Dawasamu Transport Ltd v Tebara Transport Ltd [2015] FJCA 45; ABU26.2014 (20 March 2015)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT

CIVIL APPEAL NO. ABU 26 OF 2014
(High Court HBC 389 of 2011)

BETWEEN:

DAWASAMU TRANSPORT LIMITED
Appellant

AND:

TEBARA TRANSPORT LIMITED
Respondent

Coram : Calanchini P
Counsel : Mr V Tuberi for the Appellant
Mr G O'Driscoll for the Respondent

Date of Hearing : 5 March 2015
Date of Ruling : 20 March 2015

RULING

[1] By summons dated 8 April and filed on 10 April 2014 the Appellant applied for an enlargement of time to appeal what were described as two judgments of the High Court, the second of which was delivered on 15 April 2013. In the same summons the Appellant applied for a stay of the orders made in those two judgments pending appeal. The applications were supported by an affidavit sworn on 8 March 2014 by Rajendra Prasad.

[2] The applications are opposed. The Respondent filed an answering affidavit sworn on 29 August 2014 by Josua Ligica. There are only 2 clauses in that affidavit which can now be conveniently quoted:

"I, Josua Ligica of Nakelo, Nausori, Senior Law Clerk make oath and say as follows:

1. I am the senior law clerk in the employ of O'Driscoll and Co. Solicitors for the Respondent in this matter and am authorised to make this Affidavit.
   
2. I produce herewith and mark "A" an office copy of an affidavit filed in the High Court in this matter by our client (the original of which would be on Suva High Court Civil Action No.389 of 2011 file). This attached affidavit addresses the history of this matter and the Respondent will rely on the contents of the same at the hearing of the application currently before the Court of Appeal."
   

[3] An affidavit of Arvind Deo Maharaj sworn on 20 March 2014 was exhibited as annexure A to the affidavit of Josua Ligica. The affidavit sworn by Arvind Deo Maharaj had been filed in answer to an affidavit sworn on 14 February 2014 by Rajendra Prasad in support of an application to set aside both a default judgment and a judgment assessing damages on the default judgment.

[4] The present application before me follows on from the filing of the answering affidavit sworn by Josua Ligica. By summons filed on 12 September 2014 the Appellant applied for an order, amongst others, that:

"the affidavit in answer of the Respondent sworn by Josua Ligica on 29 August 2014 and filed at the Fiji Court of Appeal on the same day be struck out and dismissed."

[5] In support of the application the Appellant relied on the affidavit sworn on 11 September 2014 by Rajendra Prasad. The application was opposed. The Respondent filed an answering affidavit sworn on 20 November 2014 by Arvind Deo Maharaj. The Appellant filed a reply affidavit sworn on a date that cannot be determined due to the failure to complete the details of jurat by Rajendra Prasad and subsequently filed on 8 January 2015. Prior to the hearing of the application the Appellant filed written submissions and both parties presented helpful oral submissions at the hearing.

[6] The application is made by summons under Rule 26(1) of the Rules which provides that every application to a judge of the Court of Appeal shall be made by summons in chambers. The Rule also provides that in respect of such applications the provisions of the High Court Rules are to apply. Pursuant to section 20(1) a judge of the Court may exercise the power of the Court to, amongst others, hear any application, make any order or give any direction that is incidental to an appeal or intended appeal. The Court of Appeal's power (upon which a justice of appeals' jurisdiction depends) is found in section 13 of the Act which in effect provides that for all the purposes of and incidental to the hearing and determination of any civil appeal, the Court of Appeal has all the power, authority and jurisdiction of the High Court.

[7] For the sake of completeness, it should be noted that the reference in Rule 26 (1) of the Court of Appeal Rules to the provisions of the High Court Rules can only be a reference to Order 32 which makes provision for "Applications and Proceedings in Chambers." In the absence of any rule in the Court of Appeal Rules dealing with Affidavits, and pursuant to Rule 6 of the Court of Appeal Rules, Order 41 of the High Court Rules dealing with Affidavits is to apply in proceedings in and before the Court of Appeal.

[8] This application must be considered by reference to the High Court Rules in relation to the procedural requirements of Order 32 dealing with applications in Chambers, Order 41 dealing with the requirements for affidavits and Order 18 Rule 18 dealing with striking out applications.

[9] In relation to the procedural requirements for "applications in chambers" under Order 32 of the High Court Rules, there is no submission by either party raising an issue concerning procedural irregularity. It is convenient, therefore, to consider the nature of an affidavit. In the Oxford Dictionary of Law an affidavit is defined as:

"A sworn written statement used mainly to support certain applications and, in some circumstances, as evidence in court proceedings. The person who makes the affidavit must swear or affirm that the contents are true before a person authorized to take oaths in respect of the particular kind of affidavit."

[10] Order 41 of the High Court Rules makes provision for both the formal requirements of an affidavit and for the contents of an affidavit. To the extent that there is any irregularity in the form of an affidavit, it may with the leave of the Court be filed or used in evidence notwithstanding that irregularity under Order 41 Rule 4.

[11] Although it may be argued that the use of an affidavit entitled in the High Court proceedings is an irregularity in contravention of Order 41 Rule 1(1), its purpose was clearly explained in what may be termed as a "covering affidavit" that was correctly entitled in this Court's proceedings. It would be an unnecessary expense to now insist that the initial affidavit should be re-drafted, re-sworn and filed and served again under those circumstances. On the basis that if there is any irregularity in form, leave is granted for the affidavit sworn on 20 March 2014 by Arvind Deo Marahaj which is filed as an exhibit to the affidavit sworn on 29 August 2014 by Josua Ligica to be used in evidence opposing the application for an enlargement of time.

[12] The objection that the Appellant relies upon is that the affidavit in question is an abuse of process. The Appellant submitted in his written submissions that the affidavit is not bona fide. It is submitted that the Respondent's affidavit should have answered the issues raised by the Appellant's affidavit filed in support of the application for an enlargement of time. It is submitted at paragraph 2.4 of the Appellant's submission that in doing so the Respondent has disregarded and abused the Court machinery. The submission urges the Court to "summarily prevent its machinery from being used as a means of vexatious and oppression in the process of litigation." The Appellant urges the Court to strike out the affidavit under Order 18 Rule 18 of the High Court Rules.

[13] In my judgment the application is misconceived in the sense that the Appellant seeks to have requirements that are relevant to pleadings applied to affidavits. Affidavits can be used in the trial of an action to adduce evidence that may not be in dispute and which provide the formal proof of facts that have been pleaded. In interlocutory applications affidavits are filed to adduce the facts that from the basis for supporting or for opposing the application. As evidence two issues arise. First, is the evidence in the affidavit admissible and secondly, if admissible, what weight should be given to the evidence. When parties file affidavits in interlocutory proceedings, they are not filing pleadings. There is no requirement, although it has become a practice, for an answering affidavit to take the form of a defence. An answering affidavit need only refer to the deponent's version of the evidence or facts upon which there is disagreement with the version in the supporting affidavit. In the event that the answering affidavit sets out irrelevant evidence then that evidence will be disregarded.

[14] Apart from satisfying the test of relevancy, the contents of an affidavit must comply with Order 41 Rule 5 and should not contain material that is disallowed under Order 41 Rule 1. Under Order 41 Rule 5(2) an affidavit sworn by the deponent for use in interlocutory proceedings may contain statements of information or belief provided that the sources of information or the grounds of the belief are stated. Failure to comply with that requirement will usually affect the question of weight rather than admissibility. Under Order 41 Rule 6 a court may order to be struck out of any affidavit material which is scandalous, irrelevant or otherwise oppressive. In his submissions the Appellant has not pointed to any material that would fall within Order 41 Rule 6. Generally affidavits should contain only admissible evidence except where the Rules (as in Order 41 Rule 5) make provision for the conditional admission of what may be otherwise inadmissible evidence.

[15] To the extent that the Appellant objects to the practice of exhibiting an affidavit to an affidavit, there was no authority submitted by the Appellant to support the objection. In Chandrika Prasad –v- Republic of Fiji and Attorney-General (No.4) [2000] 2 FLR 89 at page 93, the High Court considered an interlocutory application in which the Respondents' affidavit was considered in the following terms:

"Leaving aside the irregularities of that affidavit, there were two affidavits exhibited to it, which had been filed in a separate but similar constitutional case. These no doubt were exhibited to show the evidence that the Respondents would have adduced in this case."

The Court (Gates J as then was) was prepared to consider the affidavits to the extent that the facts and evidence set out in those affidavits were relevant to the application before the Court. The Court did not make any specific adverse comment as to the practice of exhibiting affidavits to affidavits. In this case it was always open to the Appellant to challenge any material in the exhibited affidavit when drafting the affidavit in reply. Needless to say the exhibited affidavit will be considered in the context of relevancy and weight.

[16] The Appellant has urged the Court to strike out the affidavit under Order 18 Rule 18 as an abuse of process. As already discussed it is not a strict requirement that an answering affidavit take the form of a pleading by way of defence. Although it may be that an affidavit can be in such a form or contain such material that may constitute an abuse of process, the remedy would be to either have the affidavit removed from the file or disregard either the whole affidavit or the offending parts. The objection to the affidavit is taken on the basis that it offends either Order 41, Civil Evidence Act 2002 or the common law rules of evidence. Order 18 Rule 18 provides the basis for an application to strike out pleadings and has no application, by its terms, to affidavits.

[17] Although the Appellant's submissions referred to the affidavit in question offending the principle of res judicata, that issue was not pursued by counsel at the hearing of the application.

[18] For all of the above reasons the application to strike out the affidavit in question is dismissed. The costs of this application are to be costs in the substantive application for an enlargement of time.

____________________________________
Hon. Mr Justice W. D. Calanchini
President, Court of Appeal