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Khan v Nisha [2019] FJMC 114; Civil Action 64 of 2017 (9 August 2019)

IN THE MAGISTRATE’S COURT AT LABASA
CIVIL JURISDICTION
Civil Action No. 64 of 2017

BETWEEN: BASHIR KHAN

PLAINTIFF

AND : MRS SHAIN SHABNAM NISHA

DEFENDANT

Counsel: Mr Sadiq. M for the Plaintiff

Mrs Raj. R for the Defendant

Ruling : 9 August 2019

RULING

1. This is the Defendant’s application to set aside a judgment by consent entered on 15 November 2017.
   
2. The Plaintiff opposed the application.
   
3. The matter was set for hearing. On the hearing date the Counsel’s for the parties agreed for the parties to file submission and the court can make a ruling on the submission filed.
   
4. The parties had filed their respective submission.
   

Analysis and determination

5. In this ruling, I have considered all the documents filed by the parties in relation to this application.
   
6. The law in this jurisdiction on this issue has been settled by various case authorities.
   
7. Consent judgment is capable of being set aside but once it is passed and entered it requires a fresh action to be brought for that purpose of setting aside. A consent order cannot be set aside by application in the same action. A fresh action has to be instituted for that purpose. (see State Transport Ltd v The Housing Authority [1989] 35 FLR 13).
   
8. A consent judgment is a final judgment of the court for all purpose and it may be set aside on the ground of fraud or mistake. (see Atish Kumar Sen v Sen Brothers Transport Company Civil Action No. HBC 154 of 2013 (29 March 2019))
   
9. In this case, the judgment by consent was entered and sealed on 28 November 2017. Therefore, a fresh action is required.
   
10. The application fail to show that there are elements of fraud or mistake involved that led to the issue of the consent judgment. On 15 November 2017, the Defendant informed the court that she admitted to the claim. The claim and the prayer was properly explained to the Defendant and the Defendant maintained her admission to the claim that led to the issue of the consent judgment.
    
11. Considering the application, and what transpired to the issue of the consent judgment as discussed above, and the requirement for a fresh action, I find the application is misconceived.
    
12. In this ruling, I dismiss the application and struck out the application with cost of $200.00 to the Plaintiff.
    

30 days to appeal.

C. M. Tuberi

RESIDENT MAGISTRATE