Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Stevens v Nunnink [2013] FJHC 16; HBC204.2004 (21 January 2013)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC of 204 of 2004
Consolidated with Originating Summons No. HBC 96 of 2006

BETWEEN:

Gary Stevens
of California USA, Retired Business man
First Plaintiff

AND:

Helen Stephens
of USA, Retired Housewife
Second Plaintiff

AND:

Horsehoe Bay Investments Pty Ltd
Third Party

AND:

Aren Joseph Nunnink
First Defendant

AND:

Ki Maren (Fiji) Limited
Second Defendant

AND:

Registrar of Titles
Third Defendant

Appearances: Mr M A Khan for the plaintiff
Mr Devanesh Sharma for the first and second defendants

Date of hearing: 04 December,2012

JUDGMENT

1. The plaintiff's summons
   

The plaintiffs have filed summons titled "PLAINTIFFS SUMMONS FOR PARTIAL DISSOLUTION OF INJUNCTION" and sought that "paragraph 3 of (my). Order..(Ordering .that Anand Singh not to have any further conduct or carriage of the matter) dated 15th of September, 2001, be dissolved". The application is made in terms of Or 29, r 1 of the High Court Rules.

In support, an affidavit of Mr Anand Singh has been filed. The first paragraph of the affidavit states that this application is for "the partial dissolution of an injunction granted by this Court whereby he was restrained from acting and or representing" the plaintiffs.

The affidavit, proceeds to state Mr Singh is a principal of the firm known as "SINGH & SINGH LAWYERS", which commenced practice from 15 July, 2012. Mr Singh states that from 2002, he had commenced taking instructions from several law firms including Messrs Kholi & Singh, with whom he worked on a profit sharing basis during 2008-2009. The plaintiffs had instructed him to appear in this cause. Since the first defendant took objection to his appearance, he had changed the solicitors representing the plaintiffs. Mr Singh states he was never employed by Messrs Kholi & Singh, when the defendants had instructed Messrs Kholi & Singh to appear for them in a case, in 1995. Mr Singh states he had nothing to do with that case and had no association with Messrs Kholi & Singh. The affidavit concludes by stating that there is no conflict of interest, either actual or perceived.

The affidavit in reply

The first defendant, in his affidavit in reply, at the outset objects to Mr Singh deposing to an affidavit for the following reasons. Mr Singh has been "personally recused from acting in this matter". The issue of recusal has been dealt with and finalized. The affidavit does not state that the plaintiffs have authorized Mr Singh, to depose to the affidavit and he has no locus to make such an application .It is also stated that an interim injunction was not granted.

The first defendant proceeds to state that the firm of Kohli and Company acted for him and the second defendant, in relation to the land at Sekawa Beach Estate The first defendant accepts that at that stage,Mr Singh was not a part of that firm and that he had agreed with the direction given by Justice Pathik on 11th May, 2005, that Mr Singh could continue to act, provided that he was not part of the firm of Kohli and Singh. His subsequent objection to Mr Singh acting personally arose from a new set of facts of which he became aware in 2011, when he had been questioned by Fiji Trade and Investment Bureau, as part of an investigation they were conducting into the third plaintiff and its purported intentions for the land it owned at Sekawa Beach Estate, Savusavu. The first defendant states he was shown two letters dated 21st November 2007 and 26th November 2007, which clearly show that as at November, 2007, Mr Singh was part of Messrs Kohli and Singh and he was not a sole trader, as he had made himself to be. Copies of the letters dated 21st November 2007 and 26th November 2007, are attached.

The first defendant states he received confirmation from the Chief Registrar's Office by letter dated 29th August, 2011,that Mr Singh was in fact employed by Messrs Kohli and Singh. Finally, the affidavit states that Mr Singh's remedy was to have appealed against my order.

The plaintiff's reply

In answer to the first defendant's contention that he is not in partnership, Mr Singh has attached to his affidavit in reply, a letter addressed by him to Messrs R. Patel & Lawyers dated 25th October,2012, and certificate of registration of SINGH &SINGH LAWYERS. The letter referring to the order under review states that his "status has changed significantly", he is "now in private practice" and his "son Hamish Singh is due to join the practice early next year". The letter head provides that Hamish Anand Singh is a "Consultant".

Mr Singh reiterates that he was not part of the firm of Kohli and Singh, when that firm acted for the first defendant, in 1995. The first defendant is not his former or existing client. Mr Singh concludes that there has been a "material change of circumstances since the making of the restraining order", which has prompted this application for "partial dissolution of an injunction".

2. The background to this application
   
   1. On 9 November 2010, Justice Mr P. Hettiarachchi had fixed this matter for hearing from 11th to 15th April, 2011.
      
   2. On 11th April 2010, the matter was taken up before Justice Mr Hettiarachchi and counsel for the parties had sought an adjournment till 12th April, 2011.
      
   100. On 12th April, 2011, this case was sent to me. On that day, Mr Anand Singh, counsel for the plaintiffs submitted that the preliminary issues involves an interpretation of the documents in the Agreed Bundle and as such, he would call evidence, in support. Mr Devanesh Sharma, counsel for the first defendant stated he also wishes to call evidence. This was objected to, by Mr Singh. Mr Sharma moved that this case be taken up on 13th April, 2011, since he was presently before Justice Mr Daniel Goundar in a trial . I made no order on the preliminary issue raised. The case was to be resumed on the next day.
        
   4. On 13th April, 2011, I was indisposed, and did not attend court.
      
   5. On 20th April 2011, I re-fixed this case for 29th to 31st August, 2011 and 1st & 2nd September 2011.
      
   6. The Objection to Mr Anand Singh representing the plaintiff
      

On 29th August, 2011, Mr Sharma objected to Mr Anand Singh representing the plaintiff on the ground that he is an officer of Messrs Kholi and Singh, Barristers and Solicitors. Mr Sharma relating the history of this case,stated that consequent to an objection by the defendant, Justice Mr Pathik, on 11th May, 2005, had made order that Messrs Kholi and Singh should not represent the plaintiff in this matter. Thereafter, there had been a change of solicitors on two occasions of the solicitors for the defendants.

It was submitted by Mr Sharma that Messrs Kohli and Singh had appeared for the defendants in HBC 200 of 1995 (Labasa) and it has now been discovered subsequent to Justice Pathik's order,that Mr Anand Singh was an officer of Messrs Kholi and Singh, at that time.

Mr Singh, in reply, stated that he has nothing to do with Messrs Kohli and Singh. At that stage, I sought Mr Singh's response to letter dated 21 November,2007, from Messrs Kohli and Singh, wherein he is referred to as "our Mr Anand Singh" and the letter has been signed by "for per Anand Kumar Singh." Mr Singh's response was that there is a "Chinese Wall" between Messrs Kohli and Singh of Labasa and Messrs Kohli and Singh of Suva and the partners had nothing to do with each other. Mr Singh stated he was not part of Messrs Kohli and Singh. I was not satisfied with Mr Singh's response.

I made Order that Mr Sharma makes a formal application on his objection on 30th August, 2011, Mr Singh to file affidavit and reply on 1st September, 2011, and Mr Sharma to reply on 5 September, 2011.

7. On 30th August, 2011, R. Patel Lawyers filed inter partes summons that Mr Anand Singh be recused and restrained from acting as counsel or having carriage and conduct of the matter for the plaintiffs. The summons relied on the letter dated 21 November,2007, of Messrs Kohli and Singh to Fiji Trade and Investment Bureau, which referred to a "telephone discussion between Mrs Khan and our Mr Anand Singh" and was signed on behalf of Mr Anand Singh.
   

On 1 September, 2011, the first plaintiff filed his affidavit in response to the first defendant's application stating that the letter referred to, in the inter partes summons, has been unlawfully and illegally produced, that the matter regarding Fiji Trade and Investment Bureau, was not connected with the defendants and nothing do with the action, in which Messrs Kohli and Singh Labasa acted for the first and second defendants.

The first defendant filed affidavit in reply dated 5th September, 2011.

8. On 8th September 2011, Mr Sharma produced a letter dated 29 August,2011, from the Chief Registrar informing the first defendant that Mr A Singh is an employee of Messrs Kohli and Singh, Barristers and Solicitors. I made Order upon reading the summons and affidavit of parties and the letter dated 29 August,2011, from the Chief Registrar, that Messrs Kohli & Singh and Mr Anand Singh will not have any further conduct or carriage of this matter .
   

Thereafter the case was mentioned on two occasions and on 14th May, 2012, a postponement were sought on behalf of the firstplaintiff and the hearing was postponed for 21st to 25th January, 2013.

3. The determination
   

With this digression, I return to the summons before me. I will first deal with the objections raised by the first defendant, in his affidavit in reply.

The first objection concerns the affidavit filed in support of the summons. I agree with the contention of the first defendant, that the affidavit is defective for the reason that Mr Singh is not a party to these proceedings and the affidavit does not state that the plaintiffs have authorized Mr Singh, to depose to the affidavit. However, this objection is technical and can be cured.

The second is that the summons before me is made under Or 29, r 1 of the High Court Rules, which deals with applications for interlocutory injunctions. I made a final order on 8th September, 2011. This cannot be equated with an interim injunction nor with default judgments, with its self-contained and distinct regime for setting aside.

At the forefront of this summons is the proposition that this court should revisit its earlier order of 8th September, 2011,on the basis that there has been changed circumstances arising from Mr Singh commencing practice as principal of "SINGH & SINGH LAWYERS" from 15 July, 2012, and that Mr Singh was no longer a part of Messrs Kohli & Singh, but a member of Messrs Singh & Singh. I find the summons tacitly also reopens matters already decided by me.

The power of a court to vary or revoke its final order on the basis of changed circumstances has been interpreted by the courts in England, under its Civil Procedure Rules. In Roult v North West Strategic Health Authority[2009] EWCA Civ 444; , [2010] 1 WLR 487, Hughes LJ delivering the judgment in the Court of Appeal stated as follows at pages 493 to 494:

" I am however in no doubt that CPR r 3.1(7) cannot bear the weight which Mr Grime's argument seeks to place upon it. If it could, it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. ...There may possibly be examples of non-procedural but continuing orders which may call for revocation or variation as they continue – an interlocutory injunction may be one. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to reopon any decision. In particular, it does not follow, I have no doubt, where the judge's order is a final one disposing of the case, whether in whole or in part. .....The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist".(emphasis added)

I reiterate that I made a final order on 8th September,2011.In my judgment, the first plaintiff's summons is misconceived and is an affront to the principle of finality in litigation, encapsulated in the Latin maxim "interest reipublicae ut sit finis litium".

In my judgment, the plaintiffs summons fails. I dismiss the summons with costs summarily assessed in a sum of $ 2500 payable by the plaintiffs to the first defendant.

A.L.B.Brito-Mutunayagam Judge
21st January, 2013