IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 378 OF 1990

Between:

NACANIELI MOCE
Plaintiff/Respondent

and

1. NEORI RACULE
2. DURGA PRASAD
s/o Tota Ram
Defendants/Applicants

Mr. S. Chandra for the Applicant/2nd Defendant
Mr. T. Fa for the Respondent/Plaintiff

DECISION

By Motion dated 13 September 1995 the Applicant (the Second Defendant, the first having died) seeks an order to set aside judgment dated 1st August, 1995 on the grounds contained in his affidavits filed herein. In fact it is an application to set aside the default judgment herein of 27 June 1991. The judgment of 1 August 1995 is judgment on Assessment of Damages further to the said default judgment.

The Respondent (Original Plaintiff) opposes the application. Both parties have filed lengthy affidavits.

I have considered these affidavits and have also given consideration to the submissions made by both counsel.

Background

The background to this case very briefly is that the claim in this action arises out of a motor vehicle accident against the defendants. It was alleged that D2 was the owner of the motor vehicle Regd. No. AW 654 which was involved in the accident. The D1 was then the driver; he is now deceased. The D2 now denies that he was the owner of the vehicle. On 27 June 1991 judgment by default was obtained against D2 with damages to be assessed. The judgment on assessment of damages in the absence of D2 in the sum of $31652.00 was delivered on 1 August 1995.

Applicant's contention

It is D2's contention that he was neither served with the Statement of Claim nor with the Notice of Hearing of Assessment of Damages. Hence he did not have the opportunity to file Statement of Defence. The other limb of his argument is that he sold the said vehicle to the plaintiff "sometimes in late October, 1987 and received full consideration of the sale. The said vehicle was delivered to the first Defendant and he took possession of it since then. Soon thereafter I left for overseas." Therefore he claims that he was not the owner of the vehicle at the time of the accident nor did he authorize him to drive it. He says that he cannot be made liable for the accident.

In an affidavit sworn by D2 on 13 November 1995 he tries to explain the steps he took to find out about his case. Then in an affidavit filed by him on 11 July 1996 he attaches a photocopy of the records of the vehicle from the Road Transport Department wherein he says "it shows that on 27th October 1987 the First Defendant Neori Racule had been recorded as the owner of the vehicle".

He is asking the Court to set aside the default judgment otherwise he feels that grave injustice will be caused to him.

Respondent's contention

The Plaintiff by his affidavits states that D2 was served with the Writ of Summons and the Summons for Assessment of Damages. He says that the record at the Transport Control Board "is very clear as to the ownership of the vehicle at the time of the accident".

Consideration of the issue

Having read the affidavit of D2 I am not at all convinced with the contents of most of his affidavits. I do not consider going into details suffice it to say that D2 has told many lies and one of the lies is that he was sitting in my Chamber before I arrived at office. It transpired in Chambers at the hearing of this application that he could not have been in my Chambers for according to his counsel he does not even know me by sight. The other lies is that he was not served with the Writ of Summons and assessment of damages Notice. He has simply been evading coming to Court.

Be that as it may, D2 has produced some evidence which on the face of it throws some doubt on the ownership of the vehicle. This document is a photocopy of the record of the vehicle indicating ownership. The D2 says that his counsel has been trying "to obtain a more clearer and certified copy" of it but "to date has been unsuccessful". He has attached to his affidavit copies of letters written to the Road Transport Department in this regard.

That there has been some confusion in regard to ownership is borne out by the plaintiff's own affidavit sworn 30 October 1996. There he says that action was commenced against "Lieutenant Latianara" as the second defendant; but then later on it was issued against D2. Which document showed D2 as the owner has not been produced to Court.

The D2 has actually produced, so to say, fresh evidence which needs to be investigated. This could no doubt have had a material effect upon the decision of the Court. To entitle D2 to set aside judgment on fresh evidence, I refer to Halsbury's Vol. 26 4th Ed. para. 561 where it is stated:

"An action will lie to rescind a judgment on the ground of the discovery of new evidence which would have had a material effect upon the decision of the court. It must be shown (1) that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) that the further evidence is such that, if given, it would have an important influence on the result of the trial, although it need not be decisive; and (3) that the evidence is such as is presumably to be believed."

Had it not been for this "fresh evidence", which I consider to be a vital factor, I would not have believed D2 on a good deal of other matters he raised in his affidavits particularly as to service of writ and notice of assessment of damages.

Lest it appear that injustice may have been done to D2, I consider that he ought to be given the opportunity to defend and prove, inter alia, that he was not the owner of the vehicle at the time of the accident.

The D2's counsel has stated that D2 could be ordered to pay Court costs and counsel's costs.

For these reasons it is ordered as follows:-

a)	The default judgment entered herein on 27 June 1991 be set aside on condition that the second defendant pay court costs and plaintiff's counsel's costs within 28 days from the date of this decision. On these costs I would like counsel to address me particularly on the actual amount that I should order AND that he file his Statement of Defence within the said 28 days.

b)	If the second defendant fails to comply with the order in (a) above the said default judgment and the said assessment of damages judgment of 1st August 1995 herein shall remain and be of full force and effect.

(c)	If the second defendant does not succeed in this action then there will be no need for another Assessment of Damages but that the said assessed judgment will come into effect.

(d)	the second defendant is ordered to pay to the Plaintiff the costs of this Motion to set aside.

D. Pathik
Judge

At Suva
6 March 1997
HBC0378D.90S