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Khan v Commissioner of Police [2013] FJHC 22; HBC131.2012 (29 January 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: 131 of 2012.

BETWEEN:

MOHAMMED TALIB KHAN
of 7 Epeli Street, Suva, Unemployed.
PLAINTIFF

AND:

THE COMMISSIONER OF POLICE
of Fiji Police Force Headquarters, Laucala Beach Estate, Suva.
1ST DEFENDANT

AND:

THE ATTORNEY GENERAL OF FIJI
of Suvavou House, Suva.
2ND DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Mr. J. M. Rabuku for the Plaintiff

Ms. K. Naidu for the Defendant

Date of Hearing : 21st January, 2013

Date of Ruling : 29th January, 2013

RULING

1. INTRODUCTION
   

1. The Defendant delayed four days in filing a statement of defence and the Plaintiff did not consented to the delay. The statement of defence filed outside the time period was struck off and default judgment was entered. Now the Defendant is seeking to set aside the default judgment.
   

2. ANALYSIS
   

2. The Plaintiff who was a police officer filed this action seeking inter alia following orders
   
   1. Immediate reinstatement to the Fiji Police Force in the position of inspector.
   2. Compensatory damages for the loss of earnings
   100. Compensatory damages for loss of promotion, leave
   4. Damages for mental distress, anxiety and suffering.
   5. Interest on the award of damages.
      
3. The Plaintiff who was an ex-police officer and after a disciplinary inquiry he was dismissed from service on 30th June, 2009, but in this action he is seeking the abovementioned reliefs relating to the said dismissal, was filed on 10th May, 2012 nearly 3 years after the incident. The Defendant did not file their statement of defence on time and a default judgment was entered.
   
4. The Supreme Court Practice 1997 (Volume 1) page 145, as follows:-
   

"Regular judgment – if the judgment is regular, then it is an (almost) 13/9/5 inflexible rule that there must be an affidavit of merits, i.e. an affidavit stating facts showing a defence on the merits (Farden v. Richter [1889] UKLawRpKQB 79; (1889) 23 Q.B.D. 124. "At any rate where such an application is not thus supported, it ought not to be granted except for some very sufficient reason, "per Huddleston B ibid. p. 129 approving Hopton v Robertson [1884] 8. T.L.R. 445, and Watt v Barnett (1978) 3 Q.B.D. 1983. p 363)

For the purpose of setting aside a default judgment, the defendant must show that he has a meritorious defence. For the meaning of this expression, see Alpine Bulk Transport Co. Inc. v Saudi Eagle Shipping Co. Inc. The Saudi Eagle [1986] 2 Lloyd's Rep. 221, C.A., and note 13/9/14, "Discretionary powers of the court," below. On the application is set aside a default judgment the major consideration is whether the defendant has disclosed a defence on the merits, and this transcends any reasons given by him for the delay in making the application, even if the explanation given by him is false (Vann v Awford [1986] 83 L.S. Gaz. 1725; The Times, April 23, 1986, C.A.). The fact that he has told lies in seeking to explain the delay, however, may affect his credibility, and may therefore be relevant to the credibility of his defence and the way in which the court should exercise its discretion (see para 13/9/14, below)". (emphasis is added)

5. In ED & F MAN LIQUID PRODUCTS LTD V PATEL & ANR [2003] EWCA Civ 472 it was held,
   

'3. In the Saudi Eagle, when comparing the test to be met by a defendant under R.S.C Order 14 ('an arguable case'), with the standard laid down in Evans v Bartram (H.L.) [1937] A.C 473 in respect of a defendant seeking to set aside a regular judgment signed in default, the Court of Appeal (per Sir Roger Ormrod) said:

"......Evans v Bartarm... clearly contemplate that a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success...

Indeed it would be surprising if the standard required for obtaining leave to defend (which has only to displace the plaintiff's assertion that there is no defence) were the same as the required to displace a regular judgment of the court and with it the rights acquired be the Plaintiff. In our opinion, therefore to arrive at a reasoned assessment of the justice of the case the court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The "arguable" defence must carry some degree of conviction" (emphasis added)

6. The Defendant has annexed the proposed statement of defence. The Plaintiff's action is based on dismissal after disciplinary inquiry. The alleged conduct of the Plaintiff resulted the dismissal from the Police. The Plaintiff is challenging the decision as well as the constitution of the disciplinary inquiry. The Defendants are alleging abuse of process and state that the scope of this action is in the domain of public law and the proper remedy is judicial review.
   
7. The above contention of the Defendant indicate a more than an arguable defence and carry some degree of conviction. The Plaintiff has waited nearly three years from the termination and Defence is alleging abuse of process. The Defendants allege if the Plaintiff was not satisfied with the decision of the disciplinary body he would have sought judicial review immediately instead of a writ after three years. I do not wish to state more on this issue as Defendants are also seeking strike out of the statement of claim on this ground of abuse of process.
   
8. The Defendants have shown meritorious defence. The Defendant has also indicated the reason for the delay. It had indicated that the obtaining of the necessary instruction from the 1st Defendant was the cause of delay. This can be accepted as the 2nd Defendant and 1st Defendants are not operating from same location, and both are government entities which needs strict adherence to internal rules and regulations.
   
9. There is no irreparable damage to the Plaintiff, by setting aside this default judgment.
   

100. CONCLUSION
     

10. The proposed statement of defence indicate meritorious defence with some conviction. The default judgment entered on 30th July, 2012 is set aside. The Defendant is granted 7 days to file and serve their statement of defence. The cost of this application will be cost in the cause.
    

4. FINAL ORDERS
   
   1. The Default judgment entered on 30th July, 2012 set aside.
   2. The Defendant is granted 7 days to file and serve the statement of defence.
   100. Cost in the cause.
        

Dated at Suva this 29th day of January, 2013.

.................................................
Master Deepthi Amaratunga
High Court, Suva