Mishra Prakash & Associates v Lautoka General Transport Company Ltd [2011] FJHC 98; HBC136.2007 (1 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Action No. HBC 136 of 2007

BETWEEN:

MISHRA PRAKASH & ASSOCIATES of 16 Mana Street, Lautoka, Barristers & Solicitors
Plaintiff

AND:

LAUTOKA GENERAL TRANSPORT COMPANY LIMITED a limited liability company whose registered office is at Bouwalu Street Lautoka
Defendant

Appearances

For the Plaintiff; Mr Nand O/I of Mishra Prakash & Associates.
For the Defendant; Faiz Khan

Hearing; 23/9/2010.
Order; 1/2/2011.

ORDER OF THE COURT

On the 7th December 2009 this matter was fixed for trial for the 22nd July 2010. However when this Matter was taken up for trial on the 22 July 2010 the Defendant appearing by Ms. M Lord moved for an adjournment on the basis that the Defendant has "not instructed her properly". The plaintiff appearing by Ms. Pamela Kenikorea objected to an adjournment. As no ground was urged as such to justify an adjournment the said application was refused by court. Ms. Lord thereafter urged that one Mr. Pyara from the Defendant Company handed over some papers and went away. The Court had the Defendant by its company name called outside the Court, to which a lady appeared. Ms. Lord submitted that the said person is not Mr. Pyara but a lady by the name of Ms. Elanoa of the Defendant Company. Ms. Lord thereafter according to the notes kept by this Court moved to withdraw from the case submitting lack of proper instructions once again.

The Court noted that the pre trial minutes have been filed and that the Plaintiff was ready with their witnesses. Though the Court called upon Ms. Lord to do her best in conducting the trial, Ms. Lord declined to accept responsibility for the case submitting that the Defendant is not interested in the case and sought the indulgence of the Court to withdraw from the case. This Court permitted Ms. Lord to withdraw subject to the trial proceeding. On Ms. Lord withdrawing from Court Ms. Elanoa came forward and stated that she is from the Defendant Company, and on being questioned by Court whether she had a letter of authority from the Defendant Company she answered in the negative. When she was asked for some form of identification again she answered in the negative. The Defendant being a company and there being no Solicitor or a person authorized to appear on its behalf or represent it, this Court proceeded to trial under Order 35 Rule 1 (2) on the basis that there was no appearance by the Defendant, and the Plaintiff was called upon to commence the trial.
The Plaintiff commenced the trial as above and led the evidence of one witness being a practitioner before this Court (Mr. V.M.D. Mishra.) marking exhibits P1- P10.
At the end of the Plaintiffs evidence the Court noticed Ms. Elanoa still present in Court and the Court again called out the name of the Defendant Company by name inside and outside Court and there was no counsel or authorized person to cross examine the Plaintiff.
The Court called again upon Ms. Elanoa whether she had any letter of authority from the Defendant Company, and she did not.

Thereafter the Court reserved judgment on notice.

On the 13th August the Defendant filed "Summons for Reinstatement".
Among other relief's the Defendant sought the orders made on 22nd July 2010 relating to the non appearance of the Defendant be set aside.

If the trial proceedings are to be set aside and the defendant given an opportunity to participate at the trial then no doubt the plaintiff would loose the advantage it gained of an early conclusion to their case.

However even if this court enters judgment on the evidence led still it would be subject to appeal, and the defendant having been deprived of an opportunity to defend at the trial the chances of a keen appeal is almost certain.

The delay in recovery ultimately is unavoidable. Even if the plaintiff succeeds it would not be after a defended trial.

A party is certainly entitled to an advantage gained in an adversary trial system. However at the same time a party cannot benefit by an advantage gained at the expense of justice.

The Plaintiff is a firm of Solicitor suing for fees and expenses alleged to be due. The relationship between the Solicitor and client is regulated by statute, rules and traditions. The amount claimed by the plaintiff has not been taxed and is not in the nature of a liquid claim.

The defendant lost its opportunity to defend itself at the trial due to its Solicitor withdrawing, and not being a natural person it could not be represented by a layman without a written authority by it.

The defendants Solicitor withdrew on the basis that the defendant, their client, is not interested in the case and due to lack of "proper instructions". The first application was for an adjournment. On that application being refused only the defendants Solicitor sought to withdraw.

Before permitting the Solicitor to withdraw the court called out the name of the defendant. A person said to be an employee of the defendant appeared, however without written authority to represent the defendant. It is clear that the defendant had no prior notice of its Solicitors intention to withdraw. It may be said, that such notice would not matter if the defendant had no interest in the case. It is on lack of interest on the part of its client and resulting lack of "proper instructions" as submitted by the defendants Solicitor that court gave the defendants Solicitor permission to withdraw subject to the trial proceeding.

However the employee who presented herself before the court remained in court till the end of the proceedings in the case, which the court noted, and such interest in its case contradicts the ground of lack of interest, resulting in lack of "proper instructions", as submitted by the withdrawing Solicitor.

The affidavit of the Defendants Director Mr. Pyara Singh complains of the defendant's difficulty in obtaining the relevant files and documents from its Solicitor who opted to and moved to withdraw. This aspect the court finds particularly disturbing. The Solicitor having moved to withdraw ought not to obstruct the defendant's right to access to court by withholding the relevant files and documents from it.

The affidavit of the defendants Director however commendably makes no aspersions against its former Solicitor but urges the lack of clear communication as to the significance of the trial date.

The defendants Solicitor is not before court in these proceedings and as such this court shall make no findings against them. However this court has to take in to consideration the fact that the defendants current application is made by the defendant through another Solicitor and that there appear to be an obstruction to the defendants right to access to court. Such circumstances throw doubt upon the basis and intentions of withdrawal as stated by its Solicitors on the day of the trial.

Order 67 Rule 6 of the High Court Rules (1988) provides the procedure by which a Solicitor may withdraw. However an application to withdraw under Order 67 Rule 6 requires to be made by summons and notice of such summons must be served on the party (client) the Solicitor acted for, unless the Court otherwise directs [Order 67 Rule 6(2)]. The rationale behind Order 67 Rule 6 is to provide a procedure for a Solicitor to absolve himself of the obligation and the responsibility of being considered the Solicitor of that party until the final conclusion of the cause or matter [Order 67 Rule 6(1)]. It is in the interest of the Solicitor to make such an application and absolve himself from his continuing professional obligation. However to avail himself of such an application the Solicitor needs to serve a summons and give prior notice to his client as above. There was no such opportunity as Ms. Lord made the application on her feet on the day of the trial. Order 67 Rule 6 is not exhaustive, and the application to withdraw by Ms. Lord was not under Order 67 Rule 6.

Ms. Lord first made an oral application for an adjournment and on that application being refused (on being objected to by the Plaintiff), she made the oral application to withdraw. There is no purpose in refusing an application to withdraw by a Solicitor, as such a Solicitor is of no assistance to his client or the Court. This Court was not inclined to retain Ms. Lord in court against her will in these proceedings, and as such this Court permitted Ms. Lord to withdraw subject to the trial proceeding. As such Ms. Lord withdrew with the full knowledge that the trial would proceed in her absence against her client, and that too without prior notice of such withdrawal to her client. She is not absolved of her professional obligation to her client by the Court permitting her to withdraw. By such withdrawal and as there was no authorized person to represent the Defendant which is a legal persona (being an incorporated company), the Court was compelled to proceed under Order 35 Rule 1(2) on the premise that there was no appearance for the Defendant. Mr. Pyara Singh (a Director of the Defendant Company) in his affidavit states that it was Mr. Khan who was retained and that Ms. Lord did not have his consent to appear for the Defendant.

At the end of the Plaintiffs evidence this court noted that Ms. Elanoa was still present in court, and appeared to have stayed through the proceedings. Such circumstances prompted this court to reserve judgment.

Withdrawing as they did, when the defendant was still very much interested in its case, the defendants Solicitors deprived the defendant the right to defend itself. Even thereafter the withdrawing Solicitors appear to have obstructed the Defendants access to Court. However both the Plaintiff and the defendants Solicitor including Ms. Lord are members of the bar and officers of this court.

The present Solicitors for the Defendant brings to the attention of this Court that no inspection of documents have been undertaken prior to the trial suggesting that same ought to have been attempted by the previous Solicitors in the interest of the Defendant. (By additional reliefs sought in their application.)

The Defendants previous Solicitors ought to have been mindful that they were representing a litigant against a fellow practitioner and they ought to have taken care not to open themselves to allegations of partiality. At least in such cases trial diary entries containing reminding dates and records of correspondence to attend consultations etc, should be maintained. As the said Solicitors are not before court in this application and have had no opportunity to explain I make no findings against them.

Justice delayed is justice denied. However justice must also manifestly be seen to be done. Delay may affect one case but if justice is not manifestly seen to be done even in one case it affects all the cases and the administration of justice as a whole.

I am sure, the Plaintiff being a prominent firm of Solicitors would not find any satisfaction out of a judgment in their favour, born of an advantage at the expense of justice or with even the slightest taint of unfairness.

Inherent jurisdiction of Court;

In Hukam Chand Bold v. Kamala Nand Singh [ (1906) 33 Calcutta 927.] Woodroffe J. said:
"Court has in many case cases where the circumstances require it, acted upon the assumption of the possession of an inherent power to act ex debito justitiae nd to do real and substantial justice for the adminis-tratitration of which it alone exists. It has been held that, although the Code contains no express provision on the matters hereinafter mentioned the Court has an inherent power ex debito justitiae to consolidate; postpone pending the decision of a selected action; to advance the hearing of suits; to stay on the ground of convenience cross suits; . to decide one question and to reserve another for investi-gation, the Privy Council pointing out that it did not require any provision of the Code to authorize a judge to do what in this matter was justice and for the advantage of the parties . These instances (and there are others) are sufficient to show, firstly that the Code is not exhaustive, and, secondly, that in matters with which it does not deal, the Court will exercise an inherent jurisdiction to do justice between the parties, which is warranted under the circumstances and which the necessities of the case require. "
(the reference therein is to the Indian Code of Procedure)
What Woodroffe J stated over hundred years ago, is still true. Like old wine it is intellectually outstanding. ( The said case was cited by Howard CJ and Wijewardene J in their judgment in the Sri Lankan case of Selvadurai Vs. Rajah et al[1940] LKCA 14; , 41 NLR 423.)

In Grimshaw VS. Dunbar (1953) 1 All E R 350 at 355 Jenkins LJ stated;

"Be that as it may a party is prima facie entitled to have it heard in his presence. He is entitled to dispute his opponent's case and cross- examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the Court. If by mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that the litigant who is accidentally absent should be allowed to come to the Court and present his case, no doubt on suitable terms as to costs...."

This court has not yet delivered judgment in this matter and as such not functus officio. Equally there is no prescribed limitation in time for an application to be made or considered in exercising the inherent jurisdiction of Court.

The Plaintiffs evidence led in this action amounted only to about 3 and a half pages of typed transcript. The Court by its directions can endeavor to minimize the delay caused to the Plaintiff by the actions and omissions of the Defendant and his previous Solicitors so as to cause the Plaintiff minimum prejudice.

Given the aforesaid circumstances Court finds and is compelled by conscience to exercise its inherent jurisdiction to avert and prevent an injustice where the Defendant has been deprived of an opportunity to defend itself.

Therefore invoking the inherent jurisdiction of this court, the proceedings of the 22nd July 2010, under Order 35 Rule 1(2), in this case, shall be set aside subject to the following orders and directions of court;

1. the withdrawal of the Defendants former Solicitors Iqbal Khan and Associates and Ms. M. Lord, on the 22nd July 2010 to stand,
   
2. the Defendants former Solicitors, being the firm of Iqbal Khan and Associates including Ms. M. Lord, to hand over all files and documents relevant to this action to the Defendant, and such handing over to be done within 7 days of the communication of this order and may be done by returning such files and documents to the Defendants current Solicitors, or by depositing same with the Deputy Registrar of the High Court of Lautoka, and the said Solicitors therefore and hereby are directed by this court to do so,
   
3. the proceedings of 22nd July 2010 had under Order 35 Rule 1(2) is hereby set aside and the trial of this action to be fixed subject to the following directions of Court;
   
4. that inspection of documents to be concluded and agreed bundle of documents to be filed within 45 days of this order,
   
5. this case to be mentioned 60 days from this order to fix a fresh date for trial, or on agreement of parties a trial date to be fixed for a day(s) 60 days after this order.
   
6. the defendant to pay $500 as costs to the Plaintiff.
   

Y I Fernando.
PUISNE JUDGE

High court of Fiji
At Lautoka
1st February 2011.