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Waqanivalagi v Tabua [2012] FJMC 200; Civil Action 239.2009 (23 August 2012)

IN THE MAGISTRATE’S COURT
AT SUVA, FIJI

CIVIL ACTION N0: 239/2009

BETWEEN:

BULA WAQANIVALAGI
PLAINTIFF

AND:

SOVEA TABUA
DEPENDANT

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,

COUNSEL: Messrs Lateef & Lateef Lawyers for the Plaintiff,

Messrs Marawai Law for the Dependant,

Date of the Ruling: 23rd of August 2012.

RULING

1. The Defendant/ Applicant (hereafter refers as Defendant) filed this notice of motion together with an affidavit in support and a written submission seeking following order inter alia
   

“that the Ruling/ Order via formal proof in this action or any other order thereto, deemed necessary /relevant by this honorable court be set aside and its execution be stayed”

2. Prior to review the affidavit filed by the Defendant in support of his notice of motion, I opt to briefly overview the back ground of this case as it will assist me to properly review the respective affidavits and submissions filed by the parties in the hearing of this notice of motion.
   
3. The plaintiff instituted this action by filing his writ of summon together with statement of claim on the 26th of August 2009. Upon serviced of the write of summon, the Defendant filed his Statement of Defence through his solicitor Messrs Iqbal Khan & Associates on the 10th day of November 2009. Subsequently, the matter was set down for hearing on the 21st of January 2010 however the hearing was not eventuated as the counsel for the Defendant Mr. Kini Marawai was sick and was not able to attend the hearing. The matter was again fixed for hearing on the 3rd day of March 2010, however again the hearing was compelled to vacate as the Counsel for the Defendant Mr. Kini Marawai was indisposed at the Agricultural Tribunal in Labasa. The court then adjourned the matter to the 24th day of March 2010 to fix a hearing date. On that day the matter was set down for hearing on the 14th of July 2010. On the 14th day of July 2010, the learned counsel for the plaintiff Mr. Sevuloni Valenitabua informed the court that he will withdraw his engagement as counsel for the plaintiff since he was leaving the country to take up a post in Solomon Islands. Hence the hearing was vacated and the case was adjurned to 20th of August 2010 to fix a hearing date and time was given to the plaintiff to engage another solicitor. On the 20th day of August 2010 the new counsel for the Plaintiff appeared and undertook to inform the counsel of the defendant the next date as neither the defendant nor his counsel appeared in court. Then the matter was adjourned to 10th of September 2010. The matter was called twice at 9.30 a.m. and 10.20 a.m on the 10th day of September 2010 however again neither the defendant nor his counsel appeared. Accordingly the matter was adjourned to 26th of November 2010 to fix a date for formal proof. Having called this matter in open called on two more days due on various reasons, the matter was finally set down for formal proof hearing on 30th of March 2011.
   
4. The plaintiff called one witness to present his case. Upon hearing the evidence of the plaintiff and perusal of the documents tendered as plaintiff’s exhibits, the court delivered its judgment on the 26th day of April 2011. Subsequent to the pronouncement of the judgment, the learned counsel for the defendant filed this aforementioned notice of motion together with an affidavit in support and a written submission seeking the orders as mentioned above.
   
5. Having outlined the chronological back ground of this proceeding, I now turn to examine and review the respective affidavits and written submissions filed by the defendant and the plaintiff.
   
6. The Dependant deposed in his affidavit in support, that he was served with writ by the plaintiff on 16th of September 2009 for which he filed his statement of defence and served on the plaintiff on 10th of November 2009. Thereafter this cause took its normal progress and set down for hearing on 14th of July 2010. However the hearing was not eventuated on 14th of July 2010 and the matter was fixed for mention on the 20th of August 2010. On the 20th of August 2010 the learned counsel for the Plaintiff Mr. Sevuloni Valenitabua withdraw his engagement as plaintiff’ solicitor as he was due to leave the county to take up a post in Solomon Islands. The Defendant stated that as a result of Mr. valenitabua’s withdrawal as plaintiff’s solicitor, the learned Magistrate advised both parties that the plaintiff had to find a another counsel to conduct his case and among other things he has to inform the defendant and or his solicitor as to the progress and the development of the case. Since then until recently neither the defendant nor his present counsel Messrs Marawai law did not hear anything more nor receive any notice about the status or continuation of this proceeding.
   
7. The Defendant having outlined the above stated reasons in his affidavit in support contended that he was not given a fair chance to defend himself and the plaintiff is not coming to this court with clean hands.
   
8. The learned counsel for the Defendant had filed a written submission together with his notice of motion even before the court heard the Notice of motion. The learned counsel may be wanted to tender all his arguments together with his notice of motion. I now turn to the said written submission before I proceed to review the affidavit in opposition filed by the Plaintiff.
   
9. The Defendant submitted in his written submission that this case was delayed or more or less “put on hold” as it were from 20th of August 2010. The learned counsel submitted that it was made clear in court that day that a new counsel for the plaintiff had to be found to continue with this case and defendant and or his solicitor be informed too or be made aware as to the continuation of the case.
   
10. The learned counsel for the defendant continuously blames the plaintiff for not informing the defendant of the progress of the proceedings of this case and wherefore he was deprived to defend the defendant fairly in this proceeding. The counsel for the Defendant urged that the order obtain subsequent to the hearing of plaintiff’s evidence is irregular and consequently the judgment by default stands to set aside. The learned counsel submitted fair amount of judicial precedents for me to consider in this ruling which I dully perused and considered accordingly.
    
11. The Plaintiff vehemently objected for this notice of motion. The plaintiff in his affidavit in response denied all the allegation leveled against him and stated that on the 14th of July 2010 his previous solicitor made an application to withdraw as his counsel therefore, the matter was adjourned to 20th August 2010 for mention only to fix a hearing date. Moreover the Plaintiff stated that his new solicitor filed his notice of change of solicitors on 17th of August 2010 and served on the defendant on 19th of August 2010. Accordingly the plaintiff urges that the defendant’s allegation is baseless and misconceived. The plaintiff further deposed that his solicitor wrote to Messrs Iqbal Khan and Associate and advice the matter was adjourned to 20th of September 2010 as per the counsel of Plaintiff’s undertaking in open court. The copy of notice of change of solicitors and the said letter advising the counsel for the defendant were annexed and tendered as exhibits with the affidavit for my perusal and consideration.
    
12. The plaintiff contended that is was the paramount duty of the Defendant to adhere to the rules and procedures of the court and enter his appearance if he wishes to do such. Apart from that, the plaintiff emphasized the hardship and difficulties he might undergo if the judgment was set aside and order for rehearing.
    
13. The learned counsel for the Plaintiff finally submitted her written submission in which she extensively discussed the relevant legal and factual issues pertaining to this application for set aside the judgment. The learned counsel for the Plaintiff urged in her submission that the judgment is not an irregularly made and defendant has not discharged his burden to satisfy the court to set aside the judgment which was made regularly after hearing the evidence presented by the plaintiff. I do not wish to be repetitive and only state that I carefully peruse and considered this detailed written submission of the learned counsel for the plaintiff in this ruling.
    
14. Upon considering the back ground of this proceeding and the respective affidavits and written submissions of the defendant and the plaintiff, I now proceed to pronounce my ruling on this application to set aside the judgment dated 26th of April 2011.
    
15. Order VI rule 8 of the Magistrates’ court’s rules stipulates that “In the case of liquidated demands only, where any defendant neglects to deliver and serve the notice of defence prescribed by rule 6 within the time limited by the said rule, and is not let in to defend in accordance with the provisions of rule 7, then and in such case the plaintiff may enter final judgment against that defendant”.
    
16. In view of the said Order VI rule 8, the defendant has filed his statement of defence. wherefore the Plaintiff is not entitle to enter a final judgment against the defendant.
    
17. Order XXX rule 3 deals with the instances where the defendant fails to appear at the hearing. The rule 3 of Order XXX stipulates that “If the plaintiff appears, and the defendant does not appear or sufficiently excuse his absence, or neglects to answer when duly called, the court may, upon proof of service of the summons proceed to hear the cause and give judgment on the evidence adduced by the plaintiff, or may postpone the hearing of the cause and direct notice of such postponement to be given to the defendant”.
    
18. In line with the rule 3 of order XXX, it is a discretionary power of the court to adduce the evidence of the plaintiff and give judgment or may postpone the hearing. If the court decided to proceed with the hearing in the absence of the Defendant, the court has to satisfy that the defendant was dully serviced with the writ of summon. If the court satisfy the summon was dully serviced on the defendant, the court may either enter a judgment by default in pursuant of Order VI rule 8 if the claim was a case of liquidated demand and the defendant neglects to deliver and serve the notice of defence prescribed by rule 6 within the time limited by the said rule, and is not let in to defend in accordance with the provisions of rule 7 of order Vi, or enter a judgment based on the evidence presented by the plaintiff if the claim is a non liquidated claims or if it is a liquidated claim where the defendant has filed his notice of intention of defence and/or his statement of defence but fails to appear at the hearing.
    
19. According to the aforementioned rules stipulated in the Magistrates’ court rules, I find that the Magistrates’ court is empowered with its discretionary power to deliver two modes of judgments in the absence of the defendant. Firstly a judgment by default pursuant of rule 8 of order VI and judgment after adducing evidence in the absence of the defendant. I do not wish to discuss the order XXXIV rule 3 of the Magistrates’ courts rules as it has no direct bearing to this instance case.
    
20. Order XXX rule 5 states that “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”. Order XXXII rule 11 states that “Any judgment by default may be set aside by the court or a magistrate upon such terms as to costs or otherwise as the court or magistrate may think fit”.
    
21. I find the differentiation between Order XXX rule 5 and the Order XXXII rule 11 is that the former applied in the instance where the defendant fails to appear at the hearing and judgment was delivered based on the evidence adduced before the court. The order XXXII rule 11 mainly applies for the instance where the court made judgment by default in pursuant of Order VI rule 8.
    
22. Order XXX rule 5 has given a wide range of discretionary power to the magistrate to set aside a judgment obtained against any party in the absence of such party.
    
23. Justice O”Regan held in Mishra v Car Rentals (Pacific) Ltd [1985] FJCA 11; [1985] 31 FLR 49 (8 November 1985) that “the question whether or not the judgment was entered irregularly or regularly. And we preface our observations by saying that in the application of similar rules as to that which is here under consideration, both in England and New Zealand, the cases in which a default judgment may be set aside have been grouped accordingly as the judgment was regularly or irregularly obtained. The distinction is clearly stated by Fry L. J. in Anlaby v. Praetor160;(1888)1888) [1888] UKLawRpKQB 55; 20 Q.B.D. 764 at69 where he said:
    >
    

"There is a strong distinction between settiide a judgment for irregularity in which case the Court has no discretion to refuse to set set it aside, and setting it aside where the judgment though regular, has been obtained through some slip or error on the part of the defendant in which case the Court has a discretion to impose terms as a condition of granting the defendant relief."

See, to like effect, Craig nssen (1943) K.B) K.B. 256 and tse cases discussed therein.

Accordingly, ify, if the judgment was obtainedgularly, as is contended, the appellant was entitled to have it set aside ex debito juto justitiae, but, iularly, the Courtoblitobliged to act within the fthe framework of the empowering provision - in this case - the proviso to O.XXXIV r.3 which confers an unfed diion upon the Court".

So, in the instant case, if the appellant had not appeared at the hearing and a judgment waered without the hearing of the evidence both as to liabiliability in negligence and of the special damages claimed, such judgment would have been also given irregularly with the consequences previously outlined."

25. In view of the above stated judicial precedent, I find in this instance case, the court heard the evidence of the plaintiff in the absence of the defendant and delivered its judgment accordingly upon proof of service of summons on the Defendant. Under these circumstances, I do not find that this judgment dated 24th of April 2011 is an irregularly made judgment. It was delivered in conformity with the rule 3 of Order XXX.
    
26. The primary consideration that the court needs to consider in order to exercise its discretionary power to set aside a regular judgment which was obtained in the absence of the Defendant has discussed in Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc (1986) 2 Lloyd's Report 221,) where Sir Roger Ormrod held that " it is important in our judgment to be clear what the "primary consideration" really means. In the course of his argument Mr. Clarke Q.C. used the phrase " an arguable case" and it, or an equivalent, occurs in some of the reported cases ( e.g. Burns v Kendel (1971) 1 Lloyd's rep 554 and Vann v Awford). This phrase is commonly used in relation to R.S.C. O 14 to indicate the standard to be met by a defendant who is seeking leave to defend. If it is used in the same sense in relation to setting aside a default judgment, it does not accord, in our judgment with the standard indicated by each of their lordships in Evans v Bartlam. All of them clearly contemplated that a defendant who is asking the court to exercise its discretion in his favor should show that he has a defence which has real prospect of success. Indeed it would be surprising if the standard required for obtaining leave to defend ( which has only to displace the plaintiff's assertion that there is no defence) were the same as that required to displace a regular judgment of the court and with it the right required by the plaintiff. In our opinion therefore, to arrive at a reasoned assessment of the justice of the case, the court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The "arguable defence" must carry some degree of conviction"
    
27. Having reviewed and discussed the leading judicial precedents on the issue of setting aside of regular judgment in Shocked and another v Goldschmidt and others ( 1998) 1 All E.R.372) Leggatt LJ held that " the cases about setting aside judgments fall into two main categories; (a) those in which judgment is given in default of appearance or pleadings or discovery and (b) those in which judgment is given after a trial, albeit the absence of the party who later applies to set aside. Deferent considerations apply to these two categories because in the second, unless deprived of the opportunity by mistake or accident or without fault on his part, the absent party has deliberately elected not to appear and adjudication on the merits has thereupon followed......
    

Contrasting the cases in the two categories it seems to me that whereas in the first the court is primarily concerned to see whether there is a defence on the merits, in the second the predominant consideration is the reasons why the party against whom judgment was given absented himself".

28. Bearing in mind the aforementioned judicial precedents on the issue of setting side of judgment, I find the primary consideration that the court is required to address in this application is the reason why the defendant failed to appear at the hearing.
    
29. Accordingly, I now proceed to carefully deliberate the contentions of the defendant. The defendant contended that the case was set down for hearing on 14th of July 2010. However the hearing was not eventuated on 14th of July 2010 and the matter was fixed for mention on the 20th of August 2010. On the 20th of August 2010 the learned counsel for the Plaintiff Mr. Sevuloni Valenitabua withdrew his engagement as plaintiff' solicitor as he was due to leave the county to take up a post in Solomon Islands. The Defendant stated that as a result of Mr. valenitabua's withdrawal as plaintiff's solicitor, the learned Magistrate advised both parties that the plaintiff had to find a another counsel to conduct his case and among other things he has to inform the defendant and or his solicitor as to the progress and the development of the case.
    
30. I find the defendant's above stated contention is misconceived and carries no merit or truth. Actually Mr. Valanitabua made an application to withdraw as the counsel for the plaintiff on the hearing date of 14th of July 2010 in the presence of the Defendant counsel. It was not on the 20th of August as stated by the Defendant. The case was then adjourned to 20th of August 2010 to fix for another hearing date at the presence of the solicitor of the Defenrand and the plaintiff was advised to engaged another solicitor if he wishes to do so. The case was not put on hold as claimed by the defendant and he was fully aware about the next date of the case it was 20th of August 2010. No order was made by the court directing the plaintiff to advice the development of the proceedings to the defendant or his solicitors as there is no such requirement in the magistrates' court rules to do such.
    
31. It is the duty of the defendant or his solicitor to adhere with the court orders and appear on 20th of August 2010; instead the defendant and his counsel chose otherwise. It was their deliberate decision and I do not find it as a genuine mistake or accident.
    
32. In addition, the Plaintiff deposed in his affidavit in response that his solicitor has advised the Defendant's solicitors in writing the next court hearing date and also served the copy of notice of change of solicitors appropriately.
    
33. In view of these findings, I am inclined to disregard the defendant's explanation of his absence at the hearing and do not consider it as a satisfactory reasons to invoke this court's discretionary power to set aside this judgment dated 26th of April 2011. The defendant has no reason to find fault with the Plaintiff as it is his and his solicitors' obligation to follow up and keep a track on their cases. ( Wickramasinge J in Samat v Qelelai (2012) FJHC 844; HBC 201;2002L (30 January 2012).
    
34. As far as the meritorious defence is concern, the defendant has not contended that he has a arguable defence with the prospect of success neither in his affidavit in support or his written submission, wherefore I hold that the defendant fails to satisfy the court that he has a meritorious defence with the prospect of success if the judgment was set aside and he is allowed to defend himself.
    
35. In conclusion, I refuse to set aside the judgment dated 26th of April 2011 and dismiss the notice of motion filed by the Defendant. The cost of this application will be summarily determined by the court at the presence of the parties.
    
36. Seven days to file notice of intention to appeal.
    

On this 23rd day of August 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.