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Nisha v Ali [1996] FJHC 110; Hbc0535d.92s (29 March 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 535 OF 1992

Between:

1. SAMSUL NISHA d/o Nabi Jan
2. NAZMUL HUSSEIN d/o Jumman
by their Attorney Abdul Hussein
Plaintiffs

- and -

1. AMINA ALI
2. STATE TRANSPORT LIMITED
3. SAFAR ALI s/o Mohammed Kasim
Defendants

Mr. Manoj Narsey for Mr. G. P. Lala for the Applicants
Mr. N.S. Arjun for the Respondents

DECISION

The Applicants who are the second and third defendants are applying by motion (as amended) dated 10 November 1995 seeking orders as follows:

(a) For an order that judgment entered herein be set aside and that the second and third defendants do have leave to file defence and be at liberty to defend this action unconditionally OR that alternatively, in the event that judgment is not set aside, the second and third Defendants be granted leave to appeal.

(b) For an order that execution be stayed on the judgment entered by the Court.

Mr. Narsey in response to my question said that the prayer "alternatively" is in actual fact an application to appeal out of time.

After hearing both counsel I gave an oral decision dismissing the motion and I said that I will give reasons later which I now do.

In support of his motion Mr. Narsey relies on the Affidavit of Saffar Ali (the third defendant - D3) sworn 7 March 1996. The said affidavit states, inter alia, that D2 and D3 had nothing to do with the excavation but that it was done by one Makshood Ali; secondly, their solicitor "inadvertently" failed to file defence; thirdly, that they have a valid defence to the action; fourthly, D3 was absent from Fiji; fifthly, his (D3's) solicitors were not aware of the hearing and that he also was not informed.

For the Respondents, Mr. Arjun opposed the application on the grounds that the applicants had full opportunity to defend the action which they did not do. Even after judgment when hearing of assessment took place they did not appear despite service of notice of hearing but their solicitor Mr. Savu appeared on the day of the hearing and withdrew from the action.

Mr. Arjun submitted that it is a frivolous application and which is well out of time. He says it ought to be refused.

I find that this application is devoid of merits. I agree with Mr. Arjun that the application is frivolous bearing in mind the chronology of events. From the manner in which Mr. Narsey made his submission I had the clear impression that he realised that he had an uphill battle trying to support his application.

The background to the case is that on 22 January 1993 a default judgment with damages to be assessed was entered against the defendants. This was served on D3 on 18 February 1993; the then solicitor for the applicants Mr. I. Fa did file a motion to set aside judgment on 12 March 1993 but this fell by the wayside because their counsel did not appear when matter was adjourned for "settlement" from time to time; thereafter Notice of Assessment of damages was issued by the Plaintiffs on 23 April 1993. The hearing of assessment of damages was fixed for 19 October 1993. Notice of hearing was served on the applicants. Although Mr. I. Fa was the solicitor on record for the applicants, Mr. Savu for G.P. Lala & Associates appeared on the day of hearing of assessment. The Court refused to adjourn whereupon Mr. Savu withdrew. No notice of change of solicitors was filed either, and for all intents and purposes Mr. I. Fa was solicitor on record. The applicants themselves were not present that day. The Court proceeded to hear assessment of damages.

The applicants are asking the Court to set aside "that judgment" alternatively for leave to appeal out of time.

In view of the history of this case I cannot set aside that judgment as no acceptable reasons have been advanced. Even after applying to set aside judgment D3 and/or his solicitors failed to appear before Kepa J. until finally his Lordship made an order for assessment and the Defendants were served with Notice of hearing of assessment of damages. The D3's statement in the said affidavit that neither he nor his solicitors were aware of the hearing (I take it for hearing of assessment) goes to show that he is not telling the truth; for one thing Mr. Savu did appear on the hearing of assessment and if he was not aware why would he be present and the only way he would have known of the hearing was from the Notice of Hearing of assessment served on D3.

No doubt, the solicitors for the applicants are acting upon instructions, but going by the chronology of events this application is an abuse of the process of the Court. The applicants want the whole matter to go back to square one, which cannot happen when they had all the opportunity in the world to defend.

The motion was for these reasons dismissed as being frivolous and devoid of any merit whatsoever.

There was no order as to costs as Mr. Arjun decided to forego it.

D. Pathik
Judge

At Suva
29th March 1996

HBC0535D.92S