IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0438 OF 2003L

BETWEEN:

RAPCHAN HOLDINGS LIMITED
Plaintiff

AND:

NATIVE LAND TRUST BOARD
Defendant

Counsel for the Plaintiff: Mr. F. Koya
Counsel for the Defendant: Mr. K. Qoro

Date of Hearing & Ruling: 22 April 2005

EXTEMPORE RULING

Before the court is an Ex-parte Notice of Motion filed on behalf of the defendant in these proceedings. The ex-parte Notice of Motion and supporting affidavit were filed at the registry today.

In support of the Notice of Motion, the defendant relies upon an affidavit of Senimelia Karikaritu sworn on the 21st April 2005. In the Motion the defendant seeks an order revoking and/or varying the orders made by this court on the 25th February 2005 and further an order that it the defendant comply with the Deputy Registrar’s order of the 3rd November 2004.

On the 25th February 2005, this court made orders that the judgment entered on the 10th May 2004 against the defendant be reinstated due to the non-compliance by the defendant with an order for directions and order for pre-trial conference and further that the defendant pay the plaintiff’s costs summarily assessed in the sum of $1000.00 within 14 days and still further that the statement of defence be struck out.

It should be noted that on the 25th February 2005, Mr. K. Qoro appeared for the defendant and indicated to the court that the Legal Officer from his client was engaged elsewhere. Whilst the matter was for hearing that day, the file had not been sent to him from his client in Suva. 

Previously on the 11th February 2005, Mr. K. Qoro had appeared for the defendant and requested a further 7 days as he had only got instructions the previous day and the file was in Suva. In response to this application, the court adjourned the proceedings for hearing on the 25th February 2005. Those events place in context the orders that were made by the court on the 25th February 2005 and which the defendant now seeks to set aside.

In the affidavit in support of the Notice of Motion, the deponent sets forth a chronology of the events in this matter. Whilst the chronology details some of the events, it does not detail all of the events that have taken place since the filing of the Writ of Summons on the 10th December 2003.

For the purposes of completeness, I set out the chronicle of events:

10 December 2003		-	Writ filed.

10 December 2003		-	Ex-parte Motion filed.

14 January 2004		-	Jitoko J. granted leave to file affidavits.

23 March 2004		-	Summons for summary judgment file.

1 April 2004	-	Acknowledgment of Service of the Writ filed dated 21 January 2004.

2 April 2004	-	Summons seeking judgment adjourned to the 16 April on the application of the defendant.

16 April 2004	-	Summons seeking judgment adjourned to the 18 June by consent.

10 May 2004	-	Judgment entered as no defence filed.

7 July 2004	-	Notice of Assessment of Damages filed.

15 July 2004	-	Adjourned to 11 August 2004 on the application of the defendant indicating that they wanted to file to set aside the judgment.

11 August 2004	-	Summons to set aside not served. Proceedings adjourned.

12 August 2004		-	Summons to set aside filed.

6 September 2004	-	Default judgment set aside. Directions ordered in costs.

9 September 2004	-	Defence filed.

25 October 2004	-	Summons for Directions filed.

3 November 2004	-	By consent Order for Directions made in terms.

3 November 2004	-	Notice by the Plaintiff on Order 34 conference.

29 November 2004	-	Notice of Motion by the Plaintiff seeking default judgment be reinstated due to the failure of the defendant to comply with directions.

3 December 2004	-	Notice of Motion adjourned to the 10th December 2004.

10 December 2004	-	Notice of Motion adjourned at the direction of the court to the 11th February 2005.

11 February 2005	-	The defendant appears and seeks 7 days to get instructions.

25 February 2005	_	The defendant’s file not sent from Suva. Seeks an adjournment. The court refused. An order made in terms of the Notice of Motion on the 29th November. The defendant to pay costs of $1,000.00 within 14 days. The defence was struck out.

8 March 2005	-	The defendant filed affidavit verifying a list of documents.

10 March 2005	-	Notice of Assessment of Damages served on the defendant.

18 March 2005	-	The defendant appears and says he has not received the file and seeks an adjournment. The matter adjourns to the 22nd April 2005 for hearing.

The chronology is then completed by the defendant having filed with the Registry today a Notice of Motion seeking to revoke the Orders of the 25th February 2005.

The defendant has referred the court to various authorities. All of which relate to issue of fair trial following the failure of a party to comply with directions given or more specifically suppressing documents consequent upon some directions having been given. None of those authorities deal with the failure of a party to comply with the orders of the court with respect to the hearing of the proceedings. 

In Ashmore v Corp of Lloyd’s (No. 3) [1992] 2 All E.R. 486, the court observes that the control of proceedings is always a matter for the trial judge and the parties are not entitled as of right to have their case tried to a conclusion in any particular way they deem fit. The Rule of Law defines that courts exist for the finalizing of disputes between litigants and that in reaching that goal justice must be served. As was said by Mr. Justice Winter in Ratu Solomoni Naqiolevu & Ors v Fiji Electricity Authority – Civil Action HBC0237 of 2002:

“Litigants are not entitled to the uncontrolled use of the judge’s time.”

Whilst I have said it, on several occasions in the past, it seems to bear no fruit in this court that the defendant to these proceedings, the Native Land Trust Board, is in no different position to any other litigant that appears before this or any other court. It is obliged to comply with the directions of the court, the timetable set by the court and to appropriately use the court’s time.

In the circumstances, I see no merit in the arguments put forward in support of the Notice of Motion and accordingly, the Notice of Motion filed on the 22nd April 2004 is dismissed.

JOHN CONNORS
JUDGE
At Lautoka
22 April 2005