Latchman v Singh [2010] FJHC 455; HBM088.2009 (12 October 2010)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBM 88 of 2009

BETWEEN:

LATCHMAN
Plaintiff

AND:

MADHWAN SINGH
Defendant

Counsel: Sunil Kumar ESQ for the Plaintiff
Samad Law for the Defendant.

Date of Ruling: 12th October, 2010

RULING

[1] This is a Ruling on the defendant's application for reinstatement of the inter parties notice of Motion which was struck out for want of prosecution.

[2] The defendant filed motion dated 4.12.2009 seeking following relief:

1. That leave be granted to appeal out of time of the judgment of his Worship Mr.Eparama Rokoika of 2.10.2008 which was read out in open court on the 11th December 2008 in civil Case No 007 of 2008;
   
2. That an order for a stay of the judgment of his Worship Mr. Eparama Rokoika of 2.10.2008 in Civil Case No 007 of 2008;
   
3. That an order for a stay of the order made by his Worship Mr Chaitanya Lakshman dated 05.11.2009 on mean test in Judgment Debtor Summons.
   
4. That the cost of this application be in the cause.
   

[3] When the case was called before Madam Justice Anjala Wati on 15.02.2010, it was set down for argument on 29.03.2010 at 8.00 am. When the case was taken up for argument on 29.03.2010 before High Court No 04, neither the defendant nor his counsel appeared, and, as a result the defendant's motion was struck out.

[4] The defendant filed the present application seeking a reinstatement of the motion so struck out.

[5] In support of the application for reinstatement, an affidavit was filed by the defendant.

[6] The facts of the defendant's affidavit can be summarized as follows:

[7] The defendant and his counsel hired a taxi at 6.45 am to come to Suva from Nausori. Since it was the first working day after the day light saving hours were changed, the defendant and his counsel were caught in a traffic jam. On their way to courts, the counsel for the defendant called the High Court Registry to inform the clerk and requested the matter be stood down to allow them to appear and argue the application.

[8] When they reached the court house they found that the High Court No 5 was not sitting.

[9] Thereafter, the counsel went to the High Court No 5, and was informed that the case was called before another judge at 8.00 am and the application was struck out.

[10] The defendant submitted that he did all what he could have done in the circumstances to be in the Court in time but it was beyond his control and therefore, he should not be penalised.

[11] Opposing the defendant's application, the plaintiff filed his affidavit in reply. According to the plaintiff, he was also travelling from Nakasi to Suva on 29.03.2010 at about 7.00 am. There was no traffic jam as such and he reached court in time. The plaintiff further stated that the change of day light saving hours cannot be taken as an excuse for the defendant.

[12] In his affidavit the defendant stated that his solicitor informed a clerk in the High Court Registry the fact that they were caught in a traffic jam but neither the clerk nor the solicitor has given any affidavit to establish that fact. It could be further noted, that despite the plaintiff and the defendant reside in the same locality the plaintiff reached courts on 29.03.2010 in time.

[13] Therefore, I see no merit on the reasons given by the defendant to explain his failure to attend the court in time.

[14] However, I am of the view that the defendant's application seeking leave to appeal out of time should not be disallowed merely due to the non appearance of the defendant. The defendant's application to appeal out of time must be dealt on merits.

[15] Furthermore, having taken into consideration the fact that this case was set down for hearing in High Court 05 and was struck out for non appearance of the defendant in High court 04, I conclude that the defendant's application should be re instated.

[16] Therefore, having considered the above facts, I, in the exercise of inherent powers of court, make following orders:

1. The defendant's application for leave to appeal out of time shall be reinstated.
2. Cost is summarily assessed in the sum of $ 500.00.
   

Pradeep Hettiarachchi
JUDGE