IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. 5 OF 1995

Between:

KAMAL DEO SINGH
s/o Karan Singh
Plaintiff

and

HIRDESH CHAND DASS
s/o Ram Dass Trading as
MACUATA TIMBER SUPPLIES
Defendant

Mr. A. Kohli for the Plaintiff
Mr. G.P. Lala for the Defendant

DECISION

By an inter-partes Notice of Motion dated 2 May 2002 the defendant is seeking the following orders:

(a)	That there be extension of time for the Defendant to make application to set aside Judgment entered on the 9th of July 1999;

(b)	That there be a stay of execution of the judgment/order entered against the Defendant on the 9th of July 1999;

(c)	That the judgment entered on the 9th of July 1999 be set aside and that Defendant be granted unconditional leave to defend this action;

(d)	That there be an immediate stay on the execution of the Judgment Debtor Summons filed with the Magistrate’s Court Suva on the 31st of January 2002.

After the defendant and his counsel Mr. A. Sen failed to eventually appear for the hearing of this action, the case proceeded by way of formal proof when two witnesses were heard and judgment was entered against the defendant by Scott J on 4th March 1999 and sealed on 9 July 1999 in the sum of $25,000.00 as claimed and costs in the sum of $750.00.

Then after a lapse of about 3 years the defendant makes the present application for the reasons hereafter appearing. In support of his motion in his affidavit the defendant says in short that he has constantly been in touch with his said solicitor and he was told that ‘he was to get things under control’. He deposed that until sometime in December 2001 he has been ‘personally seeing or contacting Mr. Sen several times regarding this matter and on all occasions I was informed that Mr. Sen is handling this matter and there was no need for me to worry about anything’.

The defendant says that he only became aware of the judgment when a bailiff served him with a Judgment Debtor Summons on 31 January 2002. The defendant maintains that he has an ‘extremely substantial Defence’ to the plaintiff’s claim and he refers the Court to the Statement of Defence dated 27 March 1995 and filed herein by his then solicitor (Mr. Sen).

All that the plaintiff in effect says in his affidavit in reply to the defendant’s affidavit is that the ‘defendant has no grounds or substantial defence. He was well-aware of the hearing but failed to appear due to his own laxity.’

Consideration of the application

I have considered the affidavits filed herein. If I accept all that the defendant (applicant) is saying, then one can come to no other conclusion than that the defendant has been very badly let down by his then counsel Mr. Sen who was on record as solicitor for the defendant. It was Mr. Sen who had filed the Statement of Defence herein. It is important to note the following Statement in the judgment of Scott J who was the presiding Judge:

On 25 February 1999 Mr. Sen sought leave to withdraw: he told me that his client was not cooperating. There being no sign of the Defendant I put the matter back for one hour on Mr. Sen’s undertaking to do his best to locate the Defendant who lives and operates a business in Labasa town.

Upon the case being called again one hour later neither Mr. Sen nor the Defendant appeared.

Mr. Singh pointed out that until his withdrawal Mr. Sen had been acting for the Defendant who must therefore be presumed to have known of the date of the trial and who therefore had additionally to be presumed to have chosen not to appear.

In all the circumstances, including the wholly disproportionate delays to which this litigation had hitherto being subject I decided to proceed.

From what the defendant has deposed, it seems that he had a genuine complaint against his then solicitor and for which he is at liberty to take whatever appropriate action there is for him to take.

It is clear that the defendant wanted to defend the action and that is why a Statement of Defence was filed on his behalf. In view of what transpired subsequently the case was not heard on merits and judgment went against him the way it did. For the reason given the defendant did not appear at the hearing in the sense of not being present or represented at the hearing of the case and therefore the defendant’s position was not before the Court for consideration at the hearing.

In these circumstances the court has jurisdiction to set aside the judgment entered against him.

The question that looms large is: should the defendant be denied his day in Court by not allowing him to put his defence in Open Court at the trial of the action so that the claim can be determined on merits? Or, should he be left to pursue his remedy against his said solicitor if he so wishes?

There is no doubt that there has been a considerable delay in applying but it pales into insignificance when one considers the explanation given by the defendant in the absence of any explanation from his solicitor. It is pertinent to note that even after the hearing was stood down for an hour by the presiding Judge, counsel failed to appear to represent the defendant and hence no reason could be obtained for his inability to proceed with the case.

In these circumstances and for the above reasons, in the interests of justice I ought to grant the orders sought by the defendant but on condition. At one time on 23 July 2002, it was noted by Fatiaki J (now Chief Justice) that he ‘would consider setting aside on payment of judgment sum’ to which Mr. Kohli said that ‘seems very reasonable but Ms Prasad (for Mr. Lala) said ‘need instructions’.

For these reasons it is therefore ordered as prayed in items (a) to (d) referred to hereabove (as in the motion). The judgment is ordered to be set aside on condition that the defendant deposits the sum of $12,500.00 being half the sum claimed by the plaintiff together with $750.00 costs awarded against the defendant making a total of $13250.00 into Court within 28 days of this decision, otherwise the judgment will stand and all other steps taken pursuant thereto will remain. It is further ordered that the defendant file his Statement of Defence within 28 days of this decision unless he wants to adopt the Defence previously filed in which case he should notify the Court and the plaintiff. 

The defendant is also ordered to pay costs of this application to the plaintiff in the sum of $250.00 within 28 days.

D. Pathik
Judge

At Suva
13 February 2003