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Ben v Tasty Group Pte Ltd [2022] FJHC 104; HBC28.2021 (21 February 2022)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

CIVIL JURISDICTION

HBC 28 of 2021

BETWEEN :

SAKUNTALA BEN aka SHAKUNTLA BEN of 26 River Ridge Loop, the Woodlands, Houston, USA,

Domestic Duties as the Executor and Trustee of the Estate of Mukund Bhai Patel.
PLAINTIFF/ RESPONDENT

A N D:

TASTY GROUP PTE LIMITED a limited liability company having its registered office at Lot 4, Varadoli, Ba, Fiji.

DEFENDANT/ APPLICANT

Appearances: Mr. Singh S. with Mr. Charan for the Plaintiff/Respondent
Mr. Naivalu for the Defendant/Applicant
Date of Hearing: 17 January 2022
Date of Ruling: 21 February 2022

R U L I N G

INTRODUCTION

1. On 01 February 2021,Ravneet Charan Lawyers filed a Summons For Ejectment pursuant to sections 169 to 172 of the Land Transfer Act (Cap 131). That application was supported by an affidavit sworn by Sakuntla Ben on 02 November 2020.
   
2. Sakuntla is a co-executor/trustee of the estate of Mukund Bhai Patel. The other co-executors/trustees have authorized her to swear this affidavit on their behalf. The property in question is all comprised in Certificate of Title No. 10724 known as Varadoli (part of) on Lot 37 on DP No. 2525 in the District of Bulu on the island of Viti Levu. The property is 24 perches in size. The last registered proprietors of the said property are Sakuntla, the estate of Mukund Bhai Patel, and one Sashi Kant Patel. The defendant has been occupying the said property without their consent and/or authority. Sakuntla has caused a Notice to Vacate to be served on the defendant. That Notice was dated 16 September 2020. Despite the said Notice, the defendant has remained on the property. It is in unlawful occupation of the property. This is preventing the plaintiff from commencing and carrying on work on the said property.
   
3. The said Summons was returnable on 10 March 2021.
   
4. On 09 March 2021, the Affidavit of Service of Ashok Chand was filed. Chand deposes as follows:
   
   1. I did on the 10^th day of February, 2021 at 11.40 a.m. personally served the above-named Defendant at its registered office at Lot 4, Varadoli, Ba, Fiji with true copy of Summons for Ejectment dated 2^nd day of February, 2021 and Affidavit of SAKUNTLA BEN a.k.a SHAKUNTLA BEN PATEL sworn on 2^nd November, 2020 and filed in Support of the said Summons which appeared to me to have been regularly issued out of the High Court Registry by leaving a copy on its registered office.
   2. The registered office of the Defendant is Lot 4, Varandoli, Ba, Fiji. The Solicitor’s for the Plaintiff had carried out a company search. Annexed hereto and marked with the letter “AC-1” is a copy of the Certificate of Registration of the Defendant Company together with Application for registration as a company.
      
5. On 10 March 2021, at first call before the Master, Mr. Charan appeared for the applicant but there was no appearance for the defendant. The Masters notes record as follows:
   

Plaintiff is the last Registered Proprietor who owns 2/3 share of (sic) the property

Affidavit of Service is filed.

Order in terms

No cost

6. The very next day, on 11 March 2021, Ravneet Charan Lawyers filed an ex-parte Notice of Motion seeking leave to issue Writ of Possession.
   
7. On 25 November 2021, the Master granted leave to issue Writ of Possession and ordered $500-00 costs against the defendant.
   
8. Writ of Possession was filed on 23 December 2021.
   
9. On 29 December 2021, Law Naivalu filed a Notice of Appointment to act for the Respondent.
   
10. On 31 December 2021, Law Naivalu filed a n ex parte Summons under Orders 12 Rule 2, 28(2) and 113 of the High Court Rules , and the inherent jurisdiction of this court seeking the following Orders:
    
    • (i) That the default judgement entered against the defendant on 10 March 2021 on account of the defendant’s non-appearance be wholly set aside.
    • (ii) That the execution of the said default judgement be stayed pending the determination of this application.
    • (iii) Leave be granted to the defendant to file its acknowledgement of service and subsequently to file its affidavit of defence within a time frame allocated by this court
    • (iv) Costs of this application be paid by the plaintiff on an indemnity basis on a higher scale.
      
11. The said summons was supported by an affidavit sworn by Mohammed Faizel Khan which was sworn on 31 December 2021. Khan is the father of Mohammed Rizwan Din Khan (“Rizwan”).
    
12. Rizwan is the sole director of Tasty Group Pte Limited (“TGPL”). Rizwan resides in India. Khan says that he is caretaker of the property in question which is being occupied by TGPL. It has been hard for Rizwan to travel to Fiji due to the travel restrictions associated with the pandemic. Accordingly, Rizwan has given Khan an authority to swear the affidavit.
    
13. Khan deposes that at 4.25pm on 24 December, 2021, he received a copy of the Order for Writ of Possession dated 24 December, 2021 from the Bailiff. He said he was shocked to learn of the order, so he called Rizwan instantly. He said Rizwan was also stunned. Both of them deny any knowledge of the substantive proceedings. Mohammed also denies ever receiving any Originating Summons from the Applicant/ Defendant at all, if any or received any notice of it because I deny ever receiving any of the same.
    
14. Mohammed deposes that, he wanted to know and was at pains in trying to find out whether and how could the Court not only give the Plaintiff / Respondent the justice she sought but also gave the Applicant/ Defendant Company the justice it deserved in particular Rizwan.
    
15. Mohammed deposes that he understands from his counsel the writ possession has been issued pursuant to a default judgement, and that the said default judgement is irregular and should be set aside as of right.
    
16. Mohammed asserts that neither he nor Rizwan was ever served personally with the Originating Summons. He says that upon being served with the Writ of Possession, he quickly engaged his lawyers.
    
17. On 04 January 2022, I granted the following orders ex-parte on the ex-parte Summons which the plaintiff had filed on 31 December 2021.
    
    • (i) The execution of the said default judgement entered against the defendant be stayed pending the determination of this application.
    • (ii) The applicant to serve sealed order and all copies of his documents on plaintiff in 7 days.
    • (iii) The matter is adjourned to 11 January 2022 for mention.
      
18. The matter was finally heard on 17 January 2022. At the hearing, Mr. Naivalu argued as follows:
    

19. Mr. Singh argues that there is no requirement in the High Court Rules that the Affidavit of Service of a process server should annex the process being served, although that has come to be a matter of standard practice. He asserts that the word of the process server in the affidavit of service was what the Master had accepted.
    
20. In my view, the practice of annexing a copy of the process in the affidavit of service of the process server is a useful one. Not only is it useful in telling us what was actually served, but it is also useful in telling us that what was actually served had the correct returnable date. It should be maintained by all means.
    
21. However, the fact of the matter in this case is that the Master had accepted the affidavit as evidence of service, even though the affidavit did not annex the process that was purportedly served. It raises an issue of credibility.
    
22. I am not inclined to treat this as a case of an irregular service, but as a case where service was regularly executed. Accordingly, the issue turns on whether or not the applicant has a defence on the merits so as to warrant the setting aside.
    
23. At the hearing, Mr. Naivalu conceded that there is no evidence of a tenancy agreement between his client and the respondent.
    
24. Accordingly, I dismiss the application. I order costs in favour of the respondent which I summarily assess at $500-00 (five hundred dollars only).
    

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Anare Tuilevuka

JUDGE

Lautoka