IN THE HIGH COURT THE REPUBLIC OF FIJI
AT LAUTOKA
WESTERN DIVISION

CIVIL JURISDICTION

Civil Action No. HBC 121 of 2012

BETWEEN:

SAIJAD ALI of Buabua, Lautoka, Farmer
Plaintiff

AND:

SUGAR CANE GROWERS COUNCIL 
established under the Sugar Industry Act No. 8 of 1984 3rd Floor, Canegrowers Building, 75 Drasa Avenue, Lautoka
1st Defendant

AND:

MANI RAM 
of Edmonton, Canada and at care of Padma Wati of Saweni, Lautoka
2nd Defendant

AND:

PADMA WATI 
of Saweni, Lautoka sued in her capacity as the full Power of Attorney of MANI Ram (Second Defendant) of Edmonton, Canada pursuant to the Power of Attorney registration No. 48302.
3rd Defendant

Appearances 
Plaintiff appeared in person
Messrs Krishna & Company, Barristers and Solicitors for the 1st Defendant
No appearance for the 2nd Defendant
3rd Defendant in person
Date of Hearing: 21 October 2013
Date of Decision: 6 February 2014

RULING

Introduction
[1] This is a summons filed on 12 July 2013 by the 1st Defendant (Sugar Cane Growers Council) pursuant to O.25 r.9 of the High Court Rules 1988 (HCR) and inherent jurisdiction of the High Court. The summons has been supported with affidavit of Sundresh Chetty (Acting Chief Executive Officer) sworn on 11 July 2013 and filed on 12 July 2013. The summons seeks an order this action against them be struck out with costs to be taxed and paid to the 1st Defendant by the Plaintiff for want of prosecution, the Plaintiff not having taken any further action since 12 June 2012. 

[2] Seemingly, the summons incorrectly states that the application is made pursuant to HCR O.18 r.18, instead of O.25 r.9.

[3] On 24 September 2013 the Plaintiff filed his reply and affidavit in opposition and asks for the 1st Defendant's application to strike out any action against them be dismissed and the matter to take its normal course and that there be no costs.

Background
[4] On 31 May 2012 the Plaintiff filed Writ of Summons and Statement of Claim, claiming from the Defendants, inter alia, a sum of $336,000.00, and special damages in the sum of $48,397.15, interest and cost. The Plaintiff says that he entered into a sale and purchase agreement with the 2nd Defendant who is the registered proprietor in June 2006 to purchase an agricultural land together with the improvements and benefit of Certificate of Registration No. 01228 comprised in the Native Lease No. 13246. The agreement prepared and executed by the 1st Defendant after having accepted and acted as a Conveyancing Law Agent, Adviser and executor of the affairs of the Plaintiff. According to the Plaintiff, The 1s Defendant has a conveyancing department and provides various conveyancing services to the sugar cane growers of Fiji. According to the said agreement, the 2nd Defendant offered to sell the land for the price fixed at 66,500.00 on term-payment of 75% from the net sugar cane proceeds until the agreed price money is fully paid. It was further agreed that there will be no interest for 2 years, and bank equivalent interest, up to the maximum of 5 years, will be charged thereafter until the payment is paid off. After completion of full payment the land will be transferred to the Plaintiff. Parties were free to sue for breach of agreement. The Plaintiff paid a sum of 25,687.15 to the 2nd Defendant as at May 2008. In the meantime, the 2nd Defendant appointed the 3rd Defendant his attorney in December 2007 without informing to the Plaintiff. Afterwards, the 1st and 2nd Defendants denied and refused for any settlement and the 2nd Defendant stopped the Plaintiff from working, cultivating and harvesting and recovered possession of the land. The Plaintiff filed a case in the Agricultural Tribunal in 2009 and obtained an order against the 2nd Defendant for the refund of $27,397.15.

[5] The claim against the 1st Defendant is based on their unprofessional conduct and failing to obtain consent from iTLTB before executing the sale and purchase agreement.

[6] The 1st Defendant filed its statement of defence on 12 June 2013 and prayed that the claim against them be dismissed and struck out with costs on an indemnity basis. The 1st Defendant denies and states that they never acted as legal counsel and/or provided a conveyance service to the Plaintiff.

1st Defendant's Affidavit in support of summons
[7] The 1st Defendant filed affidavit of Sundresh Chetty in support of the summons to strike out the claim of the Plaintiff, inter alia, stated:-

 ...
5. THAT I have been verily advised by our Solicitors, Messrs Krishna & Co. the Plaintiff has not prosecuted and moved forward his case for over one (1) year now, since 12th June, 2012, wherein the last document filed in this matter was the First Defendant's Statement of Defence.

6. THAT since the last document being filed, the First Defendant's Statement of Defence, the Plaintiff has failed and/or neglected to file a Response to the First Defendant's Statement of Defence.

7. THAT the Plaintiff is blatantly delaying the course of justice in this matter.

8. THAT the Plaintiff's delay both inordinate and inexcusable in that he has no reason for such delay, which delays the course of justice, which is being prejudiced in this matter.

9. THAT the inordinate and inexcusable delay caused by the Plaintiff has a detrimental effect on the First Defendant in that the first Defendant's witness may have already migrated to other parts of Fiji and/or other parts of the world, therefore prejudicing the First Defendant of an opportunity to prosecute its case in a fair and just manner.

10. THAT for those witnesses of the First Defendant who have not migrated, their memory of the events will not be fresh, thus, the evidentiary culpability of the First Defendant will not be to its best strength, thus prejudicing the case of the First Defendant.
 ...

Plaintiff's Reply and affidavit in opposition
[8] The Plaintiff filed reply and affidavit in opposition and stated inter alia that:

 ...
5. I am not delaying the course of justice but was waiting for a time when a Judge is appointed and to file a Summons for Direction.

6. I was never informed of the same; otherwise I could have moved a motion.

7. My case and cause of action is also against the body, the First Defendant where under its employment there was an unprofessional conduct of which the result of such paper work and advice has given me gross loss which will be proven in the Court.
 ...

Submissions
[9] Mr Krishna, on behalf of the 1st Defendant, submitted that it has met the threshold of the test outlined to strike out the Plaintiff's claim against the 1st Defendant. He further submitted that the Plaintiff has not in its Affidavit in Reply disputed or challenged the prejudice caused to the 1st Defendant set out at paragraphs 7, 8, 9, & 10 of their affidavit of Sundresh Chetty and therefore those risks outlined in paragraphs 7, 8, 9 & 10 must be taken as fact.

[10] The Plaintiff was unrepresented by counsel. He only stated at the hearing that he filed a reply and when he came to the registry to file his reply they told he cannot file his reply.

The Law

[11] I am to consider this application in the light of the principles governing the dismissal of an action/claim for want of prosecution.

[12] O.25 r.9 (HCR) provides that:

Strike Out for want of prosecution (O.25, r.9))

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.(Emphasis added).

[13] In Grovit v Doctor and Others (1997 1 WLR 640 at 641 H.L) it was held in a situation such as the present:

"That for the plaintiff to commence and to continue litigation which he had no intention to bring to a conclusion could amount to an abuse of process; and that, accordingly, once the court was satisfied that the reason for the delay was one which involved an abuse of process in maintaining proceedings when there was no intention of carrying the case to trial it was entitled to dismiss the action"

[14] In the leading House of Lords decision in Birkett v James [1978] AC 297 at 318, Lord Diplock declared;

"The power should be exercised only where the court is satisfied either (1) 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 (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 either as between themselves and the plaintiff or between each other or between them and a third party [Emphasis added]."

[15] The Fiji Court of Appeal in Owen Clive Potter v Turtle Airways Limited (CIV Appeal No. 49 of 1992 at p3&4) explained the meaning of 'inordinate' and 'inexcusable' delay in prosecuting the claim as follows:

"(Inordinate).....means so long that proper justice may not be able to be done between the parties. When it is analyzed, it seems to mean that the delay has made it more likely than not that the hearing and\or the result will be so unfair vis a vis the Defendant as to indicate that the court was unable to carry out its duty to do justice between the parties".

...Inexcusable means that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time. It simply allows the judge to put into the scales the Plaintiff's conduct or reasons for not proceeding, as well as the lapse of time and the prejudice that would result to him from denying him opportunity from pursuing the action or perhaps any action against the defendant" (Emphasis added).

[16] In Re Manlon Trading Ltd [1995] 4 All ER 14, the Court of Appeal, Civil Division discussing the principle applicable to application to strike out proceedings for want of prosecution held:

Held – (1) The conventional approach to striking out for want of prosecution, which applied to all civil proceedings and required the court to inquire whether there had been inordinate and inexcusable delay giving rise to a substantial risk that a fair trial would not be possible or was such as was likely to cause or to have caused serious prejudice to the defendant, also applied to disqualification proceedings under the 1986 Act, but was modified by an additional consideration, namely the need to protect the public in whose interest the disqualification proceedings were brought. On that approach, if the court concluded that a fair trial was not possible owing to the delay, it should always strike out the proceedings. Where a fair trial was possible, the court should permit the case to proceed unless there was evidence of serious prejudice caused to the director by the delay, both in launching the proceedings and thereafter, which outweighed the public interest in obtaining a disqualification order. In laying down a two-year period within which proceedings were to be brought, Parliament had clearly indicated that expedition was required and if the Official Receiver delayed in launching proceedings until the end of that period, greater diligence was required of him. It was not the case that the public interest in obtaining the protection of a disqualification order diminished with the passage of time and the judge had erred in so holding. It followed that the judge had erred both in his approach to disqualification proceedings and in his conclusion on adopting that approach (see p 21 d f to h, p 22 c j to p 23 g, p 26 c j to p 27 a g to p 28 b and p 29 d e j, post); Birkett v James [1977]2 All ER 801 applied; dictum of Vinelott J in Re Noble Trees Ltd [1993] BCLC 1185 at 1190 approved.

(2) Given that any evidence of prejudice suffered by a director had to be set against the public interest in obtaining a disqualification order, a judge would rarely be justified in striking out on the sole ground of the prejudice inherent in the pendency of disqualification proceedings in the absence of evidence of other specific prejudice. On the judge's alternative approach, it was doubtful whether the inherent prejudice caused to A was sufficient to justify striking out in view of his earlier finding that a fair trial was possible and his rejection of the specific prejudice asserted by A. However, the substantial culpable delay on the part of the Official Receiver had clearly caused prejudice to A through its effect on the memories of the witnesses. It followed that such prejudice, together with the inherent prejudice on which the judge relied, amounted to prejudice which was sufficiently serious to outweigh the public interest in pursuing the disqualification proceedings and that the judge's conclusion that the proceedings should be struck out could therefore be supported on the facts. The appeal would accordingly be dismissed (see p 24 j to p 25 b e h j, p 26 b c, p 28 j and p 29 j,post).

Decision of Evans-Lombe J [1995]1 All ER 988 affirmed on other grounds. (Emphasis added).

Determination

[17] These proceedings had been initiated by the 1st Defendant through summons to have the claim as against the 1st Defendant struck out for want of prosecution. The summons has been issued under HCR O.25 r.9 as the Plaintiff failed to take step in the matter for more than six month since the last pleading. 

[18] The last pleading, being reply to statement of defence by the 2nd and 3rd Defendants was filed on 4 December 2012.

[19] The Plaintiff filed his writ of summons in person 31 May 2012. The 1st Defendant filed their Statement of Defence on 12 June 2012 after filing Acknowledgement of Service of Writ of Summons on 4 June 2012. The 2nd and 3rd Defendants jointly filed their statement of defence on 10 July 2012 following Acknowledgement of Service of Writ of Summons filed on 6 June 2012. The Plaintiff filed his reply to 1st Defendant's statement of claim on 17 July 2012. Subsequently, the Plaintiff filed his reply to statement of defence by the 2nd and 3rd Defendants, the last pleading on 4 December 2012. Obviously, the Plaintiff filed his reply to 2nd and 3rd Defendants' statement of defence some 5 months after the 2nd and 3rd Defendants filed their joint statement of defence. But that was not disputed in these proceedings either by the 1st Defendant or by the 2nd and 3rd Defendants. I therefore will and should consider Plaintiff's reply to 2nd and 3rd Defendants' statement of defence filed on 4 December 2012 as the last document filed in the matter.

[20] Once a summons to strike the claim is filed in court, the Plaintiff must show why the claim should not be struck out for want of prosecution or as an abuse of the process of the court. The Plaintiff filed his Affidavit in Opposition again in person and stated the reasons why the matter should not be struck out for want of prosecution. In that Affidavit the Plaintiff stated that he is not delaying the course of justice but was waiting time when a judge is appointed and to file a summons for direction. The 1st Defendant did not file a replying affidavit to the Plaintiff's affidavit in opposition. 

The delay

[21] Mr. Krishna for the 1st Defendant submitted that the action against the 1st Defendant must be struck out for want of prosecution, for the Plaintiff not having taken any further action since 12 June 2012, the day the 1st Defendant filed their statement of defence on. The 1st Defendant filed their summons to strike out the action on 12 July 2013. He accordingly submitted that the Plaintiff has not prosecuted and move forward his case over one (1) years now, since 12 June 2012 wherein the last document filed in this matter was the 1st Defendant's Statement of Defence. This submission seems to be incorrect, for the case record does not bear out that assertion. It is important to note that the 1st Defendant's Statement of Defence is not the last document in this matter. The last document that was filed in this matter is the reply to statement of defence by the 2nd and 3rd Defendants filed by the Plaintiff on 4 December 2012. So, there cannot be over one year delay as Mr Krishna asserts. If at all, the delay between 4 December 2012 (the date the Plaintiff filed his reply to statement of defence filed by 2nd and 3rd Defendant) and 12 July 2013 (the date summons to strike was filed) is just 7 months and 8 days.

[22] Will 7 months and 8 days delay on the part of the Plaintiff amount to culpable delay? Was the delay excusable? Was the 1st Defendant seriously prejudiced by the delay? Is a fair trial still possible? These are the issues I must address in determining the summons to strike out for want of prosecution.

[23] In Birkett's case (supra) Lord Diplock stated that there must be inexcusable and inordinate delay on the part of the plaintiff or his lawyers and 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. The Plaintiff in his affidavit in opposition states that he did not intend to delay the proceedings and that he was waiting for a time when a Judge is appointed and to file a Summons for Direction. He has filed a summons for direction on 24 September 2013. Clearly, he has filed the summons for direction after 1st Defendant filed their summons to strike out on 12 July 2013. He must have filed a summons for direction within one month after the pleadings in the action are deemed to be closed pursuant to O.25 r. 1 (b) of the HCR. In this action the pleadings may be deemed to be closed on 4 December 2013 wherein the Plaintiff filed his reply to statement of defence of the 2nd and 3rd Defendant. The Plaintiff did not file a summons for direction in time. For not doing this, the Plaintiff stated in his affidavit in opposition that he is not delaying the course of justice but was waiting for a time when a judge is appointed and to file a summons for direction. The Plaintiff is unrepresented. I am not declined to accept his explanation that he was waiting for a judge to be appointed for his matter specially in the circumstances where he (the Plaintiff) is unrepresented.

[24] The delay the Plaintiff had caused may be said some 7 months. I do not agree with 1st Defendant's argument that there has been inordinate and inexcusable delay on the part of the Plaintiff. In my view, the delay in this case will not give rise to a substantial risk that it is not possible to have a fair trial of the issues between the Plaintiff and the 1st Defendant or between each other. A fair trial is still possible. I am satisfied that the reason for the delay given by the Plaintiff was not one which involved an abuse of process in maintaining proceedings. The Plaintiff states in his affidavit in opposition that he did not intend to delay the proceedings.

The prejudice

[25] The 1st Defendant in the affidavit in support deposed that their witnesses who have not migrated, their memory of the events will not be fresh, thus, the evidentiary culpability of the 1st Defendant will not be to its best strength, thus prejudicing the case of the 1st Defendant and some witnesses may have migrated to other parts of Fiji or other parts of the world. In short the 1st Defendant's position is that that their witnesses' memory will be faded due to the delay and some witnesses migrated and this will weaken his case. This is only an assertion by the 1st Defendant. This is not supported by facts. The 1st Defendant is uncertain how many of their witnesses migrated and whether those witnesses are material to their case. There is no evidence of prejudice suffered by the 1st Defendant by the delay. A case should not be struck out on the sole ground of prejudice in the absence of specific prejudice (vide Re Manlon Trading Ltd (supra)). In this case the 1st Defendant did not show other specific prejudice. Perhaps, substantial culpable delay on the part of the Plaintiff would clearly cause prejudice to the 1st Defendant through its effect on the memories of the witnesses. Since I have already decided that there has been no substantial culpable delay on the part of the Plaintiff, reject the prejudice asserted by the 1st Defendant.

[26] I am of the view that a fair trial is still possible in this matter. I therefore dismiss and strike out the 1st Defendant's summons to strike filed on 12 July 2013 with a cost in the cause. I now treat that summons as a summons for direction pursuant to O.25 r. 9 (2) of the HCR.

Conclusion and orders

[27] For the foregoing reasons, I permit the case to proceed and to take its normal course. However, the court may deal the O.25 r.9 summons as it were a summons for directions pursuant to O.25 r.9 (2). This rule provides that:

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.

I therefore venture to deal the summons as it were a summons for directions. I accordingly make the following directions:

(i)	The 1st Defendant's summons to strike out the action for want of prosecution is struck out and dismissed;

(ii)	The Plaintiff is granted permission to proceed with the action and the matter to take its normal course;

(iii)	The Parties to file and serve within 21 days their respective list of documents and affidavit verifying such list of documents.

(iv)	There shall be inspection of documents within 14 days of the service of the list of documents; and 

(v)	Costs of these proceedings shall be costs in the cause.

M H Mohamed Ajmeer
Acting Master of the High Court

At Lautoka
6 February 2014