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Nand v Kumar [2024] FJHC 665; HBC349.2019 (7 November 2024)

IN THE HIGH COURT OF FII
AT SUVA
CIVIL JURISDICTION

Civil Action # HBC 349 of 2019

BETWEEN:
RAVI NAND
PLAINTIFF

AND:
ANIL KUMAR
1^st DEFENDANT

AND:
REGISTRAR OF TITLES
2^ND DEFENDANT

AND:
THE OFFICE OF THE ATTORNEY GENERAL
3^RD DEFENDANT

Appearances:
Plaintiff – Mr. V. Kumar (Sunil Kumar Esquire).
1^st Defendant – Mr. P. Niubalavu (Oceanica IP).
2bd & 3^Rd Defendant – Ms. S.G.L. Naigulevu (Office of the Attorney General).

Date of Hearing: 17^th September 2024.

Ruling

1. Introduction
   

[1] The Plaintiff filed summons seeking to enter summary and/or default judgment on 22^nd January 2024. It was filed with an affidavit of the Plaintiff. An affidavit in response of the 1^st Defendant has been filed.

[2] The orders sought by the Plaintiff on the default of the Defendant serving an acknowledgement of service and defence are:

“a. Judgment or an Order be made for such relief sought in the prayers from paragraphs 2 to paragraphs 6 of the Plaintiffs Statement of Claim hereto against the 1^st Defendant; and

2. Leave be granted to enter Judgment or an Order be made for such relief sought in the prayers from paragraphs 3 to paragraph 6 of the Plaintiffs Statement of Claim hereto against the 2^nd and 3^rd Defendants.
   

100. The Honorable court to assign a date in respect of prayers as per Paragraphs 7, 8, 9,10 and 11 of the Plaintiff’s Statement of Claim for assessment of damages; and
     

4. Cost of this application be paid by the Defendant.”
   

2. Brief History of the Matter
   

[2] On 7^th October 2019 the Plaintiff filed Writ of Summons. An ex-parte summons was also filed on the same day seeking interim injunction. On 14^th October 2019, Justice Senivaratne interim injunction until 31^st October 2019. On 31^st October 2019 the orders were further extended until 28^th November 2019. On 30^th October 2019 the 1^st Defendant filed an acknowledgement of service. The Attorney General’s office filed an acknowledgement of service on 12^th November 2019. The 1^st Defendant filed a Statement of Defence on 13^th November 2019. On 4^th March 2020, Justice Senivaratne in dealing with the Interim Injunction struck out the summons and the orders that were sought were refused.

[3] On 30^th September 2020, the Plaintiff filed an amended Writ of Summons. A statement of Defence of the 1^st Defendant was filed on 13^th October 2020, together with an acknowledgement of service. A reply to the Statement of Defence was filed on 8^th December 2020 and on the same day summons for directions was filed. On 8^th February 2021, Justice Senivaratne made orders under the summons for directions. On 22^nd April 2021 summons for further and better particulars was filed on behalf of the 1^st Defendant. On 11^th November 2021 change of Solicitors was filed for the Plaintiff. Sunil Kumar Esq replaced Tirath Sharma Lawyers.

[4] On 16^th June 2022, the Plaintiff’s lawyers filed summons seeking joinder and amendment of writ of summons and statement of claim. On 9^th August 2023 the application was granted. On 16^th August 2023 the Plaintiff’s Lawyers filed an amended writ of summons with an amended statement of claim. Acknowledgement of service was filed by the Defendants. On 22^nd January 2024 the application I am dealing with was filed.

[5] On 25^th March 2024 the 2^nd and the 3^rd Defendants filed their statement of Defence. Reply to 2^nd and 3^rd Defendants Statement of Defence was filed on 26^th March 2024. On 10^th July 2024 filed notice of change of Solicitor for the 1^st Defendant.

100. Determination

[6] It is evident from the brief history of this matter that the Plaintiff amended his claim a couple of times. Having perused the last amendment I note that the Plaintiff’s lawyers have not properly referred to the amendment that was made. The second amendment that was made is simply referred to as “Amended Writ of Summons”. It should have been referred to as 2^nd Amended Writ of Summons. The 1^st amendment was marked in red, the 2^nd amendment which is a successive amendment should be marked in green. The Plaintiff has not properly amended its Writ of Summons. There is a reason the amendments are marked in colour. It is to distinguish the amendments that have been made in the Writ and the Claim. It will allow the Court and the parties to follow through the amendments.

[7] The Plaintiff’s application is dismissed. The Plaintiff is to promptly file and serve the 2^nd Amended Writ of Summons in accordance with the Court’s directions. Costs in cause.

4. Court Orders
   
   • (a) Plaintiffs summons seeking to enter summary and/or default judgment is dismissed.
   • (b) Plaintiff to file and serve 2^nd Amended Writ of Summons.
   • (c) Costs in cause.
     

Chaitanya S. C. A. Lakshman
Puisne Judge
7^th November 2024