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

CIVIL ACTION NO. HBC0409 OF 1994

BETWEEN:

KARIM BUKSH
(f/n MADAR BUKSH)
of 1 RAGG AVENUE,SUVA
PLAINTIFF

-v-

PACIFIC TIMBER DEVELOPMENTS LIMITED
DEFENDANT

S. Inoke for the Plaintiff
H.K. Nagin and R. Newton for the Defendant

Date of Hearing: 4th of December, 1997
Date of Ex Tempore Judgment: 4th of December, 1997
Date of Written Judgment: 10th of December, 1997

JUDGMENT

On the 4th December 1997, I dismissed a Notice of Motion dated 28th November 1997, by the defendant seeking an order for the leave granted on the 27th November 1997 by this Court to issue a Writ of Possession be set aside for irregularity on the grounds that it was premature as no order for vacant possession had been made against the defendant so that the granted leave was null and void and of no effect.

The application was stated to be made pursuant to Order 2 rule 2(2) of the High Court Rules of 1988.

After hearing submissions by counsel for the parties I dismissed the motion and held that it was a flagrant abuse of the court process. I further ordered that the defendant give vacant possession of the property in question forthwith and that for that purpose it was unnecessary for the plaintiff to issue and serve a further Writ of Possession.

I then ordered the defendant to pay the plaintiff's costs which I fixed at $1,000 together with disbursements of $505 shown on a hand-written statement handed up by the plaintiff. I stated that I would publish my detailed reasons later and I now do so.

At the outset I must say that I have the gravest doubts about the bona fides of the motion considering the fact that it was issued barely 24 hours after I had granted the plaintiff leave to issue a Writ of Possession.

The circumstances in which I granted that leave are set out in my judgment of the 27th November 1997 which followed the rejection by Mr Justice Dillon in the Court of Appeal of an application by the defendant to the Court of Appeal for leave to file a summons for security for costs out of time and a refusal by the Judge to grant the defendant a stay of execution pending appeal. I referred to the conduct of counsel for the defendant Mr Isireli Fa for his outrageous insolence and rudeness to a Judge of this Court the like of which I had never previously seen in the whole of my professional career; nor do I ever want to see such conduct again. Consequently, I believe a reasonable inference to be that the present motion by the defendant was conceived in pique and born of frustration at having been unsuccessful first before Mr Justice Dillon and shortly afterwards before me. Whatever the parentage of the motion I have no doubt that it is legally misconceived in that it seeks to invoke Order 2 rule 2 of the High Court Rules as a ground for setting aside my order giving leave to the plaintiff to issue a Writ of Possession.

Order 2 of the High Court rules sets out what is commonly known as the `slip' rule whereby any failure to do or leave undone anything which was obviously unintended and thus a slip by a party to an action can be rectified by the court and shall not nullify the proceedings. A common example of the application of Order 2 would be where a judgment was entered in favour of a party for $5,000 when by a typographical slip the correct amount should have been $50,000. It is desirable to set out Order 2 rules 1-2 for the better understanding of my reasons for dismissing the defendant's motion. The Order reads:

"Application to set aside for irregularity (O.2,r.2)

2.-(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any document, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion."

In opening his submissions for the defendant Mr Nagin who appeared with Mr Newton argued that before a Writ for Possession can be issued there must be first a judgment or order granting vacant possession which must then be served on the defendant. This was not done here.

He then relied on the English Court of Appeal decision of Manchester Corporation v. Connolly & Ors [1970] 1 All ER 961 and particularly the judgment of Lord Diplock at page 966. This was an interlocutory appeal to the Court of Appeal from an Order made by the Vice-Chancellor granting an injunction against the appellants from entering or remaining on the respondents' land made pursuant to Order 45 rule 2 in our High Court Rules. The case is mentioned in the notes to Order 45/3 in both the 1988 and 1993 Supreme Court Practice and probably other editions of what lawyers call the "White Book".

At page 966 Lord Diplock said:

"Counsel for the respondents has been unable to point to any authority for the proposition that the common law writ could be issued except as the result of a final judgment. It is the current form of writ of possession requiring the sheriff to hand over possession to the respondents and to evict any persons who may be there, leave to issue which has been granted by the Vice-Chancellor in this case. In my view, it is not, as the rules stand at present, within the power of a court to grant such an order on an interlocutory application. I can see a great deal of common sense in allowing it to be done in such a case as this, but unless and until the rules are altered to provide for it, there is in my view no power to make such an order except in a final judgment; although no doubt a final judgment by the summary procedure under RSC Ord 14."

When I remarked to Mr Nagin that on the hearing before me on the 27th November, Mr Fa then counsel for the defendant, had not cited this case to me as he was obliged to if he wished to rely on it, Mr Nagin could only reply that he was not responsible for anything Mr Fa did or failed to do on the 27th November.

This was a most unsatisfactory reply, with all respect to Mr Nagin, because as every barrister or solicitor appearing as counsel in any court knows or should know, it is the duty of counsel not to knowingly mislead the court but to inform the court of every relevant authority or decision of which he is aware, whether it be for or against his client. Halsbury's Laws of England 4th edn Vol.4 para 1137 states the duty thus:

"Duties to client and to the court... In the interests of the administration of justice, however, a barrister has an overriding duty to the court, to the standards of his profession and to the public. Thus, he must not knowingly, mislead the court; this duty prevails over that he owes to his client...; he must inform the court of every relevant authority or decision of which he is aware, whether it be for or against his client..."

In my judgment, Connolly's case is irrelevant to the present proceedings because it was an appeal and not an application made under Order 2 rule 2 as Mr Nagin and the newly-admitted Mr Newton mentioned more than once in the course of their argument. In any event I must assume that Mr Isireli Fa was aware of this case because of the reference to it in the White Book; therefore he had a duty to the court and to his opponent to refer the court to the case and failed to do so.

It ill becomes the defendant therefore to argue before the court at a later date that it failed to follow Connolly when the case was never mentioned by counsel for the defendant. Such failure in my judgment can be construed as an attempt to entrap the court and as such will not be tolerated. This is why I described the defendant's motion as a flagrant abuse of process. Had Mr Fa referred to Manchester Corporation v. Connolly on the 27th November, counsel for the plaintiff would have had an opportunity to make submissions on the relevance of that case to the matter in hand and so obviate the expense and waste of the court's time in hearing argument on a summons which in my view should never have been issued.

I have already mentioned one example of the way in which Order 2, rule 2 applies. Another example is given in the only case cited in the White Book as to the meaning of the term "Irregular", Muir v. Jenks [1913] 2 K.B. 412 the headnote to which reads:

"Where a plaintiff signs judgment in default of appearance for a sum in excess of that which is due to him, the defendant is entitled to have that judgment set aside, subject to the right of the plaintiff, in a proper case, to apply to have the amount of the judgment reduced. Delay on the part of the debtor will not necessarily deprive him of his right to have the judgment set aside."

For these reasons I held that the motion under Order 2 rule 2 was misconceived. Further, in this regard it is useful to note also the remarks of Lord Denning M.R. in Harkness v. Bell's Asbestos & Engineering Limited [1967] 2 Q.B. 729, at pp. 735-6 that:

"R.S.C., Ord. 2, r.1, does away with the old distinction between nullities and irregularities and should be construed widely and generously to give effect to its manifest intentions (post, p.735A, G). Every omission or mistake in practice or procedure is to be regarded as an irregularity which the court can and should rectify so long as it can do so without injustice."

When I asked Mr Newton whether any error that may have been made by the court could be rectified by the plaintiff immediately making an application for an order for vacant possession and my then granting such order he agreed whereupon Mr Inoke made the necessary application and I made the corresponding orders. On the facts of this case I consider grave injustice would be suffered by the plaintiff if the defendant's application were granted.

For these reasons I dismissed the defendant's motion.

JOHN E BYRNE
JUDGE

Authorities and cases mentioned in judgment:

High Court Rules 1988
Halsbury's Laws of England 4th Edn. Vol. 4
The Supreme Court Practice
Harkness v. Bell's Asbestos & Engineering Limited [1967] 2 Q.B. 729
Manchester Corporation v. Connolly & Ors [1970] 1 All ER 961
Muir v. Jenks [1913] 2 K.B. 412

The following additional cases were cited in argument:

Anlaby v. Praetorius 20 QBD 764
Hughes v. Justin [1894] 1 Q.B. 667

HBC0409J.97S