Singh v Kor [1997] FJHC 8; HPP0004d.1995s (21 January 1997)

Fiji Islands - Singh v Kor - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

PROBATE ACTION NO. 0004 OF 1995

BETWEEN:

JASMIR SINGH
s/o Saran Das
Plaintiff

AND:

1. GURDEB KOR aka GURDEO KOUR
d/o Saran Das

2.(a) PIYARA SINGH
s/o Harbhajan Singh
(b) PREM KAUR
d/o Bhikhu
(c) ATMA SINGH
s/o Harbhajan Singh

3. MOHAN SINGH
s/o Harbhajan Singh
Defendants

Mr. V. Mishra for the Plaintiff
Dr. M.S. Sahu for the Defendants

RULING

On the 18th January 1995 the plaintiff issued out of the Suva High Court Registry a Writ with a Statement of Claim attached seeking various orders pursuant to the Court's probate jurisdiction. The orders sought includes one for the removal of an administratrix and trustee of an estate; one seeking full accounts of the estate and injunctions.

I accept at once that the High Court Rules directs that all 'probate actions' ought to be issued out of the High Court Registry in Suva but having considered the plaintiff's Statement of Claim and remedies sought I am firmly of the opinion that the plaintiff's claim is NOT a 'probate action' as such under Order 76 r.1 but is more accurately described as an 'administration action' under Order 85 r.1 and in terms of Order 4 r.1(1) ought "... ordinarily (to) be commenced in the High Court registry located in the Division in which the cause of action arises".

In this latter regard the plaintiff and three of the five named defendants all reside at Wainibuka, Ba, as is the location of the disputed lands and cane contract the subject matter of the action. Needless to say the relevant counsels also practice in Ba and accordingly the appropriate High Court Registry in which this action ought properly to have been commenced was and remains the High Court Registry at Lautoka.

Be that as it may the above point was not raised by counsels and need not concern the Court in dealing with the interlocutory matters that have been raised and fully argued before it.

Suffice it to say that on 19th January 1995 this Court granted on the plaintiff's ex-parte application, two (2) interlocutory injunctions which effectively froze all proceeds of a cane farm being run on the disputed land. In terms of the Court's order liberty was reserved generally to the parties to apply on three (3) days notice and the papers were ordered to be served within seven (7) days.

It is not clear when the injunctive orders were actually served on the defendant(s) but on 1st December 1995 (i.e. almost 11 months later) the first defendant filed a Notice of Motion seeking the dissolution of the injunctions and the dismissal of the plaintiff's action on the ground of his "... inordinate delay in prosecuting the action".

After several adjournments to allow the parties time to file affidavits the defendant's motion was listed before this Court for argument on 19th March 1996, on which date, despite an offer of an early trial date, counsel for the defendant expressed a desire to pursue the interlocutory application. Accordingly written submissions were ordered and these were finally submitted on 26th April 1996.

As for the dissolution of the injunctions defence counsel's sole ground appears to be based on what is claimed to be "material non-disclosures" by the plaintiff in regard to the area of land being cultivated by the defendant and an earlier 'probate action' instituted by the plaintiff in 1992 which had been dismissed for want of prosecution.

I confess that having considered these various 'non-disclosures', I have serious doubts as to their relevance or materiality to the exercise of the Court's discretion whether or not to grant the injunctions it did on the basis of the serious breaches of trust raised by the plaintiff in his primary affidavit. Nor am I persuaded by the defendant's affidavit or counsel's submissions that 'no serious question' exists to be tried between the parties or that the 'balance of convenience' would be best served by the dissolution of the injunctions.

The ex-parte injunctions do not in terms prohibit the continued cultivation of the land nor do they seek to positively alter the defendant's existing title in or access to the land save and except as to the creation of any further encumbrances.

In his submissions defence counsel also suggested a slight variation of the injunctive order confining it to the 3.95 acres which it is admitted belongs to the plaintiff, but what those acres represent on the ground is unclear and indeterminate and in any event the submission is premised upon the legitimacy of the defendant's title to the remaining acreages which is a matter under dispute. I cannot agree with the suggested variations.

The application to dissolve the injunctions is accordingly dismissed. I turn next to consider the second limb of the defendant's application seeking the summary dismissal of the plaintiff's action for inordinate delay and non-prosecution.

In this latter regard defence counsel highlighted the almost complete neglect by the plaintiff to take any steps as regards the proceedings after obtaining the ex-parte injunctions and after the defendants had filed their Statement of Defence on the 7th April 1995.

That the plaintiff has delayed in pursuing his claim as fast as the High Court Rules allows is beyond dispute. The pleadings in this case closed on or about the 21st of April 1995 and thereafter the plaintiff delayed for some 8 months before issuing an 'affidavit of documents' which in terms of Order 24 r.2 of the High Court Rules ought to have occurred '... within 14 days after the pleadings in the action are deemed to be closed ...' (See: Order 18 r.19).

The crucial question however for the purposes of this application, is not what was the extent of the delay per se but rather:

"...(1) that there has been inordinate delay. (2) that the delay is inexcusable and (3) that the Defendant is likely to be seriously prejudiced by the delay."

(per Gould V.P. in Studio Glamour v. A.S. Farebrother & Co. Ltd. (1974) 20 F.L.R. 120 at 123B)

Viewed in that light there is not the slightest doubt in my mind that the 8 months delay viewed objectively is not inordinate. It is therefore unnecessary in the circumstances to proceed to the second and third questions.

Having considered however the competing affidavits and the correspondence exchanged between the respective solicitors, some of which pre-dates and others that post-dates the closure of pleadings, I am by no means convinced that the delay in this instance is either 'inexcusable', or that the defendants are "likely to be seriously prejudiced" by it.

Furthermore a cursory examination of the competing claims suggests that a good deal, if not all, of the evidence in this case would appear to be either in the form of legal documents such as land title documents and probates etc. or have been substantially documented to some extent viz. the unaudited 'Statement of Accounts' submitted by the defendant's solicitors to the plaintiff's solicitors under cover of a letter dated 18th April 1995.

In the circumstances the defendants application for an order dismissing the plaintiff's action for non-prosecution is refused. Finally and in the exercise of the Court's inherent powers this action is hereby ordered to be transferred to the High Court Registry at Lautoka for further continuation.

D.V. Fatiaki
JUDGE

At Suva,
21st January 1997.

Hpp0004d.95s