Carpenters Fiji Ltd v Prasad [2011] FJHC 203; HBC26.2005 (4 April 2011)

IN THE HIGH COURT OF FIJI
(WESTERN DIVISION) AT LAUTOKA

HBC No. 26 of 2005

BETWEEN:

CARPENTERS FIJI LIMITED a limited liability Company having its registered office in Suva.
PLAINTIFF

AND:

SATENDRA PRASAD F/N Sudhu Prasad and SAKUNTLA DEVI f/n Mani Ram both of Vakabuli, Lautoka.
DEFENDANTS

Appearances;
Counsel for the Plaintiff: Ms. Narayan O/I Lateef & Lateef.
Counsel for the Defendants: Mr. Suresh Maharaj.

Date of Trial; 21st September 2010.
(Final written submissions filed on 24th February 2011 )
Date of interlocutory Order: 4th April 2011.

INTERLOCUTORY ORDER

There are two summonses before Court for order.

The 1st summons;

The Plaintiff filed summons on 20th of September 2010 seeking "leave be granted to the Plaintiff to produce further documents in this matter....UPON the grounds contained in the Affidavit of DEEPIKA PRAKASH filed herein", and states that the application is made pursuant to Orders 24 and 25 of the High Court Rules 1988 and the inherent jurisdiction of this Court.

The Pre Trial Conference had been held and the Copy of Pleadings was filed on the 4/12/2007. The Agreed Bundle of Documents was filed on the 7/7/2008. Thereafter this matter was fixed for trial for the 8th and 10th of March 2010, on the 1/12/ 2009. The said trial dates were vacated due to bereavement in the family of the Defendants Counsel, and the matter was re-fixed for trial for the 21st of September 2010 at the request of the parties.

It is noted by Court that a previous supplementary list of documents filed by the Plaintiff on 12/6/2008 had been accepted by the order of the Master and incorporated in the Agreed Bundle of Documents filed thereafter on the 7/ 7/ 2008.

The Defendant too has filed an Affidavit Verifying Supplementary List of Documents on the 21st September 2010. In this Supplementary list the Defendant too has listed correspondence after the institution of this action and as recent as 2010.

The Plaintiffs Summons seeking leave to produce further documents which is the subject of this order was filed one day prior to the date of trial. The Defendants Affidavit Verifying Supplementary List of Documents above referred to, was filed on the day after on the same trial date. Therefore the lack of readiness on the part of both parties in the conduct of the trial in this case is somewhat apparent and especially in the collation of their documents.

In support of its Summons of 20th September 2010 the Plaintiff refers to Order 24 and 25 of the High Court Rules (1988). However Order 24 is in respect of Discovery and Production of Documents. The Plaintiff in its written submissions makes particular reference to Rules 12 and 13 therein.

If the Court is to proceed under Order 24 Rule 12 and 13 then this Court has to make an order against the Plaintiff for the production of its own documents! In practice such an application is made by the party who does not have the custody of those documents. The Plaintiff is obviously in possession of the documents listed in the accompanying affidavit of Deepika

Prakash, and the said summons is nothing more than another "Supplementary List of Documents", in a somewhat dramatized garb.

The ultimate purpose of a trial is to ascertain the truth. It is the means by which civilized society proceeds to separate fact from fiction. As much as surgical tools and procedures are updated and improved with the advancement of technology so should the rules and procedures applicable to trial proceedings be utilized by Court. Relevancy is such a tool. It should not be too sharp or too blunt. At the beginning of a trial what might at a glance appear to be irrelevant may well be most relevant in the course of a trial. What a witness may say at least under cross examination cannot always be fathomed before the trial. The method should not dictate to the purpose.

If documents are ruled out before the trial they may not be led again at the trial without at least some prejudice to the opposing party. Both parties must know what documents they have to face at the trial subject to a few exceptions. Though the Defendant may well have been surprised by the Plaintiffs Summons of the day before the previous trial date, now 6 months thereafter the Defendant is not prejudiced by that element of surprise. The Defendant is now well aware of the Documents set out in the Affidavit of Deepika Prakash filed on the 20th September 2010. Equally the Plaintiff ought not to be surprised by the Defendants Supplementary list file on the 21st of September 2010.

By considering both the documents set out in the Affidavit of Deepika Prakash filed on 20th September 2010 and the Supplementary List of Documents of the Defendant filed on 21st of September 2010, as Supplementary lists, no prejudice should be caused to either side, as all such documents need to be proved if not admitted during the trial.

Individually the documents need to be ruled as to their relevancy and admissibility, whether they need to be proved or not, the only exception being the Agreed Bundle of Documents. The relevant provisions of the Civil Evidence Act (2002) shall be considered as and when the particular documents are moved to be marked as exhibits during the trial and not on affidavits prior to the trial.

Therefore my order in respect of the said Summons of 20th September 2010 is that the documents listed in the Affidavit of Deepika Prakash filed on the 20th of September 2010 and the Supplementary list of Documents of the Defendant filed on the 21st of September 2010 are both to be considered as Supplementary list filed by the respective parties and to be ruled upon and proved or admitted individually during the course of the trial.

The 2nd Summons;

The second Summons upon which the parties moved to file written submissions was the Summons filed on the 1st of October 2010, seeking that this "Court decide by way of preliminary issue whether the alleged guarantee is void and unenforceable by the Plaintiff against the Defendant".

The said Summons does not set out the grounds upon which the guarantee is alleged to be void and unenforceable. The subsequent written submissions of the Defendant set out broadly the provisions relied on; however for an issue to be a preliminary issue it should stand on its own without reference to any other source and without the need for evidence. A preliminary issue ought not to be decided upon facts extracted from affidavits which have not stood the test of cross-examination, unless those facts are admitted by the parties for the specific purpose of the particular preliminary issue.

At paragraph 25 of the Defendants written submissions filed on the 11th January 2011, the Defendant refers to an admission by the Plaintiff "that there exist NO Credit Contract" for the guarantee to be unenforceable under Section 51(2) of the Consumer Credit Act 1995 and 2006. However the Defendant does not make a clear reference as to when and where such an admission had been made. To this Court it appears as an assumption still to be proved clearly at the trial.

At paragraph 26 of the same submissions the Defendant refers to the absence of a default notice under section 80 of the Consumer Credit Act.

The admission of such an absence of such a default notice is not verified as to when and where it was made, and remains to be proved.

The Plaintiff ought not to be surprised by the said issue being answered at the end of the trial as it was aware of such an issue since 21st of September 2010 and at least since the written submissions of the Defendant of the 11th of January 2011, and as such an issue in any event appears in the agreed issues in the Pre Trial Conference Minutes as well.

Therefore for the aforesaid reasons this Court denies the Summons of the Defendant filed on the 21st of September 2010 (2nd Summons) without prejudice to the Defendants right to have the said issue answered after it is particularized with reference to the law relied upon and at the end of the trial.

I must thank the Counsel for their written submissions with many a interesting case law being cited, such as (for the Plaintiff) AB Anand v. ANZ Bank 1997 FJHC 14; (1997) 43 FLR 22 (30 January 1997), Rakib v. ANZ Bank 2008 FJHC 184; HBC277. 2008, Petres v. Fiji Development Bank (2005) FJHC 194, Singh v. Minjesk (2008) FJHC 394, Jaureguy v. Sen (2010) FJHC 482, (for the Defendant) Fiji Military Forces v. Fiji Police Force (2006) FJCA 53;ABU0030U.2006S(28 July 2006), Huong-Lee v. Air Fiji Ltd (2003) FJHC 28, Mulley v. Manifold [1959] HCA 23; (1959) 103 CLR 341 at 345. However due to the reasoning above they are not applicable, and this being an interlocutory order I shall not venture to deal with them in detail.

ORDERS OF COURT;

1. Documents listed in the Affidavit of Deepika Prakash filed on the 20th of September 2010 and the Supplementary list of Documents of the Defendant filed on the 21st of September 2010 are both to be considered as Supplementary list filed by the respective parties and to be ruled upon and proved or admitted individually during the course of the trial.
   
2. The Summons of the Defendant filed on the 21st of September 2010 is denied without prejudice to the Defendants right to have the said issue answered after it is particularized with reference to the law relied upon and at the end of the trial.
   

100. Costs to be costs in the cause.
     

Hon. Justice Yohan Fernando.
PUISNE JUDGE.

High Court of Fiji
At Lautoka
4th April 2011.