therefore hold that there is no sustainable defence.

[25] As court held in Fiji National Provident Fund v Datt (supra), I cannot find any substantial ground of defence to the action; further the defendant has not satisfactory explanation for her failure to enter an appearance. The Defendant had ample opportunity to defend her case. She slept over her rights. The principle apply to this type of case is "Law assists the wakeful, not the sleeping- Lex Vigilantibus, non Dormientibus, Subveinit". Therefore the Defendant should pay the price for her negligence or ignorance. I see no merits in this application.

[26] I therefore make following orders;

1. The Application for judgment by default be set aside is hereby dismissed.
   
2. The Plaintiff is entitled to execute the Judgment by default dated 22nd October 2010.
   

100. Cost of this application to be taxed if not agreed by the parties.
     

Orders accordingly.

On 12th July 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate