Khans Shipping Company Ltd v High Commission for the Government of Tuvalu [2012] FJHC 1054; Civil Action 158.2002 (2 May 2012)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 158 OF 2002

BETWEEN:

KHANS SHIPPING COMPANY LTD
PLAINTIFF

AND:

HIGH COMMISSION FOR THE GOVERNMENT OF TUVALU
FIRST DEFENDANT

AND:

GOVERNMENT OF TUVALU of Tuvalu islands.
SECOND DEFENDANT

Appearances: Mr H. Nagin for the plaintiff
Mr K. Muaror for the defendant
Date of hearing: 23 November,2011

JUDGMENT

1. By originating summons filed on 12th April,2002, the plaintiff has sought the following reliefs:-
   
   • (i) A declaration that the charter contract entered between the plaintiff with the

defendants is a valid charter contract requiring compliance of its terms and conditions by the parties.

(ii) A declaration that the plaintiff has fulfilled its part of the obligation under the charter contract and ought to be compensated in accordance with the hire

arrangement agreed upon by the parties.

(iii) An order that the defendants pay the agreed amount of $777,902.34 inclusive

of 8% interest until 18th March, 2002.

(iv) A further order that the same rate of interest and accruing arrears from the 18th day of March, 2002, until the final resolution of this case be paid by the defendants to the plaintiff.

(v) An order that the defendants do not sail remove or otherwise dispose of their vessel named the "M V Niuvaga 11" anchored in Suva Harbour until a further order of this court.

2. The hearing of these proceedings had commenced before Mr Justice Jitoko on 6th May, 2002. The plaintiff was represented then by Mr V.Maharaj. The defendant was represented by Mr Muaror. On 12thJuly,2002, Mr Muaror had disputed the jurisdiction of this Court and asserted that these proceedings should have been instituted in the High Court of Tuvalu. On 31st October, 2002, Justice Mr Jitoko had made order that the issue of jurisdiction be tried first. Both parties had filed submissions on this issue. The Judge's notes of 23rd May,2003, provide that Mr Nagin, counsel for the plaintiff and Mr Muaror had made oral submissions and judgment was to be delivered on notice.
   

Thereafter the case was taken up before me as follows:

1. On 9 December,2010, counsel appearing for the plaintiff on that occasion, and Mr Muaror stated that they had to find their respective briefs. I made order that the case be mentioned on 2nd February,2011.
   
2. On 2nd February,2011, counsel appearing for the plaintiff on that occasion made the same lament. The defendant was unrepresented. I made order that Ruling will be delivered on notice on the preliminary issue of jurisdiction.
   

100. On 12 May, 2011, I held that this court has jurisdiction to hear and determine this matter. Mr Muaror requested time to obtain instructions from his client and peruse the court record. I made order that the case be mentioned on 3 August,2001.
     

4. On 3 August,2011,the hearing was fixed for 23 November,2011, and to be mentioned on 24 August,2011, for affidavit in reply to be filed by the defendant. Mr Muaror was given permission, as requested, to peruse the file and obtain photocopies of documents required.
   
5. On 24 August,2011, the court informed both counsel that the hearing date remained. Affidavit in reply was not filed by the defendant.
   
6. On the date of hearing, 23 November,2011,Mr Muaror made an application for an adjournment. Mr Nagin did not object. I refused the application, since adequate time was given to him since 9 December,2010, to obtain instructions from his client.
   

Mr Nagin stated he moved for judgment in terms of his originating summons, since affidavit in reply has not been filed by the defendant.

3. The determination
   

The preliminary question that arises is whether the claim is properly brought by the originating process adopted. At the hearing, Mr Muaror did not raise any objection to the procedure adopted by the plaintiff .

The claim arises from a charter party entered into between the parties, which provides that the plaintiff will hire the motor vessel CAGIDONU to the defendant for a period of 30 days commencing from 6th July,2000. The charter party agreement is attached to the affidavit in support of the originating summons. The affidavit provides that the charter rate was FJD $2500.00 per day and 8% interest per day on delayed payment. It is alleged the third and final instalment of the charter party amounting to $ 14,421.18 was not paid.

Or 5, r 4 stipulates the instances, where it is mandatory that proceedings are required to be brought by way of writ. Contracts, which arise from breach of duty are included therein. Accordingly, in my judgment, the plaintiff's claim, arising as it is from a charter party contract, should have been brought by way of writ of summons

4. Order
   

The plaintiff's originating summons is struck out .I make no order as to costs .

A.L.B.Brito-Mutunayagam
Judge

2nd May, 2012