Yenktamma v Colonial Mutual Life Assurance Services Ltd [2011] FJHC 57; HBC 348.2008 (9 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 348 of 2003

BETWEEN:

YENKTAMMA Father's name Pardesi Naidu and ISHWAR NADAN also known as AVNEEL ASHWIN SAMY Father's name Ranga Nadan both of Malolo, Nadi Trustees in the Estate of Ranga Nadan father's name Ram Samy of Malolo, nadi.
Plaintiffs

AND:

COLONIAL MUTUAL LIFE ASSURANCE SERVICES LIMITED a duly incorporated registered limited liability company having its registered office at 3, Central Street, Suva.
Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Ms. Dias Wickramasinghe J.

Counsel: In person for the Plaintiffs
: Mr. C.B. Young for the Defendant

Solicitors: Young and Associates for the Defendant

Date of Hearing: 7 February 2011
Date of Judgment: 9 February 2011

INTRODUCTION

[1] Master Udit, by his Order dated 26 February 2008, also dismissed the afore styled action, for want of prosecution; that the action was an abuse of process, in that the Plaintiffs had failed to pursue the case to a finality.

[2] The Plaintiffs by their Notice of Motion dated 7 October 2010, seek reinstatement of the action to the cause list. In support, an affidavit by Ishwari Nadan dated 6 October 2010 is also filed.

[3] The Defendant vehemently objects to the application and filed the Affidavit in Reply dated 2 December 2010, setting out its demurrer to reinstatement.

[4] This action was initiated on 16 October 2003 on an inter- parte summons and affidavit pursuant to Order 32 Rule 1 of the High Court Rules. On 28 October 2003, the matter was heard before Hon Mr. Justice Byrne and leave was granted for the Plaintiffs to file Writ of Summons.

[5] On a perusal of the case record, I find that although the Writ of Summons was filed on 17 November 2003, no steps whatsoever had been taken by the Plaintiffs including service of the Writ on the Defendant.

[6] The Plaintiffs stated that they retained Messrs Patel and Sharma to handle the case, paid $41,800 to file the Writ of Summons and the Interlocutory application and that they were advised on several occasions that the matter was pending before court.

[7] Meanwhile the second named Plaintiff's father was sued by the Colonial Bank in Civil Action HBC 165 of 2008L and on instructions of the Counsel in that case Ms N. Khan, the second named Plaintiff had visited the Registry in February 2010 where he was told that this matter was struck-out.

[8] Since the Plaintiffs have failed to take any steps to pursue their application diligently from 17th November 2003 to 26 October 2008, the Master had dismissed the application in terms of Order 25, Rule 9 of the High Court Rules.

[9] No appeal has been preferred to this court against the dismissal, which is the only remedy available to a party who is aggrieved by a decision of striking out, by the Master.

LEGAL MATRIX

[10] In terms of Order 59 Rule 8 of the High Court Rules, the Plaintiffs should have filed an appeal to High Court after obtaining leave of Court. Order 59 Rule 11 requires an aggrieved party to file an application for leave to appeal by Summons. Instead of Summons, the Plaintiffs filed a Notice of Motion along with an affidavit. I, therefore, hold that the manner of initiating this application for reinstatement is irregular.

[11] The aforesaid irregularity is, however, curable in terms of Order 2 of the High Court Rules. Order 2 empowers inter alia for the court to act on its own motion and make such orders dealing with the proceedings generally as the court thinks fit. I am conscious of the fact that the Plaintiffs have not pleaded any grounds of appeal, except a mere assertion moving for reinstatement. In any event, for the reasons stated below, I am of the view that that there is no purpose of requesting the Plaintiffs to file fresh papers. Therefore, instead of returning the documents to Plaintiffs for legal compliance, I treat the Notice of Motion dated 7 October 2010 as Summons and continue to deal with this matter. I take this view especially considering that the Plaintiffs are appearing in person.

[12] I have no doubt that the Plaintiffs' current predicament was resulted due to the laches of Messrs Patel and Sharma. However, I am unable to place the entirety of the responsibility for laches on the lawyers alone, as the Plaintiffs too had a duty to pursue their action diligently.

[13] Let me therefore consider the explanation given by the Plaintiffs for the delay in submitting this application. Plaintiffs' affidavit states that on several occasions, they enquired the lawyers as to the status of their case and they were informed that the matter was pending in court. There is no independent evidence of this assertion except their affirmation in the affidavit. If not for Ms. N Khan requesting the Plaintiffs to inform her of the status of this case, it would be a reasonable inference to make that the Plaintiffs would have been unaware of the status of this case even to date.

[14] Plaintiffs' affidavit affirms that it was in February 2010 when he found out that his action was dismissed. It took him another 8 months for him to file the instant application. This alone is an unsatisfactory conduct of the Plaintiffs.

[15] The Plaintiffs had not made an application to enlarge time for filing of their application. It is noteworthy to state that the Plaintiffs had attached a copy of the Interlocutory Order of Inoke J in the case of HBC 165 of 2008L marked annexure B to his affidavit, which clearly sets out the law in this regard. While making oral submissions, the second named Plaintiff informed Court that he had studied up to Form 6 and that he knew his English well. He also demonstrated his knowledge of the language when making oral submissions before me.

[16] I have also considered the Writ of Summons dated 17 November 2003. The father of the second named Plaintiff had executed a mortgage in respect of the corpus in issue before this court in favour of the Defendant. After the demise of his father, the defendant has served a 'Demand Notice' on 30 June 1997. The Plaintiffs alleges that sometime in April 2003, the Defendant had sold the corpus without their knowledge. After careful consideration of the particulars of breach, I am not satisfied that the Plaintiffs have a strong prima facie case.

[17] The Plaintiffs also refers to the Inoke J's interlocutory judgment in HBC 165 of 2008L in support of his argument. Let me therefore consider the facts of that case.

[18] HBC 165 of 2008L relates to a leave to appeal application of a final judgment of the Master. The Colonial Bank had filed action against the father of the second named Plaintiff, seeking vacant possession in terms of section 169 of the Land Transfer Act. The Master had entered judgment in favour of the Colonial Bank on the premise that "no cause was shown why vacant possession should be given". The parties in the leave to appeal application for the first time contended that there was a discrepancy in the numbers of the Mortgage Deed stated in the originating summons vis a vis the Demand Notice. Inoke J, considering the leave to appeal application found that that the discrepancy had not been explained and it would amount a crucial error, and granted leave. Upon consideration of His Lordship's decision, I am of the view that the substantive matter before me is different and the above case can be clearly distinguished.

[19] I am not satisfied that the Plaintiffs had given a cogent and credible explanation for the glaring delay on the application before me.

[20] The Defendants in the affidavit in reply strenuously opposed the application and submitted that if the matter is reinstated it would cause grave prejudice to the Defendant. I have carefully considered the matters stated in paragraph 11 of the affidavit of Vandhana Narayan. It appears that the Plaintiffs had not responded to the Demand Notice dated 30 June 1997. The defendant states that since striking out of the application in 2003 the Colonial Bank has changed ownership without this case being included in due diligence, the documents have been archived, the staff who handled the case are no longer available to give evidence which would give rise to substantial prejudice at a trial, and CFLL Accounts of the Bank could also have an impact. I agree with Mr Young that reinstatement would be prejudicial to the defendant due to the inordinate delay.

[21] The Plaintiffs did not even file the proper papers before court. I had no grounds of appeal to consider but was forced to look for grounds in the record, which I did to ensure that the Plaintiffs are not disadvantaged as he chose to have appeared in person.

[22] For the foregoing reasons, I refuse the application for reinstatement. Considering the facts of the case, I do not award costs to the Defendant.

Order

Plaintiffs Notice of Motion dated 7th October 2010 is dismissed.

Ms. D. Dias Wickramasinghe
Judge

At Lautoka
9 February 2011