Charan v Charan [1992] FJHC 1; Hbc0394d.84s (25 February 1992)

Fiji Islands - Charan v Charan - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Civil Jurisdiction

CIVIL ACTION NO. 394 OF 1984

BETWEEN:

SURESH SUSHIL CHANDRA CHARAN
s/o Ram Charan
Plaintiff

AND:

RAMEND PRASAD CHARAN
s/o Ram Charan
Defendant

Plaf in Person
Mr. D.S. Naidu for Defendant

RULING

In this application the defendant moves to strike out the plaintiff's action for want of prosecution on the basis that the plaintiff had "failed to take any further proceedings to bring the matter to trial since the 7th day of November 1984".

The application is based on the High Court Rules and the inherent power of the Court to prevent an abuse of its processes by a party's failure to prosecute his claim expeditiously.

The principles that guide a court in the exercise of its discretion in such matters is well-settled by authority and reference need only be made to the recent decision of the House of Lords (which was referred to by the plaintiff) in Department of Transport v. Chris Smaller Ltd. [1989] 1 A.C. 1197 and in which the following passage occurs in the judgment of Lord Griffiths at p.1203:

"The power should be exercised only where the court is satisfied either

(1) that the default has been intentional and contumelious e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or

(2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers; and

(b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff, or between each other, or between them and a third party."

Needless to say from the foregoing it is clear that mere delay alone is not enough to invoke the court's summary power of dismissal.

In this latter regard it is noteworthy that the defendant's application is unsupported by an affidavit detailing the prejudice (if any) that might have been caused or is causing to him by the plaintiff's delay in prosecuting his claim.

However learned counsel for the defendant claims that the defendant as the registered proprietor of a native leasehold has been and is seriously prejudiced by the existence of a caveat lodged by the plaintiff against the land since the inception of this action in April 1984 and which has been extended by order of this Court "... until the final determination of this action". (with liberty being reserved to either party to apply generally)

True a caveat has been referred to as "blot" on the title but in the particular circumstances of this case, where the defendant's very registration as lessee of the land is in dispute, the prejudice (if any) that is or might have been caused by its existence on the defendant's title must be balanced with the prejudice likely to be caused by its dissolution. Needless to say in the absence of any evidence of real prejudice the mere continued existence of a caveat on the defendant's title (without more) would be insufficient.

It is convenient to briefly describe the nature of the plaintiff's action in this case in order to better understand the context of delay in the case. The plaintiff and defendant are real blood brothers and it appears that a dispute has arisen between them over a piece of native leasehold land that allegedly belonged to their late father. The plaintiff claims to be entitled to a share in the land by virtue of being named a beneficiary in his late father's will. The defendant a joint beneficiary and executor on the other hand denies that their father owned any land at the time of his death.

The block of land over which the parties are disputing is part of a larger block of native leasehold that originally belonged to their father and which was "surrendered" to the lessor (the NLTB) and subdivided into 3 smaller blocks which were then allocated as follows, one, to the defendant, one, to their sister and the third was to be retained by the father.

Unfortunately the third block was not registered in the father's name (presumably because he had died) instead, it was registered "posthumously" in the defendant's name pursuant to an "exercise" by the defendant of a Power of Attorney which the father had given him during his lifetime.

It is this "exercise" by the defendant of his Power of Attorney which is the "root-cause" of the plaintiff's action and complaint.

It is clear to my mind that some 'delay' is inevitable in such a case as this where a will is involved and where probate must be obtained (in this case in 1988) and where the parties are so closely related.

It is also noteworthy that the parties have each changed their solicitors at least once during the course of these proceedings and indeed this was part of the reason advanced by the plaintiff in successfully delaying the trial of the matter in September 1984 when it was first fixed to be heard.

Thereafter the claim and defence were amended in November 1984 and since then nothing appears to have been done by either party to expedite the hearing of the action until the 12th of March 1991 (almost 6 1/2 years later) when the plaintiff (in person) filed a Notice of Intention to Proceed.

That Notice was followed 6 months later by the defendant's present application and the plaintiff submits that the sequence of events and the defendants own failure to apply any earlier to strike out the action and/or remove the caveat suggests an absence of prejudice on the defendant's part.

Needless to say the plaintiff not unreasonably claims that the defendant has continued to occupy and enjoy the disputed land and has also benefited financially from the cane farm thereon.

More importantly though for the purposes of this application is the plaintiff's uncontraverted assertion that the evidence in the case is largely documentary and there is no reason advanced why in the circumstances a fair trial could not be had even at this late stage.

I am not satisfied that it has been demonstrated that the defendant has been in any way gravely prejudiced by the delay in prosecuting this claim or that it would be impossible now to conduct a fair trial in this case. Needless to say the best person to explain how the land in question came to be registered (after the father's death) in the defendant's name "contrary" to the father's written instructions is the defendant himself.

The application is accordingly dismissed with costs to follow the course and by way of further directions I order that the plaintiff proceed to expedite the trial of this action.

D.V. Fatiaki
JUDGE

At Suva,
25th February, 1992.

Hbc0394d.84s