Wilson Speakman v Singh [1996] FJHC 80; HBC0854d.85s (12 December 1996)

Fiji Islands - Wilson Speakman v Singh - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 854 OF 1985

BETWEEN:

GORDON WILSON SPEAKMAN
Plaintiff

AND:

BHAGAT SINGH
s/o Hukum Singh
Defendant

The Plaintiff in Person
Mr. G. P. Shankar for the Defendant

DECISION

This is the Defendant's summons seeking an Order (a) to dismiss the Statement of Claim and Plaintiff's defence to Counter-claim for want of prosecution and (b) to list for proof the Defendant's counterclaim.

History of proceedings

Because of the matters raised in the submissions particularly on the aspect of the alleged very long delay in proceeding with the action on the part of the Plaintiff it is necessary that I briefly outline the general background to this application.

On 18 September 1985 a Writ of Summons was issued by the Plaintiff claiming certain relief against the defendant. A Statement of Defence was filed on 10 October 1985. A Reply to Defence was filed on 7 November 1985. An Order on Summons for Directions was made on 15 January 1986. On 31 August 1988 an application was made by Summons to, inter alia, substitute Jagjit Singh in place of Bhagat Singh now deceased and an order was granted accordingly. Notice of Intention to Proceed was filed on 18 October 1991. Affidavit Verifying List of Documents was filed on 3 June 1992. Then on 16 October 1992 motion to strike out Plaintiff's claim for want of prosecution was filed by the defendant's solicitors Messrs. G.P. Shankar. The matter came before Fatiaki J who on 30 October 1992 adjourned it sine die on 7 days notice. Then again it was adjourned sine die by me as Chief Registrar on 10 February 1993. On 17 May 1993 Mr. Shankar filed a Notice Requesting a Pre Trial Conference.

Because of change of Solicitors filed on 21 May 1993 it was not possible to have a Pre-trial Conference. Hence Mr. Shankar applied on 6 October 1993 to have the action struck out etc. To this, the Plaintiff who was unrepresented replied by Affidavit filed on 14 October 1993. He said, inter alia, that "the Defendant proceeded under a further action namely civil action no. 254 of 1992 on other but related matters. The current position with Action 254 of 1992 is that it continues and is listed for hearing on 29 October 1993 before Justice Scott for hearing of preliminary issues, ...." He states further that "any delay which may have occurred has been unavoidable and is due to duplication of issues in Action 254 of 1992 and that the Defendant is not in anyway prejudiced. The Defendants have not proceeded with their counter-claim and I believe that this has been due simply to the fact that issues for determination are also those encompassed in Action 254 of 1992".

On 5 November 1993 Fatiaki J adjourned the matter sine die on 14 days notice. The defendant was not present. On 19 November Mr. Shankar filed an affidavit sworn by the said Jagjit Singh. He said, inter alia, that the "issues in action 254 of 1992, .... is substantially different".

On 26 January 1994 the Deputy Registrar adjourned the matter sine die with liberty to restore on notice. The Plaintiff was not present.

On 10 January 1994 and 10 February 1994 Mr. Clive Speakman who is legal advisor to the Plaintiff wrote to Chief Registrar stating, inter alia, ...."if the action is to be set down then we shall have to make application for a stay of proceedings until Mr. Justice Scott determines these issues presently before him." And on 24 August 1994 Mr. Clive Speakman also informed Mr. Shankar of the position, namely, that he is presently awaiting "adjudication" before Mr. Justice Scott. Therein he asked that this "correspondence be placed on File No. 854 of 1985 should any application be made to have this matter listed for hearing or for any other purpose in order that it may serve as notice of the current state of matters".

Then on 3 July 1995 Mr. Shankar filed Notice of Intention to Proceed. There was change of Solicitor and Mr. Inoke appeared as solicitor for the Plaintiff. Mr. Inoke later withdrew and the Plaintiff now acts in person. Finally on 20 November 1995 Mr. Shankar filed the present application to strike out the Plaintiff's action for want of prosecution and to list for proof the Defendant's counterclaim.

Submission of Plaintiff

While opposing the summons the Plaintiff stated that this action was commenced by him to obtain possession and removal of the then lessee from the Certificate of Title. The Defendant filed a Defence and Counterclaim, seeking relief against forfeiture. Through his solicitors i.e. Sherani & Co. the Defendant proceeded with a further action, namely 254/92 which has now been determined. The Defendant has decided to appeal to Court of Appeal. The defendant says that the issues in 254/92 are in essence the "very same issues dealt with in Action No. 854 of 1985". He says that judgment of Court of Appeal "will effectively deal with and settle both actions 854 of 1985 and Action 254 of 1992". The Plaintiff asks that the Defendant's application be rejected and "permit" this action to "remain in place, albeit in abeyance, pending the outcome of the Court of Appeal determination".

Consideration of Summons

For the hearing of the present Summons the parties had earlier filed Affidavits. They were later ordered to file written submissions which they did and I have considered them.

I have traced the history of the action which is self-explanatory as to why there has been delays in the conduct of this action. It also appears from the affidavit of Plaintiff that judgment in action No. 254/92 was delivered on 7 February 1995 which he says "went completely against the defendant's family", who were plaintiffs. The Plaintiff in that action intended to appeal but they have not evidently processed it.

It is clear from the affidavit evidence that Action No. 254/92 has been determined by the High Court but an appeal is pending with Fiji Court of Appeal. How far the appeal has reached neither party has stated. The ball is evidently in the Defendant's (in 854/85) court and he should pursue his appeal before Court of Appeal with diligence for as it is the Plaintiff (in 854/85) is patiently waiting for its outcome. In his submission the Plaintiff has stated that he would have moved to discontinue HCCA854 of 1985 had the defendant not chosen to dispute judgment in HCCA254 of 1992 by deciding to take it to Appeal".

Whether the appeal will actually determine the issue in this action is far from clear because the submission of Plaintiff states that "HCCA854 of 1985 is ESSENTIALLY about POSSESSION which issue was not determined by HCCA 254 of 1992". He further states that "should Defendant sincerely want to settle this essential question, he should proceed with his application to the Fiji Court of Appeal with despatch".

In a nutshell the submission as I understand it, after ploughing through the pleadings, affidavit and lengthy submissions, is that the Plaintiff is awaiting Fiji Court of Appeal decision without knowing whether it had made any headway and the Defendant is wanting the Plaintiff to proceed with this action.

In this state of affairs it is incumbent on the Plaintiff to either take all necessary steps immediately to have this action (854/85) set down for trial for the Plaintiff admits that 254/92 did not determine the issue of "possession" OR he discontinue the action which he stated in his submission he intended to do had the defendant not chosen to dispute the judgment in 254/92.

The Plaintiff cannot have it both ways, that is, to await the Appeal Court decision and at the same time maintain that the Appeal will not determine the question of possession which is a matter in issue in this action.

I have given careful consideration to Mr. Shankar's submissions particularly on the law applicable to the issue before me. Looking at the history of the case, for the reasons which the Plaintiff has given he allowed the action to go to sleep. And as was said by CROSS J in ZIMMER, ORTHOPAEDIC v ZIMMER MFG. CO (1968) 2 AER 313 at 311 it was for the Plaintiff and his legal advisors when he had them to get on with the action and to see that it is brought to trial with reasonable despatch. He said that:

"The essence of the matter, as I understand it, is this. It is for the plaintiff and his legal advisers to get on with the action and to see that it is brought to trial with reasonable despatch. The defendant is normally under no duty to stimulate him into action, and the plaintiff cannot complain that he gave him no warning before applying to have the action dismissed for want of prosecution. But the court will not take the drastic step of dismissing the action unless (a) the delay has been inordinate, (b) there was no excuse for it, and (c) the defendant is likely to be seriously prejudiced by it if the action is allowed to go on."

However, looking at all the facts and circumstances of this case and bearing in mind that not all the delay has been on the Plaintiff's part, no purpose will be served in dismissing the action for want of prosecution.

In the circumstances of this case I consider that the proper order to make is to allow the Plaintiff to proceed with the action.

It is Ordered that the Plaintiff comply with Order 34 of the High Court Rules. Within 28 days of this decision the Plaintiff is ordered to hold a Pre-trial Conference and thereafter apply to have the action entered for trial.

Liberty is reserved to parties to apply generally. The costs are to be costs in the cause.

D. Pathik
Judge

At Suva
12 December 1996

Hbc0854d.85s