IN THE HIGH COURT OF FIJI
IN THE WESTERN DIVISION AT LAUTOKA
Action No: 167 of 2014

BETWEEN:

KULWINDER KAUR 
of 10971 Anemone Circle, Moreno Valley CA, 92557, United States of America.
PLAINTIFF

AND:

ABHINESH VIKASH PRASAD
 of Malomalo, Sigatoka
DEFENDANT

Counsel: Mr S K Ram with Mr A Dayal for plaintiff
: Mrs J Naidu for defendant

Date of Hearing: 18 May 2015
Date of Ruling: 20 July 2015

RULING

INTRODUCTION

[01]This ruling relates to an application to set aside a judgment delivered in favour of plaintiff in default of appearance by defendant on hearing day.

[02] By originating summons dated 22nd October, 2014, the plaintiff issued proceeding under section 169 of the Land Transfer Act ('LTA') against the Defendant for recovery of vacant possession of the premises situated on the land contained in Crown Lease No. 8348 ('the property').

[03] The defendant filed affidavit to show cause as to why he should not deliver up possession of the property to the plaintiff.

[04] The court set down the matter for hearing on 19 January, 2015. On that day neither the defendant nor his solicitors appeared. The plaintiff's counsel told the court that they are ready to proceed with the hearing. The plaintiff insisted that the hearing should proceed with. As such, having considered the affidavit evidence adduced by both parties and submissions raised by counsel for the plaintiff the court pronounced judgment in favour of the plaintiff with summarily assessed cost of $1,000.00 payable by the defendant to the plaintiff and ordered the defendant to deliver up possession of the property to the plaintiff forthwith.

[05] On 19 January 2015, the very day on which the default judgment was delivered, the defendant filed an application under Order 28 rule 5 of the High Court Rules 1988 ('HCR') for revoking/setting aside the vacant possession order made against the defendant ('the application'). The application is supported by an affidavit sworn by the defendant.

[06] The plaintiff opposes the application. She filed an affidavit in response. That affidavit annexes three documents marked 'KK1' to 'KK3'.

[07] At hearing, both parties orally argued the matter. They also filed their respective written submissions.

BACKGROUND 

[08] The property in question is an agricultural land. Kulwinder Kaur, the plaintiff is the registered proprietor of that land by virtue of a Crown Lease. The Crown Lease expired on 1 January 2015.Kulwinder Kaur currently resides in the US. Through his attorney, Kulwinder Kaur issued proceedings under section 169 of LTA against the defendant to recover possession of the property. The defendant, Abhinesh Vikash Prasad appeared in court and filed show cause affidavit. He claimed that he was cultivating and occupying the said land since April 2006 and that as he did not receive any notice from the plaintiff within the first three years of occupation and cultivation of the land filed an application under section 4 &5 of the Agricultural Landlord and Tenant Act ('ALTA') for Declaration of Tenancy before Agricultural Tribunal in 2011. That application is waiting determination by the Agricultural Tribunal. The court fixed the section 169 application for hearing on 19 January 2015. On that day neither the defendant nor his counsel appeared. The court proceeded with the hearing and delivered judgment in favour of the plaintiff. The current application by the defendant is to set aside the default judgment delivered on 19 January 2015.

THE LAW

[09] The application to set aside has been made under Order 28 Rule 5 (1) of the High Court Rules ('HCR') which provides as follows:

'5.-(1) The Court by whom an originating summons is heard may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may require, but where the Court makes an order under this paragraph against a defendant who does not appear at the hearing, the order may be varied or revoked by a subsequent order of the Court on such terms as it thinks just.' (Emphasis provided).

[10] The governing principles applicable in an application for setting aside a default judgment or order are as follows:

(a) The defaulting party must explain the reasons for the absence or non-appearance.

(b) The defaulting party must explain the delay if any of the making of the application to set aside the order made in default.

(c) The defendant must show a defence which has a 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 must be filed; Wearsmart Textiles Limited v. General Machinery Hire Limited &Another Civil Appeal ABU No. 0030/1997S per Tikaram P, Casey JA, Dillon JA.

(d) The prejudice which may be caused to the plaintiff if the default judgment were to be set-aside.

DISCUSSION

[11] The defendant makes application to set aside the default judgment delivered against him on 19 January 2015. The default judgment was entered in default of defendant's appearance on hearing date. The application to set aside is made pursuant to HCR O.28, r.5 (1). This rule is applicable where the default judgment was entered after hearing an originating summons.

[12] Pursuant to HCR O.28, r.5 (1) an order made against a defendant who does not appear at the hearing may be varied or revoked by subsequent order of the court on terms as it thinks just. So, the court has wide discretion to vary or revoke an order made in default of appearance by the defendant at the hearing. In Housing Authority v Raju [2008] FJHC 366; HBC071.2008 (19 December 2008), the Court said that:

'Pursuant to Order 28, rule 5(1) and Order 32, rule 5(3) the Court has an unfettered discretion to set aside any order made under Order 88 in the absence of a party. In that regard the application is appropriately filed.'

[13] I will apply the principles, as enunciated in para 10 above, applicable to a setting aside application.

REASON FOR DEFAULT

[14] In an application to set aside, the defaulting party must explain the reason for absence or non-appearance. The matter was set down for hearing at 10.00am on 19 January 2015. On that day when the matter came on for hearing by 10.15am there was no appearance for or by the defendant. Therefore the court delivered default judgment after reading the affidavit evidence adduced by both parties and hearing oral submissions made by counsel for the plaintiff.

[15] The defendant states that his counsel, Ms Jyoti Naidu in fact was ready for the hearing and when she had gone to court at 10.45am shewas told by a court clerk that the matter was called for hearing at 10.00am and the court made default judgment as there was no appearance by the defendant.

[16] The defendant explains the absence at the hearing in his affidavit as follows:

 'Our paralegal had marked our office diary as hearing at 11am on 19 January 2015. On 16 January 2015 when the solicitors for the plaintiff had written to us asking for adjournment, in their letter they had also acknowledged the hearing at 11am. Our associate Ms Jyoti Naidu was ready for the hearing and when she had gone to court at 10.45am then she was told by the Court Assistance that the matter was called for hearing at 10am and there was no appearance by the defendant the court granted order in terms of the 169 application with cost of $1,000. It was an oversight from our side to see that the matter was at 11am and not at 10am for which we humbly apologize to his Honourable Court as we meant no disrespect to the court for our non-appearance (see paras 6 to 9 of the defendant's affidavit).'

[17] On 16 January 2015 the plaintiff's solicitors wrote a letter to defendant's solicitors about adjournment of the hearing. It is significant to note what the plaintiff's solicitors state in their letter dated 16 January 2015 ('SL1') I will reproduce the content of that letter for convenience. That letter reads:

'...
 Our Client : Kulwinder Kaur
Other Party : AbhineshVikash Prasad
Matter : Lautoka High Court Action No. 167 of 2014
 
We refer to the above matter in which we act for plaintiff.

The above matter is listed for hearing on the 19th January 2015 for hearing at 11am in Court 4 at 11am.

Our Mr. Ram spoke to your Ms. Naidu and explained that we cannot proceed to hearing of the matter on the 19th January 2015 because of the expiry of lease (Emphasis added).

On that basis we request for your consent to adjourn this matter and have the Summons converted to the Writ of Summons.

We will also be filling necessary documents to turn the Summons into writ.

Kindly could you please endorse your consent to this letter so that we can inform court of the same.

Yours faithfully

SAMUEL K RAM
Sgd/
.................................
PER AMAN DAYAL
...'

[18] It is to be noted the letter 'SL1' clearly states in two places that the matter is listed for hearing at 11am on 19 January 2015. By letter 'SL1' the plaintiff's solicitors confirm that the hearing is listed at 11am. However, counsel for the plaintiff appeared at 10am when the matter was called for hearing. At the ex parte hearing, counsel for the plaintiff did not even mention that they had written to the defendant's solicitors about adjournment of the hearing on the ground that the lease is expired. The plaintiff should not have proceeded with the hearing on 19 January as they had written to the defendant's solicitors that they will seek adjournment. Instead they should have made an application for vacation of the hearing or should have waited for the defendant to appear until 11am as their letter 'SL1' confirms the hearing will be at 11 am which the plaintiff's counsel failed to do.

[19] The explanation given by the defendant for his absence at the hearing is explicable. The defendant's evidence shows that his solicitors had recorded the time incorrectly. They had recorded that the hearing will start at 11 am instead that it will start at 10 am. It happened due to an oversight in recording the time. The fact that the defendant's counsel showed up by 10.45am and was ready to conduct the hearing was not disputed by the plaintiff. I am therefore satisfied with the defendant's explanation that his absence at the hearing on 19 January 2015 was due to an oversight. The matter does not end there. The other factors must also be considered.

DELAY

[20] In Housing Authority v Raju (supra)when dealing with setting aside principles the Court stated that:

"In any event if I were to accept the reasons, it does not on its own entitle the defendant to have the default judgment set aside. The other factors must also be considered"

[21] In the matter at hand, the application for revocation of the order made in the absence has been made promptly. The impugned order against the defendant was made on 19 January 2015. The application to revoke that order was made on the same day. Hence the question of delay does not arise here.

DEFENCE

[22] I now turn to the issue of defence. To succeed in his setting aside application, the defendant must show a defence which has a real prospect of success and carry some degree of conviction. It must have a realistic as opposed to a fanciful prospect of success. The defendant had already filed his show cause affidavit. The defendant intends to defend the substantive 169 application on the following ground:

a)	He was cultivating and occupying the said land since April, 2006.

b)	He did not receive any notice within the first three years of occupation and cultivation of the said land which was Crown Lease No. 8348.

c)	 The defendant filed his application for Declaration of Tenancy in Agricultural Tribunal in the year 2011.

d)	The Plaintiff herein had knowledge of the mater pending in the Agricultural Tribunal Court.

(a) ALTA action

[23] The land to which the 169 application relates is an agricultural land. The defendant, according to his affidavit evidence, is cultivating and occupying the land since April 2006. In 2011 he filed an application before Agricultural Tribunal for Declaration of Tenancy. That matter is awaiting determination. The plaintiff does not deny the matter filed by the defendant for declaration of tenancy in respect of the same land is pending before the Agricultural Tribunal. However, the plaintiff states in her affidavit that the defendant has trespassed on the land and was only invited for the purpose of being a casual labourer.

[24] Defendant's counsel, Mrs Naidu strenuously argued that 'ALTA' applies and that the defendant is a tenant pursuant to section 4 and 5 of ALTA and also the lease on which the plaintiff relies had expired when default order was made by the Court.

[25] At this stage, it would be prudent to discuss a little bit of ALTA ss. 4 and 5. ALTA s.4 (1) provides as follows:

'4.-(1) Where a person is in occupation of, and is cultivating, an agricultural holding and such occupation and cultivation has continued before or after 29 December 1967 for a period of not less than 3 years and the landlord has taken no steps to evict him, the onus shall be on the landlord to prove that such occupation was without his consent and, if the landlord fails to satisfy such onus of proof, tenancy shall be presumed to exist under the provisions of this Act: ...' (Emphasis added).

[26] According to defendant's affidavit, in April 2006 the plaintiff invited and allowed him to occupy her residential property and cultivate her sugarcane farm under Crown Lease No. 8348. The arrangement between them, the defendant states, was that he would occupy and cultivate the land, cultivation was mainly for sugarcane and after harvesting he would receive half share from the total cane proceeds.

[27] The plaintiff in her affidavit states that, the defendants are in occupation of the land and they do not have any consent or permission from the registered owner or her to be there.

[28] The affidavit evidence adduced by the defendant shows that the defendant is in occupation of, and is cultivating an agricultural holding since April 2006 (more than 3 years now) and the landlord has taken no steps to evict him. In the circumstances s. 4 (1) of ALTA would apply and tenancy shall be presumed to exist, if the defendant satisfied the requirement of that section.

[29] An application to declare existence of tenancy may be made to Agricultural Tribunal pursuant to ALTA s.5 (1) which provides as follows:

'5.-(1) A person who maintains that he is a tenant and whose landlord refuses to accept him as such may apply to a tribunal for a declaration that he is a tenant and, if the tribunal makes such a declaration, the tenancy shall be deemed to have commenced when the tenant first occupied the land: ...'

[30] The defendant has already made an application to Agricultural Tribunal for a declaration that he is a tenant under section 4. That application is still pending before the Tribunal. If the Tribunal makes a declaration, the tenancy shall be deemed to have commenced when the tenant first occupied the land.

[31] In Re Azmat Ali [1986] FJCA 8; [1986] 32 FLR 30 (23 July 1986), the Fiji Court of Appeal (three bench decision)said that:

"... The legal effect of a declaration under section 23 (3) is to make, from that very moment, the presumed tenant under section 4 of the actual sublessee of the subject land be it native, Crown or freehold and no order for possession can thereafter be made against him on the basis of title' (Emphasis provided).

[32] Since the application filed by the defendant in the tribunal for a declaration under section 4 is still pending there is likelihood that the defendant would be a presumed tenant. 

b) Expired Lease

[33] The plaintiff's application under 169 of LTA is based on a Crown Lease number 8348. He says that he is the registered proprietor of the land in question by reason of the lease. The very lease from which he claimed proprietorship had expired on 1 January, 2015.It will be noted the lease on which the plaintiff relied expired before the court made the default order on 19 January 2015. Although the plaintiff wrote a letter ('SL1') to defendant's solicitors indicating that they would seek adjournment on the basis that the lease had expired, counsel for the plaintiff did not mention either of the letter or the expiration of the lease at the hearing in the absence of the defendant. 

[34] In these proceedings the plaintiff admits that the lease had expired on 1 January 2015.But, nonetheless when the court made the default order the Plaintiff's counsel did not bring the fact that the lease had expired to the notice of the court. Counsel for the plaintiff owed a duty to the Court to disclose the fact that the lease had expired. However, counsel for the plaintiff failed to do so. 

[35] In my opinion upon expiration of the lease the plaintiff ceases to be the registered proprietor of the land. His application for renewal will not revive the situation. In any event it is not clear when the plaintiff made application for renewal of the lease whether it is before or after the expiry.

PREJUDICE

[36] The plaintiff had migrated to the US. The defendant has been occupying and cultivating the land since April 2006. His ALTA application is still pending. The tribunal has ordered the parties to maintain status quo. Hence the plaintiff will not be prejudiced in any way if the order made on 19 January 2015 is revoked.

CONCLUSION

[37] I would conclude, for the reasons stated above, that the defendant has given satisfactory explanation for his absence at the hearing on 19 January 2015. He has promptly made the application to revoke the order made against him in his absence. The defendant's defence, in my view, has a real prospect of success and carry some degree of conviction. By revocation of the default order the plaintiff will not be prejudiced in any way. I therefore revoke the order made in the absence of the defendant on 19 January 2015. However, I would order the defendant to pay the plaintiff costs which I summarily assessed at $500.00.

Orders 

1.	The default order made against the defendant on 19 January 2015 is revoked.

2.	The defendant will pay summarily assessed cost of $500.00 to the plaintiff.

3.	Orders accordingly.

M H Mohamed Ajmeer
JUDGE
At Lautoka
20 July 2015

Solicitors:
For plaintiff: Messrs Samuel K Ram, Barristers & Solicitors
For defendant: Messrs Qoro Legal, Barristers & Solicitors