Krishna v Sugar Cane Growers Council [2009] FJHC 268; HBC040.2007L (2 December 2009)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 40 of 2007L

BETWEEN:

RAM KRISHNA
(f/n Ram Narayan) of 1 Ragg Street, Lautoka, Barrishters & Solicitors,
practicing under the name and style of
KRISHNA & CO at 27, Naviti Street, Lautoka
Plaintiff

AND:

SUGAR CANE GROWERS COUNCIL
a body corporate duly established under Section 31
of the Sugar Industry Act, 1984 having its office
at 75, Drasa Avenue, Lautoka
Defendant

INTERLOCUTORY JUDGMENT

Of: Inoke J.

Counsel Appearing: Mr. S Ram for the Plaintiff
Mr. V Mishra for the Defendant

Solicitors: Samuel Ram Esquire for the Plaintiff
Mishra Prakash & Associates for the Defendant

Date of Hearing: 2 December 2009
Date of Judgment: 2 December 2009

INTRODUCTION

[1] On the morning of the hearing Mr Mishra, Counsel for the Defendant, sought an adjournment of the trial because he had been provided with a copy of a letter from the Ministry[1] to the effect that his client, the Sugar Cane Growers Council (the "Council") had been disbanded. Mr Ram, Counsel for the Plaintiff vigorously opposed the application. After hearing Counsel, I granted the adjournment and gave my reasons orally. Mr Ram insisted that I provide written reasons and here they are in full.

[2] I set out the text of the letter because Mr Ram did not agree with Mr Mishra’s interpretation of the letter:

3/3/2

13th November, 2009

Mr. Timothy Brown

Registrar

Sugar Industry Tribunal

Sugar House

P.O.Box 5123

Lautoka

Dear Sir

RE: DISSOLUTION OF SUGAR CANE GROWERS COUNCIL

We refer to your letter dated 9 November, 2009 and advise that Government has endorsed that the following actions are to be proceeded with forthwith:

(i) That the services of the 38 Councillors be terminated effective from 11 November, 2009;

(ii) That the Administrative Arm of the Council comprising 26 employees be retained until end of 2009 crush or when a successor body to the Council is established, whichever comes earlier; and

(iii) The Registrar of the Sugar Industry Tribunal be appointed to co-sign cheques with the Acting CEO of the Council.

Please advise us after the above decision is actioned.

Yours sincerely

Signed

Manasa R Vaniqi

Permanent Secretary for Provincial Development, Multi Ethnic Affairs, National Disaster Management and Sugar

[3] Mr Ram’s interpretation was that the letter was not definite about the Council being disbanded. He said the letter spoke only of "prospective" dissolution. With respect that is not so. The letter spoke of actions to be proceeded with "forthwith" and a "successor body" to be established.

THE LAW

[4] The law on adjournments is set out in the Court of Appeal decision in Goldenwest Enterprises Ltd v Pautogo [2008] FJCA 3 –

if refusal to grant amounts to denial of a fair hearing and hence denial of natural justice or procedural unfairness, or where it would cause definite and irreparable harm to the party seeking it, an adjournment should be granted; the objecting party is compensated by costs – unless the adjournment would cause irreparable damage to it. Then a court must weigh up the competing interests and consequences ruling according to the fairness and justice of the particular case. There is however a requirement that there is no ‘fault’ on the part of the party seeking the adjournment.

[5] Mr Ram in his submissions said that irrespective of whether the Council had been disbanded or not, his client’s cause of action remained. As a matter of principle, I think he is correct and if and when the new body is formed his client can pursue that body. An adjournment would not cause irreparable damage to his client.

[6] Mr Ram complained that the Council cannot be just disbanded like that without taking into consideration its liabilities. Again, I think he is correct but the objection is misguided in that his client’s remedy in that case would be against the Government and not the Council. In that sense, his client is not prejudiced.

[7] Mr Mishra, on the other hand, is hampered in the performance of his duties to his former client and the new body that will be formed because there is no one to give him instructions. I do not accept Mr Ram’s submission that the administrative arm of the Council can provide those instructions.

[8] It cannot be said that Mr Mishra or the Council are at fault.

[9] In the circumstances, in the words of the Court of Appeal, refusal to grant the adjournment would amount to denial of a fair hearing and hence denial of natural justice and procedural unfairness to the Defendant.

Sosefo Inoke
Judge

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^[1] Ministry of Provincial Development, Multi-Ethnic Affairs, National Disaster Management and Sugar.