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Goundar v Fiesty Ltd [2018] FJHC 986; HBC197.2012 (11 October 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
CIVIL ACTION NO.: HBC 197 of 2012

BETWEEN

PREM KRISHNA GOUNDAR
PLAINTIFF

AND

FIESTY LIMITED
FIRST DEFENDANT

MINISTRY OF LANDS & MINERAL RESOURCES
SECOND DEFENDANT

THE ATTORNEY GENERAL OF FIJI
THIRD DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Ms R Lal on instructions [Iqbal Khan & Associates]

DEFENDANT : Mr R Singh [Sherani & Co]

RULING OF : Acting Master Ms Vandhana Lal

DELIVERED ON : 11 October 2018

INTERLOCUTORY RULING
[Authority to Swear Affidavit]

1. Pending before this Court is an application by the First Defendant for striking out of the Plaintiff’s action.
   

In support of the said application, the First Defendant filed an affidavit of one Mark Acraman a Project Manager with First Defendant.

2. The said application was listed for hearing however Counsel for the Plaintiff took up a preliminary objection concerning the affidavit in support so filed.
   

According to Ms Lal, Mr Acraman is not duly authorised by the First Defendant to depose the affidavit. The First Defendant is a company whilst Mr Acraman is a Project Manager and should be authorised by the company to swear to the affidavit.

She further submitted that, Mr Acraman should have stated who gave him the authority.

Ms Lal relied on the case of Denarau Corporation Limited v. Vimal Deo a Lautoka High Court Civil Action Number 23 of 2013 where on an application for summary Judgement Ajmeer J. upheld a preliminary objection by the Defendant that the affidavit is irregular and produced no authority to swear affidavits attached or resolution to bring the action.

Ms Lal submits that the application would be struck out if the affidavit is not allowed.

3. Mr Singh Counsel for the Defendant submitted that the affidavit itself mentions that Mr Acraman has authority to depose the affidavit.
   

The Plaintiff did not raise this issue but have responded to the affidavit.

He relied on the case of Sudresan Pillay v. Barton Limited a Lautoka High Court Civil Action Number HBC 63 of 2014. In this case the Court whilst dealing with an Order 25 rule 9 summons, had accepted the affidavit of a company director to be in compliance with the High Court Rules and the Companies Act.

4. Order 41 rule 1 (4) of the High Court reads:
   

“Every Affidavits must be expressed in the first person and, unless the court otherwise directs, must state the place of residence of the deponent and his occupation, or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state the fact.

In the case of a deponent who is giving evidence in a professional, business or other occupational capacity the affidavit may, instead of stating the deponents place of residence, state the address at which he works, the position he holds and the name of his firm or employer, if any.”

5. Gates J. [as he was then] in Buckely –v- Sulton a Lautoka High Court Civil Case Number HBC 350 of 2001 delivered on 8 July 2002 stated:
   

All witnesses in a trial state their addresses in full after they are sworn, and before commencing upon their evidence. Deponents swearing affidavits are in no different a category to such witnesses. It is a fundamental requirement of our system of justice that an accused, or a litigant in a civil claim, should know who his accusers are so that he may mount his defence or challenge to what they say against him. The opposing side therefore is entitled to know the full identification and location of a witness, save in exceptional circumstances such as where the life of a witness is threatened or in similar dire circumstances. It is sufficient for professional witnesses, as here, simply to give their professional addresses. But proper details of such professional addresses should be provided.

6. Tang J [as he was then] in Tsui Koon Wah –v- Lam Kinj Yeren HCA 890 of 2003; 24 May 2004 emphasised;
   

“that the rationale for requiring a deponent to provide his place of residence, is only to ensure the identity of a deponent is unequivocally established same too for the requirement to state an occupation”.

7. Mr Acraman has stated that he is the Project Manager and is authorised by the First Defendant to make the affidavit.
   
8. Earlier Mr Acraman had filed an affidavit verifying First Defendant’s list of documents. This was done on 23 June 2016. The Plaintiff did not raise any objection to him making the affidavit then but proceeded to do discovery and convene pre-trial conference.
   
9. In the current application, the Plaintiffs did not when the application was first called raise any objection to Mr Acraman deposing the affidavit in support and in reply.
   

The Plaintiff has unconditionally responded to the affidavit.

10. Mr Acraman has deposed his address and occupation as required under the law.
    

He has further stated he is employed with the First Defendant and is authorised to make the affidavit on behalf of the First Defendant.

He has also stated his source of obtaining the facts.

11. The case law of Denarau Corporation Limited [supra] relied on by Ms Lal dealt with an application for summary judgment which under Order 41 rule 5 is an exception where written authorities are asked for.
    
12. I am satisfied that Mr Acraman as Project Manager can positively swear to the facts contained in the affidavit and that there is no necessity to call for a written authority to say he has the authority to make the affidavit.
    
13. For these reason I reject the preliminary issue raised by Ms Lal and hold the Affidavit so made by Mr Acraman is in compliance of the High Court Rules.
    

................................
Vandhana Lal [Ms]

Acting Master

At Suva.