Lata v Nasib [2011] FJHC 703; HBC244.2006 (3 November 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 244 of 2006

BETWEEN:

PRAVEEN LATA father's name Ramesh of
Wailailai, Ba, Cook.
Plaintiff

AND:

MOHAMMED NASIB father's name not known to the Plaintiff of Tauvegavega, Ba.
1st Defendant

AND:

SHEIK AMZAD SAHEB father's name not known to the Plaintiff of Korovutu, Ba, Driver.
2nd Defendant

Appearances:

Q.Vokanavanua (S.K.Ram) for the Plaintiff
Mohammed Nasib Drivers Licence No.725361 - 1st Defendant
Sheik Amzad Saheb Driver's Licence No.719455- 2nd Defendant

ORDER

1. Notice of Adjourned Mention (NOAM) dates, have been sent to the parties by the registry to appear on the 25th May 2011 in this case. On the 25th of May 2011 on both parties not responding to notice issued by this Court this Court dismissed the action. As a measure of better case management the Court is compelled to deal with cases where parties constantly ignore notice of the registry, where notices have to be issued repeatedly where one or the other party only appears, again requiring notice to the absent party. There are times, when Parties are not interested in prosecuting their cases, the Court may act under Order 18 Rule (1)(d) or Order 25 Rule 9(1) (High Court Rules 1988) if it considers such conduct as an abuse of the process of Court, and strike out an action.
   
2. The Plaintiff has filed the current application to set aside the order of this Court made on the 25th May 2011 striking out this action. The order of 25th May 2011 was made in the exercise of the inherent jurisdiction of this Court in the interest of better case management and without hearing parties and without making any finding of fact, and as such it is an order that this Court can set aside again in the exercise of its inherent jurisdiction. As such it is not an instant that this Court considers that it is functus officio.
   
3. The reasons the Plaintiff has set out in its application are that her Counsel Dr. Sahu Khan has been disbarred from practicing by the Fiji Independent Legal Services Commission on the 4th May 2001, and NOAM dates have not reached the Plaintiff in person. The Plaintiff has taken interest in the case and has tried to contact her Counsel, however the predicament of her Counsel has prevented the NOAM from being brought to her notice as the office of the Practice of Dr. Sahu Khan was closed consequent to the orders of the Commission. Therefore the circumstances of the Plaintiffs inability were beyond her control and not due to any lack of interest in her case. She was without Solicitor and Counsel due to disability of Counsel and Solicitor since 4th May 2011. The Plaintiff has changed Solicitors from Messrs Chaudhary & Associates to Messrs Sahu Khan and Sahu Khan by the Notice of Change of Solicitors on the 14th January 2011. The Defendants too were in similar circumstances in that the Defendants Solicitors too had filed Summons for withdrawal of Solicitors on 10th February 2011, and the Master has allowed that application of consent on the 2nd of March 2011.
   
4. When this matter came up after notice to the Defendants by personal service, of the Plaintiffs application to reinstate, the Court gave the Defendants who appeared in person time to file objections. However the Defendants have not filed objections, instead have tendered in open Court what appears to be a recital of their defence, with the Court left to make a suitable order under the circumstances.
   
5. As such the NOAM to parties has been sent by the registry to the former Solicitors of the respective parties by error. As such I see this as a fit case in which this Court should exercise its inherent jurisdiction and set aside the order of 25th May 2011 and reinstate this case.
   

Orders;

1. Orders of this Court of 25th May 2011 striking out and dismissing this action are set aside and this action is reinstated and restored to the trial roll.
   
2. Parties to bear their costs.
   

100. Matter to be mentioned on 5th December 2011 at10 am to fix for trial.
     

Hon. Justice Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
3rd November 2011.