IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 74 of 2009

BETWEEN:

BONE BISAI, of Yavusa Vuniwai, Labasa, Macuata, Villager.
PLAINTIFF

AND:

THE NATIVE LAND TRUST BOARD, a body corporate duly constituted under the Native Land Trust Act, Cap 134.
1ST DEFENDANT

AND:

MACUATA PROVINCIAL COUNCIL, a body corporate established under the Fijian Affairs Act, Cap 120.
2ND DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS: Mr. S. Fa for the Plaintiff
 Ms. Comita for the Defendant

Date of Hearing: 19th May, 2011
Date of Ruling: 18th November, 2011

RULING

A.	INTRODUCTION 

1.	The Plaintiff instituted this action against the 1st and 2nd Defendants for a declaration for exclusive possession of a land and a claim for unpaid rent amounting One Million Six Hundred and Forty Eight Thousand and Two Hundred Fifteen Dollars and Ninety One Cents for the rent payable by the 2nd Defendant for a land and a claim for Damages against the 1st Defendant. The alleged claim dates back to 1943 and the action was instituted on 27th February, 2009, the reply to the Defence was filed on 26th August, 2009 by the Plaintiff and did not take any action to proceed with till the court issued notice in terms of the Order 25 rule 9 to show cause on 6th January, 2009. On 18th March 2011, the Plaintiff filed its Summons for Directions and served the 1st and 2nd Defendants on the 29th and 30th March 2011 respectively. The 1st Defendant also filed an application for strike out on 15th March, 2011. The Plaintiff's claim for rent is relating to a dealing of a land in 1943 for 30 years and subsequent extensions granted to the 2nd Defendant by the 1st Defendant, of a native land. The 1st Defendant also seeks to strike out them in terms of Order 18 rule 18(1) of the High Court Rules of 1988. It is also noted that in terms of the Order 3 rule 5 where 6 months or more have lapsed since the last proceeding in a cause or matter, a party intending to proceed must give not less than one month's notice of their intention to proceed and an application on which no order was made is not a proceeding for the purpose of the said rule. So the summons for directions filed by the Plaintiff without giving the said notice of intention to proceed which no order was made cannot be considered as proceeding for the purpose of this application for strike out. The Plaintiff did not file an intention to proceed in terms of the above provision and the Defendant is alleging prejudice to their defence because of the long delay and the loss of witnesses and documents.

B.	FACTS 

2.	The Plaintiff brought this action by way of Writ of Summons which was issued from the Suva High Court Registry on the 27th of February 2009 seeking the following relief;

i)	A declaration that the Yavusa Vuniwai is entitled to possession and occupation of the land to the exclusion of all others;

ii)	An order that the Macuata Provincial Council pay as damages for unpaid rent the sum of $1,648,215.91 (One Million Six Hundred and Forty Eight Thousand and Two Hundred Fifteen Dollars and Ninety One Cents);

iii)	Damages against the First Defendant;

iv)	Costs and Interest;

v)	Such further or other orders as the Court may consider appropriate.

3.	The Plaintiff served the 1st Defendant at its Head Offices in Suva on 2/3/09 and the 1st Defendant filed its Statement of Defence on the 17/4/09, and served the same on the Plaintiff on the 23/4/09 the Plaintiff filed its Reply to the 1st Defendant's Statement of Defence on 26/8/09

4.	The 1st Defendant had filed its application to have the Claim struck out against 1st Defendant on the 15/11/10. The application is made under Order 18 Rule 18(1) and Order 25 Rule 9.

5.	The Court had on its own motion under Order 25 Rule 9 for want of prosecution called the matter on 4/3/11. The notice in terms of the said provision was served on the parties on 10th of January 2011 through post.

6.	The Plaintiff had filed its Summons for Directions issued out the High Court Registry on the 18/3/11 but in terms of the provisions contained in Order 3 rule 5 that filing of summons for directions cannot be considered as a proceeding for the purpose of the strike out application and it should be struck out in limine as no intention to proceed has been filed as stipulated in Order 3 rule 5

C.	WANT OF PROSECUTION

7.	Order 25 Rule 9 of the Fiji High Court Rules 1998 provides as follows:

"Strike out for want of prosecution"

9-(1) If no step has been taken in any cause or matter for six months then any party on application or the Court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the Court;

(2) Upon hearing the application the Court may either dismiss the cause [or] matter on such terms as may be just or deal with the application as if it were a summons for directions.

8.	The leading case on want of prosecution is the British decision of 1969, Allen –v- Sir Alfred McAlphine & Sons Ltd (1968) 2 Q.B. 229. The case sets out a three part test for want of prosecution. 

Lord Denning MR in the said case at p 246 held as follows

If your read Eaton v Storer carefully, you will see that the practice described by Sir George Jessel applies only to moderate delays to two or three months. It does not apply when" there is some special circumstance such as excessive delay". The principle upon which we go is clear: when the delay is prolonged and inexcusable, and is such as to do grave injustice to one side of the other or to both, the court may in its discretion dismiss the action straight way, leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight. 

9.	Diplock L. J in the said case with a concurring, separate judgment held as follows

At p 255 – 

'And where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witness recounting what they then recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the court's being able to find out what really happened are progressively reduced as time goes on. This puts justice to the hazard. If the trial is allowed to proceed, this is more likely to operate to the prejudice of the plaintiff on whom the onus of satisfying the court as to what happened generally lies.'(emphasis is mine)

10.	The above two passages of Lord Denning MR and Diplock L.J in the case of Allen –v- Sir Alfred McAlphine & Sons Ltd (1968) 2 Q.B. 229 is applicable to this case before me. The delay is more than one 1 year and 7 months and even when the court sent a notice to show cause in terms of Order 25 rule 9 on10th January, 2011 the Plaintiff neglected and disregarded the notice and did not show any intention to proceed. Neither the Plaintiff filed an intention to proceed as required in the Order 3 rule 5 nor has it filled any materials to show cause. 

11.	It is to be noted that it is not only for the plaintiff but equally, it will be prejudicial for the Defendant as well as in this case before me where the 1st and 2nd Defendants are statutory bodies where the witnesses have to testify only based on documentary evidence and will be onerous task to find out related documents connecting to the issue contained in various files, when the person who had knowledge of the issue had left, this is more so when the incident dates back to 1943, more than a 68 years in the past where the documents may get destroyed due to natural cause of events.

12.	The Plaintiff had not exercised due diligence in expediting this matter and there has been inordinate delay by the Plaintiff. The Plaintiff's last action in the matter was filing its Reply to the 1st Defendant's Statement of Defence in 26/8/09. 

13.	The Plaintiff's affidavit in opposition state that the High Court was not functioning at that time. This is not acceptable and the High Court was functioning at that time and even this case was filed in 2009 and the last action taken by the Plaintiff was in August, 2009, which clearly shows that the High Court was functioning at that time. There was also no significant event that either stopped or hindered the functioning of the High Courts after August, 2009 and the reason given for the delay cannot be accepted.

14.	The other reason given by the Plaintiff's solicitor was that the Plaintiff lives in island outside the Viti Levu and the instructions were difficult to obtain. It is to be noted the action was filed claiming rent from as far back as from 1943 amounting over a million dollars and if the Plaintiff is not interested about such an amount it should be implied that either the plaintiff is not keen about the claim and or the claim is a frivolous one and has already lost faith in his claim for such a substantial amount. This is clear when the court issued notice in terms of Order 25 rule 9, the Plaintiff did not take any action diligently and Defendant filed another application in terms of the same provision for strike out as well as in terms of Order 18 rule 18(1). The Plaintiff filed summons for direction on 18th March, 2011 but that has not been dealt and no order was made on it .It is clear that such summons for direction was filed nearly two years after the filing of the reply to the statement of defence and this kind of delay would seriously prejudicial to already delayed action that relates even as far as 1943. 

15.	The Plaintiff filed the reply to the statement of defence in 26th August, 2010 and since then the Plaintiff's inaction continued for about 1 years and 7 months until the 1st Defendant filed its Summons for Striking Out under Orders 18 Rule 18(1) and Order 25 Rule 9 on the 15/11/10.

16.	As stated in the above ruling to determine what is or is not inordinate delay must be determined by the facts of each particular case. Plaintiff's solicitors could have filed its Summons for Direction immediately after filing its Reply to the 1st Defendant's Statement of Defence on 25/8/09.

17.	The reasons for delay are provided by the Affidavit of Semi Nikau from Paragraph 12 to 18. The Plaintiff's solicitors alleges that its client is a villager residing Yavusa Vuniwai in Labasa and due to the travelling difficulties faced by its client they could not obtain firm instructions from him. These excuses cannot be accepted. The inordinate delay are clearly inexcusable. The Plaintiff's solicitors should have conducted due diligence and expedite this matter specially considering the fact that the statement of claim relates to issues that happened as far as 1943. 

18.	It should be noted that excuses of similar nature was also brought forth in the case of Merit Timber Products Limited –v- Native Land Trust Board [1995] FJSC 4; CBV 0008 u. 1994 Reply to the 1st Defendant's Statement of Defence on 26/8/09 and cases were continued to proceed as normal. Therefore, the reason submitted by the Plaintiff's solicitors that delay was predominately outside their control cannot be accepted as they had filed court documents on or about 26/8/09 and the time taken for that does not indicate a significant delay and no incident happened after August, 2010 to claim a disruption of Court process. The turnover of the employees of the law firm is not an issue to be considered by the court as a reason as it is an internal administrative matter of the solicitor and in any event the delay more than 1 year and 7 months is a long time considering the nature of the case.

19.	In the case of Merit Timber –v- NLTB had referred to the relevant principles by Lord Diplock in Birkett –v- James (1987) Ac which provide as follows:

"The power [to strike out for want of prosecution should be exercised only where the court is satisfied either (1) that the default has bee intentional and contumelious, e.g. Disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants…."

20.	The affidavit of Joreti Dakuwaqa in support of the striking out application filed on the 15/11/10 from paragraph 7 to 10 and our affidavit of Semi Senikuraciri filed 21/4/11 from paragraph 14 to 15 mentions the prejudices faced by the 1st Defendant by the Plaintiff's inordinate delay. The costs incurred by the 1st Defendant in terms of courier costs of the said files to and from the Labasa Office in Vanua Levu where the subject land is located and to its Head Office in Suva where the action was instituted in the Suva High Court Registry. The 1st Defendant has incurred costs for mobilization of its resources to ensure effective representation of its defence. The transporting and or the transfer of the said files to and from the 1st Defendant's Head Office in Suva and its Labasa Regional Office will cause damage to vital documents in the file and may even loose these vital documentary evidence due to the delay of the proceeding. 

21.	The Statement of Claim by the Plaintiff filed on 27/2/09 the Plaintiff has made allegation concerning a licence arrangement between the 1st Defendant and 2nd Defendant that was entered back in 26/7/94 and another licence to occupy granted on 2/8/62, witness for the 1st and 2nd Defendant will not be available to confirm that such dealing was made due to further delay and may be the delay will favour the Plaintiff more than the Defendant as the Defendants are public bodies and their witnesses retire at a certain age and the documents would be difficult to trace in the absence of knowledgeable witnesses. There is no likelihood that the same persons involved in the contract entered between the 1st and 2nd Defendant will still be present - for trial to give their recollection of something that occurred back in 1962 the few witnesses that are left with any knowledge will not be available if it is delayed . This rationale was also considered in Supreme Court of Fiji in the case of Merit Timber Products Ltd –v- NLTB.

22.	Order 18 Rule 18(1) states as follows

 Striking out pleadings and endorsements (0.18, R.18)

18-(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a)	 It discloses no reasonable cause of action or defence, as the case may be; or

(b)	 It is scandalous, frivolous or vexatious; or

(c)	 It may prejudice, embarrass or delay the fair trial of the action; or

(d)	 It is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

The 1st Defendant states that the Plaintiff does not disclose reasonable cause of action. The Plaintiff's Statement of Claim it only referred to the 1st Defendant in paragraph 4, 5 and 6. The Plaintiff seeks damages from the 1st Defendant however, did not disclose as to facts as for seeking that remedy.

In Northern Territory of Australia v John Holland Pty Ltd & Ors [2008] NTSC 4, Angel J of the Supreme Court of the Northern Territory of Australia in paragraph 8 which provides as follows:

a)	 To define with clarity the issues which are in dispute between the parties and fall to be decided by the Court;

b)	 To require each party to give fair and proper notice to the other of the case to be met to enable the opponent to frame and prepare the opponents own case for Trial;

c)	 To inform the court what are the precise matters in issue between the parties which alone the court may determine, since they set the limits of the action which may not be extended without due amendment properly made; and

d)	 Not only to provide a brief summary of the case of each party, which is readily available for reference, and from which the nature of the claim and defence maybe easily apprehended, but also to constitute a permanent record of the issues and questions raised in the action and decided therein so as to prevent future litigation upon matters already adjudicated upon between the litigants or those privy to them.

23.	Angel J. further in paragraph 9 and 10 of the ruling states as follows: 

"A pleading shall… contain in a summary form a statement of all the materials facts on which the party relies but not the evidence by which those facts are to be proved". He further states in paragraph 10 that "Material facts are those necessary to formulate a complete cause of action. The Statement of Claim must state with sufficient clarity the case that must be met. Material allegations of facts are not to be expressed in terms of great generality. They must inform the Defendants of the case they must meet and set it out with particularity sufficient to enable any eventual Trial to be conduced fairly to all parties".

24.	The statement of claim is vague as to the facts and which defendant must relate to, that it can be said that the pleadings are incomprehensible The Plaintiff claims that he is the headman for the Yavusa Vuniwari and a personal representative for the Yavusa Vuniwai in the Province of Macuata. It is not clear whether he had obtained consent from the members.

25.	The statement of claim state that on 26th July 1943 a land lease for native land known as Nasea –i-Tukei was granted to the 2nd Defendant for said native land and it was not granted with the consent of the Plaintiff. 

26.	The 1st Defendant has the authority under Native Lands Trust Act to administer and manage all native land there is no provision to obtain the consent of the Plaintiff. The Plaintiff was unable to provide such a provision in the law and has not pleaded such right either in the affidavit in opposition or in the pleadings and or even in the submissions that were filed.

27.	The statement of claim is not clear whether the claim is based on a cause of action and the date of the said cause of action for the application of the limitation to ascertain the period of the claim. This is not clear as the Plaintiff is claiming for rent without specifying a time period or rent per month in the statement of claim, but in the prayer he is claiming as follows
'An order that the Macuata Provincial Council pay as damages for unpaid rent the sum of $1,648,215.91(One Million Six Hundred and Forty Eight Thousand and Two Hundred and Fifteen Dollars and Ninety One Cents)'

28.	So, without specifying the amount of the monthly or yearly rent the Plaintiff is seeking an amount in the prayer and also no time period was stated in the statement of claim which makes the pleadings incomprehensible and clearly does not disclose a cause of action against the 1st and 2nd Defendants. 

29.	The plaintiff in its prayer also seeks 'Damages against the first Defendant', but has not avered any such damage from the 1st Defendant. What is the damage that the Plaintiff is seeking is not stated in the statement of claim. There is not a single averment in the statement of claim that refers to any damage to the Plaintiff. So, it is clear that the statement of claim does not disclose a reasonable cause of action. The claim against the 1st Defendant is for damage, but no damage is mentioned in the statement of claim. The claim against the 2nd Defendant is for unpaid rent but again the time and the alleged rent has not been pleaded in the statement of claim. 

D.	CONCLUSION

30.	The Plaintiff has filed this action for alleged violation of its right from 1943 and also claiming the rent for the land for nearly 70 years. The action was instituted in 2009 and after August, 2009, no proceeding was taken for more than 1 year 6 months and even when the court on its own motion issued notice in January, 2011 the Plaintiff did not take any action. The Plaintiff did not comply with the Order 3 rule 5, where intension to proceed needed to be filed. The Plaintiff not only disregarded the notice sent by the court in January, 2011, but also did not file the intention to proceed, and only filed a summons for direction which cannot be considered a proceeding in this case in terms of the proviso contained in Order 3 rule 5 of the High Court Rules. The Defendants are prejudiced due to the delay as the issues relate back to more than 68 years and if the Plaintiff is interested he would have taken steps more diligently. The statement of claim does not disclose reasonable cause of action. No time period or rent is claimed in the averments though the prayer claims for a certain amount as rent from the 1st Defendant. There is no claim for damages against the 2nd Defendant in the statement of claim though the prayer seeks unspecified damage. The statement of claim does not disclose a reasonable cause of action. The Plaintiff is unable to show the provision of the law that require the consent as he alleges. In the circumstances the Plaintiff's claim is struck off with cost assessed summarily at $500 in favour of the 1st Defendant.

E.	FINAL ORDERS

a.	The Plaintiff's claim is struck off and the action is dismissed.

b.	The Plaintiff is ordered to pay a cost of $500 to the 1st Defendant.

Dated at Suva this 18th day of November, 2011

Mr. Deepthi Amaratunga
Master of the High Court
Suva