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Nasinu Land Purchase and Housing Co-operative Society Ltd v Madu [2017] FJHC 722; Civil Case HBC 84 of 2016 (27 September 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 84 of 2016

BETWEEN : NASINU LAND PURCHASE AND HOUSING CO-OPERATIVE SOCIETY LIMITED a co-operative society duly incorporated pursuant to the Co-operative Societies Ordinance Cap 219 and having its principal place of business at 68 Suva Street, Suva.

PLAINTIFF

AND : 1. MADU of Stage 11, Nadawa Nasinu, Occupation unknown to the Plaintiff.

AND : 2. WAISALE KOROI of Stage 11, Nadawa Nasinu, Occupation unknown to the Plaintiff.

AND : 3. LUISA of Stage 11, Nadawa Nasinu, Occupation unknown to the Plaintiff.

AND : 4. AUTIKO BOLAWAI of Stage 11, Nadawa Nasinu, Occupation unknown to the Plaintiff.

AND : 5. MAKARETA BOLAWAI of Stage 11, Nadawa Nasinu, Occupation unknown to the Plaintiff.

AND : 6. USAIA DELAI of Stage 11, Nadawa Nasinu, Occupation unknown to the Plaintiff.

DEFENDANTS

BEFORE: Master Vishwa Datt Sharma

COUNSEL: Ms. Devan - for the Plaintiff

Mr. Valenitabua - for the Defendants

Date of Hearing: 18^th July, 2017

Date of Ruling : 27^th September, 2017

RULING

[Defendant’s Summons seeking leave to file and serve Affidavit in Opposition pursuant to Order 12 Rule 5 (2) of the High Court Rules, 1988 and the inherent jurisdiction of this Court.]

INTRODUCTION

1. This is the Defendants Summons seeking for the following orders-
   
   • (i) An Order that the Defendants be granted Leave to file and serve their Affidavit in Opposition to the Plaintiff’s application by Originating Summons filed on 14^th April, 2016.
     
2. The application was made pursuant to Order 12 Rule 5 (2) of the High Court Rules, 1988 and the inherent jurisdiction of this Court.
   
3. The Summons was opposed by the Plaintiff.
   
4. The Plaintiff and the Defendant filed written submissions with case authorities and the Summons proceeded for hearing on a defended basis.
   

THE LAW

5. The Defendants are making this application for leave to file and serve their Affidavit in Opposition pursuant to Order 12 Rule 5 (2) of the High Court Rules which states:
   

Late acknowledgment of service (O.12, R.5)

(2) Except as provided by paragraph (1), nothing in these Rules or any writ or order thereunder shall be construed as precluding a defendant from acknowledging service in an action after the time limited for so doing, but if a defendant acknowledges service after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other act later than if he had acknowledged service within that time.

CHRONOLOGY OF PROCEEDINGS

6. Chronology is set out hereunder to reflect the steps and actions taken by parties to this proceedings so far;
   
   • The Plaintiff commenced proceedings by filing an Originating Summons on 14^th April, 2016 for the Defendants to show cause why they should not give immediate vacant possession of the part of the land in occupation with costs of and incidental to this application.
   • All Defendants served on 23^rd April, 2016 and Affidavit of Service filed.
   • On 10^th May, 2016 Defendants granted 21 days to file and serve Affidavit in Opposition and matter adjourned to 20/6/2016.
   • On 20^th June, 2016 the Defence Counsel still did not file and serve any appointment of solicitors nor did he file any Affidavit in Response.
   • Plaintiff’s Counsel sought for the Orders in terms of Vacant Possession accordingly and matter adjourned for ruling 28^th June, 2016.
   • On 28^th June, 2016 upon Defence Counsel’s application, ruling was deferred to 20^th July, 2016 to allow Defendant to file any appropriate application.
   • On 5^th July, 2016 Acknowledgement of Service and Notice of Appointment of Solicitors was filed by the Defence.
   • Subsequently, the Defendants filed a Summons with an Affidavit in Support and sought for an Order that the Defendants be granted leave to file and serve their Affidavit in Opposition to the Plaintiff’s Application by Originating Summons filed on 20^th April, 2016. This application was made pursuant to Order 12 Rule 5 (2) of the High Court Rules 1988.
   • Plaintiff was granted 14 days’ time to file and serve Affidavit Response to Defendants Summons dated 8^th July, 2016 and 14 days for Plaintiff’s reply. Thus, ruling on Plaintiff’s Substantive Originating Summons seeking Vacant Possession had to be adjourned to allow Court to hear and determine the Defendants Leave Application.
   • Plaintiff was granted further time to file and serve Response to Defendants Summons.
   • Defendants Affidavit in Opposition was filed into Court on 24^th August, 2016 by somehow or the other without any directions of this Court.
   • Subsequently, the Plaintiff filed a motion seeking Injunctive Orders on 20^th September, 2016. By consent, Orders were made by the Hon. Judge on 3^rd October, 2016.
   • Defendants Application for Leave to file and serve Affidavit in Opposition remained pending in Court for a decision to be made and accordingly was heard and hence for ruling now.
     

ANALYSIS and DETERMINATION

7. The issue for Court to determine is “whether leave should be granted to the Defendants to file and serve their Affidavit in Opposition to the Plaintiff’s Application by Originating Summons filed on 14^th April, 2016”.
8. Order 12 Rule 5 (2) of the High Court Rules 1988 states that “nothing should preclude a Defendant from acknowledging service in an action after the time limited for so doing, but if a Defendant acknowledges service after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other act later than if he had acknowledged service within that time”.
9. I refer back to and bear in mind the chronology of proceedings outlined hereinabove at paragraph 6.
10. The proceedings by the Plaintiff was commenced on 14^th April, 2016.
11. The Defendants filed in their Appointment of Solicitors and Acknowledgement of Service on 5^th July, 2016 and on 8^th July, 2016 by Summons sought for Court’s leave to file and serve Affidavit in Opposition to the Plaintiff’s Vacant Possession Application.
12. The Defendants in support of their Application submitted as follows –
    • The Court has discretion to grant leave to a party to file and serve Defence or Affidavit in Opposition riding on a Late Acknowledgement of Service using O. 12. r. 5(2).
    • The Court needs to weigh between the Defendants’ rights to be heard, as litigants not to be denied access to Court, and to have the matter adjudicated on its merits simply because of his/her procedural lapses or defaults.
    • Opposed to this is the obligation on parties to comply with the High Court Rules.
    • The Defendants can pay costs and file their Affidavit in Opposition within 7 days.
    • Further, the Court should also consider that the Plaintiff’s Originating Summons is not in accordance with Order 7 rule 2 of the High Court Rules. It must confirm to Form 3 of Appendix 1.
    • The Defendants cannot offer any good excuse or reason for not turning up to Court but it is clear from the record that instructions to Counsel were not finalised until the Defendants filed Notice of Appointment of Solicitors and Acknowledgement of Service.
13. On the other hand, the Plaintiff submitted as follows –
    • The Plaintiff further submits that Order 12 Rule 5(2) does not necessarily assist the Defendants in their application for extension of time to file a responding Affidavit to the Section 169 Application.
    • The Defendants should have in fact invoked Order 3 Rule 1 of the High Court Rules which the Defendants have failed to do, as such their application must fail.
    • For all intent and purposes, the highest Courts in Fiji have held that the returnable date on an Originating Summons for Eviction is treated as a hearing of the said application. That is why a clear service of 16 days is allowed to put the Defendants on Notice of the application and to allow any Responding Affidavits to be filed within 16 days of service. Therefore, on the premises, the Defendants had more than ample opportunity to file Responding Affidavits.
    • Furthermore, given that the Defendants were served with Eviction Notices prior to the legal proceedings, they should have sorted their instructions at that stage.
14. Taking into consideration the time that has passed by from the date of the commencement of the S. 169 Substantive Application by the Defendant to the date of the filing of the Defendant’s current Application seeking Leave, tallies to about 3 months which I would consider is reasonable in these circumstances although the substantive matter is filed within a Summary Proceedings.
15. Further, the Defendants “Right to Defend” their case is equally important and one not to be haphazardly or lightly written off in any given case.
16. The Fiji Court of Appeal in the case of Bhawis Pratap v. Christian Mission Fellowship (ABU0093.2005), had cautioned that “to deprive a defendant of the right to defend is a serious, only to b to be taken in the clearest cases".
17. Order 12 Rule 5(2) of the High Court Rules 1988 empowers the Court in its discretion to grant leave to the Defendants to file and serve their Affidavit in Opposition riding on a Late Acknowledgement of Service using O. 12. r. 5(2).
18. In conclusion, taking into consideration O. 12. r. 5(2), Affidavit Evidence and the Written and Oral Submissions by the parties to the proceedings, I accede to the Defendants Summon filed on 8^th of July, 2016 and grant the Orders for Leave to file and serve the Affidavit in Opposition within the next 14 days. The Plaintiff is granted 14 days thereafter to file and serve their reply in all fairness to the Plaintiff.
19. The Defendants are ordered to pay Costs to the Plaintiff summarily assessed at $1500 to be paid within the 14 days’ time-frame. This order is necessary since the Defendants were served with the Notice to Quit as well as the Plaintiff’s Originating Summons seeking vacant possession and did not take appropriate steps to expeditiously file and serve their respective Affidavits in Opposition causing delay in the disposition of the Plaintiff’s case.
20. Thus, following are the orders:
    

FINAL ORDERS

1. Defendants Summon filed on 8^th of July, 2016.
2. Leave is hereby granted to the Defendants to file and serve their respective Affidavit in Opposition within 14 days and 14 days thereafter for the Plaintiff’s reply (if any).

100. The Defendants are also ordered to pay cost to the Plaintiff summarily assessed at $1,500 within the next 14 days timeframe.
     

4. Unless order is hereby invoked and may be activated upon the Defendants failure to file and serve their Affidavits in Opposition and non-payment of the costs as herein ordered.
5. Orders accordingly.
   

Dated at Suva this 27^th Day of September, 2016

..............................................................

VISHWA DATT SHARMA

Master of High Court, Suva

cc: Neel Shivam Lawyers, Suva

Toganivalu & Valenitabua, Suva.