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Fiji Development Bank v Nasalo [2011] FJMC 162; Civil Action 455.2010 (21 November 2011)

IN THE RESIDENT MAGISTRATE'S COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CIVIL JURISDICTION

CIVIL ACTION NO.: 455 OF 2010

BETWEEN:

FIJI DEVELOPMENT BANK
PLAINTIFF

AND:

PENIJAMINI RURU NASALO AND TULIA TINAI ANNESLEY KOROI
DEFENDANTS

For Plaintiff : Ms. Latianara

For Defendants: Mr. Qoro

RULING

Introduction

This is the Plaintiff's Notice of Motion dated 03rd of March 2011 seeking re-instatement of the Plaintiff's action, which was struck out on 03rd February 2011.

There are two Affidavits before the Court for consideration. They are

(1) The Affidavit in Support sworn by "Angeline Young" the Law Clerk of "Lajendra Law, Solicitors for Fiji Development Bank.

(2) The Affidavit in opposition by the Defendant "Penijamini Ruru Nasalo".

The Plaintiff's action was struck out on 03rd of February 2011 due to non appearance by the Plaintiff.

The Law

The order XXX r6 of the "Magistrate's Court Rules" provides that any civil case struck out may, by leave of the Court, be replaced on the cause list, on such terms as to the Court may seem fit.

The word "May" is discretionary. Therefore it is in the Court's discretion as to whether the Plaintiff's claim should be reinstated.

Observation

According to the Affidavit in support sworn by "Angeline Young" the Law Clerk of "Lajendra Law" Solicitors for the Fiji Development Bank, the reason for the non appearance by the Plaintiff on 03rd of February 2011, was due to an Office Administrative error.

The reason adduced for the non appearance by the Plaintiff in Court on 03rd of February 2011, is NOT Plausible and Justifiable. It shows the Plaintiff's lack of commitment to this case. I am of the judgment that there is no sufficient explanation by the Plaintiff for non appearance.

Further, there is a delay of one (01) month in filing the application for reinstatement. The Plaintiff did not adduce any reason/explanation for the delay. The Court is entitled to draw an adverse interference from the failure of the Plaintiff to explain the circumstances in relation to the belated application for reinstatement which ought to have been within his knowledge. If the Plaintiff had been serious about pursuing the claim he would have filed the application for reinstatement quite promptly.

Conclusion

The Plaintiff's application for reinstatement is denied and dismissed with no order as to costs.

30 days to appeal.

Dated at Lautoka on the 21st day of November 2011

Jude Nanayakkara
Resident Magistrate

Magistrate Court – 03
LAUTOKA.