IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 41 of 2017

BETWEEN: KAMLAS LATTA of Kabesi, Sigatoka, Retired.

Plaintiff

AND: DHAVENDRA SINGH aka DHANENDRA SINGH of Kabesi,
Sigatoka, Retired.

Defendant

Before:	 Master U.L. Mohamed Azhar

Counsels: Ms. R. Lata for the Plaintiff
Ms. A. Swamy for the Defendant

Date of Ruling	: 17.12. 2021

RULING

01.	The plaintiff took out the originating summons issued by this court on 03.03.2017 and sought an order on the defendant to transfer one third of the property comprised in CL 91868; Lot 32, Waqaliqali Subdivision, (Plan No. 1093), Cuvu, Nadroga to herself (plaintiff). The plaintiff also sought an order restraining the defendant from subdividing and selling the above property until determination of this matter. The summons is supported by an affidavit sworn by the plaintiff. The defendant through his solicitor opposed the summons and was directed to file the affidavit in opposition. Thereafter, the solicitor for plaintiff moved to file the writ instead of the originating summons and sought further time to file a formal application for the same. The defendant’s solicitor did not object the application of the plaintiff.  

02.	Upon filling the formal application, the solicitor for the defendant unconditionally consented for the summons and moved the court to direct that, the matter to take normal cause. Accordingly, the court, on 24.07.2017 ordered that, the matter to continue as it begun by way of writ and set the timeline for the pleadings of the parties to be closed. The court further ordered the matter to be on its normal cause until the parties complete the pleadings. However, the plaintiff did not take any step for nearly one year and eight months till the defendant filed the current Motion on 28.02.2019 seeking an order to strike out the plaintiff’s action for abuse of process under Order 29 r 5 of the High Court Rules. The plaintiff did not even available to file the affidavit to oppose the Motion of the defendant, instead the law clerk of the solicitors for the plaintiff deposed affidavit that was filed in opposition of the Motion. The affidavit in reply was sworn and filed by the defendant himself.

03.	The counsels who appeared for the parties agreed to file their written submission for hearing and moved the court to make the ruling based on the affidavits filed on behalf of the parties and legal submission filed by their counsels. The counsel for the defendant took up a preliminary objection to the affidavit in opposition sworn by the law clerk on behalf of the plaintiff. The counsel cited several authorities and submitted that, deposition of affidavit by the law clerk for a substantive matter renders the affidavit defective and the legal principles prohibit the law clerks from deposing affidavits on behalf of clients.

04.	The affidavits sworn by non-litigants, such as a third party, law clerks, solicitors and directors of companies, in civil suits have been the point of objection for long time, though the courts, both local and overseas, settled the very point in several cases. This court too on many occasions analyzed relevant rules of the High Court Rules and settled the same point. Singh v Lautoka General Transport Co Ltd [2020] FJHC 391; HBC260.2006L, which was decided on 05 June 2020, is the latest case by this court on this issue. However, it has now become necessary to repeat the same discussion in this case too as the impugned affidavit was sworn by the law clerk of the solicitors for the plaintiff.  

05.	Affidavits are source of providing evidence and anyone privy to knowledge and information has a right to depose to an affidavit (Vodafone Fiji Ltd v Pacificconnex Investment Ltd [2010] FJHC 419; HBE097.2008). The Order 41 of the High Court Rules deals with the matters connected with the affidavits that are filed in civil suits in the High Court. Though the rules do not directly state who can depose an affidavit, rule 5 provides for the contents of an affidavit which can give a clear idea as to who can depose it. The rule 5 reads:

Contents of Affidavit (O.41, r.5)
5.-(1) Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof. (Emphasis added).

06.	As emphasized in the above rule, a person, who is able of his own knowledge to prove such facts, can depose an affidavit to that effect, subject however to the specific rules mentioned therein and paragraph 2 of that rule. In this sense, the affidavit is equated to the oral evidence given in court. The Supreme Court Practice (White Book) 1988 has the identical rule under Order 41. However the Supreme Court Practice (White Book) 1988 clearly explains effect of the rule in an useful manner and it reads: 

41/5/1	Effect of rule

This rule was taken from the former O.38, r.3. Its effect is to require that save in the excepted cases, an affidavit must contain the evidence of the deponent as o such facts only as he is able to speak of to his own knowledge, and to this extent, equating affidavit evidence to oral evidence given in Court.

The excepted cases are:
 (1) affidavits under O.14, rr.2(2) and 4(2) either by the plaintiff or by the defendant: 
(2) affidavits made pursuant to an order under O.38, r.3(2)(a) that evidence of any particular fact may be given at the trial by statement on oath of information or belief; and 
(3) affidavits for use in interlocutory proceedings. See also, O.49, r.2 (affidavit to obtain garnishee order nisi); O.50, r.1 (4) and r.3 (affidavit to obtain charging order on land or securities).

07.	Since the rules are identical the above passage from the White Book can be used to understand the effect of our rules as well. Accordingly, the general rule is that a person, who is able to speak of the matter to his own knowledge, can depose an affidavit. The first category of exceptions is the affidavits under Order 14, rules 2(2) and 4(2), Order 86, rule 2(1). These affidavits must be sworn by the respective party to an action. If an affidavit under this category is sworn by a person other than the party to that action, he or she should state his or her means of knowledge and also the fact that he or she is authorized to make such affidavit. On that note, it must be emphasized that, the authorization is required only when a person other than the plaintiff or the defendant deposes an affidavit in relation to an application that falls under the first category of exception. It must also be emphasized that, there is no requirement to call for an authority be in writing and attached with the affidavit, as sometimes it is argued. Those who argue that an authority must be in writing and attached with such affidavit to consider it admissible, often rely on the note that appears at page 117 of the White Book 1967. It states as follows;   
‘The affidavit may be made by the Plaintiff or by any person duly authorized to make it. If not made by the Plaintiff, the affidavit itself must state that the person making it is duly authorized to do so- Chingwin –v- Russell (1910) 27 T.L.R. 21”. 
08.	On the face of it, the above note makes a general inference that, there must be an authority from the party, either the plaintiff or the defendant, if the affidavit is not deposed by him. However, a careful reading of the said authority Chingwin –v- Russell reveals that, it was decided under Order 14, which is one of the common exceptions mentioned in both High Court Rules of Fiji (Order 41 rule 5) and White Book 1988 as stated above. The following dictum of Vaughan Williams L.J. in that case makes it crystal clear that, the courts required the authority from the respective party only in cases of first category of exceptions, which requires the respective parties to swear the affidavits, as identified by the above rules. His Lordship Vaughan Williams held that; 

“Where an affidavit in support of a summons under Order 14 is sworn by a person other than the plaintiff he should state his means of knowledge and also the fact that he is authorized to make the affidavit.” (Emphasis added). 

09.	The above dictum makes two propositions abundantly clear. Firstly, the case (Chingwin –v- Russell) decided under one of the exceptions (Order 14) should not, generally, be applied to all the affidavits in the civil suits. Secondly, the court did not call for a written authority to swear the affidavit to be attached when a person other than the party deposed such affidavit, but, the court required the deponent to state the fact that he was authorized to do so, as emphasized above.

10.	In that case, His Lordship Vaughan Williams cited another case, which is Lagos v. Grunwaldt (1910) 1 K.B 41. That case too was decided under Order 14. In that latter case, the plaintiff, who had acted as the legal representative of the defendants during litigation in South America, sent his bill of costs to their solicitors in England, and afterwards issued a specially indorsed writ against the defendants, claiming the professional charges and disbursements.  An application for leave to sign judgment under Order XIV was supported by an affidavit made by a member of the English firm of solicitors who represented the plaintiff.  This affidavit was sworn in London, and the deponent stated that he was a member of the firm of solicitors acting for the plaintiff; that the defendants were justly truly indebted to the plaintiff in the sum claimed in the writ for professional charges; gave the history of the case; and added that it was within his own knowledge that the debt was incurred and was till owing; such knowledge being obtained from correspondence received from the plaintiff and from correspondence and conversations the deponent had had with the defendant’s solicitors. The deponent further stated that, he was duly authorized by the plaintiff to make the affidavit. The Court of Appeal unanimously held that;

There was a liquidated demand, but that the affidavit was irregular, in as much as the deponent was not a person who could swear positively to the facts and verify the cause of action and the amount claimed within Order XIV, r.1, and his affidavit was only made on information and belief.  The conditions imposed by the rule were not fulfilled, and the Court had no jurisdiction to make an order under Order XIV. (Emphasis added).

11.	In the above case, the deponent had clearly averred in the disputed affidavit that, he was duly authorized by the plaintiff to make the said affidavit. However, the court did not require a written authority to be attached with the said affidavit, but, went on to examine whether the deponent could have positively sworn to the facts. Cozens-Hardy M.R said at pages 46 and 47 that;

He says, “I verily believe that there is no defence to this action,” and then, “It is within my own knowledge that the said debt was incurred and is still due and owing, such knowledge being obtained from correspondence received from the plaintiff and also from correspondence and conversations  I have had with Messers. Pritchard, Englefield & Co.  I am duly authorized by the plaintiff to make this affidavit.”  In my opinion it is impossible to say that this is an affidavit made by a person who can swear positively to the facts.  It is obviously nothing more than a statement made on his information and belief, that information being derived from his own client, the plaintiff, who tells him this is due – and that obviously will not be enough to enable him to make the affidavit – and from further statements made by Pritchard, Englefield & Co., who, beyond all doubt, were not the solicitors for the defendant Grunwaldt at the time when those statements were made.  Is it possible that the deponent can swear positively to the facts as to the stamped paper for forty-three documents, which is the first item in the bill which is given here?  Is it possible that he can swear this sum was paid?  I might go through all the items.  Is it possible that he can swear that the fees charged by Dr. Lagos and another attorney, amounting to 1,500l in all, were due?  It seems to me we should be giving an irrational and improper extension to Order XIV, r.1, if we said that such an affidavit as that, made in aid of the plaintiff, was sufficient to bring his claim within the peculiar provisions of Order XIV.  In my opinion on that ground there was no jurisdiction under Order XIV, to make the order which was made.  We might as well say that the plaintiff’s solicitor in every case could make an affidavit to satisfy Order XIV, and that would be dangerous beyond anything.  There may be cases (I do not wish to be misunderstood on this point) in which the plaintiff’s solicitor or the plaintiff’s solicitor’s clerk may be perfectly competent to make an affidavit satisfying the conditions of Order XIV, r.1.  There are no conditions here which justify us in saying that the plaintiff’s solicitor could make the affidavit and swear positively to the facts, and swear positively verifying the amount claimed. (Emphasis added)

12.	It follows from the above decisions that, the authority to swear an affidavit should be required only in those circumstances that fall under the first category of exception under Order 41 rule 5. However, the authority alone cannot make an affidavit admissible, but the court is still under duty to examine, whether the deponent can positively swear to the facts contained in the affidavits. An affidavit may still be irregular if the deponent is unable to positively swearing to the facts, even though he or she was authorized to do so, as described by the above decision. It follows that; those affidavits under this category cannot be made on information or belief.

13.	The second exception is the affidavits made pursuant to Order 38, rule 3 of the High Court Rules. This Order deals with the evidence in trial of any action begun by writ and the court has discretion under this rule to order the affidavit of any witness be read in trial. In addition, the court may, under Order 38 rule 3, order any particular fact may be given by statement on oath of information or belief. Any person may depose an affidavit of any particular fact of information and belief for this purpose. This rule mainly applies to the witnesses and especially the expert and professional witnesses who give evidence which contains their professional opinion and expert ideas and therefore, no authorization, from the person on whose behalf the affidavit was made, is needed to depose such information and belief. In Kalabo Investments Ltd v New India Assurance Co Ltd (supra) the Fiji Court of Appeal held that, the authorization is not required when professional experts depose their professional opinion in affidavits. 

14.	The paragraph (2) of the Order 41 rule 5 operates as the third exception to the primary rule of evidence stated expressly in Ord 41, r 5(1) that a person may only give evidence as to 'facts', which he 'is able of his own knowledge to prove'. This paragraph provides that, an affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof. The difference between this exception and the second exception under Order 38 rule 3 is that, the deponent, under this third exception, must state the source of information and grounds of belief as he or she deposes the said affidavit on behalf of others and that affidavit to be used in interlocutory proceedings. This exception plainly allows the deponent to adduce facts he heard from others in the interlocutory proceedings and also allows a statement of belief, that is to say an opinion. However, that belief must be that of the deponent, and such statements will have no probative value unless the sources and grounds of the information and belief are revealed. In Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV and Others [1984] 1 WLR 271, [1984] 1 All ER 296,   Peter Gibson J explained the nature, operation and effect of paragraph 2 of rule 5 of Order 41 and held at page 305 that:

It is obvious from r 5(2) itself that it operates as an exception from the primary rule of evidence stated expressly in Ord 41, r 5(1) that a person may only give evidence as to 'facts', which he 'is able of his own knowledge to prove'. Rule 5(2), by including statements of information or belief, plainly allows the adduction of hearsay. It also allows a statement of belief, that is to say an opinion but in its context that belief must be that of the deponent, and such statements will have no probative value unless the sources and grounds of the information and belief are revealed. To my mind the purpose of r 5(2) is to enable a deponent to put before the court in interlocutory proceedings, frequently in circumstances of great urgency, facts which he is not able of his own knowledge to prove but which, the deponent is informed and believes, can be proved by means which the deponent identifies by specifying the sources and grounds of his information and belief. What r 5(2) allows the deponent to state that he has obtained from another must, in my judgment, be limited to what is admissible as evidence.  

15.	The question is what applications are to be considered as interlocutory proceedings for the purpose of this exception and how the source of information and ground of belief to be averred? It must be emphasized that, all the interlocutory proceedings are not falling within the ambit of this rule. The English Court of Appeal construed this rule in a way which draws a distinction between the general interlocutory proceedings and the interlocutory proceeding where a right of a party to be determined. Accordingly, the proceedings such as the one that is made for the purpose of maintaining status quo till the rights are decided or for the purpose of obtaining some directions from the court are considered as interlocutory proceedings for the purpose of this rule. However, the interlocutory proceedings which decide the rights of the parties are not falling into this category, even though they are interlocutory proceedings per se.  The authority for this proposition is found in the judgment of Lord Justice Cotton in Gilbert v. Endean (1878), 9 Ch.D. 259. Cotton L.J held at page 268 that: 

“…for the purpose of this rule those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties. Now many of the cases which are brought before the court on motions and on petitions, and which are therefore interlocutory in form, are not interlocutory within the meaning of that rule as regards evidence. They are to decide the rights of the parties and whatever the form may be in which such questions are brought before the court, in my opinion the evidence must be regulated by the ordinary rules, and must be such as would be admissible at the hearing of the cause.

16.	The above decision was followed in two subsequent cases, namely Rossage v. Rossage and Others [1960] I W.L.R. 249; [1960] I All E.R. 600, C.A, and Re J. (An Infant) [1960] I W.L.R. 253; [1960] I All E.R.603 and both cases referred the above passage of Lord Justice Cotton. 

17.	The next is the source of information and grounds of belief to be averred in such affidavits. Unlike the second exception under Order 38 rule 3, as discussed above, this exception [rule 5 (2)] requires the deponent of the affidavits, used in interlocutory proceedings, to give the source of information and grounds of belief. The purpose is to enable a deponent to put before the court in interlocutory proceedings, frequently in circumstances of great urgency, facts which he is not able of his own knowledge to prove but which, the deponent is informed and believes, can be proved by means which the deponent identifies by specifying the sources and grounds of his information and belief. 

18.	In Re J. L. Young Manufacturing Company Limited [1900] 2 Ch.D, 753 the affidavits, sworn without indicating the source of the information, drew the attention of the court and Lord Alverstone C.J. held at page 754 that:  

This case is one of general importance as regards the practice of the admissibility of evidence by affidavit.  In my opinion some of the affidavits in this case are wholly worthless and not to be relied upon.  I notice that in several instances the deponents make statements on their “information and belief,” without saying what their source of information and belief is, and in many respects what they so state is not confirmed in any way.  In my opinion so-called evidence on “information and belief’ ought not to be looked at, at all, not only unless the Court can ascertain the source of the information and belief, but also unless the deponent’s statement is corroborated by someone who speaks from his own knowledge. If such affidavits are made in future, it is as well that it should be understood that they are worthless and ought not to be received as evidence in any shape whatever; and as soon as affidavits are drawn so as to avoid matters that are not evidence, the better it will be for the administration of justice.

19.	In the same case, Rigby L.J. concurring with Lord Chief Justice stated at pages 754 and 755 that:  

I will add a few words to what the Lord Chief Justice has said with regard to affidavits and the way in which they are often framed. 

In the present day, in utter defiance of the order (Rules of the Supreme Court, 1883, Order xxxvɪɪɪ., r. 3) (1), solicitors have got into a practice of filing affidavits in which the deponent speaks not only of what he knows but also of what he believes, without giving the slightest intimation with regard to what his belief is founded on.  Or he says, “I am informed,”  without giving the slightest intimation where he has got his information.  Now, every affidavit of that kind is utterly irregular, and, in my opinion, the only way to bring about a change in that irregular practice is for the judge, in every case of the kind, to give a direction that the costs of the affidavit, so far as it relates to matters of mere information or belief, shall be paid by the person responsible for the affidavit. At any rate, speaking for myself, I should be ready to give such a direction in any such case.  The point is a very important one indeed.  I frequently find affidavits stuffed with irregular matter of this sort.  I have protested against the practice again and again, but no alteration takes place.  The truth is that the drawer of the affidavit thinks he can obtain some improper advantage by putting in a statement on information and belief, and he rests his case upon that.  I never pay the slightest attention myself to affidavits of that kind, whether they be used on interlocutory applications or on final ones, because the rule is perfectly general-that, when a deponent makes a statement on his information and belief, he must state the ground of that information and belief.
20.	Lord Justice Vaugan William in that case further went on to suggest that, the solicitors should be punished with the cost if such affidavits without indicating the source of information and belief are filed in the civil suits. His Lordship held at page 755 that: 

With regard to affidavits of the sort before us, it is quite a sufficient or satisfactory remedy to throw upon the party upon whose behalf such affidavits are put forward the liability of paying the costs of those affidavits. The only more satisfactory remedy is one which I am aware is difficult, if not impossible, to apply as the law stands : namely, that no one should pay for these affidavits at all, and that the solicitor who has drawn these affidavits and made copies of them, and so forth, should be left out of pocket thereby.

21.	The court in the above case unanimously held that the affidavits without source of information and belief are worthless and ought not to be received as evidence in any shape whatever. Whilst renouncing such practice in both interlocutory and final ones, the English Court of Appeal held that, such affidavits should not be received as evidence and further suggested punishing the parties or their solicitors by way of imposing cost for making such affidavits.  

22.	In fact, the Supreme Court of Fiji too recognized in Pacific Agencies (Fiji) Ltd v Spurling [2008] FJSC 27; CBV0007.2008S (17 October 2008) that, affidavits sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof and the court further held that, the requirement to state the source of information to be adhered. The court referring Order 41 rule 5(2), held at paragraph 30 as follows:

Order 41 rule 5(2) permits an affidavit sworn for the purpose of being used in interlocutory proceedings to contain statements of information or belief with the sources and grounds thereof. This practice can be traced back at least as far as the nineteenth century. So long as the requirement to state the source of information is adhered to, the practice is beneficial given that time may be of the essence. If there is a genuine contest about the information thus sworn to, it can be raised by a counter- affidavit as well as a submission as to weight. We would point out that any practice of disregarding the letter or spirit of Order 41 r 5(2) may have adverse consequences both in regards to timeliness and cost that must be kept in mind.

23.	It is not sufficient for the deponent to identify only the source of his information when it is clear that, the said source is not the original source. If such original source is not identified, it will give an opportunity for the opponent to object the evidence contained in such affidavit and also will warrant the intervention of the court to decide the weight to be given to such evidence. Peter Gibson J in Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV and Others (supra) further held at page 305 that:

Further I find it impossible to accept counsel for SIB's submission that it is sufficient in order to comply with r 5(2) that the deponent should identify only the source to him of his information even though it is clear that that source was not the original source. Thus, if the deponent was informed of a fact by A, whom the deponent knows not to have firsthand knowledge of the fact but who had obtained the information from B, I cannot believe that it is sufficient for the deponent to identify A as the source of the information. That, to my mind, would largely defeat the requirement that the sources and grounds should be stated and would make it only too easy to introduce prejudicial material without revealing the original source of hearsay information by the expedient of procuring as the deponent a person who receives information second hand. By having to reveal such original source and not merely the immediate source, the deponent affords a proper opportunity to another party to challenge and counter such evidence, as well as enabling the court to assess the weight to be attributed to such evidence.  

24.	The above discussion concludes that the affidavits are equated with the oral evidence in court and the general rule is that a person, who is able of his own knowledge to prove facts, can depose an affidavit. However, the excepted circumstances are: firstly, the affidavits for purpose of Order 14, rules 2(2), 4(2), and Order 86, rule 2(1) should be sworn by the parties, either the plaintiff or the defendants. If not, by the person duly authorized by them. There is no requirement for a written authority being annexed with the affidavit, but the averment to that effect is sufficient. Even though the deponent is authorized to do so, the court should examine whether such deponent can swear positively to the facts contained in that affidavit and if not, that affidavit should not be admitted in evidence. Secondly, the affidavit made under Order 38 rule 3 to give evidence of any particular fact may contain statement on oath of information or belief. Final exception is the affidavit sworn for the purpose of being used in interlocutory proceedings. All interlocutory proceedings are not falling under this category, but the proceedings such as the one that is made for the purpose of maintaining status quo till the rights are decided or for the purpose of obtaining some directions from the court are considered as interlocutory proceedings for this purpose. Further the deponent in this case should identify the original source of information and belief and the failure will result in such affidavit being rejected by the court. 

25.	Furthermore, the non-litigants may depose the affidavits on behalf of the litigants as provided in the exceptional circumstances under Order 41 rule 5 only in instances where the rules of the court do not specifically require the parties (litigants) to do so. If the rules require the parties to file the affidavits in any proceedings or require them to show cause, those affidavits must be deposed by the respective parties to the action. For example, Order 24 rule 5 (3) and the appendix thereunder requires the plaintiff or the defendant to depose the Affidavits Verifying List of Documents of their case. In such instance the respective parties should depose it and cannot alienate that duty to their solicitors or their clerk. The reason being that it is the case of either the plaintiff or the defendant and they are the best people who know their case, witnesses and documents, and not the solicitors or their clerk who act on the instruction of the parties. 

26.	Accordingly, if a non-litigant, whether a third party or solicitor or his clerk, swears an affidavit in a civil proceeding, it should fall under any of the three exceptions mentioned in the above rule for such affidavit to be admitted in evidence. Once an affidavit is admitted in evidence, then the court has to decide the evidentiary value to be given to facts contained therein, as the affidavits are equated with oral evidence. In the instant case the law clerk of the plaintiff’s solicitors had sworn the impugned affidavit. The current proceeding stems from the summons took out by the defendant under Order 25 rule 9 of the High Court Rules. Certainly, the impugned affidavit is not falling under the first two exceptions. The question is whether it can fall under the third exception. For an affidavit to fall under this third category of exceptions, it should meet two requirements. Firstly the proceeding must be considered as interlocutory. Secondly, the affidavit must disclose the source of information of the statement or grounds for belief of such statement. The first requirement is to make the affidavit admissible under the third exception and the second is to give evidentiary value to the statement contained in that affidavit. The affidavits without source of information and grounds of belief are wholly worthless and not to be relied upon [per: Lord Alverstone C.J in In Re J. L. Young Manufacturing Company Limited (supra) at page 754]. 

27.	The decision of Lord Justice Cotton in Gilbert v. Endean (supra), clearly states that, the applications which do not decide the rights of the parties are to be considered as interlocutory for the purpose of Order 41 rule 5 (2). Everyone has the right to have his or her civil dispute adjudicated by an independent tribunal or court. This right has been guaranteed by section 15 (2) of the 2013 Constitution. The court’s decision in this proceeding will determine whether to allow the plaintiff, who failed to take steps, to continue with such right or to limit it by striking out his cause. Therefore, the proceedings under Order 29 rule 9 is not an interlocutory proceeding which fall under definition given by Lord Justice Cotton in the above decision, and the first requirement which brings an affidavit under third exception is not met. In addition, the rule specifically requires the respective party to show cause for not taking steps. When rule requires the respective party to do so, he or she cannot alienate this duty to his or her solicitors or their clerks, who are acting on instruction. 

28.	The very purpose of the third exception, as explained by Peter Gibson J in Savings and Investment Bank Ltd v Gasco Investments (Netherlands) BV and Others (supra),  is to enable a deponent to put the facts before the court in interlocutory proceedings, frequently in circumstances of great urgency. In this case, there was no such urgency. The defendant’s motion under Order 25 rule 9 was issued on 28.02.2019 and the plaintiff’s solicitors obtained two adjournments to file the affidavit. Finally, the impugned affidavit was sworn by the law clerk and filed on 28.06.2019 as the plaintiff was not even available to show cause when the court required to do so. For the above reasons, I uphold the preliminary objection of the defendant and expunge the impugned affidavit sworn by the law clerk of the solicitors for the plaintiff.

29.	Since the affidavit filed on behalf of the plaintiff is now expunged, the orders should be made in terms of the Motion filed by the defendant and the action should be struck out, without further discussing the laws on striking out under Order 25 rule 9. However, I decide to discuss for completeness as the defendant urged only the ground of abuse of the process of the court.

30.	The substantive issue is whether this action should be struck out under Order 25 rule 9 of the High Court Rules or not. The Order 25 rule 9 provides for the jurisdiction of the court to strike out any cause or matter for want of prosecution or as an abuse of process of the court if no step has been taken for six months. The said rule reads;

"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.

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".
31.	The court’s power under the above rule has been discussed in many cases and the law, on striking out an action under this rule, is well settled now. This, therefore, does not warrant a lengthy discussion. However, for the benefit of the discussion in the instant case, I briefly point out the law as this court held in some other cases before. The grounds provided in the above rule are firstly, want of prosecution and secondly, abuse of process of the court. This rule was introduced to the High Court Rules for the case management purpose and is effective from 19 September 2005. The main characteristic of this rule is that, the court is conferred with power to act on its own motion in order to agitate the sluggish litigation (see: Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9; ABU0062J.2006 (9 March 2007). Even before the introduction of this rule, the courts in Fiji exercised this power to strike out the cause for want prosecution following the leading English authorities such as Allen v. McAlpine [1968] 2 QB 229;[1968] 1 All ER 543 and Birkett v. James [1978] AC 297; [1977] 2 All ER 801. Justice Scott, striking  out plaintiff’s action in Hussein v Pacific Forum Line Ltd [2000] Fiji Law Report 24; [2000] 1 FLR 46 (6 March 2000), stated that;
“The principles governing the exercise of the Court's jurisdiction to strike out for want of prosecution are well settled. The leading English authorities are Allen v. McAlpine [1968] 2 QB 229;[1968] 1 All ER 543 and Birkett v. James [1978] AC 297; [1977] 2 All ER 801 and these have been followed in Fiji in, for example, Merit Timber Products Ltd v. NLTB (FCA Reps 94/609) and Owen Potter v. Turtle Airways Ltd (FCA Reps 93/205)”.
32.	The Court of Appeal of Fiji in Trade Air Engineering (West) Ltd v Taga (supra) reiterated that, the new rule (Or 25 r 9) does not confer any additional or wider power to the court except the power to act on its own motion. It was held in that case that;

“In our view the only fresh power given to the High Court under Order 25 rule 9 is the power to strike out or to give directions of its own motion. While this power may very valuably be employed to agitate sluggish litigation, it does not in our opinion confer any additional or wider jurisdiction on the Court to dismiss or strike out on grounds which differ from those already established by past authority”.

33.	The above decision of the Court of Appeal made it abundantly clear that the principles set out in Allen v. McAlpine (supra) and Birkett v. James (supra) are still applicable to strike out any cause where no step is taken for six months, despite the introduction of new rule (Or 25 r 9).  Lord Diplock, whilst articulating the principles for striking out the actions for want of prosecution and abuse of the court process in Birkett v. James (supra), explained the emerging trend of English courts in exercising the inherent jurisdiction for want of prosecution. His Lordship held that;
“Although the rules of the Supreme Court contain express provision for ordering actions to be dismissed for failure by the plaintiff to comply timeously with some of the more important steps in the preparation of an action for trial, such as delivering the statement of claim, taking out a summons for direction and setting the action down for trial, dilatory tactics had been encouraged by the practice that had grown up for many years prior to 1967 of not applying to dismiss an action for want of prosecution except upon disobedience to a previous peremptory order that the action should be dismissed unless the plaintiff took within a specified additional time the step on which he had defaulted.
To remedy this High Court judges began to have recourse to the inherent jurisdiction of the court to dismiss an action for want of prosecution even where no previous peremptory order had been made, if the delay on the part of the plaintiff or his legal advisers was so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible. This exercise of the inherent jurisdiction of the court first came before the Court of Appeal in Reggentin vs Beecholme Bakeries Ltd (Note) [1968]  2 Q.B. 276 (reported in a note to Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B. 229) and Fitzpatrick v Batger & Co Ltd [1967] 1 W.L.R. 706
The dismissal of those actions was upheld and shortly after, in the three leading cases which were heard together and which, for brevity, I shall refer to as Allen v McAlpine [1968] 2 Q.B. 229, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to R.S.C, Ord. 25, R. 1 in the current Supreme Court Practice (1976). 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)

34.	As Lord Diplock clearly explained in his judgment, the above principles were set out in the notes to Order 25 rule 1 of Rules of Supreme Court 1976 which is equivalent to our Order 25 rule 1 (4) under the Summons for Directions. However those principles of prophesy had caused to the development of the new rule such as Order 25 Rule 9. The first limb in the above case is the intentional and contumelious default. Lord Diplock in his wisdom did not leave the first limb unexplained, but, His Lordship gave two examples for that first limb. One is disobedience to a peremptory order of the court and the other is conduct amounting to an abuse of the process of the court. Thus the second ground provided in Order 25 Rule 9, which is ‘abuse of the process of the court’, is a good example for ‘the intentional and contumelious default’ as illustrated by Lord Diplock in Birkett v. James (supra). According to Lord Diplock abuse of the process of the court falls under broad category of ‘the intentional and contumelious default’   However, Lord Diplock did not explain what act does exactly amount to an abuse of the process of the court.

35.	There is a latest judgment by the House of Lords in Grovit and Others v Doctor and Others (1997) 01 WLR 640, 1997 (2) ALL ER, 417, where Lord Woolf held that, commencing an action without real intention of bringing to conclusion amounts to an abuse of the process of the court. His Lordship stated as follows;
“The court exists to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James [1978] A.C 297. In this case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings where there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings".
36.	The Fiji Court of Appeal in Thomas (Fiji) Ltd –v- Frederick Wimheldon Thomas & Anor, Civil Appeal No. ABU 0052/2006  followed the principles of Grovit and Others v Doctor and Others (supra) and held that; 
“During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in Grovit and Ors v Doctor [1997] 2 ALL ER 417. That was an important decision and the judge was perfectly right to take it into account. It should however be noted that Felix Grovit's action was struck out not because the accepted tests for striking out established in Birkett v James [1977] 2 ALL ER 801; [1978] AC 297 had been satisfied, but because the court found that he had commenced and continued the proceedings without any intention of bringing them to a conclusion. In those circumstances the court was entitled to strike out the action as being an abuse of the process of the Court. The relevance of the delay was the evidence that it furnished of the Plaintiff's intention to abuse the process of the Court"
37.	The plaintiff commenced this action by way of an Originating Summons and prayed for an order to transfer 1/3 (one third) of the property (CL 91868, Lot 32, Waqaliqali Subdivision in Plan No. 1093, Cuvu, Nadroga). The plaintiff further moved for and order restraining the defendant from subdividing and selling the said Crown Lease until the determination of this matter. The defendant objected the summons and moved to file the affidavit in opposition. The counsel for the plaintiff then moved to file a formal application to convert this matter into a Writ Action for which the counsel for the defendant consented. The summons was filed by the plaintiff accordingly and on the 4th day of July 2017 the orders were made by consent and the court directed the parties to complete the pleadings. However, the plaintiff did not take any step to file the statement of claim as directed by the court until the defendant issued the instant Motion on 28.02.2019.

38.	Obviously, the plaintiff did not take steps in this matter for one year and 7 months. The counsel for the plaintiff in his submission admitted that, the delay was due to lack of communication from the elderly plaintiff. According to the counsel, the plaintiff’s son was communicating with them and there was no communication after July 2017 as the son was posted in Vanua Levu. This reason does not justify the undue delay. It appears that, the plaintiff was not even available to depose the affidavit for the Motion filed by the defendant and that was the reason which led the law clerk of the solicitors to depose it. Filling of affidavit sworn by the law clerk was desperate attempt to keep the action alive until getting the instruction from either the plaintiff or her son. 

39.	Even the impugned affidavit is admitted in evidence in this proceeding it will not help the plaintiff, but will support the argument of the defendant. The affidavit clearly stated that the plaintiff did not communicate with the solicitors for them to file the writ in this matter. Failure of the plaintiff to give proper instruction to her solicitors to proceed with the matter clearly indicates that, the plaintiff does not have any intention to proceed further though she commenced the same. This is an abuse of the process of the court as articulated by the above decisions in The Grovit (supra) and Thomas (Fiji) Ltd (supra). There is no reason why the Sword of Damocles should be hanging over the defendant when the plaintiff has, absolutely, been inactive and lethargic and failed to give instruction to her solicitors to proceed further with this matter. As the result, the action of the plaintiff ought to be struck out with reasonable costs to the defendant.   

40.	In result, the final orders are;

a.	The cause commenced by the plaintiff is hereby struck out, and

b.	The plaintiff to should pay summarily assessed costs in sum of $ 1500 to the defendant within a month from today.

U.L. Mohamed Azhar
Master of High Court

At Lautoka
17.12.2021