IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

HBC 89 OF 2009/L

BETWEEN:

RAJ DEO
formerly of Wailailai, Ba, Fiji, Priest but now of Sydney, Australia.
Plaintiff

AND:

RAMESH RAIDU, RAIDU BHIM KRISHNA, TATAIYA
all sons of Krishna Raidu as Executors and Trustees of the Estate of Krishna Raidu of Wailailai, Ba, Fiji.
Defendants

RULING

INTRODUCTION

1.	On 08 July 2013, the High Court Registry at Lautoka issued a Notice to the plaintiff pursuant to Order 25 Rule 9 of the High Court Rules 1988. The Notice required the plaintiff to attend court on 10 July 2013 to show cause why the claim should not be struck out for want of prosecution or an abuse of the process of the Court. On 10 July 2013, the plaintiff appeared before me. The first and second defendants also appeared before me on that day. I was to learn in Court from the defendants that the 3rd defendant is now deceased. No official documentation has been placed before me to confirm the same. The plaintiff acknowledges that fact in his affidavit.

2.	I did give the plaintiff time to file and serve an affidavit to show cause and also time to the defendants to file and serve an affidavit in reply. The parties have complied with this.

AFFIDAVIT FILED FOR PLAINTIFF’S CASE

3.	The affidavit to show cause filed for the plaintiff was sworn by one Manoj Kumar Sharma. Sharma deposes as follows:

1.	I had difficulty finding the addresses of the Defendants. One lives in Australia and the other one in the United States. Mr. Tataiya the Third Defendant who was in Fiji had died. 

2.	Otherwise a summons for judgment had been drafted by my Solicitors and a copy is annexed hereto and marked with the letter “B”. 

3.	Their own lawyer Mr. Samuel K. Ram had difficulty getting in touch with them. I refer to the Affidavit of Sherine Sastika Devi filed on/about the 19th December 2011. A copy of letter I through my solicitors have now informed Mr. Raidu Bhim Krishna and Mr. Ramesh Raidu of the proceedings and Judgment after the Ruling of the Court made on the 21st of August, 2012. 

Service of Defendants with Ruling of 21st August 2012 and providing other documents

4.	I am informed by my Solicitors Office that they have been given documents from the Office on the 27th day of June, 2013. This includes the Ruling that has been made on the 21st of August, 2012. 

5.	A copy of my Solicitors letter dated 7th June, 2013 is annexed hereto and marked with the letter “C”. 

6.	Thereafter my Solicitors contacted me and asked for my father’s address and phone number in Sydney so that the matter could be settled. 

7.	Then the Court gave a notice under Order 25 Rule 9. 

Events on Court of 10th July 2013 and Allegations made

8.	I have been told today in Court on the application to show cause that Mr. Raidu Bhim Krishna came and made allegations of falsity or bad faith on my behalf. I deny this. My father has told me he has paid $6,000.00 for the land.

9.	My father has given me a copy of the agreement. A copy of the agreement is annexed and marked with the letter “D”.

10.	Annexed hereto and marked with letter “E” is a copy of letter dated 19th May 2000 where I have said that we will pay $ 500.00 immediately upon delivery of title. 

11.	I verily believe this has already been tendered as an exhibit. The allegation that there is nothing in support of this claim is bogus and false. 
 
12.	Furthermore I was giving my father’s address so that they can negotiate directly or other reasons. But I have been told that Mr. Raidu Bhim Krishna has said my father can’t come back to Fiji for political or other reasons. 

13.	It is correct my father was in some trouble with Mr. Rabuka’s Military regime after his two Military Coups in 1987. He had protested at his anti-Indian policies. He was beaten at least twice by the army and/or Police. 

14.	He suffered bad injuries and that is why he left. I know of this personally. Neither he nor I are ashamed of this and are proud of his standing up for basic human rights. He also was a Hindu priest. 

15.	There is already building on the land by the Plaintiff and myself and a copy of two photographs of the same is annexed and marked with the letter “F”. We have possession and did not finish the building as it as we do not have title and I have asked for the title. Presently the area is somewhat unkept and needs work. 

16.	I was going to ask for the matter to be adjourned to the 14th of August 2013 to see if a settlement is reached but in view of the attitude of the Trustee Mr. Raidu Bhim Krishna but now I am not sure that there is any point. 

17.	I am aware and Mr. Mishra has told me that Mr. Raidu Bhim Krishna has said that Mr. Mishra has acted for the Estate. The agreement was done by Mr. Govind who was then practicing as Govind & Co and the agreement was with late Mr. Raidu himself and my father. Mr. Ramesh Prakash was part of Gordon and Co as well and in fact owned the Ba Office until it emerged with Mishra Prakash & Associates. 

18.	If there is any conflict of interest I ask that the matter be alleged clearly and I will ask another solicitor or law firm to act for me.

19.	Mr. Vipul Mishra is not the only lawyer in Mishra Prakash. At one time there were several. He is not the only lawyer in the firm I have dealt with. In fact he did not even take my instructions. I verily believe there is no conflict and I am prepared to pay a balance if the Defendants can provide title as determined by the Court of the Defendant could raise the title 

Matters raised in Court 

20.	As to page 3 (i) I still don’t know if the necessary for my father portion of the title has taken place. As the letter of May 19th 2000 will show my father was prepared to give $500.00. In fact I was also prepared to help with sub-division. 

21.	I understand what the Court has said that the order for specific performance may be un-enforceable. However I have not been able to from my effort if all the consent has been obtained by the Defendant. The obtaining of title is in their hands.

22.	As to (ii) on Page 3 of the Ruling it is correct that the action was started by me but I do have authority from my father to give instructions and a power of attorney from him and he knows about this proceeding. 

23.	As to paragraph (iv) on page 3 I apologize for not appearing for the formal proof but at that time it did seem that the Defendant were not interested in defending.

24.	As to Paragraph (v) on page 3 that Raj Deo and Deo Narayan are both purchasers I have spoken to Deo Narayan. As far as I know he has not obtained title either. I only met him last week at a shop in Ba. 

25.	I have spoken to Mr. Deo Narayan and he is prepared to give evidence for the Plaintiff.

26.	I am also prepared to pay for stamp duties, surveyor and transfer cost. 

27.	The only thing that I am able to ascertain from my enquiries is that subdivision of the land has gone ahead. If the Defendants are having difficulty in sub -division I can obtain my own surveyor and carry out sub-division under the Court’s supervision. 

28.	Raj Deo has paid consideration of $6,000.00. I could produce his affidavit if the Court wishes.

29.	As to paragraph (vii) on page 4 the area which my father has purchase was later sub-divided and I believe that the area where my land is known as Lot 3. I will ask my lawyers to amend if there is a need as to the reliefs I seek and this is another reason I have not been able to issue the summons for summary judgment. I am not sure what the status of the sub-division is.

30.	I also was advised that this matter may go for full hearing rather than for summary judgment under Order 86 given the fact that is pointed out by the Court. I ask that directions do be made as to the same and the Defendants do give proper addresses for service. 

CONTRACT

4.	The contract which the plaintiff relies on states as follows:

AN AGREEMENT made this 30th day of January One Thousand Nine Hundred and Eighty-One BETWEEN KRISHNA RAIDU son of Tataiya of Wailailai, Ba in Fiji, Land Lord (hereinafter together with his executors administrators and assign called “the Vendor”) of the one part AND RAJ DEO son of Tribhovan Dutt of Wailailai, Ba in Fiji, Storekeeper (hereinafter together with their executors administrators and assign called “the Purchasers”) of the other part. 

WHEREBY IT IS AGREED AS FOLLOWS:-

1.	THE vendor agrees to sell and the purchasers agree to purchase all that piece and parole of land described in the schedule hereto (hereinafter called “the Land”)free from all encumbrances at and for the price of TWELVE THOUSAND TWO HUNDRED AND FIFTY DOLLARS ($12,250.00) which shall be paid to the vendor by the purchasers in the following manner free of interest:-

(a)	The sum of ONE THOUSAND DOLLARS ($1000.00) has already been paid on 5th March, 1979, by Raj Deo to the vendor (The receipt of which sum the vendor doth hereby admit and acknowledges). 

(b)	A further sum of TWO THOUSAND DOLLARS ($2000.00) by Raj Deo and THREE THOUSAND DOLLARS ($3,000.00) by Deo Narayan shall be paid upon the execution hereof.

(c)	The balance of the said purchase price namely SIX THOUSAND TWO HUNDRED AND FIFTY DOLLARS ($6250.00) shall be paid at yearly instalment as follows:-

(a)	The sum of FIVE HUNDRED DOLLARS ($500.00) each making a total of ONE THOUSAND DOLLARS ($1000.00) on or before 31st March 1982. 

(b)	The sum of ONE THOUSAND DOLLARS ($1000.00) as above on or before 31st January, 1983.

(c)	The sum of ONE THOUSAND DOLLARS ($1000.00) on or before 31st January, 1984.

(d)	The sum of ONE THOUSAND DOLLARS ($1000.00 on or before 31st January, 1985.

(e)	The sum of ONE THOUSAND DOLLARS ($1000.00) on or before 31st January, 1986. 

(f)	The balance sum of SIX HUNDRED AND TWENTY FIVE DOLLARS ($625.00) each making a total of ONE THOUSAND TWO HUNDRED AND FIFTY DOLLARS ($1250.00) shall be paid on or before 31st January, 1987 in full settlement.

2.	THAT if the purchasers default in payment of any instalment for 30 days after the due date of the payment then the whole balance sum shall become immediately due and payable.
 
3.	THE purchasers shall pay for stamp duty, transfer and survey costs relating to the dealing.

4.	THE vendor shall execute all papers and documents necessary for transfer of the said land to the purchasers.

5.	THE possession of the land shall be given by the vendor to the purchasers upon the execution hereof and the purchasers shall have full right to use and occupy the said land.

6.	THE vendor has instructed and hired EQBAL MOHAMMED of Ba, Registered Surveyor to subdivide the whole land belonging to the vendor according to the approval of Town and Country Planning, and the tenants or purchasers shall pay the costs of such survey of their respective blocks.

7.	THE vendor shall provide the right of way leading to the purchasers’ block at the purchasers’ costs and charges.

8.	THESE presents shall be the subject of the consent of the Director of Town and Country Planning and in the event of such consent not being obtained, the whole of the moneys paid hereunder shall be refunded to the purchasers by the vendor.

9.	IN case of any dispute or difference arise between the parties hereto as to the construction of this agreement or the right duties and obligations of either party hereunder or any matter arising out of concerning the same then every such dispute and matter in difference shall be referred to two arbitrators one to be appointed by each party if the parties do not agree with the decision then the two arbitrators shall appoint one UMPIRE and the decision of the majority shall be final and binding over the parties hereto.

THE LAW

5.	Case authorities on Order 25 Rule 9 are abound. The principles I extract from these cases are as follows:

(i) the High Court has the power to dismiss or permanently stay proceedings.

(ii) but this power is exercised only where the court is satisfied either:

(a) that the default has been 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 

(b) (i) that there has been a delay on the part of the plaintiff or his lawyers, and (ii) which delay is both inordinate and inexcusable, and (iii) that such delay would 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 either as between themselves and the Plaintiff or between each other or between them and a third party.

(iii) once it appears that there is a real question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process (as per Dixon J in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62, 91 Dixon J.

6.	In Lovie v. Medical Assurance Society Limited [1992] 2 NZLR 244, 248 (cited with approval by the Fiji Court of Appeal in Pratap v Christian Mission Fellowship [2006] FJCA 41; ABU0093J.2005 (14 July 2006)) Eichelbaum CJ said that while the above considerations are the necessary starting point, at the end of the day, one must always stand back and have regards to the interests of justice. 

7.	My decision in this matter must be read together with my last directions on this case as reported in paclii in Deo v Raidu [2012] FJHC 1291; 2012.08.12 HBC89.2009 (21 August 2012).

8.	Hence, after considering the affidavit filed, I am of the view that the plaintiff has not shown cause why this case should not be struck out for the following reasons.

9.	Firstly, the pleaded cause of action is a claim for specific performance premised on an alleged contract for the sale of land that was concluded in 1982 i.e. some 31 years ago. The statement of claim for the equitable relief of specific performance however was not filed until some twenty seven years later in 2009. 

10.	I accept that time in a cause of action based on a breach of contract, runs from the time of breach. 

11.	I also accept that a cause of action based on a claim for specific performance (or for any equitable relief) does not have a finite limitation period by virtue of section 4(7) of the Limitations Act (Cap 35) (see below) as reiterated by the Fiji Court of Appeal in Raj v Sumintra [1998] FJCA 5; Abu0043u.96s (12 February 1998).

12.	Section 4(7) states as follows: 

(7) This section shall not apply to any claim for specific performance of a contract or for any injunction or for other equitable relief, except in so far as any provision thereof may be applied by the court by analogy in like manner as has, prior to the commencement of this Act, been applied (my emphasis).
 
13.	In Raj v Sumintra [1998] FJCA 5; Abu0043u.96s (12 February 1998), the Fiji Court of Appeal observed as follows after having reviewed some cases:
The authorities suggest: 

(a) There is no finite limitation period applicable to a claim based in equity - such as the claim by one tenant-in-common against another for an accounting for the exclusive use of that other tenant-in- common’s share in the commonly owned land. 

(b) Equity discourages stale claims: see Smith v. Clay (1767), 3 Bro. C.C. 639n 

(c) The Court must endeavour to do justice in a given situation. The principal considerations are the length of delay in asserting known rights and acts done by the parties during the period of delay. 

14.	I accept that, following from the above, any “delay permitted by the Limitations Act cannot come within [inordinate and inexcusable delay]” (see White Book Volume 1 Part 1 para 25/1/6). 

15.	In other words, if there is no finite period of limitation applicable to a claim for an equitable relief (including specific performance), then any delay in filing a claim is not an inordinate and inexcusable delay if the claim is allowed under section 4(7). 

16.	However, having said all that, I also embrace Tabata v Hetherington, The Times, December 15, 1983 which is cited in the White Book at 25/1/6 as authority for the following position:

....the later the plaintiff starts his action the higher his duty to prosecute it with diligence.

17.	Hence, I start by saying here that the plaintiff, having commenced his action 27 years after the contract was entered into, and quite a few years yet again after the purported breach by the defendant, has a higher duty to prosecute his claim with due diligence. 

18.	It is that “higher duty” that I have in mind as my starting point in assessing whether or not to strike out his claim under Order 25 Rule 9.

19.	Regrettably, I cannot say that the plaintiff has prosecuted his action with that higher duty of diligence. I say that after having considered his inaction of almost one year since my last directions. And I say that also having contextualised that one-year period of inactivity against the fact that the plaintiff took quite a long time to file the claim in question. I do not accept the explanation in the affidavit of Manoj Kumar Sharma for the delay. He could have applied for substituted service if he had difficulty locating the defendants. The plaintiff, from where I sit, should have acted promptly in filing that Order 86 application if he was serious about prosecuting his claim. I say all these, bearing in mind also that, I could have simply dismissed his claim after he failed to formally prove it to my satisfaction. Surely, he should have realised that and use that as an incentive to act promptly. As it turned out, I did give him a second chance but he simply did not take that second bite at the cherry so to speak.

20.	Furthermore, I am of the view also that the plaintiff does not appear to have a particularly strong case against the defendants. My reasons are (a) firstly, set out in my observations in my directions in August 2012 (as reported in paclii as Deo v Raidu [2012] FJHC 1291; 2012.08.12 HBC89.2009 (21 August 2012) which exposed the evidentiary weakness in his case theory and in the quality of evidence that he relies on, and (b) secondly, that the affidavit of Manoj Kumar Sharma filed to show cause for the plaintiff in this instance does not appear to take the issues I raised any further.

21.	No evidence of payment of the balance of purchase price has ever been presented to me. The impression I get from Manoj Kumar Sharma’s affidavit is that this could be determined by way of viva voce evidence at trial. The difficulty with that is that the late Krishna Raidu, who would have received instalment payments under the contract up to 31st January 1984 (before his death in October 1984), is obviously no longer alive. Apart from that, the executors deny receiving any other payment (for 1985, 1986 and 1987 as contracted for). In the circumstances of this case, and in the absence of any documentary evidence from the plaintiff tending to assert the contrary, I am of the view that, at the end of the day, when I stand back and have regard to the interests of justice, the claim must be struck out for want of prosecution. There is no real question to be determined between the parties.

22.	I am aware that there are exceptional cases where, for example, a fair trial was considered still possible even after a delay of some 40 years or so (see Wright v. Commonwealth [2005] VSC 200 and Batistatos v. Roads & Traffic Authority of New South Wales [2006] HCA 27 cited in Pratap v Christian Mission Fellowship. 

23.	However, I believe that a fair trial is not possible in this case for all the reasons stated above without great prejudice to the defendants. Accordingly, i strike out the claim for want of prosecution under Order 25 Rule 9.

Master Tuilevuka.

26th July 2013