Manan v Khan [2008] FJHC 275; HBC338.2007 (8 February 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 338 OF 2007

BETWEEN

ABDUL MANAN
Plaintiff

AND

MOHAMMED MUNIF KHAN and MOHAMMED SHAMEEM KHAN
1st Defendants

AND

THE OFFICIAL RECEIVER
2nd Defendant

AND

ATTORNEY GENERAL OF FIJI
3rd Defendant

Appearances: Haroon Ali Shah Esquire for the Plaintiff/Respondent
Vijay Naidu & Associates for the 1st Defendant/Applicant
Mishra Prakash & Associates for the 2nd Defendant
Mr. R. Green for the 3rd Defendant

Date of Hearing: 14 December 2007
Date of Ruling: 8 February 2008

RULING

[1] Before me is a motion filed by the 1st defendants for the following orders:

a) that orders granted on 19th November 2007 be set aside and the 1st defendants be given leave to defend this action

b) an injunction restraining the plaintiff, his agents, servants and/or others from proceeding with the sale of Ba Township Lease No. 107544 by tender and/or advertising the said sale by tender in the daily news papers namely Fiji Times and Fiji Sun

c) that all proceedings in the above action be stayed until the determination of this application

d) that this matter be re-heard on merit.

Grounds

[2] The grounds relied on can be summarized from the affidavit in support by Roslyn Prakash as follows:

i) the 1st defendants appeared in court on 19 November 2007 with a solicitor who had been instructed to defend the application

ii) the orders granted are strongly opposed

iii) the defendants have a good defence to the claim

iv) the subject property is of sentimental value and they wish to retain ownership of the property

v) the 1st defendants are in the process of arranging finance to repay the debt.

[3] At the outset, it must be stated that the affidavit in support is defective. It contravenes Order 41 rule 5 (2) in that the deponent has not disclosed the sources or grounds of her belief as to the matters deposed to. Moreover it is sworn by a solicitors clerk, a practice which unfortunately continues despite numerous pronouncements cautioning counsel about the inappropriateness of the practice.

[4] The plaintiff strongly objects to the application.

Proceedings on 19 November 2007

[5] By Summons returnable on 19 November 2007, the plaintiff sought no less than ten orders, relating to the property contained in Ba Township Lease No. 107544. (subject property)

[6] The first prayer was for an order to revoke earlier orders made in Bankruptcy Action No. 711 of 1986.

[7] On the returnable date of the application, there was no appearance by the 1st defendants. A consent order was entered which included an order that the plaintiff and 1st defendant do all things necessary and execute all documents necessary to perfect the sale without delay. There may be an issue about the entry of a consent order binding the 1st defendants in the absence of appearance by the 1st defendant. However after hearing counsel on 14 December 2007, I formed the preliminary view that the legal basis of the application had not been established and ordered that the 1st defendants file and serve written submissions addressing me on the applicable law within 21 days. That order has not been complied with.

Conclusion

[8] In view of the defective affidavit and failure to comply with my order for submissions, I have declined the orders sought at this stage. Rather than dismiss the application, the 1st defendants will be given a further opportunity to rectify the application subject to payment of costs and strict compliance with the orders herein. As at 11 December 2007, the 1st defendants were in the process of arranging finance to pay off the outstanding debt. In the circumstances, my earlier order for sale of the subject property is stayed subject also to strict compliance of the following orders.

Orders

1) 1st defendants are to file and serve an affidavit within 14 days disclosing the following:

a) status of finance arrangements to settle outstanding debts

b) steps taken by the 1st defendants since the making of the Receiving Order to comply with the provisions of the Bankruptcy Act

c) grounds as to why the order of 19 November 2007 be set aside

2) Plaintiff and 2nd and 3rd defendants at liberty to file and serve answering affidavit 14 days thereafter.

3) Further hearing of application on 7 March 2008, 11.30 am.

4) Costs of attendance on 14 December 2007 assessed in sum of $350.00 to each party to be paid within 14 days.

5) Parties to hand up written submissions at the hearing.

Gwen Phillips
JUDGE

At Lautoka
8 February 2008