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Sunflame Investment Pte Ltd v iTaukei Land Trust Board [2023] FJHC 73; HBC194.2021 (16 February 2023)

IN THE HIGH COURT OF FIJI
AL LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO: HBC 194 of 2021.


BETWEEN : SUNFLAME INVESTMENT PTE LIMITED, a limited
liability Company, is having its registered office at the office of
Price Water House Coopers, 52-Narara Parade, Lautoka.

PLAINTIFF


AND : iTAUKEI LAND TRUST BOARD, a body corporate established under section 3 of the iTAUKEI Land Trust Act of 1940 , having its registered office at 431, Victoria Parade, Suva.

1st DEFENDANT


AND : REGISTRAR OF TITLES of Suva, FIJI.

2nd DEFENDANT.


BEFORE : Mr. Justice A.M. Mohamed Mackie.


COUNSEL : Mr. R. Gordon , with Ms. Tumalevu- for the Plaintiff.
Ms. E. Raitamata – for the 1st Defendant.
Mr. J. Mainavolau- for the 2nd Defendant.


HEARING : On 11th November, 2022.


WRITTEN SUBMISSIONS: By the Plaintiff on 14th November, 2022.

No written submission filed by the 1st Defendant.


RULING : On 16th February, 2023.


RULING


(On Preliminary objections)


  1. INTRODUCTION:
  1. Before me is a Summons filed by the 1st Defendant on 17th June, 2022 seeking for the following orders.
    1. THAT the Order of His Lordship Honorable Justice Mohamed Mackie made on 16th May 2022 be set-aside or discharged.

  1. THAT the 1st Defendant be allowed to serve its Statement of Defence that was filed on 27th October 2021.
  2. THAT the Costs be in cause,
  3. THAT there be abridgment of service of this Summons.
  4. ANY such other and further relief as this Honorable Court deems just and fair.
  5. The Summons is filed pursuant to Order 19 Rule 9 of the High Court Rules of 1988, which is supported by the Affidavit of ANAND BADLU, who is said to be a litigation Assistant in the employment of the 1st Defendant Board.
  6. The aforesaid Summons is opposed by the Plaintiff and the Affidavit in opposition was filed on 20th September, 2022 sworn by SANJAY KAMAL PRASAD, who is said to be a Director & Shareholder of the Plaintiff Company. No Affidavit in reply was filed by the 1st Defendant.
  1. BACKGROUND
  1. The Plaintiff on 3rd September, 2021 filed its Writ of summons, together with the Statement of Claim and an EX-PARTE NOTICE OF MOTION seeking certain injunctive Orders as per paragraphs A, B and C of the Ex-parte Notice of Motion. The prayers to the Statement of Claim also included the above injunctive reliefs in paragraphs i & ii thereto, while praying for final Orders as per paragraphs iii- xiv thereto.
  2. The matter being supported Ex-parte before my predecessor Judge on 3rd September, 2021, interim injunction Orders as prayed for have been granted against the 1st and 2nd Defendants, which were duly served on them.
  3. The 1st Defendant filed its Statement of Defence on 27th October, 2021, which, admittedly, has not been served on the Plaintiff. The 2nd Defendant has filed his/her Statement of Defence on 17th January, 2022, service of which is not in dispute.
  4. Consequently, on 5th April, 2022, the Plaintiff’s Solicitors filed SUMMONS FOR JUDGMENT against the 1st Defendant pursuant to Order 19 Rule 7 of the High Court Rule and the inherent jurisdiction of this Court.
  5. This Summons for Judgment, under its heading states that it is filed in the Default of Service of Defence by the 1st Defendant. But in its body, it states that it is filed on the ground and/ or basis that the 1st Defendant had failed to file its Statement of Defence, which is factually wrong.
  6. When the matter was mentioned before me on 16th May, 2022, being the Summons returnable date, as there was no representation or appearance for and on behalf of the 1st Defendant, despite the same being, reportedly, served, as per the, purported, proof of service, the Orders in Terms of the Summons were granted against the 1st Defendant.
  7. It is against the said Orders made, granting Default Judgment, on account of failure of the 1st Defendant to serve the Statement of Defence , the 1st Defendant has filed the aforesaid SUMMONS to have the judgment set-aside and for the other reliefs.
  1. HEARING:
  1. When the matter came up for hearing on 16th November, 2022, Plaintiff’s learned Counsel (Plaintiff’s counsel), in addition to his written submissions already filed on 14th November, 2022, also made oral submissions. Though, the learned Counsel for the 1st Defendant (Defendant’s Counsel) was left at liberty to file written submissions in 14 days, no such submissions have been filed till the dawn of this day. Hence, her submissions were limited to oral submissions made at the hearing.
  2. Plaintiff’s Counsel, through his submissions, raised preliminary points in limine with regard to the admissibility of the Affidavit in Support sworn and filed by one ANAND BADLU on 17th June, 2022, along with the 1st Defendant’s SUMMONS for setting aside. Counsel submitted that the deponent is only a third party, who swore the Affidavit in his capacity as a litigation assistant of the 1st Defendant Board.
  3. Plaintiff’s Counsel drew my attention to the very often cited authority where the President of the Supreme Court of Fiji in Patrick Paul v Director of Lands and others at 16 set out the guideline for signing of affidavits by third parties, including law clerks / legal executives/ litigation clerks

  1. In view of the guidelines formulated in the said case, Plaintiff’s Counsel argued. THAT:
    1. No authority given by the 1st Defendant to said deponent Anand Badlu, to swear the affidavit in question.
    2. No explanation was provided in the affidavit as to why the 1st Defendant/ its Director/ board members/ secretary/ authorized officer etc. cannot or is unable to depose the Affidavit in question.
    1. The source of the hearsay information is not given. No supporting affidavits filed from the senior legal officer.
    1. At paragraph 5 of the said Affidavit, the source of hearsay information is not disclosed and no supporting affidavit from Ms. Eleona Raitamata , who was supposed to appear in court on the fateful day, has not been annexed..
    2. In paragraph 9 and 10 of the impugned no source of information given and supporting Affidavits from the persons concerned filed.
    3. The source of his belief about the triable issues in the case and what are the triable issues have not been divulged.
    4. The facts averred in paragraphs 4, 5, 6, 7,9,10 and 11 are hearsay evidence, not corroborated and the deponent Anand Badulu cannot positively swear; as such those averments should be expunged.
  1. DISCUSSION:
  1. I, totally agree with the Counsel for the Plaintiff on his above arguments. It must be stated that the Affidavit in support sworn by Anand Badlu, is defective. It contravenes Order 41 rule 5 (2) in that the deponent has not disclosed the sources of information or grounds for his belief as to the matters deposed to. Moreover, it is sworn by a litigation assistant, a practice which unfortunately continues despite numerous pronouncements cautioning counsel about the inappropriateness of this practice.
  2. The 1st Defendant did not file an Affidavit in reply to refute the arguments advanced by the Plaintiff’s affidavit in opposition. The 1st Defendant did not even seek the leave of the Court, as provided under Order 41 Rule 4, to rely on the defective Affidavit in support.
  3. The Plaintiff’s Counsel objects to the above Affidavit being received into evidence to support the Application to set aside the default judgment. It is also submitted that Affidavit in Support of Anand Badlu, should not be admitted in evidence by the Court as it does not contain a valid authority from the 1st Defendant. The person making an Affidavit, for and on behalf of others, must show that he/she has been duly authorized.
  4. Mr. Anand Badlu’s Affidavit shows various breaches under Order 41 of the High Court Rules; it breaches Order 41 r.5 – As pointed out above, the Affidavit in question does not state the sources and grounds of the deponent’s information. Additionally, the impugned Affidavit does not enclose any supporting document, namely, an Affidavit from the Counsel who was to appear in court on the fateful day, a copy of the cause list of that date etc. Regrettably, Counsel for the 1st Defendant did not file reply Affidavit to the Affidavit in opposition filed by the Plaintiff.
  5. The Affidavit merely states that he has been authorized to swear Affidavit on behalf of the 1st Defendant, but no such authority is filed along with it. The founding Affidavit is lacking in facts and evidence demonstrating that the deponent Mr. Anand Badlu, has the necessary authority to depose. The authority of the deponent is in issue. There is merit in the points raised in limine. I uphold the objection as to the validity of the Affidavit of Mr. Anand Badlu , being allowed into evidence.
  6. However, allowing the 1st Defendant to file a supplementary Affidavit in support of its Application is not going to bring prejudice or jeopardize the rights of the Plaintiff. Plaintiff has in its hand an injunction Order to protect its rights, if any. Moreover, Counsel for the 1st Defendant has given an under-taking that no re-entry process will proceed.
  1. CONCLUSION:
  1. As stated above, the founding affidavit is lacking in facts and evidence demonstrating that the deponent Mr. Anand Badlu , had the necessary authority to depose. It does not contain the source for his information and belief, particularly as to the existence of triable issues. It is sworn and filed without any supporting documents. The authority of the deponent Mr. Anand Badlu is in issue. Once this Affidavit is rejected on these grounds, the 1st Defendant’s Application for setting aside remains unsupported. However, allowing the 1st Defendant to face the impending hearing by filing a supplementary Affidavit will serve the interest of justice and will not prejudice the Plaintiff’s rights.
  2. Rather than dismissing the Application, justice demands that the 1st Defendants be given a further opportunity to rectify the Application by filing a supplementary Affidavit in support, subject to payment of costs and strict compliance with the orders herein.
  1. FINAL ORDERS:
    1. The preliminary objection raised by the Counsel for the Plaintiff, in relation to the Affidavit in support, is upheld.
    2. The Affidavit in Support sworn and filed by Anand Badlu, is rejected on the ground of irregularity.
    1. The 1st Defendant shall be at liberty to file a supplementary Affidavit in support, together with necessary authority and supporting evidence.
    1. The Affidavit shall be filed and served within 21 days from today and the Affidavit in response thereto by the plaintiff shall be filed and served in 14 days thereafter.
    2. Affidavit in Reply, if any, by the 1st Defendant shall be filed and served in 7 days thereafter.
    3. The 1st Defendant shall pay the Plaintiff $900.00 (Nine Hundred Dollars), being the summarily assessed Costs of this hearing within next 21 days.
    4. Subject to above, the matter shall be mentioned to fix a date for hearing.

A.M. Mohammed Mackie
Judge


At High Court Lautoka this 16th day of February, 2023


SOLICITORS:
For the Plaintiff: M/s. Gordon & Company- Barristers & Solicitors.
For the 1st Defendant: In-house Solicitors for iTLTB.
For the 2nd Defendant: Hon. Attorney General.

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