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Chand v Kumar [2005] FJHC 635; HBA0002.2003 (15 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

ACTION NO. HBA0002 OF 2003

BETWEEN:

BIR CHAND
APPELLANT

AND:

SATISH KUMAR
1ST RESPONDENT

VINOD NATH
2ND RESPONDENT

VIDYA NATH
3RD RESPONDENT

Mr M S Sahu Khan for the Appellant
No appearance for the Respondents

Date of Hearing: 11 July 2005
Date of Judgment: 15 July 2005

JUDGMENT OF FINNIGAN J

This is a Plaintiff’s appeal against a Magistrate’s decision refusing to re- instate an action that she had struck out. The Respondents did not appear at the hearing of the appeal, one assumes that they support the appeal. They had joined the Plaintiff [or at least their Counsel had joined Counsel for the Plaintiff] in a consent application for adjournment of the hearing of the action. The Magistrate refused the application for adjournment. Both Counsel who had instructions only to appear on the adjournment then both sought and were granted leave to withdraw, where upon the Magistrate struck out the action for want of prosecution. Subsequently she heard and refused an application to re-instate. Hence this appeal.

The action was filed in the Magistrate’s Court at Tavua in January 1992. The cause of action arose in June 1991. The Plaintiff alleged serious property damage and serious injury to feelings whereby he sought judgment for a total of $12,755.00. It was a serious claim.

The pleadings were not complete until June 1997 it seems. It had been set down for hearing and/or adjourned for settlement many times by 30 April 1998. On that day the 1^st Defendant was variously said to be in Lautoka on a 2-week course and in Suva on a 1-week course. The Plaintiff did not appear. This was the 45^th adjournment. Plaintiff’s Counsel had consented and the matter was adjourned. In February 2000 the Plaintiff withdrew the action against the 2^nd and 3^rd Defendants.

On the day in question in this appeal, 19 April 2001 the action was set down for hearing again. Counsel for the Plaintiff wrote to the Court advising that he would be appearing that day in a part-heard matter in the Lautoka High Court. In the letter he mentioned that overseas Counsel were involved and that the Judge, my Brother Gates, wanted to complete the hearing of that case. Defendants’ Counsel’s clerk had advised him that the Defendants would consent to an adjournment. Counsel appeared before the Magistrate to make the formal application. The Magistrate refused. Her reasons were recorded;

“Ruling

This action was instituted on 10/1/92 and since then has been adjourned for hearing on 15^th and today is it’s 16^th time. Nine years have lapsed and this action is yet to be disposed off. Both counsels wrote to court expressing their different reasons why they are not available today. Mishra Prakash & Association for the defendant conveniently writes now requesting for copies of pleadings in this action as they have misplaced theirs. The plaintiff’s counsel, Dr Sahu Khan was present in court on the last occasion when this hearing date was fixed, and yet this office writes to say that he is engaged in the High Court. As I have said earlier, this court does not accept double booking, as a valid reason for adjournment neither do I accept misplacement of pleadings as a ground for adjournment on a hearing date.

Having considered the background facts to this case, the application for adjournment is refused”

There was an application to re-instate the action and a full hearing of that took place on 23 October 2001. The Defendants opposed the re-instatement. The submissions of both Counsel are set out in the Magistrate’s record. The Magistrate’s written ruling was delivered on 4 December 2001;

“Ruling

This is the Plaintiff’s application for an order that the action be re-instated.

The application made pursuant to Order XXX rule 6 of the Magistrate’s Court Rules.

The motion for ‘re-instatement’ is supported by the affidavit of Sanjeev Kumar sworn on 17^th May, 2001, whereby the non-attendance of the plaintiff’s counsel, Dr. M S Sahu Khan at the hearing of this action on 19^th April 2001 was explained, that the learned counsel was engaged in the High Court at Lautoka on the undertaking by his Honourable Mr Justice Gates to have this case adjourned.

On the record, a faxed letter was indeed received by this court on 19/4/01 at 10.45 am, letter dated 9/4/01 by the Acting Deputy Registrar, High Court Lautoka seeking adjournment of this case due to Dr Sahu Khan’s involvement in a part-heard case at Lautoka on the same date. However, the court was not made known of this letter until after it adjourns but by then, it was too late, written reasons for refusal of adjournment sought by counsels appearing, had been delivered.

Be that as it may, the responsibility for such an arrangement clearly lies with the concerned party or his solicitors and not by the judge, or by the Deputy Registrar. In the instant case, the application for adjournment could be supported by the Deputy Registrar’s letter.

However, going back to the plaintiff’s motion for re-instatement purporting to be made under Order XXX, rule 6 of the Magistrate’s Court Rules, which states:-

“Any Civil cause struck out may by leave of the court, be replaced on the Cause list, on terms as the court may seem fit.”

This action was struck out and dismissed after an uncontested application for adjournment sought was refused. On the hearing date – i.e. 19/4/01 both counsel for the plaintiff and defendant were represented by their agents, Mr Niaz Mohd and Mr Chandra Singh respectively. Since both the counsel lack the instructions to conduct the hearing after refusal of the adjournment sought, the action was struck and dismissed. Neither the plaintiff nor the defendant were personally present.

I have carefully considered arguments and submission made by both counsels and read the authorities cited and affidavits filed.

I find the authorities cited by learned counsel for the plaintiff relevant in application to set aside default judgments, whether regular or irregularly entered.

The facts of this particular case is however distinguishable.

My ruling of 19/4/01 to dismiss the action was not made due to the default or non-appearance of parties at the hearing. In fact they were represented by counsels through their agents who sought adjournment which the court refused, in the exercise of its discretionary power under Order XXVIII, rule 1.

This application to re-instate the action to the list purported to be made under Order XXX, rule 6 is misconceived. Appeal would be the proper cause of redress under the circumstances.

Accordingly, the plaintiff’s motion to re-instate the action to the list is dismissed with costs to the defendants summarily assessed at $100.00”.

At the hearing before me Mr Sahu Khan’s submission was brief and to the point. He submitted that both sides had wanted an adjournment, the Plaintiff had written to the Magistrate’s Court saying that the Defendant had no objection and Mr Justice Gates had written supporting the application. The learned Magistrate had completely disregarded the support of Mr Justice Gates. He submitted that the learned Magistrate had overlooked the fact that the adjournment was not intentional but was an arrangement made by the High Court. The Magistrate noted that the matter had already been adjourned many times but instead of using that as a ground for proceeding, she should have noted that Counsel for both parties sought the adjournment and had expected that it would be granted. He closed his submission by asking me to note that there was no opposition to this appeal by the Respondents and by submitting that it would be in the interest of justice that the Magistrate’s refusal to re-instate be set aside.

Decision

In my opinion the Magistrate favoured the parties with careful and well reasoned rulings, both for the striking out and for the separate application to re-instate. I applaud them both, Counsel in the Lautoka High Court are now aware that consent by both parties has evaporated as a reason for adjournment of a hearing. The Court fixes hearing dates in open court and in consultation with Counsel. The business of the court is under control of the presiding judicial officer. Whether or not a previous judicial officer has been liberal with adjournments may be a factor, but any Judge, Magistrate or Tribunal sitting judicially must assume full and final control of any hearing before it.

It is essential that the business of the Magistrates’ Courts and the High Court be dispatched promptly because justice delayed is no justice. By my quick count from the record the day of the strike-out decision was not the 16^th but the 58^th time that this case had been called between 13^th May 1992 and 19 April 2001. Many of the earlier appearances were merely formal, partly because the pleadings were proceeding at a slow pace and the Plaintiff clearly was content with that. Without reciting the record in detail, the history shows that the Plaintiff has exhibited very little commitment. So far as I can tell only the 1^st Defendant was served and filed pleadings and a reason for the adjournment of a hearing that could have been held on 5 May 1994 was that two Defendants had not been served. There was to have been a hearing on 22 June 1995 and the two Defendants had still not been served. The Court granted “1 final adjournment”. Thereafter the matter rolled on sometimes for a reason sometimes for no reason at all for another 6 years. On the merits alone the Magistrate was justified in finally striking the Plaintiff’s action from the lists, for want of prosecution.

Because a judicial officer is independent in the conduct of the business of his or her court, this Court has no business writing letters to any other court instructing or influencing the way that other court conducts its business. I disregard that part of the submissions, and I disregard the Acting Deputy Registrar’s letter to the Magistrates Court. The Magistrate prevailed and by every principle she was right. The letter was a weak and vain attempt to undermine the Magistrate and must be seen as abhorrent.

I am unable to see any merit at all in this appeal and I dismiss it. I think to maintain the appeal in the current climate of serious backlogs of very old cases may not have shown good judgment.

Since 1215, the Courts of Law in our tradition have been bound by the promise of King John; “To no one will we sell, to no one will we refuse or delay right or justice”. Counsel, as officers in the Courts, thus have a duty to their clients.

Since the Respondent took no steps I make no order for costs.

D.D. Finnigan
JUDGE

At Lautoka
15 July 2005