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Ram v Shankar [2012] FJHC 1200; HBC095.2010 (9 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 95 of 2010

BETWEEN:

RONALD RATI RAM of Naduru Road, Nausori.
PLAINTIFF

AND:

SUKENDRA PRASAD SHANKAR of Nausori, Factory Manager.
DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSEL: Mr. Pillay for the Plaintiff
Mr. Shah for the Defendant

Date of Hearing: 15th June, 2012
Date of Ruling: 9th July, 2012

RULING

A. Introduction

1. The Plaintiff has filed this action against the Defendant seeking an order restraining the Defendant from evicting and also seeking declaration that the property which the Plaintiff is in occupation is vested in the fee simple in equity to the Plaintiff and a declaration that Plaintiff is the owner of the improvements and the land on which the improvements are situated and an order that the Defendant execute a conveyance of the land in fee simple to the Plaintiff. The Plaintiff as an alternative remedy is seeking damages for the improvements to the land and general damages. The Plaintiff obtained the injunctive relief against Defendant and since there is no statement of defence the interlocutory judgment was sealed on 5th December, 2011. The Defendant has filed this summons seeking setting aside of the said judgment.

B. LAW AND ANALYSIS

2. The law relating to setting aside of the default judgment is well settled in Fiji. The Fiji Court of Appeal in Wearsmart Textiles Ltd v General Machinery Hire Ltd [1998] FJCA 26 the grounds for setting aside of the default judgment was adopted in the case of Coral Sun Ltd v Whippy [2009] FJHC 254 where the rules were summarized as follows:

'10. A defendant applying to set aside a default judgment must satisfy the following in order to succeed:

1. Meritorious defendant which has real prospect of success and carry some degree of conviction. It must have a realistic as opposed to a fanciful prospect of success. A supporting affidavit disclosing the condescending particulars of a meritorious defence is mandatory; Wearsmart Textiles Ltd v General Machinery Hire Ltd [1998] FJCA 26;
   
2. Some explanation as to why the default judgment was allowed; Evans and Bartlam [1937] 2 All ER 646:
   

1. Some explanation for the delay in making an application to set aside Pankaj Bamola & Anor v Moran Ali Court of Appeal Civil Appeal No 50/90.
   
2. That the Plaintiff will not be prejudiced as a consequence of setting aside the default judgment Shri Dutt V FNPF (1988) 34 FLR 67.'
   

3. The meaning of "defence on the merits" was explained by Sir Roger Ormond in Alpine Bulk Transport Co. Saudi Shipping Co. Inc (1986) 2 Lioyd's Rep, 221. His Lordship explained that the defence put forward by the Defendant must be one with a reasonable chance of success.

4. The Fiji Court of Appeal in the case of Wearsmart Textiles Limited v General Machinery Hire Limited & Anr, Civil Appeal No. ABU30/97, stated with approval from the Supreme Court practice, Vol 1 at page 143 that:

"it is an (almost) inflexible rule that there must be an Affidavit of merits, i.e. an Affidavit stating facts and showing a defence on the merit."

The affidavit in reply to the affidavit in opposition to setting aside the Defendant denied that he allowed the Plaintiff to built a church. He also denies that the church was built by the Plaintiff.

In paragraph 8 of the said affidavit in reply the Defendant states as follows

'The church in question was built by the then congregation members in 2002. Most of these are still members in our congregation and can give evidence under oath on hearing that they built the church, and not Ronald Rati Ram.'

The Defendant further in paragraph 12 state that since he was the secretary of the said congregation and also held positions as assistant pastor, and also the post of pastor he could vouch to the fact that the funds of the congregation was utilized for the building of the church and not the funds of the Plaintiff as alleged in the statement of claim.

The Defendant at paragraph 11 admits that an agreement was singed that the land will be transferred to the Grace Assembly at the expense of the church, but this did not authorized the Plaintiff to build on the land.

5. The Plaintiff's claim is based on equity and the material facts are disputed as the alleged permission to built structures on Defendant's land, is now disputed. The Defendant state that agreement was to transfer the property to Grace Assembly at the expense of the church, and the Plaintiff alleges he was asked to build a house and a church on the Defendant's land and this needs to be tested through oral evidence subject to cross - examination. The Defendant also denies that the Church was built by the Plaintiff, these are the core issues in this case. The Defence indicate more than an arguable case and the affidavit in reply filed by the Defendant indicate a meritorious defence. The Defendant admit the construction of church, but state that it was built by the proceeds of the church members.

6. Supreme Court Practice (White Book) 1988 at page 131 (13/9/14) state

'On setting aside a regular judgment, where the defendant has been at fault, the usual practice if for the plaintiff to be awarded his costs in any event: such a practice is not appropriate, however, on setting aside a regular judgment where neither party has been at fault (Cox (Peter) v Thirwell (1981) 125 S.J. 481).'

7. The Defendant admitted at the hearing that the default judgment was obtained regularly. There is no allegation in the affidavits to the contrary. So, I assume that the judgment was entered regularly.

8. The reason for the default as alleged in the affidavits of the Defendant is the negligence of the former solicitor Mr. G.P.Lala. The Plaintiff state that this cannot be a reason for setting aside of the default judgment and that the Defendant can file an action against Mr. G.P.Lala for the negligence. This is a matter for the Defendant, but as admitted by the Defendant the reason for the failure to file a defence cannot be attributed to the Plaintiff and a reasonable cost should be awarded to the Plaintiff as the negligence of the solicitor is considered a negligence of the party represented by the solicitor.

9. The Default judgment is set aside and I order a cost of $1,500 to be paid by the Defendant to the Plaintiff within 14 days. The Defendant is granted 14 days to file and serve the statement of defence. The cost of this application is summarily assessed at $750. If the costs are not paid the statement of defiance is deemed struck off.

C. FINAL ORDERS

1. The default judgment against the Defendant is set aside, subject to a payment of cost of $1,500 within 14 days.
2. The Defendant is granted 14 days to file and serve the statement of defence.

100. If costs are not paid the Statement of Defence is deemed struck off.

4. The cost of this application is assesses summarily at $750.
   

Dated at Suva this 9th day of July, 2012.

Master Deepthi Amaratunga
High Court, Suva