Dube v Goundar [2010] FJHC 420; HBC061.2005 (31 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 061 of 2005.

BETWEEN:

MILTON ROSS DUBE, JOHN DEDABANOUW DUBE
AND NINA KATHLEEN DUBE
normally of Nauru but presently of Martintar, Nadi, Businesspersons.
Plaintiffs

AND:

KRISTAMMA GOUNDAR
daughter of Marappa Gounder normally of Martintar, Nadi, Retired but presently of
Sydney, Australia as the Executrix and Trustee of the Estate of Muttamma
father's name Suddaiya Pillay (deceased).
First Defendant

AND:

HARI KRISHNA GOUNDAR
son of Karpana Gounder formerly of Lautoka but now of New Zealand, Journalist
Second Defendant

AND:

THE REGISTRAR OF TITLES, SUVA
Third Defendant

AND:

CHANDAR SEN
(father's name Balram) of Tavua, Fiji, Landlord and Farmer.
Fourth Defendant

To:

KRISTAMMA GOUNDAR
daughter of Marappa Gounder normally of Martinatar, Nadi, Retired but presently of
Sydney, Australia as the Executrix and Trustee of the Estate of Muttamma
father's name Suddaiya Pillay (deceased).
First Defendant/First Garnishee

To:

HARI KRISHNA GOUNDAR
son of Karpana Gounder formerly of Lautoka but now of New Zealand, Journalist
Second Defendant/Second Garnishee

To:

MOHAMMED SAMSUDEAN SAHU KHAN
(father's name A.H Sahu Khan) trading as SAHU KHAN & SAHU KHAN
Legal Practitioner, practicing in Ba, Fiji.
Third Garnishee

To:

NILESH LAGENDRA
(father's name not known to the Fourth Defendant) trading as LAJENDRA LAW
Legal Practitioner, practicing in Suva, Fiji.
Fourth Garnishee.

COURT ORDER:

(1) Application for Stay of Execution; (27/8/2010 – issued).

Dr. Sahu Khan for the Garnishees (1st,2nd&3rd) states that the 4th defendant Judgment Creditor be given 10 days to file affidavit in opposition and the 1st, 2nd & 3rd Garnishee be given 10 days to reply by Affidavit.

(1) 4th Defendant Judgment Creditor to file affidavit in opposition within 10 days as from today.

(2) 1st, 2nd & 3rd Garnishee to file affidavits in reply within 20 days of today. Mention on 20th September 2010 (at the request of Counsel) at 10am.

31 August 2010 – 10.23am. Sgd. Y. I. FERNANDO J.

(2) Application for Garnishee Order Nisi (issued 30/8/2010.)

Time is 10.30am –

Application for stay taken up earlier. Mr. Mishra moves to support his ex-parte application for Garnishee Order nisi filed on 30/

August 2010. Dr Sahu Khan who was present earlier in his application for stay, left the court, though he was aware that this application was to be supported, ex parte, I believe out of courtesy.

Mr. Mishra supports the application and states, that, he is proceeding to support the application for garnishee Order Nisi against the person named as "Naterajan Pillay" who is described as "Second Garnishee". Court brings to the attention of Counsel Mr. Mishra, that there is already a "Second Garnishee" on record, and as such on the application of Mr. Mishra, this Court considers this to be a typographic error, and amends the said caption of the said application for Garnishee Order dated 30/8/2010 to read Naterajan Pillay to be the "5th Garnishee".

It is hereby ordered that where ever, in the said application reference is made to second Garnishee in the said application of 30/8/2010, the 2nd Garnishee shall mean for the purpose of this application only, the said Natrajan Pillay who is now made the 5th Garnishee.

Mr. Mishra submits that this application is made subsequent to the order of the court making order absolute in respect of 1st, 2nd and 3rd Garnishee by order dated 10/8/2010. Mr. Mishra states that new evidence has come to light and as such, this application is necessary, to Garnishee further sums, which he submits appear to be due to the Mortgagor Plaintiffs.(Judgment Debtors)

Mr. Mishra points to paragraph 17.1 of Chandra Singh's affidavit and states that, the affidavit of Mr. Prem Chand has disclosed, that Naterajan Pillay has been paid $250,000/- and as such, that Garnishee should issue against Naterajan Pillay.

Before Garnishee Order Nisi is made this Court has to be mindful of the fact, that there must be a debt due from Naterajan Pillay to the Plaintiff – Mortgagors against whom the applicant 4th Defendant (Judgment Creditor) has a judgment.

The 4th Defendant in this application relies on what Prem Chand has stated in an earlier affidavit, which affidavit was taken into consideration by this Court in making the earlier order on the 10/8/2010. This Court cannot for the purpose of one order disbelieve the contents of an affidavit and thereafter rely on the contents of such an affidavit for another order. The 4th Defendant ought to have made this application prior to my order of 10/8/2010, if he was relying on such affidavit evidence. Such evidence this Court is very reluctant to admit or believe, and as such I do not see sufficient evidence, that this Court can rely, without re-litigating the previous application for Garnishee Order. In the previous application this Court has made observations on the affidavit of Mr. Prem Chand, and, for this application this Court cannot rely on such an affidavit.

Further, more, there is no clear "debt" due or liability of Naterajan Pillay to pay to the Plaintiff Mortgagors shown in this application and as such, I see no reason or basis or, reliable evidence before me to issue garnishee order nisi against the said Naterajan Pillay.

As such, I disallow, this application for garnishee against the said Naterajan Pillay (5th Garnishee).

As the 4th Defendant has not sought to support this application against the 1st Garnishee, I dismiss this application against the 5th Garnishee Naterajan Pillay and the 1st Garnishee and with leave to file a fresh application if required.

Application dismissed with leave to file a fresh application. (The application dismissed being the application issued on 30/8/2010 of the 4th Defendant.) No cost.

Sgd
Y I Fernando
JUDGE

At Lautoka
31 August 2010