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Ram v Kumar [2004] FJHC 11; HBM0029D.2003L (23 January 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBM 029D OF 2003L

BETWEEN:

SUNIL CHANDRA RAM
(f/n Daya Ram also known as Rajendra Prasad) of Vitogo,
Lautoka trading as Anytime Rentals and
Tours, the business situate at Nadi Airport.
1ST PLAINTIFF

DAYA RAM
also known as RAJENDRA PRASAD
(f/n Bechu) of Vitogo, Lautoka.
2ND PLAINTIFF

AND:

NAREND KUMAR
(f/n Ram Sewak) of Mala Mala, Nadi, Bailiff.
1ST DEFENDANT

OFFICIAL RECEIVER
as the Provisional Liquidator of Roxy Motorparts Limited
(Company in Liquidation).
2ND DEFENDANT

Counsel for Plaintiffs: Dr Sahu Khan: Sahu Khan & Sahu Khan
Haroon Ali Shah: Haroon Ali Shah

Counsel for the Defendants: Siddarth Nandan: Pillai Naidu & Associates
R. Prakash: Mishra Prakash & Associates

Date of Decision: 23.01.2004
Time of Decision: 9.30 a.m.

DECISION

This is an interlocutory proceedings arising out of a Lautoka High Court ex parte application before Byrne J. On 3 December 2003, the Defendants sought and successfully obtained an Order to remove this action from the Nadi Magistrates Court, and that it be transferred to the Lautoka High Court. In addition, it quashed the learned Magistrate’s Orders of 21st and 25th November 2003 respectively, while ordering that the Order together with all the supplementary documents to be served on the Plaintiff within 7 days. Liberty was granted for any party to apply on 72 hours notice. Counsel for the Plaintiffs on 8 December 2003 filed Notice of Motion seeking:

“

(a) That these proceedings instituted in this Honourable Court by the Defendants be dismissed and/or struck out as being a nullity and/or instituted without authority and/or instituted without the authority and/or consent of the Plaintiffs.

(b) That the Orders made by this Honourable Court on the 3rd day of December, 2003 be discharged and/or dissolved.

(c) Such further or other relief as to this Honourable Court seems just.”

When the Motion was heard on 11 December, 2003, Byrne J ordered that the status quo was to remain and that the matter be thereafter adjourned before the Deputy Registrar Lautoka on 12 January, 2004 for allocation to a new judge.

The Plaintiffs on 17 December 2003 filed at the Lautoka High Court a second Motion seeking the revocation of the Orders made by Byrne J upon the grounds set out in affidavits of the Plaintiffs. By arrangements between Counsel and the Court Registry the file was moved from Lautoka to Suva. The Motion came before me on 23 December.

PROCEDURAL ANOMALY

While this Court had allowed arguments by Counsel when the new Notice of Motion was filed on 17 December, 2003, the circumstances surrounding the transfer of the file from Lautoka to Suva appears to be in breach of the High Court Rules and the Practice Directions of the High Court. The transfer it seems had been done without any proper leave having being obtained.

On perusal of the file, it becomes clear that its transfer from the Lautoka High Court to Suva was done by one of the Counsels for the Plaintiffs, first verbally discussing the possibility of the case being heard in Suva with the Court Registry officials, and thereafter following it up with a letter dated 17 December 2003, addressed to the Deputy Registrar, Lautoka. It states:

“Dear Sir

RE: SUNIL CHANDRA RAM & DAYA RAM V. NARENDRA KUMAR & OFFICIAL RECEIVER – LAUTOKA HIGH COURT MISC ACTION NO. 29 OF 2003L

The above-mentioned matter refers. I act for the Plaintiff with Dr Sahu Khan.

I have spoken to the Deputy Registrar, Mr C.D. Singh, High Court Suva, and he has informed me to liaise with your goodself for transmission of the file to Suva for hearing of our fresh Motion for dissolution.

Your assistance will be highly appreciated.

Yours faithfully

HAROON ALI SHAH ESQ.”

On 22 December 2003, after having secured a hearing date at the Suva High Court for 23rd December, Counsel wrote to the Solicitors for the Defendants as follows:

“Please be advised that the Motion taken out by the Plaintiff dated 23rd day of December, 2003 is to be heard in Suva High Court and not Lautoka High Court.

The Motion was filed in Lautoka and the Case file transferred to Suva because on non-availability of a Judge at Lautoka.

Yours faithfully

HAROON ALI SHAH ESQUIRE”

On the same day, Counsel confirmed with the Officer-in-Charge of the Suva Registry the arrangement in a letter saying,

“Mr C.D. Singh

Deputy Registrar

Suva High Court

SUVA

Dear Sir,

RE: SUNIL CHANDRA RAM & DAYA RAM (PLAINTIFFS)

V. NAREND KUMAR & OFFICIAL RECEIVER (DEFENDANTS)

MISCELLANEOUS ACTION NO. 29 OF 20003L

_________________________________________________________

The Motion by the Plaintiff dated 23rd day of December, 2003 refers.

We have advised Mr D.S. Naidu of Messrs Pillai Naidu & Associates, Solicitor for the Official Receiver that the said Motion is to be heard in Suva High Court and not Lautoka High Court.

We enclose herein a copy of our letter to Mr Naidu.

Yours faithfully

HAROON ALI SHAH ESQUIRE.”

What essentially has happened here is that the Plaintiffs’ Counsel had, successfully organised the administrative system of the Judicial Department in such a way as to achieve the same objective it should have sought through the Court.

In the affidavit of Sunil Chandra Ram, the 1st named Plaintiff, in support of the Motion for dissolution, had attempted to explain the reasons for the urgency in their attempt to transfer the case to Suva. The relevant parts are contained in paragraphs 3 to 7, stating:

“

3. THAT on the 11th day of December 2003 Mr Justice Byrne stated in Chambers that he was not going to hear any Counsel whatsoever, the primary reason being that because of his imminent departure from Fiji and adjourned the matter to the 13th day of January 2004 to be heard by another Judge.
   
4. THAT I have liaised with the High Court Registry at Lautoka and found out that it is unlikely that a Judge will be available by the end of January 2004.
   
5. THAT whilst we are at liberty to apply to have the Orders dissolved upon three days notice, we are not able so to do and this is no fault of ours.
   
6. THAT the injuncture Orders are mandatory and ought not to have been made in the first place on an ex parte application.
   
7. THAT the Orders are further causing us great hardship and will most certainly will put us to financial ruin because of complete cessation of our rental car business and it is most likely that we will also lost all the goodwill that we have cultivated so far.”
   

It is plain from the affidavits that the Plaintiffs and their Counsel were firmly of the opinion that it would not be possible to have their Motion argued in Court in the immediate future. They of course, possess every right, as would any other party under the circumstances, to seek alternative avenues if available to have their grievance heard. It is however important, that in so doing, the parties and Counsel conform with the Rules that govern the procedures to be followed. In this instance, the Court, in granting the Defendants ex-parte application of 3 December 2003, had given liberty to any party to come back to Court, with 72 hours notice. Contrary to the Plaintiff’s argument, the Court had in fact granted the Plaintiffs this opportunity on 11 December 2003. In so doing, it further decided that the status quo be maintained while the case is referred to the Deputy Registrar, Lautoka on 12 January, 2004 for allocation to another Judge. Given the existence of this Court Order, any party seeking to have the case transferred out of Lautoka, would be required to formally, seek the sanction of the Court, and the agreement of the other party, before the matter is transferred. This the Plaintiffs failed to do. The mere fact that the Deputy Registrars may had agreed to the transfer, without the formal sanction of the Court, which is already charged with the matter, is not adequate to satisfy this Court that the requirements have been met.

There is furthermore the more important issue of the Motion itself. The Plaintiffs Motion to dissolve the Orders of Byrne J is already before the High Court in Lautoka. The new Motion filed in Lautoka and intended to be and was heard, in the Suva High Court, essentially seeking the same relief to that in the other Lautoka Motion, does in fact amount to duplicity and is an abuse of the Court processes.

Given therefore the finding of the Court that there has been procedural irregularity in the Plaintiffs action in moving the Case to Suva, and also the nature of their application before me, I find that no useful purpose can be achieved by this Court indulging in the submissions as to substance of the Motion. These are better left for later.

The Plaintiff’s Motion of 17 December 2003 is hereby dismissed. The case is to be returned to the Deputy Registrar, Lautoka High Court, as previously directed by Byrne J.

Costs of $200 is awarded against the Plaintiffs to be paid within 14 days.

F. Jitoko
JUDGE

At Suva
23 January 2004