Pillay v Prasad [2011] FJHC 3; HBA4.2010L (18 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL APPELLATE JURISDICTION

Civil Action No: HBA 4 of 2010L

BETWEEN

VENAIGAM PILLAY
Appellant (Original 1st Defendant)

AND

GEORGE KAMLES PRASAD
Respondent (Original Plaintiff)

INTERLOCUTORY EX-TEMPORE JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: No Appearance for the Appellant.

Mr S Nacolawa for the Respondent.

Solicitors: Self represented Appellant.

Nacolawa & Co for the Respondent.

Date of Hearing: 18 January 2011
Date of Judgment: 18 January 2011

INTRODUCTION

[1] This is an appeal from the Magistrates Court. The Appellant was the First Defendant in the Magistrates Court and the Respondent was the Plaintiff. The First Defendant rented his house to the Plaintiff. A dispute arose between them and the First Defendant, through a bailiff, the Second Defendant, levied distress for rent against the Plaintiff. The Plaintiff sued both defendants and on 9 April 2009, the Magistrates Court found in favour of the Plaintiff against both Defendants. The First Defendant now appeals that judgment. The Second Defendant did not appeal.

CASE HISTORY

[2] The Respondent filed his claim in the Lautoka Magistrates Court on 9 September 2008 against the Appellant and his bailiff for damages and other relief. The Defendants never appeared in the Magistrates Court to defend the claim despite being served so the Respondent formally proved his claim and the learned Magistrate granted the relief sought by him on 9 April 2009. The judgment order was sealed on 2 December 2009 and served on the Appellant on 17 December 2009. That was followed by a Judgment Debtor Summons in April 2010.

[3] The appeal was initiated by a letter from Mr Pillay to the Magistrates Court Registry dated 31 May 2010. It first came before me on 6 August 2010. Both parties appeared in person. Mr Pillay said that he was representing himself and the Respondent was to be represented by Mr Nacolawa. I adjourned the matter to 20 August 2010 to fix a hearing date. On 20 August, again both parties appeared in person. Mr Prasad indicated that his counsel wanted a hearing date in December 2010 so I set the matter down for hearing on 6 December 2010. Mr Pillay did not object. That was the last time Mr Pillay appeared in Court.

[4] On 29 October 2010, Mr Nacolawa filed a Summons to strike out the Appeal. The Summons was served on Mr Pillay on 9 November 2010. The return date on the Summons was 6 December 2010, the same date for the hearing of Mr Pillay's appeal. The matter was called before another Judge on 6 December but Mr Pillay did not appear. It was further adjourned before me for 18 January 2011. Again Mr Pillay did not appear on 18 January 2011 and Mr Nacolawa asked that I dismiss the appeal.

DISMISSAL OF THE APPEAL

[5] The Appellant has not appeared on the last several occasions without any explanation. I do not think he is serious about his appeal. He has failed to prosecute it with reasonable diligence. I therefore strike out the appeal for the Appellant's non appearance and for his failure to prosecute his appeal with reasonable diligence.

COSTS

[6] Mr Nacolawa asks for costs. I think his client is entitled to it and I award costs to the Respondent which I assess at $500 having regard to the number of court appearances and attendances for service of court documents and consideration of the appeal record.

ORDERS

[7] I therefore make the following orders:

1. The Appeal is struck out and dismissed.
   
2. The Appellant is to pay the Respondent's costs of $500.
   

Sosefo Inoke
Judge