Fa v Laione [1997] FJHC 258; Hbc0527x.93s (1 December 1997)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. HBC0527 OF 1993

BETWEEN:

TEVITA FA
a Barrister of the High Court of Fiji
practicing under the name Tevita Fa & Associates
Plaintiff/Judgment Creditor

AND:

RATU MELI LAIONE, RATU NIMIROTE AND RATU EPELI QORO
who was sued in their capacities as Chief and representatives of
the people of Nakovacake within Yavusa Tukani, Nadibotiluvuka
and Noineiqoro in the villages of Navoci and Namotomoto, Nadi
Defendants/Judgment Debtors

AND:

NATIVE LAND TRUST BOARD
a Statutory body created by the Native Land Trust Act Cap. 134
having its registered office at Victoria Parade, Suva
Garnishee

V. Kapadia for the Plaintiff
K. Vuataki for the Interested Party

Dates of Hearing: 18th June, 30th September 1997
Date of Ruling: 1st December 1997

RULING

By Motion dated 20th May 1997 the so-called Interested Party in these proceedings Ratu Timoci Vuki seeks leave to appeal from this Court to the Court of Appeal from the ruling which I gave on the 1st of May 1997; that all further proceedings on my ruling be stayed until the result of the appeal and that the time to appeal be extended to such other time as the Court may decide.

The grounds of the application are set out in the Motion and are as follows:

(a) The learned Judge erred in law and in fact in basing his judgment on the "protracted proceedings" without referring to the issue of discoverability raised by the Applicants.

(b) The learned Judge erred in law and in fact in finding the Applicant's submissions irrelevant to the Orders sought in the Motion.

(c) The learned Judge erred in law and in fact in not answering whether or not judgment in default of defence dated 9th day of September 1993 was for a liquidated sum or not and for avoiding the issue by estopping the Applicant's previous Solicitors.

(d) The learned Judge's Interlocutory Judgment will result in grave injustice to the Applicants, the Vanua of Nakovacake and the Bete for having to pay the legal fees of the individuals named who also had secured the services of the Plaintiff.

I have received written submissions from the parties and have read the various authorities mentioned therein. I do not propose to refer to these at any length because in my judgment there is no substance in the Motion. In my view the short answer to the Motion whether leave should be granted is contained in what I said on pages 7-9 of my judgment. I there said:

"As to the claim by the Trustees that the Judgment by Default was entered irregularly because the Plaintiff is claiming a liquidated amount whereas his claim is really for an unliquidated amount, it is important to note the statement by Mr. Qoroniasi Bale then representing the Trustees at 11.10 a.m. on the 4th of May 1994 that the Trustees did not dispute the Plaintiff's fees but only the fund from which they should be paid.

Mr. Bale also stated during the course of the hearing that the Plaintiff's costs should not be garnisheed from the Native Land Trust Board because the funds held by the Board belonged to the Housing Scheme. At no stage did Mr. Bale ever query the Plaintiff's right to obtain his Default Judgment.

It is of the utmost importance in my view to remember that the Housing Scheme was represented by senior Counsel at all material times. In Halsbury's Laws of England 4th Edition Volume 3 paragraph 1184 in the section relating to Barristers the author states:

"The statements of counsel, if made on the trial of an action or in the course of any interlocutory proceeding in the presence of the client or his solicitor, or someone authorised to represent the solicitor, and not repudiated at the time, bind the client and may be used as evidence against him."

In support of this statement the learned author quotes several cases including Colledge v. Horn [1825] EngR 577; (1825) 3 Bing 119, per Burrough J.; Haller v. Worman (1861) 3 LT 741 at 743, per Erle CJ, adopting the language of Denman CJ in Duncombe v. Daniell [1837] EngR 84; (1837) 8 C & P 222, The Clifton, Kelly v. Bushby (1835) 3 Knapp 375; Mahony v. Mahony (1850) 2 Ir Jur 129.

It is therefore clear that this principle has long been part of the common law. During the hearing of the 10th of June 1996 Iliaseri Varo was called as the first witness for the Defence. His examination-in-chief is immaterial for present purposes but in cross-examination in answer to the first question he was asked by counsel for the Plaintiff the witness said "I have been in Court right throughout these proceedings to date and mostly on the other days while Tevita Fa was giving evidence." In my judgment nothing could be more explicit than that answer."

I see no reason to add anything to those remarks except that by the time Iliaseri Varo began his evidence on the 10th of June 1996 this was the 5th day of the hearing of evidence and that on his own admission Mr. Varo had been in Court from the date the action commenced including the numerous adjournments from the 4th of May 1994 until the 10th of June 1996.

If the Interested Party has any rights at all in this matter then in my view they lie not against the Plaintiff but, if anybody perhaps against the firm of Qoriniasi Bale & Associates. Nothing could be clearer in my view than Mr. Bale's statement on the 4th of May 1994 referred to on page 8 of my judgment which the Interested Party now seeks very belatedly to disown.

I consider it would be unfair to the Plaintiff after all this time to accede to an application made by somebody who arguably has no standing.

That said, I must immediately correct ground (a) of the grounds of the application namely that I based by judgment on the "protracted proceedings" without referring to the issue of discoverability raised by the Applicant.

I would have thought it obvious to any reasonable person reading my judgment that I did not base it on the protracted nature of the proceedings. On page 5 I merely commented on how protracted the proceedings had been having set out the history of this litigation on the previous five pages.

I consider this Motion frivolous. In my judgment the interested party and those who may support him are estopped by their conduct; they have made their complaint far too late for them to deserve of any sympathy and indulgence from this Court. The application is dismissed with costs.

JOHN E. BYRNE
J U D G E

No authorities are referred to in the ruling.

For the authorities cited by counsel in argument see their written submissions.

HBC0527X.93S