IN THE FIRST CLASS MAGISTRATES COURT AT NASINU
CIVIL JURISDICTION

Civil Action No. 105 of 2009

BETWEEN:

MAHABIR NARAYAN f/n HARAKH NARAYAN of Lot 17, Borete Road, Nadawa, Nasinu.
Plaintiff

AND:

UMESH KANT (f/n Uma Kant) of Nasau Nadi .
1st Defendant

AND:

NITYA RAM (f/n Unknown) of Suva in the Republic of Fiji Islands.
2nd Defendant

Mr. Ram Chand for the Plaintiff
Mr. Tirath Sharma for the Defendants 
Ruling on setting aside Judgment

[1] The Plaintiff filed this action seeking damages arising out of breach of contract between the Plaintiff and the First Defendant. The claim was as follows;

(a)	 An interlocutory injunction restraining the First and Second Defendant whether by itself or by its servants, agents or whosoever from dealing with motor vehicle registration no. EB399 in any manner whatsoever until the final determination of this matter.

(b)	An Order directing the First and/or Second Defendant whether by itself or by its servants, agents or whosoever to release, deliver and/or handover motor vehicle registration no. EB 399 to the Plaintiff forthwith and for the Plaintiff to keep the same in good condition or in the alternative release, deliver and/or handover vehicle registration no. EB 399 to Valelevu Police Station until the final determination of this matter.

(c)	 An Order for Valelevu Police Station to assist in the enforcement and/or execution of the injunctive orders made:

(d)	Specific Performance or alternatively Judgment in the sum of $20,083.76 against the First Defendant.

(e)	 Damages for breach of contract.

(f)	 Special Damages.

(g)	General Damages.

(h)	Interests pursuant to Section 3 Law Reform (Miscellaneous) (Interest) Act Cap. 27.

(i)	 Costs on a Solicitor/Client and/or Indemnity Basis.

(j)	 Such further and other Relief(s) as this Honorable Court deems just and equitable.

[2] I now briefly outline the chronology and the sequence of events and processes that occurred in regards to this case as follows:

a.	4th day of November 2009 – Inter-Parte Notice of Motion, Affidavit in Support and substantive Writ of Summons was issued out of Nasinu Court to be served onto both the First (Umesh Kant) and the Second (Nitya Ram) Defendants.

b.	10th day of November 2009 – Avinesh Chand conducted service of the relevant documents mentioned in (a) above on Nitya Ram and Affidavit of Service filed into Court on 15th day of February, 2010.

c.	28th day of November 2009 – Reaz Ali a registered bailiff conducted service of all the relevant documents mentioned in (a) above unto Umesh Kant and Affidavit of Service filed into Court on 7th day of January, 2010.

d.	15th day of February 2010 – The Court gave mention dates to regularize service and the filing of Affidavit from 4th day of November, 2009 until 15th day of February, 2010 when service of all the relevant documents mentioned to in (a) above was finally conducted. On application by the Plaintiff’s Counsel the interim action via Motion and Affidavit was withdrawn as in this action I was seeking certain injunctive Orders but the subject matter of this action – the motor vehicle – was illegally taken away by the First Defendant and quickly disposed off to another person – thus the whole action was an exercise in futility.

e.	23rd day of April 2010 – case set for Formal Proof.

f.	17th day of September 2010 – Formal Decree – Judgment was pronounced by the Honorable Magistrate Madam Alofa Seruvatu.

g.	15th day of February 2011 – Sealed Judgment (Order) was served onto Nitya Ram the Second Defendant by Vijay Lal and Affidavit of Service filed into Court on 8th day of July, 2011.

h.	4th day of July 2011 – Police Officer CPL Ami Nand served sealed Judgment (Order) onto Umesh Kant and Affidavit of Service filed into Court on 8th day of July, 2011.

i.	8th day of July 2011 – Shivanjani Gounder served both Nitya Ram and Umesh Kant each with Judgment Debtor Summons and Affidavit of Service filed into Court for service on both Defendants respectively on 12th day of July, 2011.

j.	15th day of July 2011 – The Judgment Debtor Summons was set for First Call in Nasinu Court but adjourned for mention only on 5th day of August, 2011.

k.	5th day of August 2011 – Patel Sharma Solicitors served Notice of Motion for Setting aside Judgment and Stay of Execution for and on behalf of Umesh Kant and the same was set for First Call in Court on this day.

l.	5th day of August 2011 – Both the Judgment Debtor Summons matter instituted by the Plaintiff against the two Defendants were set before the Court and the Notice of Motion filed by Patel Sharma Lawyers for the First Defendant, Umesh Kant was also set for the same day before the Honorable Court and the Honorable Magistrate Mr. Sahu Khan adjourned both the matters for hearing on 7th day of October 2011.

m.	23rd day of August 2011 – Solicitors for Second Defendant Nitya Ram filed Notice of Motion for setting aside of the Plaintiff’s Judgment dated 17th day of September 2010 and that Judgment be stayed pending until final determination of this Motion.

n.	23rd day of August 2011 – The Notice of Motion filed by Kohli & Singh for Nitya Ram was set for First Call. When this matter was called there was no appearance for the Second Defendant or his Solicitors and upon application made by Mr. S. Shah Esquire Solicitors acting for and on behalf of the Plaintiff got the Motion struck out.

o.	23rd day of August 2011 – The Solicitor Raman Singh of Kohli & Singh for the Second Defendant appeared later for and on behalf of his client to re-instate the struck out matter informally and the matter got somehow adjourned to 27th day of September, 2010. No Notice of Adjourned Hearing was served onto the Plaintiff or his Solicitors and without any formal application the Second Defendant Notice of Motion dated 4th day of August, 2011 remains in suspense.

p.	7th day of October 2011 – On this day the two matters which were adjourned on 5th day of August 2011 to be dealt with and to be heard on 7th day of October 2011 (See Paragraph 1 Supra) came up in Court. The court indicated from the Bench that the matter was struck out. Mr. Ram Chand for the Plaintiff submitted that the Judgment Debtor Summons matter against both the Defendant’s is alive and kicking together with the Notice of Motion action issued by Patel Sharma acting for and on behalf of the First Defendant for setting aside of Judgment and stay of execution. Mr. Ram Chand submitted that only the Second Defendant’s Notice of Motion action filed by Kohli & Singh was dismissed and not the Plaintiff Judgment Debtor Summons matter. Mr. Ram Chand asked for the Court file to be perused with the assistance of a Court Officer for clarification. This matter was verified accordingly. The matter was adjourned to 25th day of October, 2011 for clarification. 

q.	25th day of October 2011--The clarification done and it transpired that only second defendant’s motion was struck out. It was called to support for reinstatement, but No counsel appeared for the second Defendant. The matter remained as struck out. 

r.	11th day of November 2011—Notice of change of Solicitors filed. Ruling was set for setting aside of default judgment on 01st Defendant. 

s.	24th day of November 2011—on the Notice of motion of the second Defendant’s application for setting aside default judgment was called. The Plaintiff did not object for reinstatement as the whole matter can be addressed. Then, second Defendant’s application to set aside default judgment and judgment debtor summons was reinstated. 

[3] As I noted above, that only remaining application before this court is ruling on setting aside a default judgment. The substantive matter in this action is based on the Plaintiff’s claim dated and filed on 3rd November, 2009 which was not served on the Defendants as claimed by the Defendants. Due to the non-appearance of the Defendants a formal proof date was set on 24th March 2010. On that day, the Plaintiff proceeded to formally prove his claim and judgment was entered and order sealed accordingly. Later, the Defendants through their Solicitor filed a Notice of Motion to set aside the Default Judgment which was entered against the Defendants. There is no objection for procedural irregularities by the both parties.

[4]Both parties have filed their affidavit along with pertinent documents. I considered whole these literatures. 

 [5] 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.”

[6] The first defendant in his affidavit sworn on 1st July 2011 and filed on 7th July 2011 ,deposed that his failure to appear was not deliberate at all but arose as a consequence of not been served with the documents by the Plaintiff. In his affidavit he further states that he only became aware about the said Judgment when he filed a separate action in Small Claims Tribunal Lautoka against the Plaintiff and on the first call of the matter on the 22nd September 2010, Plaintiff appeared and advised the Tribunal that he has obtained Judgment against the 1st Defendant in Nasinu Magistrates Court and handed over the copy of the said Judgment. He stressed for the interests of justice, it requires that the 1st Defendant be given an opportunity to cross-examine the Plaintiff’s witnesses and to rebut the evidence adduced by them. The 1st Defendant has said that he has a valid and meritorious defence and counter-claim in this matter, which should be fairly adjudicated in the interests of justice.

[7] The first 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

[8] The second defendant in his affidavit said he appeared Nasinu Court on 15th July 2011 in relation to judgment debtor summons. This Defendant said that the Plaintiff solicitor instructed him not to come next court date and requested him to help the Plaintiff retrieve vehicle back. Before he could enter the judgment was entered against him. He said that he is specializing in tow truck business and on the instruction of the first defendant he towed disputed vehicle. He also said that he has a meritorious defence and copy of draft statement of defence also attached to his affidavit. 

[9] In contrary, The Plaintiff objects to and vigorously contests the application made by the Defendants for the following reasons:

(a)	That there is an inordinate delay on the part of the First Defendant in making this application which is not substantially established in this Honorable Court. The delay is some 21 months after the service of the relevant documents were conducted onto the First Defendant by a registered bailiff Reaz Ali on 28th day of November, 2009 is not fully and properly explained for the First Defendant could and should have taken a serious and expenditures approach to the Court process involved but failed to do so.

(b)	 That the First Defendant’s proposed defence came in very late in the process and he had all the opportunity to defend the same but deliberately chose to ignore the same until the Plaintiff effected execution process by way of Judgment Debtor Summons.

(c)	That the First Defendant states that he came to know of the Judgment entered into by the Plaintiff on 22nd day of September, 2010 when he instituted a Small Claims Tribunal Action in Lautoka. Thereafter he took almost 1 year to file this action challenging the Default Judgment regularly entered by the Plaintiff which is inexcusable. There was no form of notification given to the Plaintiff or his Solicitors of his intended challenge to the Judgment entered against him.

(d)	That the Plaintiff shall be greatly prejudiced if the Second Defendants application is granted by the Honorable Court because he shall be denied the fruits of his regular Judgment thus obtained through the Court process. The Plaintiff’s prejudice outweighs that of the Defendant in circumstances.

(e)	That the Second Defendant alleges that the registered bailiff Reaz Ali who claims he had served the relevant documents onto him at Nasau in Nadi where he lives, in fact did not serve him the said documents on him. This Reaz Ali had testified on oath as to the validity of Service onto him personally. The Second Defendant does not give any further explanation as to whether he in fact was not in Nasau in Nadi when the service was conducted upon him by the Bailiff.

(f)	That the Second Defendant failed to act fairly, reasonably and expeditiously to safeguard his personal interest and deliberately ignored if not took a very relaxed approach to defend and safeguard his legal rights during the time he had all along at his disposal and therefore it will be unjust, unfair and unreasonably to the Plaintiff if the Second Defendant is given the opportunity now at this rather late hour to come in and restart the whole process from the beginning in his favour and we humbly and respectfully submit that this Honorable Court looks at this Defendant’s application in that manner that his approach was very casual and relaxed.

(g)	That the Second Defendant is deliberately and intentionally playing a delaying tactic in this case which is damaging, detrimental and proving very expensive to the Plaintiff taking into account the whole circumstances of this case and the inordinate and unreasonable delay now being caused by him is unacceptable.

(h)	That the Second Defendant is now raising certain issues in his proposed defence but all these issues were raised for resolution by the Plaintiff in the substantive Writ which the Second Defendant did not see it appropriate to defend when he had the chance. He deliberately and monophonically and now he is trying to get as Second bite to the cherry so as to speak to monophonically.

 [10] 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.

[11] 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".

[12] In line with the above legal principles, I now deal with the merits of this application. This case was emanated by breach of contract. It was an agreement between the Plaintiff and the first Defendant which was entered on 13th July 2008. In that the Plaintiff agreed to get comprehensive insurance cover (See clause 2(b) and clause 4). This car was met with an accident and vehicle condition was deteriorated. The accident also caused damages to other three vehicles. At the time of the accident the vehicle was not driven by the Plaintiff and it was handed over to a "friend". The Plaintiff said that insurance premium was handed over to the first Defendant, but he fail to obtain a comprehensive Insurance Cover. But According to the contract there is no such clause and the responsibility to get valid insurance lies on the Plaintiff. He has filed documents with relating to this point but without testing it on oath this court cannot find any answer who is liable. Prima facie, there is some delay on the defendants, but it cannot defeat the justice. The Affidavit of Service of Document by fiscal is presumed to be duly served to the party. It should be rebutted by the impugned party. That is the common law as it is persuasive to me. (Wimalawathi v Thotamuna, [1998] 3 Sri Lanka Law Report 01, Justice Dr. R.B. Ranaraja), thus these things need to be ironed out. 

[13] In amendments to the pleadings, in 1884, Cropper v Smith Bowen L.J. said;

"Now, I think it is a well established principle that the object of Courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases .........I know of no kind of error or mistake which, if not fraudulent or intended to overreach, the Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for sake of discipline, but for the sake of deciding matter in controversy, and I do not regard such amendment as a matter of favour or of grace" 

[14] In 1876, Tildesley v. Harper  where Bramwell L.J. said; 

"My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise. However negligent or careless may have been the first omission, and however and late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side. There is no injustice if the other side could be compensated by costs." 

[15] I hope the same principles will apply to the setting aside of judgement, if the defendants have meritorious defence. I think this matter should be adjudicated on merits. 

[16] I therefore make following orders;

a)	The Application for judgment by default be set aside is hereby allowed.

b)	Judgment Debtor summons issued against the 2nd Defendant is hereby dismissed.

c)	The Plaintiff is entitled to have $700 cost (summarily assessed) of this application and vacation of default judgement and JDS. Cost to be paid by both Defendants equally. ($350 x 2)

d)	The Defendants to file statement of defence and serve to the Plaintiff within 14 days and the Plaintiff to file reply within 7days thereafter (If any). 

Orders accordingly.

On 07th February 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate