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Sahib v Nisha [2018] FJHC 1035; HPP06.2018 (16 October 2018)

In the High Court of Fiji at Suva
Probate Jurisdiction

HPP Action No. 06 of2018
In the matter of Jan Sahib aka Sheik Jan Sahib and In
the matter of an application pursuant to Section 23 of
the Succession, Probate and Administration Act and
Order 85 ofthe High Court Rules, 1985.

Sheik Nizamul Sahib of Sydney
Plaintiff
And
Zeena Tun Nisha aka Jinatun Nisha
of Nailuva Road, Suva

First defendant

Fahiruna Nisha, Sheik Mukhtar
Saheb, Sheik Faruk Saheb, Nazmun
Nisha, Sanina Bi Saheb as
Adminstratrix of the estate of t
Sheik Liaquat Saheb

Second defendant

COUNSEL:

Date of hearing:

Date of Ruling:

Ms 1. Lutu for the plaintiff
Ms D. Gandhi for the first and second defendants
15^th October,2018
16^th October,2018

Ruling

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1. By summons dated 2^nd October,20 18, the plaintiff moves that this action be reinstated.

2. Mr Shelvin Singh, Barrister and Solicitor in his affidavit in support states that his firm Shelvin
   Singh Lawyers, solicitors for the plaintiff took over the brief in this case from AP Legal, but
   by inadvertence on his part, he did not enter an appearance on 28 September,20 18, when this
   matter was struck out.

3. The first defendant, in her affidavit in opposition states that she is not in a position to state
   when Mr Shelvin Singh received instructions from the plaintiff. Shelvin Singh lawyers only
   filed notice of change of solicitors on 2 October, 2018, after the action was struck out on 28
   September,20 18. AP Legal was still on record for the plaintiff on that date, but failed to appear.
   If Mr Shelvin Singh had instructions, he had a duty to his client to appear on 28
   September,2018. He had no locus standi to appear on that date, as he had not filed his notice
   of change. He should have filed his notice of change of solicitors before 28 September,20 18.
   She is advised that inadvertence is not a ''proper ground' to have the matter reinstated. There
   are no valid grounds for the Court to exercise its discretion to reinstate this matter. The plaintiff
   does not have a valid cause of action. He filed an originating summons HPP Action No. 04 of
   2016. The Court held that the application was incorrectly brought. The writ in the current action
   is not issued in compliance with Or 76.
4. At the hearing, Ms Lutu, counsel for the plaintiff submitted that Or 35,rl enables a Court to
   strike out a matter for want of appearance only on a hearing date. In the present matter, the
   case was fixed for mention. The defendant's application for striking out under Or 18, r 18 has
   not been heard nor determined.

5. Ms Gandhi, counsel for the defendant in reply reiterated the matters contained in the affidavit
   in opposition ofthe first defendant. She submitted that the reasons given by Mr Shelvin Singh
   for not appearing on 28 September,20 18, were inadequate. There is no evidence that he had
   instructions to appear on that date. In terms of Or 67, r 1, until notice of change of solicitor is
   filed and copy served, the solicitor on record represents the party. An action can be struck out
   on a calling date .Ms Gandhi, submitted further that the case filed by the plaintiff is an abuse
   of process.
6. On 12 September,2018, the defendant filed an application for striking out the plaintiffs under
   under Or 18 r(1)Ca) and (d). On 28 September,2018, when this matter was called, the plaintiff
   was absent and unrepresented. Ms Gandhi moved that the case be struck out.

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7. This application for reinstatement is concerned with my order of 28 September,20 18, striking

out the plaintiffs case on a calling date, due to non-appearance of plaintiffs counsel.

8. Ms Gandhi cited the case of Singh v Purnima, (Civil Action no 13 of 2014). In that case,
   Ajmeer J cited the judgment of Hettiarachchi J in Prasad v Rup Investments Ltd, [2012]
   FJHC 1396; HBC182.2006 (19 October 2012) as follows:

Therefore, it is my considered opinion that the striking out of the action by
the Master on a mention date due to the non appearance of the plaintiff's
counsel was legally unacceptable and also could not be considered as an
order made under Order 25 rule 9 of the High Court Rules ....

Had it been struck out by the Master Tuilevuka on merits after the adjudication
of the issues, certainly the Master Amaratunga has no jurisdiction to re-open
the case .

.. When an action is struck out by a judge for want of appearance by the
plaintiff, the remedy available for the plaintiff is to make an application for
a re-instatement before the same judge. (emphasis added)

9. The words which I have emphasised in this passage are apposite.

10. Having considered the matter further, I have come to the conclusion that it is in the interests
of justice to reinstate this matter, in order that the application of the defendants for striking out
of the plaintiff s action be heard and determined. In the exercise of my discretion, I order that
the plaintiff s action be reinstated.

11. Orders

(a) The plaintiffs application for reinstatement is allowed.

(b) I make no order as to costs.

A.L.B. Brito-Mutunayagam
Judge

16^th October, 2018

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