National Bank of Fiji v Ali [2006] FJHC 41; HBC00305R.1997S (7 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 0305 OF 1997

Between:

NATIONAL BANK OF FIJI
Plaintiff

- and -

SULTAN ALI
Defendant

Counsel: Ms. R. Sharma for the Plaintiff
Mr. S. Inoke for the Defendant

Date of Hearing: 7th February 2006
Date of Ruling: 7th February 2006

RULING

The defendant wishes to travel to India to attend a meditation seminar and other courses run by a worldwide organisation called ‘the art of living’. He plans to leave on the 12th of February and return on the 4th of March. He states the tickets have already been booked and paid for.

Sultan Ali states that his family home is here in Fiji, his wife works and his children go to school here. He owns no property or other assets overseas and that he does not hold citizenship or a residency permit or a passport for any country other than Fiji.

The defendant applies for the release of his passport. He has filed three affidavits in support, dated 11th of January, 2nd of February and 3rd of February, 2006.

On the 6th of August 1997 a Writ of Ne Exeat Civitate was issued by Mr. Justice Byrne stating that unless the defendant deposited “the sum of $330,002.19 or surrender his passport and travelling documents or give to the plaintiff a bond executed by the defendant for security satisfactory to the plaintiff that the defendant will not leave the jurisdiction without notice to this Honourable Court”. As part of that order an injunction was granted restraining him from leaving the jurisdiction of the court and “from removing or disposing of any or all assets and monies within the jurisdiction”.

By a judgment of the High Court dated 27th March 1996 the defendant was ordered to pay $330,000.00 with interest.

This matter first came before the Court on the 3rd of February. The plaintiffs stated their objections, adding they had only been served on the 2nd of February. They raised the question as to whether or not the defendant had a passport or residency permit for a country other than Fiji. In view of the urgency the case was adjourned till today at 9.45 a.m.

An annexe to the second affidavit of the applicant shows that the defendant was adjudged bankrupt on the 25th of July 2003 and the Official Receiver was duly appointed as trustee of the defendant’s property by Certificate dated the 3rd of August 2004.

The plaintiff’s argument is that this debt is some ten years old and not one single dollar has been paid. He has made no effort to resolve these matters. He had filed no statement of assets. It is not known who paid for his ticket to travel. There is simply no evidence anywhere as to his assets.

The defendant responds that this matter is old. It was the bank or their receiver which has failed to realise any of his assets. The withholding of a passport is not meant as a punishment but as a way of ensuring that assets are not lost, a person does not permanently leave the jurisdiction and effort is made to clear the debt.

There are a number of pertinent points to note. It is not denied that the defendant has failed to pay any of this debt. He is a professional man, a chartered accountant, so would know the choices open to him over the years to resolve these matters. He did not, for example, seek to make himself bankrupt. According to the Order of Adjudication dated the 3rd of August 2004 he failed to file a statement of affairs.

There is no evidence as to who has paid for his air tickets and his stay whilst in India. There is no medical evidence as to his state of illness. He states that the plaintiffs’ action has caused him “severe emotional and financial strain”. Yet, he has apparently done nothing to put his personal affairs in order.

At paragraph 4 of his affidavit sworn on the 11th of January 2006 he states “I require my passport in hand and for various other purposes as well as to travel in the course of business ...” He does not say what this business is. This would be highly relevant in the bankruptcy proceedings.

This application came before the court on very short notice. The plaintiffs were only served the day before the return date for application. I do not know how long this trip has been in contemplation but the application for the passport could certainly have been made at least a week or two earlier than it has been. Further, the wiser course would have been to make this application before he or anyone on his behalf made payment for air tickets and other travel facilities.

The issuing and maintenance of a Writ of Ne Exeat Civitate is not to be used as a punishment or way of pressuring a debtor into making repayment. However, given the fact that at no time has the defendant made positive steps to resolve this matter, given the fact that there is still no schedule of assets, he appears on his own admission to be running a business, the lack of medical evidence, the haste with which this application is made and the points set out above I consider I should refuse this application.

Dated the 7th day of February, 2006.

(R.J. Coventry)
JUDGE