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KKS Hardware Ltd v Qoro [2012] FJMC 27; Civil Action 09.2008 (28 February 2012)

IN THE FIRST CLASS MAGISTRATE'S COURT
(WESTERN DIVISION) AT NADI

Civil Action No.9 of 2008

BETWEEN:

KKS HARDWARE LIMITED a limited liability company having its registered office at Shop No. 7, Mistry Shop, Plaza Building, Clay Street, Nadi Town.
PLAINTIFF

AND:

JOLAME QORO of Sabeto Village, Nadi.
DEFENDANT

RULING [on setting aside]

On 15th May, 2009 the Defendant filed an application by Notice of Motion and sought the following orders:

1. An ORDER that the judgment entered by default against the Defendant on the 6th day of May 2009 by this court be set aside.
   
2. An ORDER that the execution of the said judgment entered on the 6th day of May 2009 be stayed.
   
3. An ORDER that the Statement of Defence be reinstated.
   
4. An ORDER the Plaintiff pays for the cost of this application.
   

The Defendant has made This application pursuant to Order XXVI Rule 11 of the Magistrates Court Rules and Proviso (i) of section 16 (1) of the Magistrates Court Act.
The application is supported by an Affidavit of Jolame Qoro, the defendant sworn on 13th May, 2009. In support of this application Mr. Ram solicitor for the Defendant also filed a written submission dated 15 June 2010.

The Plaintiff opposes this application and has filed an Affidavit which he swore on 25th of June, 2009 to which the Defendant has filed an Affidavit in Reply and the Plaintiff prays that the Defendants application be dismissed.

The Background of this case may be summarised in chronological order as follows:

(i) The plaintiff initiated proceedings against the Defendant for money owed for goods sold and delivered to the Defendant.

(ii) The Defendant appeared in person and filed Statement of Defence in the matter on 30th April 2008.

(iii) Thereafter the matter was adjourned for several times to enable the parties to arrive at a settlement. And the matter was adjourned to the 06th of May, 2009 for hearing as the Parties failed to reach a settlement. The hearing date was set on 18th February 2009.The Defendant was present when hearing date was fixed in the matter.

(iv) When the matter was called on the 06th day of May, 2009 for hearing the Plaintiff's witnesses were present and ready for hearing. There was no appearance of the Defendant.

(v) The Defendant's Defence was then struck out and the Court heard evidence adduced by the Plaintiff and entered Judgment in favour of the Plaintiff in the sum of $8727.77 plus costs of $250. This judgment was sealed on 7th May 2009.

The Defendant does not complain that the default judgment was obtained irregularly. Therefore court has discretion to set aside the default judgment.

As is clear from the written submission the Application is brought pursuant to provisions of O.XXX, R.3 of the Magistrates Court Rule the relevant part of which reads as follows:

"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".

The Defendant argued that the special circumstances set out in paragraphs 5 to 9 of his Affidavit I should exercise my discretion to set aside the default judgment.

Mr. Jolame Qoro in his Affidavit deposed as follows:

5. That when the constitution of the Republic of Fiji was abrogated by the President of Fiji I had sent my wife to check with Nadi Magistrates Court as to whether the action herein against me would proceed to hearing on the 6th day of May 2009.
   
6. That I am informed by my wife and verily believe that a court clerk at the Nadi Magistrates Court House advised my wife that all cases would be adjourned for a month.
   
7. That from the above I understood that the action would be heard on the 6th day of June 2009.
   
8. That I attended the Nadi Magistrates Court House on the 6th day of May 2009 at about 11 am to double check the new date for the case and was advised by the court clerk that a default judgment has been entered against me.
   
9. That I had no knowledge that the above action was to called on the 6th day of May 2009 as I thought the matter was fixed for hearing on the 6th day of June 2009.
   

It is to be noted that the Defendant was present on 18 February 2009 when the case was fixed for hearing on 6 May 2009. In his affidavit the Defendant states that on 6 May 2009 he sent his wife to check with the court as to whether the case would proceed to hearing on that day and he was told by his wife that all cases would be adjourned for a month. Interestingly the Defendant in fact appeared in court at 11am on 6 May 2009 to double check what his wife told to him about the hearing and was advised by the court clerk that a default judgment has been entered against him.

The Defendant says he had no knowledge of the hearing of the case on 6 May 2009 and he had an impression that the matter was fixed for hearing on 6 June. I cannot see why he had this impression when he was well aware of the hearing date being 6 May 2009. Because he was present in court on 18 February 2009 the day on which the matter was fixed for hearing on 6 May 2009.

The Defendant could not even file an affidavit from his wife to confirm what he asserts.

The Defendant also claims that he has a meritorious defence against the Plaintiff and have file Statement of Defence therein he says he owed some money to the Plaintiff which he has paid. Further he says that he does not owe the rest of the money to the Plaintiff. However the Defendant does not provide any details of the amount he owed and payment he has made. No receipts for the payments have been annexed either. Therefore I find no meritorious defence in the Statement of Defence.

In a setting aside application what is significant the explanation given by the Defendant for his non appearance on the day fixed for hearing. In this application the Defendants explanation about his absence on 6 May 2009 the day the default judgment was entered is not satisfactory. The Defendant has failed to show sufficient cause why the default judgment entered against him on 6 May 2009 should be set aside.

Therefore the application to set aside the default judgment entered on 6 May 2009 is dismissed with cost which is summarily fixed at $250.00.

Orders accordingly.

M H Mohamed Ajmeer
Resident Magistrate
Nadi

At Nadi this 28th day of February 2012