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Raiqeu v Chand [2021] FJHC 332; HBC124.2014 (30 November 2021)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 124 of 2014

BETWEEN: JONE RAIQEU JONE RAIQEU Senior of Namara, Nalawa, Rki.

Plaintiff

ANDu>AND: RAMESH CHAND ofRoad, Rewasa, Rakiraki, Fki, Farmer.

1^st Defendant

: RINAL RITIN CHAND of Mid Road, Rewasa, Rakiraki, Farmer.

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2^nd Defendant

Before: Master U.L. Mohamed Azhar
Appearance: Mr. R. Chaudhary for the Plaintiff
Ms. V. Nettlr the Defendants

Date of Ruling: 30.11.2021

RULING

01. The plaintiff – a minor, with some others, was travelling in a tractor-trailer belonged to the first defendant and driven by the second defendant on 22.11.2011, in Rakiraki. The tractor stopped at a particular place and everyone, including the plaintiff got out of the trailer. The second defendant then reversed the tractor and the left big tyre of the tractor went over the left leg of the plaintiff, causing fracture of left distal tibia. The plaintiff being a minor sued, by his father and next friend, the defendants and claimed a special damage, general damages for pain and suffering, loss of amenities and lose of earning capacity together with the interest and cost.

02. The defendants did not file the acknowledgment; nor the defence. The plaintiff then sealed the interlocutory judgement for default against both defendants on 18^th of April 2016 and took out the Notice of Assessment of Damages, Interest and Cost, pursuant to Order 37 rule 1 of the High Court Rules. At the trial for assessing the damages the plaintiff testified and called the Orthopedic Surgeon Dr. Eddie McKay attached to Lautoka Hospital to give evidence on his behalf. This court, by its decision dated 17.07.2020 awarded to the plaintiff a sum of $ 21,500 being damages, interest and costs in this case against the defendants.

03. The defendants then applied by the current summons to set aside the interlocutory judgment sealed on 18^th of April 2016 and the decision of this court delivered on 17.07.2020 awarding damages to the plaintiff. The summons also seeks leave of the court to file the statement of defence. The defendants based their summons on two grounds. First is that, the Writ and other documents were not served on them and their signatures were forged by the bailiff who deposed the Affidavit of Service. Second is that, the defendant was charged for negligent driving in respect of this accident and was acquitted after the trial. In fact, the defendants seek to set aside both the judgment and order for damages made for their default on the basis that, firstly, both are irregular and secondly, the defendants have meritorious defence in this matter. These are the general grounds for setting aside the judgment and orders made for default of the parties in civil suits. It is therefore necessary to discuss the law relating setting default judgments and orders to consider the grounds urged by the defendants.

04. The law of setting aside a default judgement is well established both in English common law and our local jurisdiction. It is an unconditional discretion. There is number of authorities which are frequently cited by the courts when exercising such discretion to set aside the judgments entered for the default of either party. Some of the important foreign and local cases are Anlaby v. Praetorius [1888] UKLawRpKQB 55; (1888) 20 Q.B.D. 764; Mishra v Car Rentals (Pacific) Ltd [ FJCA 11; [1985] 31 FLR 49 (8 November 1985); O’Sh17;Shannessy v Dasun Hair Designers Ltd [1980] 2 NZLR 762; Evans v Bartlam [1937] 2 All E.R. 646; Burns v. Kondel [1971] 1 Lloyds Rep 554; Fiji National Provident Fund v Datt [1988] FJHC 4; (1988) 34 FLR 67 (22 July 1988); Eni Khan v. Ameeran Bibi & Ors (HBC 3/98S, 27 March 2003; Wearsmart Textiles Limited v General Machinery Hire limited and Shareen Kumar Sharma( 1998) FJCA26; Abu 0030u.97s (29 May 1998) and Fiji National Provident Fund v Datt [1988] FJHC 4; [1988] 34 FLR 67 (22 July 1988 ).

05. The courts are given discretion to set aside any judgment entered for the default of any party. However, when exercising this discretion the courts have adopted two different approaches in dealing with regular and irregular judgments. This disive approach is cles clearly stated by Fry L. J. in (1888) 20 Q.B0 Q.B.D. 764. His Lordship held that:

"There is a s distinction between settinetting aside a judgment for irregularity in which case the Court has no discretion to refuse to set it aside, and setting it aside where the judgment though regular, has been obtained through some slip or error on the part of the defendant in which case the Court has a discretion to impose terms as a condition of granting the defendant relief".

06. In O’Shannessy v Dasun Hair Designers Ltd [1980] 2 NZLR 762 Greig J said at 654: The authorities are plain that where a default judgment is irregularly obtained the defendant is entitled ex debito justitiae to a setting aside. Accordingly, if the judgment was obtained irregularly, the applicant is entitled to have it set aside ex debito justit/i>&#160 but, if regularly enterhe Cthe Court is obliged to act within the framework of the empowering provision (see: v Car Rentals (Pacific) Ltd [1985] FJCA 11; [1985] 31 FLR 49 (8 Novemberember 1985). Thus, the defendant against whom an irregular judgment was entered in default has the right to have it set aside and the courts have no discretion to refuse to set aside.

07. The rationale is that, such irregular judgments and orders are considered as ‘void orders’ resulting from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502, and Lord Denning in Firman v Ellis [1978] 3 WLR 1). Such judgments also considered as resulting from a ‘without jurisdiction’ or ultra vires act of a judicial office (Lord Denning in Pearlman v Governors of Harrow School [1978] 3 WLR 736). A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen Craig v Kanssen [1943] 1 KB 256); or where service of proceedings never came to the notice of the defendant at all (e.g. he was abroad and was unaware of the service of proceedings); or where there is a fundamental defect in the issuing of proceedings so that in effect the proceedings have never started; or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963] 1 Ch. 502). Failure to comply with a statutory requirement includes failure to comply with rules made pursuant to a statute (Smurthwaite v Hannay [1894] UKLawRpAC 54; [1894] A.C. 494).

08. The defendants’ first ground is that, both the interlocutory judgment and the decision on quantum of damages are irregular, as the writ and the other documents in this matter were not served; they did not have knowledge of this matter; and therefore they did not appear to defend it. If there was no service of process at all, as claimed by the defendants, both the interlocutory judgment and the decision on quantum should be set aside and this court has no discretion to refuse, as per the authorities mentioned in preceding paragraphs. However, the plaintiff disputes this allegation and annexed the copies of four affidavits for the proof of service of writ, interlocutory judgment and the notice of assessment of damages. Two bailiffs hired by the plaintiff had served all the processes in this matter. The plaintiff further stated in his affidavit that, the bailiff who served both the interlocutory judgment and notice of assessment damages on the defendants is not here to confirm the service, as he passed away.

09. In fact, all these affidavits of service had already been filed of record. It is evident from them that the writ, interlocutory judgment and the notice of assessment of damages were served on the defendants, and they acknowledged them by placing their signatures on the reverse side of respective documents annexed with the affidavits of service. Those signatures are the proof for service. The signature of second defendant, which appears on two documents annexed with two affidavits of service, resembles his signature in his affidavit filed in support of current summons before me. Both affidavits of service are sworn by the bailiff Kamnieli Qausila. There is nothing in the affidavit of the defendants to suggest that, the said bailiff Kamnieli Qausila was familiar with the signature of the second defendant. Thus, it cannot be said that the bailiff, who did not know the signature of the second defendant, would have forged his (second defendant’s) signature on those acknowledgment part without actually serving the process on him. Accordingly, I am unable to accept the contention of the defendants that, the writ and other related documents were not served on them. As per the documents filed in court, the writ was duly served on the defendants and therefore, I hold that, the interlocutory judgment was regularly entered by the plaintiff. Further, both the interlocutory judgment and the notice of assessment of damages were duly served and the decision on quantum of damages is regular. This shows that, the defendants failed to substantiate their contention that, the interlocutory judgment and decision on quantum of damages are irregular. Accordingly, the first ground that supports the current summons fails.

10. The second ground on which the defendants rely to set aside the interlocutory judgment and the decision on quantum of damages is that, they have meritorious defence in this matter. It is settled law that, the applicant must show a defence on merit if the judgment was regularly entered. Evans v Bartlam [1937] 2 All E.R. 646 is an important case, among others, which set out the principle of setting aside the default judgement entered regularly. In that case, Lord Atkin explained the nature of the discretion of the courts and the rule that guides them in exercising such discretion. His Lordship held at page 659 that;

The discretion is in terms unconditional. The courts, however, have laid down for themselves rules to guide them in the normal exercise of their discretion. One is that, where the judgment was obtained regularly, there must be an affidavit of merits, meaning that the applicant must produce to the court evidence that he has a prima facie defence. It was suggested in argument that there is another rule, that the applicant must satisfy the court that there is a reasonable explanation why judgment was allowed to go by default, such as mistake, accident, fraud or the like. I do not think that any such rule exists, though obviously the reason, if any, for allowing judgment and thereafter applying to set it aside is one of the matters to which the court will have regard in exercising its discretion. If there were a rigid rule that no one could have a default judgment set aside who knew at the time and intended that there should be a judgment signed, the two rules would be deprived of most of their efficacy. The principle obviously is that, unless and until the court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has been obtained only by a failure to follow any of the rules of procedure.