Ram v Martinez [2004] FJHC 388; HBC0168.2000L (11 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0168 OF 2000L

BETWEEN:

SHIU RAM
Plaintiff

AND:

CLEMENT MARTINEZ
of B P 376 Post Vila, Vanuatu, Businessman,
Toronto, L6R 1HL, Canada
1st Defendant

AND:

RISHI RAM
2nd Defendant

AND:

DIRECTOR OF LANDS AND SURVEY
3rd Defendant

AND:

ATTORNEY GENERAL OF FIJI
4th Defendant

Counsel for the Plaintiff: Dr. Sahu Khan with Ms. Sahu Khan
Counsel for the 1st Defendant: Ms. T. Draunidalo
Counsel for the 3rd & 4th Defendants: Ms. S. Tabaiwalu

Date of Hearing: 9 March 2004
Date of Judgment: 11 March 2004

EXTEMPORE JUDGMENT

The 1st defendant applies to the court by way of Notice of Motion filed on 28 January 2004 for orders dismissing and or quashing orders made in the absence of the 1st defendant on 1 October 2003.

The 1st defendant/applicant relies on an affidavit of Clement Martinez sworn on 13 January 2004 and an affidavit of Dorsami Naidu. The plaintiff/respondent relies on two affidavits of Daya Ram sworn on 8 March 2004.

I have had the assistance of skeleton submissions and oral submissions from counsel for the 1^st defendant and counsel for the plaintiff.

In August 2002 these proceedings were settled and terms of settlement were executed by the plaintiff, Shiu Ram and by solicitors on behalf of the 1^st and 2^nd defendants.

No orders were sealed or served consequent upon the terms which were filed in court on 19 September 2002. Whilst Messrs Sahu Khan & Sahu Khan had previously acted for Shiu Ram he instructed Dorsami Naidu of Pillai Naidu & Associates in writing to act for him and effect the settlement.

Shiu Ram died on 2 February 2003 and Probate of his Will was granted to Daya Ram on 21 May 2003.

These proceedings were at an end when the terms of settlement were executed and filed. That no order had been made by the court is of no effect. In Green v Rozen & Ors [1955] 2 All ER p.797 and at page 801, Slade J. said and I quote:

“I arrive at the conclusion that in these circumstances the new agreement between the parties to the action supersedes the original cause of action altogether, that the court has no further jurisdiction in respect of the original cause of action which has been superseded by the new agreement, and that, if the terms of the new agreement are not complied with, then the injured party must seek his remedy on the new agreement.”

The court therefore had no jurisdiction to grant the orders that it did on 1 October 2003.

The only available action for the plaintiff is to bring a fresh action. In Mohammed Rasul v Hazara Singh 8 FLR 140 at p. 144, Hammett P.J. said and I quote:-

“In my opinion, once the parties to a dispute have joined issue in litigation and have later compromised their action and filed in court the terms upon which the action has been settled and the plaintiff has discontinued the action as was done in this case, the same issue cannot be made the subject of a fresh action until the compromise in the previous action has been set aside in an action brought for that express purpose based upon grounds of some considerable merit. To hold otherwise would, in my view, be to deprive the parties to a compromise of that sense of finality upon which both the parties to any compromise are entitled to rely and base their future conduct.”

Counsel for the plaintiff/respondent submitted as there were alleged breaches of the Legal Practitioners Act the terms of settlement are void and of no effect.

I do not accept this submission. Any alleged breach of the Legal Practitioners Act is a separate and independent matter which does not effect this action which had come to an end when the terms of settlement were executed.

I therefore make orders in accordance with prayers 1, 2 and 3 of the Motion and order Daya Ram to pay the 1^st defendant’s costs of this Motion which I assess in the sum of One Thousand Dollars ($1,000.00) and I direct that such costs are to be paid before Daya Ram takes any further action against or involving the 1^st defendant.

JOHN CONNORS
JUDGE

AT LAUTOKA
11 MARCH 2004