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Prasad v Housing Authority [2011] FJHC 111; HBC172.1993 (4 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 172 of 1993

BETWEEN:

SURESH PRASAD f/n Gomati Prasad of Tavakubu, Lautoka, Unemployed
Plaintiff

AND:

HOUSING AUTHORITY a statutory body at Lautoka
Defendant

Before: Master Anare Tuilevuka

Counsel: Applicant in Person
Mr. Anu Patel on instructions from Maharaj Chandra & Associates for Defendant

Date of Hearing: 03rd February, 2011
Date of Ruling: 04th February, 2011

RULING

[1]. The applicant - Mr. Suresh Prasad - filed a Notice of Motion on the 26th of January 2011 seeking that the action be restored or reinstated on the cause list. His claim was actually dismissed on 27th of July 2003 by Byrne J for want of prosecution. The application is supported by Mr. Prasad's affidavit which he swore on the 27th January 2011 and filed herein.

[2]. Before I refer to Mr. Prasad's affidavit, let me just briefly outline some background to this matter from the statement of claim. Mr. Prasad worked as a chainman for Housing Authority from 1972 to 1993. On 22nd April 1993, he was dismissed. On 26th May 1993, he filed a claim for wrongful dismissal through Messrs Haroon Ali Shah seeking damages and an order for reinstatement. The records will show that the trial of this case was adjourned a couple of times on the application of Messrs Haroon Ali Shah due to clashes with other court commitments. The records will show also that every adjournment was consented to by the defendants lawyers. The records will also show that the pre-trial processes had all been completed. That was the background against which Housing Authority's lawyers filed an application to strike out the claim in 2002. The records will show that despite several opportunities given, the plaintiff's lawyers did not file any affidavit in opposition. However, on the day appointed for the hearing, the plaintiff was represented in Court. On the 22nd day of October, 2002, Mr. Justice Byrne dismissed Mr. Prasad's action for want of prosecution. The sealed Order reads as follows:

UPON READING Defendants Summons to Dismiss the Plaintiff's Action for Want of Prosecution and UPON HEARING MR. A PATEL on instructions of Maharaj Chandra & Associates on behalf of the Defendant and Mr. Shalend Krishna on behalf of Haroon Ali Shah IT IS HEREBY ORDERED that the Plaintiff's action be and is hereby dismissed for Want of Prosecution.

If further Ordered that the Plaintiff do pay costs to the Defendant to be taxed, if not agreed.

ENTERED AND SEALED this 13th day of February 2003.

BY THE COURT

Sgd DEPUTY REGISTRAR

[3]. In his affidavit, Mr. Prasad states that Messrs Haroon Ali Shah had handled his case from inception to the time it was dismissed He said he only learnt in 2003 that the case had been dismissed. This was communicated to him vide a letter from the Deputy Registrar in response to his queries. This letter then prompted Mr. Prasad to lodge a complaint against Mr. Shah to the Fiji Law Society and then to the Chief Registrar. That complaint was duly investigated and disposed off in due process and on 01st October 2010, the Chief Registrar wrote to Mr. Prasad to advise as follows:

This is to inform you that your complaint against the above mentioned practitioner has been unsuccessful as outlined in paragraph 98 of the judgment at page 13 which stipulates

"There is nothing in the court file apart from the Order of the 22nd of October 2002 to indicate that the respondent had been dilatory in the preparation of the matter for the trial"

[4]. I must say that having perused the file myself, I would agree with the Chief Registrar's observation. While that observation may or may not support a challenge of the dismissal of his claim in 2002, the glaring issue is why the delay in filing this application.

[5]. To explain the delay, Mr. Prasad said he was initially only concerned about complaining about Mr. Shah, thinking that a finding against Mr. Shah would facilitate reinstatement of the claim. He only decided to pursue this application after the Chief Registrar's letter of 01st October 2010.

[6]. He believes strongly that he has a strong case against the Housing Authority and the dismissal of his case without a trial on merits is a gross injustice to him (sic).

[7]. Having considered all, I will have to refuse Mr. Prasad's application for the following reasons:

• (a) I agree with Mr. Patel's submission that Mr. Prasad should have appealed Byrne J's decision to the Fiji Court of Appeal. On the face of the sealed Order, Byrne J's decision to dismiss the claim was made after a full hearing.
  
• (b) since the ruling was delivered way back in 2002, and Mr. Prasad would now be well out of time in seeking leave to appeal, Mr. Prasad should be filing an application seeking leave to appeal out of time.
  
• (c) in any event, even if the application was to be considered along the principles of reinstatement, Mr. Prasad has an uphill battle convincing any judge as to why it has taken him some eight years (from 2003 when he learnt from the Deputy Registrar that the case had been dismissed for want or prosecution to 2011) to seek reinstatement – not to mention the difficulty in convincing any court that the balance should tip in his favour against the obvious prejudice to Housing Authority (given that the cause of action accrued in 1993).
  

[8]. For the above reasons, I dismiss the application for reinstatement with costs to the defendant which I summarily assess at $200-00 (two hundred dollars) to be paid in 28 days.

Anare Tuilevuka
Master

At Lautoka
4th February, 2011