Munsamy v Native Land Trust Board [2004] FJHC 406; HBC0091.2001L (19 April 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0091 OF 2001L

BETWEEN:

MUNSAMY
Plaintiff

AND:

NATIVE LAND TRUST BOARD
Defendant

Counsel for the Plaintiff: Mr. A.K. Narayan
Counsel for the Defendant: Mr. K. Qoro

Date of Hearing & Ruling: 19 April 2004

EXTEMPORE RULING

This matter was listed before the court today for hearing it having been set down for hearing on the 30^th January 2004.

On the 30^th July 2003 the court was informed by counsel for the defendant that liability was not in issue and a previous application to set aside judgement in that regard would not be pursued.

The matter therefore was before the court for assessment of damages only.

Counsel appeared on behalf of the defendant and sought that the matter be adjourned. The adjournment application was foreshadowed in a letter forwarded by facsimile transmission to counsel for the plaintiff, a copy of which was forwarded to the Deputy Registrar and was placed on the court file.

The submissions made by counsel and the contents of that letter indicate that the Manager Legal of the Native Land Trust Board was unable to appear before this court today as he was appearing before the High Court at Suva. It would appear that the appearance in the High Court at Suva arose as a result of counsel for the plaintiff in that matter being unavailable on any later date due to some pending overseas travel and further that the matter was adjourned from a date last week due to floodwaters.

It is not the first occasion that the Native Land Trust Board has been unwilling or unable to appear before this Court when required. On a prior occasion, the court was required to cause warrants for the apprehension of officers of the Board to issue which warrants were ultimately withdrawn when counsel appeared. Whilst it is understood that there is now only one Legal Counsel employed by the Native Land Trust Board that of course is no excuse for the Board to treat the court in the manner that it does.

As I indicated earlier for this court to waste today, it is quite unjustified. Any further hearing date to be allocated to this matter will of necessity be in the year 2005.

After the court indicated that whilst the proceedings might be adjourned an application, then foreshadowed, for an interim payment and for costs would be considered by the court, counsel for the defendant sought leave to withdraw from the proceedings and that leave was granted. Counsel for the plaintiff then made submissions with respect to an interim payment and with respect to costs.

I am informed that the claim for damages is based upon the production of sugar cane that would have occurred from a designated area of land during the period 1990 to 2001 inclusive. The claim also includes a claim for interests. The pleadings having been amended by consent on the 7^th April 2004 to facilitate such a claim.

The claim for interim payment was initially sought to be made pursuant to provisions of Order 29 Rules 10 and 11. Those rules however provide that the application be made by way of Summons and supported by affidavit and that a period of 10 days notice be given to the defendant.

In the circumstances it seems perhaps inappropriate to rely upon Order 29, notwithstanding the defendant is on notice of the matter proceeding today.

As I have indicated above the matter has for some three months been listed for hearing on the 19^th April 2004 and accordingly I consider it appropriate to give due consideration to the plaintiff’s application for an interim payment, in doing so, I rely upon the inherent jurisdiction of the court.

In that regard I have been referred to the provisions as set out in Vol. 37 of Halsbury’s Laws of England at paragraph 14 where it is said and I quote: -

“The overriding feature of the inherent jurisdiction of the court is that it is a part of procedural law, both civil and criminal, and not a part of substantive law; it is exercisable by summary process, without a plenary trial; it may be invoked not only in relation to parties in pending proceedings, in relation to any one, whether a party or not, and in relation to matters not raised in the litigation between the parties; it must be distinguished from the exercise of judicial discretion; and it may be exercised even in the circumstances governed by rules of court. The inherent jurisdiction of the court enables it to exercise (1) control over process by regulating its proceedings, by preventing the abuse of process and by compelling the observance of process, (2) control over persons, as for example over minors and mental patients, and officers of the court, and (3) control over the powers of inferior courts and tribunals.

In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them.”

In the circumstances therefore, it is my opinion that relying upon the inherent jurisdiction of the court, it is proper to proceed to consider the application made orally in the course of the proceedings for an interim payment. In support of that application, the plaintiff tendered documents Exhibit P-1, which are Tables 1 to 5. Table 3 sets out in details of the net profit lost on an annual basis for the years 1990 to 2001 inclusive. This amount totals $59,555.61.

Table 5 sets out interests calculated at 11.5% per annum on the net profit lost for those same years and totals $55,547.88.

The plaintiff therefore submits that the total loss todate is $115,103.49 and that it would be appropriate for 50% of that amount to be ordered to be paid by way of interim payment.

The defendant’s counsel having withdrawn from the proceedings there is nothing before me to suggest that it would be inappropriate to make an order of about 50% of the amount claimed.

With respect to costs, counsel for the plaintiff submits that witness expenses and consultants fees totalling $3,300.00 have been incurred and largely wasted as a result of the hearing not proceeding today. In addition, the sum of $7,000.00 is sought by way of professional costs thrown away with respect to the matter.

From the history, as it appears from the court file and as explained by counsel for the plaintiff, these costs do not seem unreasonable.

The Orders of the Court will be: -

1. Proceedings adjourned for mention before the Deputy Registrar on 25^th of June 2004 to fix a further hearing date with the matter to be given priority;
   
2. The defendant to pay the plaintiff’s costs and expenses thrown away by the vacation of the hearing date assessed in the sum of Ten Thousand Dollars ($10,000.00) such costs to be paid within 28 days;
   
3. The defendant to pay the plaintiff the sum of Fifty Thousand Dollars ($50,000.00) by way of interim payment of the damages claimed such payment to be made within 28 days.
   

JOHN CONNORS
JUDGE

AT LAUTOKA
19 APRIL 2004