Lal v Nakacia [2011] FJHC 481; HBA 11.2009L (30 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL APPELLATE JURISDICTION

Civil Action No: HBA 11 of 2009L

BETWEEN:

VIJAY LAL
Appellant

AND:

SAIMONI NAKACIA
Respondent

APPEAL FROM MAGISTRATES COURT

Judgment of: Inoke J.

Counsel Appearing: Mr M Degei (Appellant)
Appearance dispensed with

Solicitors: H A Shah (Appellant)
Self represented (Respondent)

Dates of Hearing: 11 July 2011

Date of Judgment: 30 August 2011

INTRODUCTION

[1] This appeal from the Magistrates Court has been struck on three occasions for non appearance of counsel for the appellant.

[2] On 16 May 2011 the appellant filed another application to restore the matter which the Master has now referred to me for directions and hearing. Counsel for the appellant informed me on the application’s first call on 14 June 2011 that the application had been served but no affidavit of service had been filed so I adjourned the matter to 20 June 2011 for mention. The respondent appeared in person on that day and informed me that the appeal had been struck out three times before and he had been appearing on each occasion. He had been sick for a while and his wife had been appearing on his behalf. As the application was on legal points I dispensed with his further appearances and set the hearing for 11 July 2011.

CASE HISTORY

[3] This appeal first came before me on 11 September 2009. No one appeared on that date despite the notice of adjourned hearing being sent. A further notice was sent on 16 September for mention on 30 September 2009. On that day counsel appeared for the appellant but the respondent did not. It was not clear whether the respondent had been served with the appeal papers. I adjourned the matter to 16 October 2009. On 16 October 2009, counsel appeared for the appellant but the respondent did not. Service had not been effected. I therefore adjourned the matter to the Master for 6 November 2009. Counsel appeared for the appellant and the respondent appeared in person. The Master adjourned the appeal before me on 10 December 2009 for me to fix a hearing date. On 10 December, both parties being present and ready I set the hearing of the appeal on 23 April 2010. On 23 April 2010 counsel appeared for the appellant but the respondent was sick and his wife appeared for him. As the matter was not urgent, I adjourned the hearing to 30 April 2010 to enable the respondent to appear in person and fix the hearing date. Neither counsel nor the parties appeared on 30 April 2010 so I struck the appeal out. I wrote on the file: “counsel for the appellant appeared on the last occasion; this was an appeal against an award for payment of moneys and no adverse consequences if appeal is struck out, so appeal is struck out accordingly. No order as to costs.” On 27 May 2010, the appellant filed a motion for re-instatement which was made returnable on 9 July 2010. It was adjourned to 6 August 2010 for the respondent to obtain the appeal papers and legal representation. The respondent was again sick on 6 August 2010 and could not attend so I adjourned the matter to the Master for 27 September 2010. The notice of adjourned hearing was sent but neither party nor counsel appeared on 11 September 2010 so the Master adjourned it to 12 October 2010. The matter was called on three more occasions and on the third occasion, 11 November 2010, neither party nor counsel appeared again, so the Master struck the appeal out.

THE EXPLANATION FOR THE PREVIOUS DISMISSALS

[4] The appellant, Mr Lal, swore an affidavit in support of his application. The reason for non appearance by his former lawyers has been explained as “a mix up in instructions” from his Rakiraki lawyer to his agents in Lautoka. His Rakiraki lawyer is now deceased and he has engaged his current solicitors. I do not think these explanations are satisfactory.

THE LAW

[5] The following cases were cited to me: Rao v Goundar [1998] FJHC 72; Hbc0308d.96s (22 May 1998); Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9; ABU0062J.2006 (9 March 2007) and WM Angus (Fiji) Ltd v Karan [2008] FJHC 165; HBC426.1986 (30 July 2008). I have considered them in Yang v Fiji Development Bank [2010] FJHC 447; HBC407.2000L (30 September 2010) and in Westmall v CUL [2010] FJHC; HBC 175 of 2001L (6 October 2010).

[6] The underling principle is that the power to summarily dismiss cases should be exercised cautiously and only in the clearest of cases taking into account the behaviour of the parties and their counsel and the merits of the case.

APPLICATION TO THE CASE

[7] The reasons given for the non appearance of counsel for the appellant on several occasions is very unsatisfactory and the consistent failure to appear is not acceptable. The appellant has been given enough opportunity to prosecute his appeal. I am not convinced that he has a good appeal. Under these circumstances I refuse to re-instate the appeal.

COSTS

[8] I make no order as to costs.

ORDERS

[9] The application to re-instate the appeal is struck out with no order as to costs.

Sosefo Inoke
Judge