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Fa v Laione [1997] FJHC 206; Hbc0527d.93s (1 May 1997)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 527 OF 1993

BETWEEN:

TEVITA FA
a Barrister and Solicitor of the High Court of Fiji
practising under the name of Tevita Fa & Associates
Plaintiff/Judgment Creditor

AND:

RATU MELI LAIONE, RATU NIMIROTE SEASEA
and RATU EPELI QORO
who are sued in their capacities as Chiefs and Representatives of
the people of Nakovacake within the Yavusa Tukani, Nadibotiluvuka
and Noineiqoro in the villages of Navoci and Namotomoto, Nadi
Defendants/Judgment Debtors

AND:

NATIVE LAND TRUST BOARD
a body corporate duly constituted under the Native Land Trust Act Cap. 134.
Garnishee

H.K. Nagin for the Plaintiff/Judgment Creditor
K. Vuataki for the interested party, Nakovacake Housing Scheme
No appearance for the Native Land Trust Board - Garnishee

Dates of Hearing and Filing of Submissions: 31st October, 20th November 1996,
17th January 1997
Date of Interlocutory Judgment: 1st May 1997

INTERLOCUTORY JUDGMENT

On the 29th of September 1993 a Writ of Summons was filed by the Plaintiff against the Defendants in their capacities as Chiefs and representatives of the people of Nakovacake within the Yavusa Tukani, Nadibotiluvuka and Noineiqoro in the villages of Navoci and Namotomoto, Nadi claiming the sum of $124,120.00 as the Plaintiff's professional costs for three cases conducted by him in the High Court and interest at the rate of 13.5% p.a.

The Writ of Summons was duly served and an Affidavit of Service was filed on 9th November 1993.

On 4th November 1993 an Ex-parte Notice of Motion was filed for an Order that the Plaintiff be allowed to sue the Defendants named in their capacities as Chiefs and representatives of the people of Nakovacake. This application was made under Order 15 Rule 14 of the High Court Rules (1988).

On the 8th of November 1993 I made an Order in terms of the application.

On 9th November 1993 a Default Judgment was entered against the Defendants to pay the Plaintiff the sum of $124,120.00 with costs to be taxed if not agreed.

On 10th November 1993 the Plaintiff filed an application for leave to issue Garnishee proceedings against the Native Land Trust Board and on the same day I granted a Garnishee Order to show cause.

The Garnishee documents were duly served on the Native Land Trust Board and were also served on the Defendants.

On 1st December 1993 Mr. Maika Qarikau the Acting Secretary of the Native Land Trust Board hereinafter called the Garnishee filed an Affidavit in Reply to that of the Plaintiff in support of his application.

In his affidavit Mr. Qarikau denies that the Garnishee owes any money to nor is the debtor of the Defendants. He says that the Garnishee administers land as Trustee for the three Yavusas of Nakovacake namely Nadibotiluvuka, Tukani and Noneiqoro under the provisions of the Native Land Trust Act and is directed to distribute rent and royalties in accordance with that Act.

He further says that there is a claim over all the moneys held by the Garnishee by a Third Party namely the Trustees of the Nakovacake Housing Scheme upon whose instructions the money has been retained and not distributed.

On the 9th of December 1993 the Plaintiff filed his Affidavit in Reply to Mr. Qarikau's affidavit.

On the 10th of December 1993 this Court ordered that the proposed Third Party the Trustee of the Nakovacake Housing Scheme be served with all documents through their former solicitors Messrs Q.B. Bale and Associates. All the documents were duly served in accordance with the Court Order.

On 21st of January 1994 Ratu Timoci Vuki the Chairman of the Trustees of the Nakovacake Housing Scheme filed an affidavit in which he denies on behalf of the beneficiaries under the Housing Scheme that neither the Plaintiffs in the three cases in this Court in respect of which the Plaintiff is claiming his fees nor the three persons named as representative Defendants in the present action had either jointly or severally any mandate or authority to represent the people of Nakovacake. He then comments on a list of signatures of members of the Yavusas on which the Plaintiff relies to support his application for a Garnishee Order against the Native Land Trust Board.

He claims that the list of signatures produced by the Plaintiff does not represent the voice or wishes of the majority of the people of Nakovacake and the beneficiaries of the funds in question.

The Garnishee Summons was set down for hearing on the 10th of February 1994 and then adjourned for hearing on the 4th of May 1994.

I began the hearing of evidence on the 4th of May 1994 and then adjourned the hearing until the 6th of June 1994. On that date I made an Order that a meeting be held at Namotomoto Village in Nadi in an attempt to reach agreement to resolve the Plaintiff's claim.

On the 23rd of June 1994 a meeting at Namotomoto Village was held with a view to reaching settlement. This meeting was also attended by Mr. Qoriniasi Bale and the Plaintiff.

The case was called in Court again on the 15th of July 1994 and was adjourned to the 26th of July 1994. On the 26th of July 1994 I adjourned the case for resumption of hearing to 8th September 1994.

On 8th September 1994 the hearing continued before me and the Plaintiff continued to give evidence. The case was then adjourned to 15th November 1994 but on that date and the 16th of November Mr. Bale was sick and the case was therefore adjourned to 15th May 1995 for continuation.

It was called on the 19th of April 1995 and adjourned to 27th of September 1995 for continuation. The case was called again on 28th August 1995 when the date for resumption of 27th September 1995 was confirmed.

On the 27th of September 1995 the case was called in Court but the Garnishee applied for an adjournment and the case was then listed for 30th November and 1st December 1995 for continuation.

On the 30th of November 1995 the case continued and was adjourned to 4th December 1995 but continued on the 5th of December 1995 when it was adjourned for further hearing on 1st February 1996.

On 1st February 1996 there was no appearance for the Garnishee and the case was adjourned to the 7th and 10th of June 1996 for continuation.

On the 10th of June 1996 the case continued and was adjourned further for continuation on the 11th and 12th of July. On 11th July 1996 the case was adjourned to 12th August 1996 for mention as Mr. Bale could no longer appear due to his suspension by the Law Society.

On the 12th of August 1996 Mr. K. Vuataki appeared for the Housing Scheme and the case was adjourned for continuation on the 17th and 18th of February 1997.

On the 13th of August 1996 the Housing Scheme through its new solicitors issued a Motion dated 8th August 1996 which is presently before me. That Motion is supported by an affidavit of Iliaseri Varo the Secretary of the Kovacake Housing Scheme. An Affidavit in Reply has been filed by the Plaintiff. On the 31st of October 1996 I gave orders for the delivery of written submissions by the parties on the Trustees' Motion.

I have set out the history of this litigation at length deliberately because it demonstrates how protracted these proceedings have already been.

The Motion seeks the following orders:

(a) That the Ex-parte Order made by me on the 10th of November 1993 be set aside.

(b) That the people of Nakovacake within Yavusas Tukani, Nadibotiluvuka and Noineiqoro in the villages of Navoci and Namotomoto, Nadi cease to be parties to this action.

(c) That execution of the judgment in Default of Defence dated 9th November 1993 be stayed and wholly set aside or alternatively varied so as not to be a judgment against the villagers named above.

(d) That the Trustee of Kovacake Housing Scheme be given leave to represent the people of Nakovacake within Yavusas Tukani Nadibotiluvuka and Noineiqoro in the villages of Navoci and Namotomoto, Nadi excluding the Chiefs of the three Yavusas.

(e) That the Trustees' current solicitors be permitted to represent them in lieu of Messrs Q.B. Bale & Associates.

The application is made pursuant to High Court Rules Order 2 Rule 1(2), Order 15 Rule 6(2)(a), (b) (i) and (ii), Order 15 Rule 14, Order 18 Rule 20 and the inherent jurisdiction of this Court.

In his affidavit in support of the Motion Iliaseri Varo deposes so far as relevant that the Ex-parte Order of 8th November 1993 was apparently not served on any of the villagers of Namotomoto and Navoci nor advertised in the newspaper and the Vanua of Nakovacake had therefore no knowledge of the Order.

Mr. Varo states that although the Order may have been served on the Defendants they did not inform the people of Nakovacake that they represented them as Defendants.

He then denies the Plaintiff's claim

(i) that the Plaintiffs in Civil Action 230 of 1989 were representative of the people of Nakovacake;

(ii) that the Plaintiff in Civil Action No. 422 of 1989 represented the Vanua of Nakovacake; and

(iii) that the Plaintiffs in Civil Action No. 413 of 1992 were representative of the people of Nakovacake.

Finally Mr. Varo deposes that he and the Trustees of the Housing Scheme only became aware of the possibility of setting aside the Default Judgment through their present solicitors upon which they immediately instructed them to set aside the judgment before they take any further step in this matter.

Counsel for the Trustees has prepared a comprehensive submission in which he not only refers to some nine authorities but very helpfully includes photo copies of many of these authorities.

I have read all the authorities cited by counsel but intend no disrespect to him when I say that I find them irrelevant to my decision on this Motion because of the history of this litigation which I have previously set out. It is important to mention some of the evidence and statements already before the Court in this case.

As to the claim by the Trustees that the Judgment by Default was entered irregularly because the Plaintiff is claiming a liquidated amount whereas his claim is really for an unliquidated amount, it is important to note the statement by Mr. Qoriniasi Bale then representing the Trustees at 11.10 a.m. on the 4th of May 1994 that the Trustees did not dispute the Plaintiff's fees but only the fund from which they should be paid.

Mr. Bale also stated during the course of the hearing that the Plaintiff's costs should not be garnisheed from the Native Land Trust Board because the funds held by the Board belonged to the Housing Scheme. At no stage did Mr. Bale ever query the Plaintiff's right to obtain his Default Judgment.

It is of the utmost importance in my view to remember that the Housing Scheme was represented by senior Counsel at all material times. In Halsbury's Laws of England 4th Edition Volume 3 paragraph 1184 in the section relating to Barristers the author states:

"The statements of counsel, if made on the trial of an action or in the course of any interlocutory proceeding in the presence of the client or his solicitor or someone authorised to represent the solicitor, and not repudiated at the time, bind the client and may be used as evidence against him."

In support of this statement the learned author quotes several cases including Colledge v. Horn [1825] EngR 577; (1825) 3 Bing 119, per Burrough J.; Haller v. Worman (1861) 3 LT 741 at 743, per Erle CJ, adopting the language of Denman CJ in Duncombe v. Daniell [1837] EngR 84; (1837) 8 C & P 222, The Clifton, Kelly v. Bushby (1835) 3 Knapp 375; Mahony v. Mahony (1850) 2 Ir Jur 129.

It is therefore clear that this principle has long been part of the common law. During the hearing of the 10th of June 1996 Iliaseri Varo was called as the first witness for the Defence. His examination-in-chief is immaterial for present purposes but in cross-examination in answer to the first question he was asked by counsel for the Plaintiff the witness said "I have been in Court right throughout these proceedings to date and mostly on the other days while Tevita Fa was giving evidence." In my judgment nothing could be more explicit than that answer.

It appears to be the Trustees' case now that they are dissatisfied with the conduct of Mr. Bale when he represented them. I reject any such claim out of hand. If they were dissatisfied, then they had ample opportunities to withdraw their instructions from Mr. Bale and they failed to do so. I must therefore presume that when Mr. Bale made his statement at 11.10 a.m. on the 4th of May 1994 it was made on the instructions of his clients. It is therefore too late now for the Trustees to say that they were ignorant of the law and that they should be given the right to have the Default Judgment set aside.

Furthermore this raises serious doubts in my mind as to whether the Trustees have any standing to make the present application for this reason:

Judgment has already been entered and the Kovacake Housing Scheme interest has always been to protect the funds held by the Garnishee from being garnisheed and not to be interested as a party to fight the merits of the Plaintiff's claim against the Defendants. Their interest is only in the Garnishee proceedings and the moneys sought to be garnisheed. They have no interest in the claim by the Plaintiff against the Defendants. That was always the position taken by Mr. Bale and the Trustees of the Housing Scheme. For the Court to grant the present application would be most unfair to the Plaintiff who until now may naturally be taken to have understood that the Housing Scheme was only interested in protecting the moneys that he was seeking to Garnishee from the Native Land Trust Board. I therefore reject the submission that the default judgment should be set aside.

Whatever might be the assistance the Trustees of the scheme might have derived from the various cases cited by their counsel (although most of them are distinguishable on their facts from those in the instant case), they have left the claim they are now making too late. If in the end they claim to have not been represented adequately by their former solicitors then they may have certain rights against those solicitors. That is not for me to say. A Court can only decide a case on the evidence before it and in my judgment the evidence and the conduct of the Trustees to date makes it inevitable that their Motion of 8th August 1996 be dismissed with costs.

This does not mean that the Plaintiff is certain to win his case. If eventually I find that the three named Defendants were not the representatives of the people of Nakovacake then there would be judgment for those Defendants which would very likely result, if application were made by the successful party, in having the Default Judgment set aside. Accordingly I reject the Prayers sought in paragraphs (a) to (d) of the Motion of the 8th of August 1996. I grant the Prayer sought in paragraph (e) of the Motion.

In the result I order the Trustees to pay the Plaintiff's costs of the Motion.

JOHN E. BYRNE
J U D G E

Legislation and authorities referred to in judgment:

High Court Rules Order 19.
Halsbury's Laws of England Fourth Edition Volume 3 Paragraph 1184.

Following additional cases were referred to in submissions:

Becker v. Noel & Anor (1971) 2 All E.R. 1248.
Boyle v. Sacker (1888) 39 Ch. 249.
Evans v. Bartlam (1937) A.C. 473.
Fraser v. Cooper, Hall & Co. (1882) 21 Ch. D.718.
Fiji Sugar Corporation Limited v. Mohammed Ismail Civil Appeal No. 28 of 1987 - unreported judgment of 8th July 1988.
Knight v. Abbot (1882) 10 Q.B. 11.
London Association for Protection of Trade & Another Greenlands Ltd. (1916) 2 A.C. 15.
Subdoh Kumar v. Car Rentals (Pacific) Ltd. Civil Appeal No. 35 of 1985 Court of Appeal.
Moon & Ors v. Atherton (1972) 3 All E.R. 145.
Morgan's Brewery Co. v. Crosskill [1902] UKLawRpCh 52; (1902) 1 Ch. 898.
Handford v. Storie [1825] EngR 363; (1825) 2 Sim & St. 196.
H.M.S. Archer (1919) P.1.
Roche v. Sherrington & Ors. (1982) 2 All E.R. 426.
Walker v. Sur [1913] UKLawRpKQB 219; (1914) 2 K.B. 930.
Workman Clark & Co. Ltd. v. Lloyd Brazlleno [1908] UKLawRpKQB 42; (1908) 1 K.B. 968.

HBC0527D.93S