In the High Court of Fiji at Suva
Probate Jurisdiction

HPP Action No. 06 of 2018
                In the matter of the Estate of Jan Sahib aka Sheik Jan Sahib                 
Sheik Nizamul Sahib
Plaintiff
And
Zeena Tun Nisha aka Jinatun Nisha
First defendant
           Fahiruna Nisha, Sheik Mukhtar Saheb, 
                                                 Sheik Faruk Saheb, Nazmun Nisha,  Sanina Bi Saheb 
                                                 as Adminstratrix of the estate of  Sheik Liaquat Saheb
Second defendants
                          COUNSEL:            Mr V. Vosarogo for the plaintiff                       
                                                          Ms K.Singh with Ms D. Gandhi for the first and second 
                                                          defendants
  Date of hearing:      19th October, 2020
  Date of Ruling:       30th October, 2020

Ruling
1.	By summons filed on 5th December,2019, the defendants move that this action be dismissed for want of prosecution under Or 25, r 9, since the plaintiff has failed to take any further steps in this action, as 6 months has passed since my Ruling of 15 May, 2019. The first defendant, in her supporting affidavit states that the Writ has expired, as more than 12 months has passed since it was filed on 25 January, 2018.  The actions of the plaintiff are  depriving all the beneficiaries, including the plaintiff of their share. 
2.	Ms Singh, counsel for the first and second defendants submitted that the plaintiff has merely attempted to lodge the Writ with the Chief Registrar after a lapse of 6 months and has made no effort to follow up and appraise the status of the endorsement. It is unacceptable to merely state that the writ has been submitted and they are awaiting for it to be stamped for the past 10 months. There is no evidence to show that the plaintiff has made any attempt to expedite or prosecute the matter. The plaintiff has been contumelious in his conduct. He has failed to comply with the Ruling of 15th May 2019. There will be no prejudice to the plaintiff, as from the commencement of this action the first defendant has stated that she is able to administer the estate, but the plaintiff has been hindering the administration.

3.	The plaintiff, in his response states that the Writ was submitted to the Chief Registrar for endorsement on 16th December 2019. The twelve months rule is for service to be executed.  There is no evidence to suggest that the defendants have been prejudiced by the length of the proceedings.

The determination
4.	The plaintiff is a beneficiary of the estate of Jan Sahib aka Sheik Jan Saheb. The first defendant is the administrator of the estate by letters of administration granted on 11 January 2001. The plaintiff seeks to revoke the letters of administration. 

5.	On 15th May, 2019, I held that the failure of the plaintiff to comply with Or 76, r 2 is not fatal and can be cured by subsequent endorsement. 

6.	The defendants point out that the plaintiff has not complied with my Ruling for 16 months.
The plaintiff has submitted the Writ to the Chief Registrar for endorsement on 16th December 2019, and not followed up the matter. 

7.	In Pratap v Christian Mission Fellowship, (2006) FJCA 41 (14 July 2006) as cited by Ms Singh, the Court of Appeal stated that “the power to dismiss or permanently stay proceedings before it which it finds to be an abuse of its process ..is a power which must be exercised with considerable caution” . 

The judgment of the Court stated: 
Most recently, in Abdul Kadeer Kuddus Hussein v. Pacific Forum Line, ABU 0024/2000 – FCA B/V 03/382) the court, readopted the principles expounded in Birkett v. James [1978] AC 297; [1977] 2 All ER 801 and explained that:
 “The power should be exercised only where the court is satisfied either (i) 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 (ii) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) 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.”

[24} In New Zealand, the same approach was adopted in the leading case of Lovie v. Medical Assurance Society Limited [1992] 2 NZLR 244, 248 where Eichelbaum CJ explained that:
“The applicant must show that the Plaintiff has been guilty of inordinate delay, that such delay is inexcusable and that it has seriously prejudiced the defendants. Although these considerations are not necessarily exclusive and at the end one must always stand back and have regards to the interests of justice. In this country, ever since NZ Industrial Gases Limited v. Andersons Limited [1970] NZLR 58 it has been accepted that if the application is to be successful the Applicant must commence by proving the three factors listed."

[25] In New India Assurance Co. Ltd. V. Rajesh Kumar Singh (ABU 0031/1996 – FCA B/V 99/946) this court emphasized that while inordinate and inexcusable delay might be established, these factors were not, on their own, sufficient to warrant the striking out of the action. What additionally had to be clearly demonstrated (and could not be presumed) was that the Defendant had been or would be materially prejudiced by the delay that had occurred. Although the categories of prejudice are not closed (see, for example, remarks by Lord Denning in Biss v. Lambeth Southwark and Lewisham Health Authority [1978] 2 All ER 125) the principal consideration is whether, in view of the delay, a fair trial can still be held …(emphasis added)
8.	In the present case, the statement of claim was filed on 25th January,2018.  On 28th September,2018, the action was struck out due to non appearance of  the plaintiff’s  solicitors at that time. The matter was reinstated. After my Ruling of 15th May, 2019, Mr Vosarogo Lawyers act for the plaintiff.

9.	In my view, the delay is not inordinate. 

10.	The defendants assert that the plaintiff’s action has unnecessarily deprived the beneficiaries of their interests in the estate and they will be put to greater unnecessary costs to defend this matter.

11.	The defendants have not established that the delay in these proceedings would cause them serious prejudice. 

12.	Section 15(2) of the Constitution of Fiji  enshrines “the right to have  matter determined by a court of law” and as Kirby J stated in Batistatos v Roads & Traffic Authority of New South Wales, [2006] HCA 27 as cited in Pratap v Christian Mission Fellowship, (supra): 
                        The Plaintiff certainly has a "right" to institute a proceeding. But the Defendant also has "rights". One is to plead in defence an available limitation defence. Another distinct "right" is to seek the exercise of the power of the Court to stay its processes in certain circumstances. On its part, the court has an obligation owed to both sides to quell their controversy according to law. .(emphasis added)

13.	In the interests of justice, I direct the plaintiff to have the writ endorsed and served on the defendants on or before 15th November,2020.

14.	I decline the application to dismiss this action.

15.	Orders
a.	The plaintiff shall have the writ endorsed and served on the defendants on or before 15th November,2020.
b.	This matter to be called before me on 17th November,2020.
c.	Costs in the cause.

A.L.B. Brito-Mutunayagam 
Judge
30th October, 2020