Singh v Ponijiasi [1998] FJHC 191; Hbc0371.93s (7 July 1998)

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

Civil Action No. 371 of 1993

BETWEEN

DR. ANIRUDH SINGH
Plaintiff

AND

SOTIA PONJIASI
First Defendant
WAQA VAKALOLOMA
Second Defendant
UATE QALO
Third Defendant
ILIESA RAIQISO
Fourth Defendant
SAMUELA KENI
Fifth Defendant
ATTORNEY-GENERAL
& MINISTER OF JUSTICE IN AND FOR FIJI
Sixth Defendant

Mr. V. Maharaj on instructions from Singh & Fatiaki for Plaintiff
Mr. S. Kumar for the Sixth Defendant

Dates of Hearing and Submissions: 25th November 1997, 30th March 1998
Date of Interlocutory Judgment: 7th July 1998

INTERLOCUTORY JUDGMENT

The writ in this case was issued on the 1st July 1993 and the Statement of Claim annexed to it alleges that on the 24th October 1990 the Plaintiff while walking along Rewa Street, Suva, was assaulted by the 2nd and 5th Defendants who then over-powered him and pushed him into the rear seat of a car which was being driven by, the 4th Defendant who in turn were assisted by the 3rd Defendant who was sitting in the rear seat of the car.

The car was then driven to Colo-i-Suva where the Plaintiff was blindfolded by putting pads on both eyes before a strip of cloth was tied around his head in a blind-fold and a balaclava pulled securely over his head and tied around his neck. The Plaintiff alleges he was then walked into the woodland where his hands were tied behind him after which he was made to sit down and another rope then tied around his feet and slung around his neck. He alleges that one of the Defendants sat behind him holding a noose around his head and keeping him pulled backwards.

The Plaintiff was told not to make any sound or try to escape. Afterwards he alleges he was repeatedly punched and kicked violently in the head, face and body and interrogated whilst he remained defencelessly bound. His captivity lasted some 11 hours.

Towards night fall, the First Five Defendants either jointly or severally put on dark balaclavas and unbound the Plaintiff. He alleges they then assaulted him violently on the head and face from both sides for a prolonged period lasting some 10 minutes and methodically smashed up both his hands with a metal pipe furnished with a wooden handle. Afterwards, the Defendants cut the Plaintiffs hair, burnt it with cigarettes and disappeared into the darkness, taking the Plaintiff's shoes with them and leaving him alone in the dark in the forested hill.

As a result of this abduction and torture the Plaintiff was hospitalised for three weeks at the Colonial War Memorial Hospital in Suva and alleges he suffered the following injuries:

(a) Facial bruising around the left eye and orbit with sub-conjunctival haemorrhage;

(b) Rope burns around both wrists;

(c) Fracture of right radial styloid;

(d) Compound fracture of the left fifth finger;

(e) Fracture of base of fifth meta-carpal;

(f) Abrasions of both hands;

(g) Superficial burns of left shoulder and right forearm consistent with cigarette burns;

(h) Contusions of anterior chest wall; and

(i) Decreased sensation of left hand due to neuropraxia (bruising) of radial nerve from the wrist-rope.

The First to Fifth Defendants at all material times are alleged to have been members of the Fiji Military Forces and servants and/or agents of the Government of Fiji, the Sixth Defendant being the legal representative of the Government of Fiji and vicariously liable for the acts of the First to Fifth Defendants.

The Plaintiff then claims general damages for the mental trauma of being suddenly taken into captivity and the mental terror from the manner of his confinement in which he says he was denied sight, sound and knowledge of his whereabouts. He also claims pain and suffering due to the physical assault.

In addition, after his abduction he claims:

(i) The social stigma of being a torture victim, namely the loss of personal esteem through becoming an object of public pity;

(ii) alienation by friends and others through fear of associating with a "marked man";

(iii) damaging effects on his professional career, including doubts about his ability to perform strenuous mental tasks, and the negative effect of the Plaintiff's horrendous treatment on his professional ambitions;

(iv) loss of career and promotional prospects at the University of the South Pacific; and

(v) possibility of future mental and physical health effects.

A Statement of Defence was delivered on the 16th September 1993 by the Sixth Defendant which denies that the Sixth Defendant is in any way vicariously liable for the acts of the First Five Defendants who allegedly asserted their acts were individual acts of patriotism and not part of their military duties.

Further the Defendant claims that the acts of the First Five Defendants were prohibited acts by the Laws of Fiji and therefore cannot be within their sphere of employment as members of the Fiji Military Forces.

Presently before me is a Summons to dismiss this action for want of prosecution issued by the Sixth Defendant on the 3rd September 1997, hence it is necessary for me to set out the history of the action following delivery of the defence.

On 7th February 1994 an interlocutory judgment in default of appearance and defence was entered against the First Five Defendants for payment of the Plaintiff's damages to be assessed and costs.

A Summons for Directions for inspection of documents was issued on the 11th February 1994 and a subsequent order in terms of that Summons on the 24th November 1994. There then ensued a delay of some 2 ½ years until on the 30th September 1996 the Plaintiff's solicitors lodged a Notice of Intention to Proceed.

As I have stated no further action was taken by any of the parties until the issue of the present summons to dismiss for want of prosecution. This summons was supported by an affidavit sworn on the 3rd September 1997 by one Ajay Singh, civil servant of Suva who deposes that he is the Acting Executive Officer (Litigation) in the Attorney-General's Chambers, Suva, who recites the history of the proceedings to that date and alleges that because of the existing delay any further delay will critically prejudice the Sixth Defendant, particularly in that witnesses "may not be around and/or their memories would have faded away by now".

An affidavit in opposition to that filed on behalf of the Sixth Defendant was sworn on the 11th November 1997 by Vijay Narayan a law clerk in the employment of the Plaintiff's solicitors who states that he was duly authorised by the Plaintiff to swear the affidavit on his behalf. The reason why the Plaintiff did not swear this affidavit himself appears to be that at the time, and I assume even now, the Plaintiff does not reside in Fiji but in Melbourne, Australia.

Vijay Narayan states that the Plaintiff wrote to the Sixth Defendant on the 23rd May 1993 for the purposes of negotiating an out of court settlement of the Plaintiff's claim.

He wrote again to the Sixth Defendant on the 25th March 1997 and 23rd May 1997.

On the 11th June 1997 the Sixth Defendant responded to these letters declining the Plaintiff's offer to settle out of court on the ground that the Sixth Defendant is in no way responsible for the actions of the First Five Defendants.

The letter concluded with an apology for the delay in replying.

In its submission the Sixth Defendant claims that the delay by the Plaintiff in prosecuting was:

(i) Prolonged and intentional;

(ii) that the delay was inordinate and inexcusable;

(iii) that the delay was and is likely to cause prejudice to the Sixth Defendant; and

(iv) it is now not possible to have a fair trial of the issues in this action.

A further affidavit filed at my direction and sworn by the Plaintiff on the 12th December 1997 throws further light on the reasons for the Plaintiff's delay. It is relevant to state these here. The Plaintiff states that in 1990 he was a member of the staff of the Physics Department at the University of the South Pacific on study leave in the University of Leicester, United Kingdom. On returning to Fiji later that year to resume his duties he was abducted and tortured and he claims this caused great distress and mental trauma to his wife who was still in Leicester with the rest of his family. As a result he was forced to return to the United Kingdom on two occasions working at the University of Leicester while he was there. He lost his U.S.P. position on his second departure and took up a contract with Leicester University which lasted till October 1995 when he left for Australia to reside permanently there.

He deposes that his attempt to bring this action to court has been fraught with difficulties from the outset. In the first instance it was due to his inability to find a legal firm which was willing to represent him on the case, and it was not until mid 1993 that he could obtain the services of a suitable firm.

His problems were compounded by his wife's psychological condition which he claims has arisen directly out of the abduction and torture by members of the Fiji Military Forces. As a result she believed that their safety was under further threat at the hands of such agents as long as they resided in Fiji. He alleges that the matter was exacerbated when in October 1993 his wife learnt of the circumstances surrounding the failure of his bailiff to serve the writ of summons herein on the First Five Defendants. He alleges that the bailiff was detained and subjected to threats and harassment by the Fiji Military Forces when he went to its Nabua base to serve the writ of summons. He was released after two hours without being able to serve the summons.

He then deposes that the changing political climate in Fiji towards the end of 1996 removed much of the perceived threat felt by his family. He then decided to offer an out of court settlement to the Sixth Defendant but when this was rejected he instructed his solicitors to continue with the action. Various other matters to which he deposes in this affidavit are not relevant to the present application.

I now deal with the issues, first of prolonged and intentional delay.

In his two affidavits the Plaintiff gives clear reasons why he was unable to proceed with due expedition in prosecuting his case.

In Stollznow v. Calvert (1980) Vol. 2 NSW LR 749 at pp. 751-2 it was held inter alia that it is proper to consider:

"....... whether any explanation or excuse has been offered for the delay, and whether the explanation or excuse that has been offered is credible and satisfactory."

In the present case I consider the delay and explanations offered by the Plaintiff are credible and satisfactory. It is also clear from the correspondence between the Plaintiff and the solicitors and the Sixth Defendant that the Plaintiff has at all times been desirous that his case be brought to trial. I therefore consider that on this aspect no blame should be attached to him for the delay.

The Delay was inordinate and inexcusable and likely to cause Prejudice to the Sixth Defendant.

In ascertaining whether the delay is inordinate and inexcusable and prejudicial to the Defendant Russell L.J. in William C. Parker Ltd v. F.J. Ham & Sons Ltd (1972) 1 WLR 1583 said at page 1586:

"... it must be borne in mind that the delay comes on top of delay in launching the proceedings in a case where there has been delay in launching the proceedings... If it be the fact ... that the delay since the pleadings were closed did not contribute to any difficulties that the defendants might have ... then it seems to me quite clear ... that the inexcusable delay is not to be regarded as having contributed to the prejudice of the defendant ... if the delay is not excusable after the proceedings have been launched but does not worsen the position of the defendant, then it is not a case for dismissing for want of prosecution."

Reviewing the evidence in this case to date, in my opinion the delay, although lengthy was not "inordinate and inexcusable". The Plaintiff claims to have suffered both physical and psychological injuries and as a result of what happened to him his family and work life also suffered. In my view it seems only natural that this could contribute to the delay. Also in considering the delay the so-called "events of 1987 in Fiji" and the atmosphere in subsequent years that followed must not be overlooked.

The Court of Appeal in Owen Clive Potter v. Turtle Airways Ltd & Anr CA. 49/92 was well aware of the problems facing litigants wishing to seek redress at law during this period and thus in my judgment a similar awareness must be accorded to the Plaintiff in this case. On page 6 of his Judgment Sir Edward Williams J.A. said:

"... it would be unreal to assume there was no dislocation in the work of the other courts and in the work of the legal profession during some part of this period...

Again the cases show that although there may not be "inordinate and inexcusable" delay, the plaintiff may still fail if it can be shown that the prejudice to the parties (and of course particularly to the defendant) would result in "a substantial risk that a fair trial would not be possible or is likely to cause or would cause serious prejudice"."

The Sixth Defendant complained of particular prejudice however he was aware that the Plaintiff was making a claim against him and in the event of inaction by the Plaintiff took no action himself to have the action struck out until the issue of the present summons. In this situation Waddell J in Southern Cross Exploration N.L. & Ors v. Fire & All Risks Insurance Co. Ltd. & Ors. (1985-6) 4 NSWLR 491 said at page 497:

"In exercising its discretion the court must strike a balance between the plaintiff and the defendant and, in the end, 'the court must decide whether or not on balance justice demands that the action should be dismissed'."

In the present case I consider that the inaction by the Sixth Defendant renders his claim of actual prejudice less credible and the prejudice if established less weighty. In the absence of any evidence of actual prejudice caused to the Sixth Defendant by the delay, in my judgment the delay, although lengthy, is not inordinate and inexcusable and on the present material I consider no prejudice has been suffered by the Sixth Defendant.

Is a Fair Trial possible of the Issues in this Action?

In Sweeney v. Sir Robert McAlpine & Sons Ltd (1974) 1 All ER 474 Lord Denning M.R. stated at page 476:

"... the court does not look merely at the delay since the writ... The court enquires whether the total delay has been such that a fair trial between these parties cannot now be had."

And in Biss v. Lambeth Health Authority (1978) 2 All ER 125 Lord Denning M.R. said at page 130:

"... no person should be penalised for doing that which he has a legal right to do. His action cannot be dismissed for want of prosecution unless he has been guilty of inordinate and inexcusable delay; and that delay, the delay ... has seriously prejudiced the defendant."

Basing myself on these authorities I consider it will still be possible to have a fair trial of the issues in this action. In my view also it would be an intolerable injustice to the Plaintiff on the present material if I were to accede to the application by the Sixth Defendant. I therefore dismiss the Sixth Defendant's summons of 3rd September 1997 and order the action is now to proceed in the normal way. Costs will be in the cause.

JOHN E BYRNE
JUDGE

Cases referred to in Interlocutory Judgment:

Biss v. Lambeth Health Authority (1978) 2 ALL E.R. 125.
William C. Parker Ltd. v. F.J. Ham & Sons Ltd (1972) 1 WLR 1583.
Potter v. Turtle Airways Ltd & Another Civil Appeal No. 49 of 1992 - unreported judgment of Court of Appeal of 20th August 1993.
Southern Cross Exploration N.L. & Others v. Fire & All Risks Insurance Co. Ltd. & Others (1985-6) 3 NSWLR 491.
Sweeney v. Sir Robert McAlpine & Sons Ltd (1974) 1 ALL E.R. 474.

The following additional cases were referred to in submissions:

Allen v. Sir Alfred McAlpine & Sons Ltd (1968) 2 Q.B. 229.
Birkett v. James (1968) A.C. 297.
Fitzpatrick v. Badger & Co. Ltd. (1967) 1 WLR 706.
Anthony Stevens v. Attorney-General Civil Action No. 34/89.

HBC0371.93S