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Vasuturaga v Saukuru and Another [2010] FJMC 185; Civil Case 400 of 2008 (20 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Civil Case No: - 400/2008

BETWEEN

APOSAI VASUTURAQA
PLAINTIFF

AND

PAULISAI SAUKURU
1ST DEFENDANT,

AND

AZAAD MOHAMMED
2ND DEFENDANT

For Plaintiff : - Mr. Deven Prasad,
For 2nd Defendant : - Mr. Chaudhry.

RULING

1. In pursuant to Order XXX rule 5 of the Magistrates' Courts rules the 2nd Defendant made this application for an order to set aside the Judgment entered in the absence of the 1st and 2nd Defendant on 21st of January 2010.
   
2. The 2nd Defendant filed a notice of motion together with an affidavit on 21st of June 2010 in pursuant to Order XXX rule 5 of the Magistrate's courts rules. The Plaintiff filed his affidavit in reply on 7th of July 2010. Subsequently learned counsels for both the Plaintiff and the 2nd Defendant filed their respective written submissions.
   
3. Upon careful perusal of the affidavits of both 2nd Defendant and the Plaintiff, the submissions of both learned counsels, and the journal entries and notes of the case record, I now deliver my ruling on this application of the 2nd Defendant under the Order XXX rule 5 of the Magistrates' Courts' Rule.
   
4. The law pertaining to setting aside judgment entered in the absence of parties was succinctly discussed by Fery LJ in Anlaby v Praetorious (1888) 20 Q.B.D.764 ( which was referred in Subodh Kumar Mishra v Car Rental (Pacific) Ltd [1985] 31 FLR 49), where it was held that " there is a strong distinction between setting 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 thought 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".
   
5. Further, it was held in Craig v Kanssen ( 1943) K.B.256, " accordingly,if the judgment was obtained irregularly as is contended, the appellant was entitled to have it set aside ex debito justitiae, but if regularly, the court was obliged to act within the framework of the empowering provision".
   
6. In view of aforementioned judicial precedents, I now proceed to examine the chronology of events in this proceeding to determine the regularity of the judgment of my predecessor Learned Magistrate Ms. Merry Muir on 21st of January 2010.
   
7. The Plaintiff filed his writ of summon together with his claim on 20th of November 2008 and the defendant was ordered to attend and answer the write of summon of the plaintiff on 17th of December 2008.
   
8. On the 17th of December, both defendants were not present and the learned Magistrate reissued the writ of summons and fixed a retun date on 12th of February 2009.
   
9. On 20th of January, the Plaintiff made an application in pursuant to Order VII Rule 5 (c) of the Magistrates' courts rules for an order that the writ of summons be served on the Defendants by advertising the same in one of the major daily news papers in Fiji since both defendants could not be located for personal service.
   
10. The Journal entry of the case record, on 20th of January 2009, only stated that the case was adjourned and fixed for mention on 6th of February 2009.
    
11. The both defendants were not present on 6th of February 2009 before the learned Magistrate; accordingly, this case was fixed for formal proof for the plaintiff on 8th April 2009.
    
12. The solicitor for the Plaintiff Mr. Diven Prasad wrote to the Officer in Charge of Magistrates court, Suva in a letter dated 12th of February 2009, and informed the officer in charge of Magistrate courts, that this matter has been adjourned to 8th of April for formal proof, however the Ex – parte motion for substitute service was not granted despite that they had the writ advertised in the local newspaper and affidavit of service filed. Mr. Deven Prasad, extended his apology for that oversight and requested if their motion be first heard and order made for substitute service. Upon obtaining directives from the learned Magistrate, this case was listed to be called on 19th of February 2009.
    
13. Upon hearing the counsel for the plaintiff on 19th of February 2009, the plaintiff was granted leave to serve the write of summons on the defendants by way of substitute service by advertising the same in the local newspaper. Then the matter was adjourned for writ of summon returnable date on 26th of April 2009.
    
14. Mr. Safiq Ali, the law clerk for Deven Prasad lawyers, the solicitor for the plaintiff filed an affidavit of service together with the copy of the advertisement on 16th March 2009.
    
15. Upon careful perusal of the said advertisement on Fiji Sun on 6th of March 2009, its transpired that the return date published on the said advertisement for the writ of summon was 26th of March 2009, instead of the correct return date of 26th of April 2009.
    
16. In view of this finding, I am of the view the writ of summon served on the defendants by way of substitute service by advertising the same in "Fiji Sun" on 6th of March 2009, is void in pursuant to Order VI, Rule 2 and Rule 4 of Magistrates Courts Rules.
    
17. There was no Magistrate presided on 26th of April 2009, due to unavailability of Magistrates under the Public Emergency Decree 2009. The Registry adjourned this matter to 27th of May 2009 and Notice of Adjourned Hearing of case was issued to the parties. Again on 27th of May 2009, no Magistrate presided due to the same reason and the case was adjourned to 29th of July 2009 and Notice of Adjourned hearing of case was issued on both partied.
    
18. It is transpired from the case record, the Notice of Adjourned Hearing of case was only served on the Plaintiff's solicitor Deven Prasad lawyers. There is no affidavit of service of Notice of Adjourned hearing of case in respect of both defendants.
    
19. This case was fixed for formal proof on 29th of July 2009 in the absence of both defendants. On 3rd of November 2009, the Plaintiff gave evidence and the judgment was delivered on 21st of January 2010.
    
20. In view of aforementioned chronology of events in this case, it's transpired that the write of summon served on defendants by substitute service by advertising on a local newspaper was void in pursuant to Order VI rule 2 and 4. Furthermore, the defendants were not served with Notice of Adjourned hearing of case to appear on 29th of July 2009 too. Wherefore, I infer that the default judgment entered in the absence of both defendants on 21st January 2010 was obtained irregularly.
    
21. Upon considering the foregoing reasons, I now reach my determination in this ruling as follows,
    
    1. The default judgment dated 21st of January 2010 be unconditionally set aside,
    2. Issue writ of Summon on the 1st Defendant,
    3. The 2nd Defendant to file the Statement of Defence in 14 days time.
       

On this 20th day of December 2010.

R.D.R.Thushara Rajasinghe

Resident Magistrate, Suva.