Mr. A. Sen for the Appellant
Mr. H. Robinson for the Respondent JUDGMENT
This is an appeal against the ruling of the Trial Magistrate, Labasa delivered on the 25th September 1996 refusing to set aside a judgment of the Magistrate Court granting the respondent board vacant possession of native land occupied by the appellant and his family 'without any colour of right'.
Although there are three (3) grounds of appeal, they are best summed-up in ground (2) as follows:
"The Learned Magistrate erred in law and in fact in the exercise of his discretion in dismissing the Appellant's application
for setting aside a default judgment."
That the Magistrate Court has the necessary discretionary power to set aside a default judgment or a judgment entered in the absence of a defendant is clear
from a perusal of the Magistrate Court Rules, in particular: Order XXX rule 5; Order XXXII rule 11 and the proviso to Order XXXIV rule 3.
In this latter regard the Fiji Court of Appeal held in Subodh Mishra v. Car Rentals (Pacific) Ltd. (1985) 31 F.L.R. 49:
"Pursuant to Order XXXIV rule 3 where there had been a failure to comply with an interlocutory order the Court in the exercise
of discretion may enter a judgment on the claim whether the claim be liquidated or unliquidated and without the necessity of hearing
the evidence even in cases where the claim is in tort."
furthermore:
"... the appellant was not entitled to have it set aside unconditionally and as of right."
Counsel for the appellant in arguing the appeal did not go so far as to assert such a 'right' but counsel did submit however that the trial magistrate ought in the exercise of his discretion, to consider the well known principles
applicable to an application to set aside default judgment, and counsel referred in particular to the judgment of the House of Lords in the leading case of Evans v. Bartlam (1937) A.C. 480 and the decision of the New Zealand Court of Appeal in Russell v. Cox (1983) N.Z.L.R. 659.
In this regard however, O'Reagan J.A. delivering the judgment of the Court in the Car Rental case (op. cit) said at pp.53/54:
"The proviso (to Order XXXIV r.3) empowers the imposition of terms and lays down no bases upon which the discretion is to be
exercised. Bowen L.J. in Gardiner v. Jay [1885] UKLawRpCh 60; (1885) 29 Ch.D. 50 at p.58 referring to that situation said:
'When a tribunal has been invested by Act of Parliament or by Rules with a discretion, without any indication in the Act or Rules
of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view to indicating the
particular grooves in which the discretion ran, for if the Act or the Rules does not fetter the discretion of the Judge, why should
the Court do so?'"
Be that as it may I agree with the submission of counsel for the appellant that the discretion of the trial magistrate is in similar
terms to that of the High Court under Order 13 r.10, Order 14 r.12 and Order 19 r.9 of the High Court Rules and in the interests of consistency, if nothing else, a similar approach ought to be adopted by the Magistrates Court in the exercise of its discretion to set aside default judgments.
Furthermore having regard to the particular remedy sought in this case namely an order for vacant possession of land, some assistance
and guidance may be obtained by referring to the statutory requirement in a 'Section 169 Land Transfer Act application' that the occupier must 'prove to the satisfaction of the (court) a right to the possession of the land'.
Having said that however the learned trial magistrate in his 2 page ruling (at pp. 107 & 109 of the record) quite clearly and plainly was aware of the relevant principles that guides the exercise of his discretion and his ruling cannot be
faulted on that score.
Principal amongst the established guidelines for an exercise of the discretion to set aside a default judgment is the requirement
that the defendant must advance a 'good and arguable defence on the merits'.
In this latter regard the learned trial magistrate stated in his ruling (at p.109):
"In the instant case the land concerned is Native Land and the plaintiff is the N.L.T.B. The defence proposed does not seriously
dispute the fact that the subject of the Action is Native Land the control of which is vested in the plaintiff. The defendant does
not contend that he is or ever was a tenant or lessee of the subject land or that he holds or even held any title to it. In his evidence
the plaintiff's witness deposed that the defendant was a squatter on the land which fact the defendant was not denied in his affidavit
or in the proposed defence. Indeed not a single fact is alleged which shows that the defendant has a defence on the merits. He impliedly
admits that he pays no rent."
and later the trial magistrate observed (at p.111 of the record):
"... even if this application to set aside the judgment is allowed, I simply cannot see how the defendant can resist an action
for eviction on the facts contained in his affidavit and the proposed Defence."
Counsel for the appellant in arguing the appeal drew the Court's attention to the proposed Statement of Defence (at p.57 of the record) in particular paragraphs 1, 5 & 8 which reads:
"(1)THAT the Defendant agrees that he is occupying a portion of land belonging to Mataqali Navurevure but says that the same
is out of (the) control and administration of the plaintiff;
(5)THAT I failed to understand the locus standi of the Plaintiff who have not served me with any Notices ...; and
(8)THAT I have paid the sum of $153.00 to the Plaintiff when we were promised to be issued a registered lease upon payment of the
said amount."
With all due regard to counsel for the appellant his submissions and the proposed defence as pleaded, stands no chance whatsoever
of succeeding in so far as it plainly ignores or offends the provisions of Sections 4(1); 7; 8; 23 and 27 of the Native Lands Trust Act (Cap. 134).
When pressed with the above provisions Counsel for the appellant sought to rely on Section 9 of the Native Lands Trust Act (Cap. 134) which in terms prohibits the alienation of native land "... unless the Board is satisfied that the land (in question) is not being beneficially occupied by the Fijian owners and is not likely ... to be required by the Fijian owners for their use,
maintenance or support."
Even assuming that Section 9 is available to be pleaded by way of a defence to a claim for vacant possession of Native Land, I cannot accept that the proposed
defence contains sufficient factual materials to support it. Needless to say the land must not only be 'beneficially occupied by the Fijian owners' but also the plaintiff Board itself must be satisfied of the existence of such a 'state of affairs'.
As for the alleged 'promise' or 'agreement' by the plaintiff Board to lease the land in question to the defendant, the plaintiff Board's affidavit evidence and annexures clearly
and unequivocally establishes that any offer to lease the land to the defendant was withdrawn in 1991 some four (4) years before the present proceedings were instituted.
In Eagil Trust v. Piggot-Brown (1985) 3 ALL E.R. 119 Griffiths L.J. speaking of the Court's approach in an appeal against the exercise of a judicial discretion said at p.121:
"... there is a heavy burden on an appellant to demonstrate to this Court that the judge has either failed to apply well-settled
principles or, alternatively, that his decision can be attacked on what are colloquially known as 'Wednesbury grounds'."
On neither limb has Counsel for the appellant succeeded in persuading me that the learned trial magistrate has erred in his refusal
to set aside the judgment entered in the absence of the defendant and accordingly the appeal is dismissed.
D.V. Fatiaki
JUDGE
At Labasa,
18th March, 1997.
Hba0001j.97b
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