IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 03 OF 2015

BETWEEN	:		TAIYAB HUSSAIN t/a Hussain’s Hire Plant having
its registered office at Nasea, Labasa

PLAINTIFF

AND		:		AISAKE SOVAKIWAI of Nabunawai, Nasolo

1ST DEFENDANT

AND		:		BUA PROVINCIAL COUNCIL statutory body
established under Laws of Fiji

2ND DEFENDANT

Appearances:	Mr. A Sen of Maqbool & Co for the plaintiff
No appearance for the 1st defendant

RULING ON ASSESSMENT OF DAMAGES

Introduction

[1]	The plaintiff by a writ of summons and a statement of claims dated 	the 19 February 2015 claims from the defendant the following:-
1.	Specific Performance of the agreement entered into between them on the 7 March 2014;
2.	Special Damages in the sum of $11,196:95;
3.	General Damages in the sum of $100,000:00;
4.	An injunction restraining the defendants whether by themselves or though their servants or agents or howsoever allowing any persons to extract river gravel from Nasolo River until the final determination of this action or preventing the plaintiff from obtaining a licence to extract gravel from Nasolo  river. 
5.	Costs on indemnity basis.
[2]	The above claims arose from an agreement entered into between the 	parties  sometimes  in  March  2014  which  the  plaintiff  the  right  to 
	extract gravel from the Nasolo River in Bua for use in the construction 	of roads within the province of Bua. The defendant at the time was the 	representative of the Mataqali Navuniwai of Bua who are the 	traditional owners of the land near the river systems and provides 	access to the Nasolo River. 

[3]	In reliance on the said agreement the plaintiff paid costs to the 	Department of Environment for the necessary consent and incurred 	further costs for the engagement of consultants. The plaintiff further 	entered into an agreement with the Fiji Roads Authority to construct 	roads in the district of Bua and has purchased machinery for such 	construction.

[4]	In June of the same year however the 1st Defendant withdrew his 	consent for the issuance of the licence for the extraction of gravel and 	that the licence would be issued to another person not known to the 	plaintiff. That the withdrawal of the licence was contrary to the 	agreement and the 1st defendant was aware that the plaintiff had 	incurred costs and damages.

[5]	The plaintiff now claims from the defendant the damages referred to 	above. The initial statement of claim showed the Bua Provincial 	Council as the 2nd Defendant and the service of the writ was then 	affected against both the Defendants at the Bua Provincial Council’s 	Office at Bua.

[6]	The acknowledgement of service showed that it was signed by the both 	the 1st Defendant and 2nd Defendants at Bua and carries the Bua 	Provincial Council stamp. This is so because the 2nd defendant was at 	the time one of the defendants. The plaintiff withdrew any claims 	against the 2nd Defendant on the 9 July 2015 and the order was 	sealed on the 20 July 2015.

[7]	Therefore from the 9 July there was only one defendant, that is, Mr. 	Aisake Sovakiwai of Nabunawai Village, Nasolo. In my view the service 	of all the documents should now be at the address of service of the 1st 	Defendant. 

[8]	On the 19th June 2015 a Mr. Mohammed Firoz Khan Tahib personally 	served Mr. Aisake Sovakiwai and Roko Tui Bua at the Bua Provincial 	Council with a copy of the amended summons. Two questions arose 	from this service, the first is why was the amended summons served 	on the Roko Tui Bua who is not a party to the proceedings and 	secondly was it really served on the 1st Defendant. There appears to be 	some confusion because the person known as Aisake Sivonadamu 	works at the Bua Provincial Council and had appeared in Court on the 	24 June 2015. He was not the 1st defendant.  The second question 	which arose is that the summons served was not served with the 	accompanying affidavit in support, this affidavit was with the original 	summons and the affidavit itself showed that the summons only was 	served to the Roko Tui Bua and another person.

[9]	What is clear then is that the first defendant may not be aware of 	these proceedings at all.  On the 10 August 2015 Justice Alfred 	granted the two reliefs sought in the claim by relying on the summons 	filed on the 6 May 2015. The Order of 10 August specifically states 	that it is the reliefs sought on the summons which was granted. What 	this means is that the “amended summons” of 8 June 2015 has not 	been dealt with. This amended summon was filed pursuant to the 	leave obtained by the plaintiff’s counsel on the 27 May 2015. Leave 	was obtained to enable the plaintiff to quote the correct order in the 	summons.

[10]	Nonetheless Justice Alfred’s Order gave the plaintiff judgment for 	specific performance of the contract and for injunctive relief. Justice 	Alfred had satisfied himself from the affidavits filed that the summons 	had been correctly served.

[11]	However the summons for assessment of damages appeared to have 	been served on the Roko Tui Bua and Aisake Sovakiwai at the Bua 	Provincial Council office. Mr. Aisake Sovakiwai does not reside or 	works at the Bua Provincial Council Office, the only person whose 	name was similar to that works at the Bua Provincial Council and who 	had appeared in Court on the 24 June 2015.

[12]	A further important fact is that the person who served the writ on the 	24 of February 2015, Shafiz Zynal Hussain of Tuatua Labasa, states 	in his affidavit that he “personally served the 1st defendant, Aisake 	Sovakiwai, by leaving a copy at his doorstep and the Roko Tui Bua at 	Bua Provincial Council office with a true copy of the Writ of Summons”. 	There is no statement about the whether the process server had 	satisfied himself that the 1st defendant resides at the Bua Provincial 	Council so that the document could be served at his doorstep there. 	The 1st defendant’s address on the writ is stated as Nabunawai 	Nasolo, and I am certain that is not the same place as the Bua 	Provincial Council’s office. 

[13]	But the above is not all that appears inconsistent, the 	Acknowledgement of Service” was filed by the plaintiff’s solicitor and is 	therefore in direct conflict with the plaintiff’s interest. Apart from the 	conflict issue which now arises the other implication of this is that 	under Order 12 rule 2(2) the address of service to the defendant now 	becomes that of the plaintiff’s solicitor. Order 12 rule 2(2) states:-
	(2) An acknowledgment of service must specify-
	(a) in the case of a defendant acknowledging service in person, the 	address of his place of residence and, if his place of residence is not 	within the jurisdiction or if he has no place of residence, the address of 	a place within the jurisdiction at or to which documents for him may be 	delivered or sent; and
	(b) in the case of a defendant acknowledging service by a solicitor, a 	business address of his solicitor's within the jurisdiction;

	and where the defendant acknowledges service in person, the address 	within the jurisdiction specified under sub-paragraph (a) shall be his 	address for service, but otherwise his solicitor's business address shall 	be his address for service.

[14]	There was no address of service for the 1st defendant given except the 	address of the plaintiff’s solicitor as given in the acknowledgement of 	service. The provision of Order 12 rule 2(2) states that it must specify 	an address within the jurisdiction to which documents for him could 	be delivered or sent. I am certain that this is an oversight by the 	plaintiff’s solicitor in its endeavour to satisfy itself of the service of the 	documents and it is not the first time I have sighted this oversight in 	another matter the Court had dealt with. However that oversight had 	in my view snowballed into a situation beyond what is necessary to 	determine the matter justly and is therefore fatal. 

[15]	The first rule of service under Order 10 is that a writ must be served 	personally on each defendant by the plaintiff or his agent. There are 	variations to the above, in that applications for other forms of service 	is made available by the exercise of the Court’s discretion or under the 	rules. Further if the writ was not duly served but was acknowledged 	by the defendant the writ is deemed to be served subject to 	jurisdictional disputes. I have no doubt that the writ was served and 	acknowledged but the lack of an address for future service on the 1st 	defendant and the filing of the acknowledgement of service by the 	plaintiff’s solicitor raises legitimate questions not only of conflict but 	on whether further service on the defendant was ever affected.  

[16]	The underlying principle of personal service is that the identity of the 	person to be served must first be established and an affidavit as to the 	person’s identity filed or included in the statement of service. None of 	this was apparent from the affidavits of service filed and at no point 	was the identity of the 1st defendant established, this is important 	when a person who bears a name almost similar (at least the first 	name was and the second name was close) had appeared for the 2nd 	defendant in court. When the action against the 2nd defendant was 	withdrawn, service of further documents was still being affected at the 	Bua Provincial Council including the service on the Roko Tui Bua who 	was never a party to the proceedings.

[17]	The onus to satisfy the Court of the correct service of document is 	always on the plaintiff or the Counsel if represented. The Court should 	not be put into a position to question whether service has been 	properly effected, it is the duty of solicitors as officers of the court to 	bring to the court every piece of evidence necessary to prove effective 	service. Very often the court accepts the affidavits filed as proof of 	service until questions arise regarding service although no question 	arose regarding this matter, the service of the documents on a person 	who was not a party and the lack of an address for service on the 	acknowledgement of service raised the court’s curiosity. This is so 	because the proof of service of the summons for assessment of 	damages was necessary before any assessment could be made.

[18]	I have raised this point at this juncture to prevent the matter from 	snowballing into a situation where it is revisited through the appeals 	procedures. The re-hearing of the assessment of damages can be 	revisited and the balance of whether or not this should be so is 	weighed in favour of what is just.

Conclusion

[19]	From the above the Court is not satisfied that the summons for the 	assessment of damages and the default judgment was served on the 	defendant. As a result the Court directs that the defendant be served 	with the documents and the matter to proceed to a hearing on 	assessment of damages afresh. 

Orders
1.	That the Default Judgment and the Summons for assessment of damages be effectively served on the defendant at the address specified on the writ.

2.	That the matter to proceed on its normal course thereafter and for that purpose be adjourned before the Master on the 25 August 2016 for mention. 	

				               H Robinson
					      Master, LABASA

19 July 2016