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Digicel (Fiji) Ltd v Daveta [2016] FJMC 168; Civil Action 22.2013 (12 July 2016)

MAGISTRATES’ COURT
NAUSORI
CIVIL JURISDICTION

Civil Action No. 22 of 2013

BETWEEN :

DIGICEL (FIJI) LIMITED a duly registered company under the laws of Fiji having its corporate office at Kadavu House, Ground Floor, Victoria Parade, Suva.

PLAINTIFF

[Applicant in Motion]

AND :

BERENADO KULINIO DAVETA t/a BEEKAY’S SECURITY AND CONSULTANCY SERVICES having its principal place of business at 9 Koroba Street, Nakasi

DEFENDANT

[Respondent in Motion]

COUNSELS : Mr P. Katia for the Plaintiff/ Applicant
Mr N. Vere for the Defendant/Respondent

RULING

(Application for re-instatement of statement of claim – pursuant to Order XXVI and Order XXX of the Magistrates’ Court Rules)

Introduction

On 23^rd November 2015, the Applicant filed a notice of motion with an affidavit of Nickisha Myers seeking the following Orders:

"1. That the order of the Honourable Court on 18^th November 2015 striking out the statement of claim be set aside and that the statement of claim be re-instated.

2. That the costs of the application be costs in the cause."

When the claim was set hearing on 18^th November 2015. The Plaintiff’s Counsel did not appear. The Defence counsel sought that the matter be struck out and the counter claim be assessed for damages. The Court struck out the matter for non-appearance of the Plaintiff and set the counter claim for assessment of damages.

After the motion to re-instate was filed an affidavit of the Defendant/Respondent was filed on 31^st December 2015. On 13^th January 2016 the Plaintiff’s filed an affidavit of Ms Mary Muir in reply to the Defendant/Respondent’s affidavit.

The motion was heard on 13^th April 2016. The parties have also made written submissions which have been considered by this Court.

The Law and Analysis

Order XXX Rule 6 of the Magistrates’ Court Rules, provides that:

"Any civil cause struck out may, by leave of the Court, be replaced on the cause list, on such terms as to the Court may seem fit".
This Order is discretionary and gives the Court a discretion to replace the matter so struck out on the case list, on terms the Court deems fit. This Court is mindful that it would need to assess the re-instatement issue with respect to the following (a) the length of the delay, (b) the reasons for non-attendance, (c) the merits of the proposed defence and (d) any prejudice likely to result to the Respondent

When the claim was called for hearing on 18^th November 2015 the matter was struck out due to the non-appearance of the plaintiff/Plaintiff’s Counsel. The Counsel for the Plaintiff appeared later the same day at 10.50am and he was advised as to the outcome. The Plaintiff’s filed a motion to re-instate the matter on 23^rd November 2015. The re-instatement application was promptly made, which was within 5 days.

Ms. Nickisha Myers in her supporting affidavit deposes the reasons for non- appearance in paragraphs 4 to 10. This Court accepts the reasons the Counsel appeared as he later appeared in Court at 10.50am the same day. From the material before the Court the Court finds that the plaintiff has a genuine and meritorious claim against defendant which needs to be decided on its merits.
The Defendant/Respondent would not suffer any injustice if the matter is re-instated. The Defendant/Respondent has not stated in his affidavit that he would be prejudiced if this matter were to be re-instated to the cause list.

The matter has been struck out on 18^th November 2015. The Plaintiff has filed the re-instatement application on p>rd Nup> November 2015. This Court is of the view that the Plaintiff has filed the re-instatement application promptly. Tre nare not found guilty ofdinate delay. They have shown due diligence in filing the the re-instatement application.

This Court is satisfied that the Piff has a genuine and meritorious claim against the Defendafendant and that the default in appearance in Court on 18^th November 2016, the day on which action was struck out, was not deliberate. The Counsel for the Plaintiff was late to Court but in fact he appeared in Court that day. Sufficient and satisfactory explanation has been given for the non-appearance when the case was called.

This Court in view of all the issues and after careful consideration of all the material before it will set aside the striking off order made on 18^th November 2015 and grant leave and have the matter replaced on the cause list. Costs shall be cost in the cause.

Orders
1. The striking off order made on 18^th November 2015 is set aside.

2. Leave is granted to have the matter replace on the cause list.

3. Costs shall be costs in the cause.

Chaitanya Lakshman
Resident Magistrate

12^th July 2016