Sharla v Nasau [2012] FJHC 938; HBC86.2003 (12 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Action No. HBC 086 of 2003

BETWEEN:

SHARLA alias SARLA
(daughter of Ugrasen) of Namada, Ba, Domestic duties,
in propria persona and as the Administratrix of the
ESTATE OF SHALENDRA PRABHAS also known as
SHALENDRA PREBHAS SINGH
(son of Ram Dayal) of Namada, Ba, Driver/Farmer, Deceased
Plaintiff

AND:

TURUKAWA NASAU of Ba, Lorry Driver
1st Defendant

AND:

BIRJA NAND
(father's name not known to the Plaintiff) of Tavua, Truck Proprietor
2nd Defendants

AND:

FIJI SUGAR CORPORATION LIMITED
a limited liability Company having its registered Office at 3rd Floor, Western House, Lautoka
3rd Defendants

AND:

FIJI SUGAR CORPORATION LIMITED
a limited liability Company having its registered Office at 3rd Floor, Western House, Lautoka
THIRD PARTY

APPEARANCES:

H.A. Shah for the Plaintiff

Ashneel Sudhakar of A.K. Lawyers for Applicants as Solicitors for

Applicants

Counsels Submissions

First Call.

Mr. Shah appearing for the Plaintiffs object to the Notice of Motion of 8/March/2012 made by A.K. Lawyers, and states that even though the Notice of Motion had not been served on him he objects to A. K. Lawyers filing this motion and states that 'in limine' the Notice should be dismissed. He further states that though he has not been served, still it is a matter in which the party seeking to intervene; (Submissions of Mr. Shah;).

(1) has made an application by summons filed on 9/March 2005 for a declaration of non liability in this action itself and it has been dismissed by Judge Connors by his order of 21/10/2005, on the Sun Insurance Company Limited withdrawing their summons.

(2) Subsequently Sun Insurance Company Limited had filed action No. 74 of 2006 by originating summons seeking a declaration of non liability and that action too was withdrawn by Sun Insurance Company Limited and struck out.

(3) Both above applications have been in respect of liability of Sun Insurance Company Limited, in respect of the liability in this action which now again is being sought to be dealt with by the current Notice of Motion.

(4) The matter sought to be revived is now res-judicata.

(5) The Court is functus officio.

(6) Mr. Maharaj who is the standing counsel for the Sun Insurance Company Limited and that the fact that he has not made this application and A.K. Lawyers has made the application and the fact it was Mr. Maharaj who according to Mr. Shah who had withdraw case No. 74/2006, Mr. Shah states that A.K. Lawyers should not ethically make this application.

Mr. Sudhakar states in reply.

Mr. Sudhakar for the Applicant Sun Insurance Company Limited states that even though the other parties being the Defendants has not been served, still he moves that the objection of Mr. Shah be taken up 'in limine' and his application be dealt with as he can then proceed to make an application to the Court of Appeal, as otherwise he states he has a difficulty of serving all the parties as set out in his application itself.

Mr. Sudhakar submits that the current application and the previous withdrawal and dismissed applications referred to by Mr. Shah deal with the same liability of Sun Insurance Company Limited except in that in the summon of 9/March/2005 in this case the relevant policy number is erroneously sent out as 096881 whereas it should be 06771 as set out in action No. 74 of 2006.

Order (Extempore)

This is a 2003 action. After the institution of this action Sun Insurance Company Limited has made an application for a declaration for non liability in this action itself in 2005 and that application had been withdrawn and struck out by Connors J in 2005. In addition to that Sun Insurance Company Limited has again filed another action 74 of 2006, for a declaration of non liability in respect of the accident in this action, and that action was withdrawn by Sun Insurance Company Limited a Plaintiff in action No. 74 of 2006. That action filed in 2006 was withdrawn in 2010. In action No. 74 of 2006 Sun Insurance Company Limited had made the Defendant and Plaintiff of this action party Defendants. On the 27/9/2010 when the Sun Insurance Company Limited withdrew their action 74/2006, they were represented by Counsel Mr. Suresh Maharaj, and as such, it was informed withdrawal. Sun Insurance Company Limited would no doubt have proceeded to so withdraw its action 74/2006 on legal advise and on being fully aware of the consequences. Sun Insurance Company Limited could have defended this action or moved to be party to this action on withdrawing action 74/2006 if they were withdrawing with the intent of pursuing non liability. The trial commenced on 27/9/2010 and since then till judgment was delivered on 26/1/2012 the Sun Insurance Company Limited did not make any application to be added as a party nor have they defended the Defendant as Insurance Companies do. Sun Insurance Company Limited having conceded their application not once but twice, for declaration of non liability, now seeks to do so again after the judgment has been delivered.

I agree with Mr. Shah, that when the issue of non liability was withdrawn, it was done so, as set out in the order itself in 74/2006 after reading the affidavit therein, and as such it is after going in to the merits, and as such that withdrawal and dismissal now acts as "res-judicata" to the current application.

Further more, this Court having delivered judgment the Court is also now functus officio in that this Court cannot reopen the trial by making Sun Insurance Company Limited a party to this action.

The judgment of Court must carry finality and a party that concedes its position, after informed knowledge cannot be heard, to seek another hearing after judgment. The application of Sun Insurance Company Limited is without precedent in that, Sun Insurance Company Limited knew of this action and withdrew their action No. 74/2006 on the same day this action was taken up for trial in the same Court.

While agreeing with the submission of Mr. Shah as aforesaid items (1), (2), (3), (4) and (5), I shall not seek to comment on item (6) of Mr. Shah's submission as it is not necessary though it certainly has merit.

Furthermore this is an action filed in 2003. The Copy Pleadings had been filed in 2006 and the Agreed Bundle of Documents filed in 2008. The matter finally came up to be fixed before me within a few weeks of commencing sitting for the first time in Lautoka in the latter part of 2009. The matter was fixed for trial thereafter for the 27/9/2010 as there were many such cases waiting to be taken up for trial there being a substantial backlog of many old cases not heard or dealt with. In some such cases this Court had to call up parties to attend to pretrial steps which were long overdue and manage and nurse their cases before this Court till they were ready for trial while attending to the trials already fixed before this Court. This Court recollects that sometime in May 2010, this Court had well over 30 trials for that month only and another substantial number of mention matters coming up before this Court to attend to pre trial steps long neglected and this Court had, concluded over 30 trials and dealt with the other matters as well within that month easing the backlog. It is due to such efforts that the High Court is now able to take up for trial matters instituted in 2011, within a year in 2012. To permit parties, to litigate with neglect forces the other parties to suffer an injustice. In this case, Sun Insurance Company Limited has made the Plaintiff maintain this action, (who under difficult circumstances no doubt as a party who has lost her husband due to the accident) and was made to defend another action by Sun Insurance Limited in Case No. 74/2006 for almost 4 years till they withdrew that action in 2010. The current application as such in addition to the submission of Mr. Shah amount to an abuse of the process of Court and ought not to have been made by Sun Insurance Company Limited, after having resisted the claims of the Plaintiff since 2003. Sun Insurance Company Limited knowing very well that this action was going to trial on 29/7/2010 waited almost 1 year and 3 months to make an application to be added. Even that too after judgment was delivered. Now Sun Insurance Company Limited cannot seek that they be given an opportunity to present any evidence that they themselves abandoned and did not present when they had ample opportunity to present when they knew the date time and place this case was to go to trial. At the trial evidence is tested by cross examination as against any affidavits that may be on the record, which are not tested by cross examination.

As such the Notice of Motion of 8 March 2012 made by Sun Insurance Company Limited is dismissed in view of the submission of Mr. Shah for the Plaintiff as aforesaid and as an abuse of the process of Court, in addition to the fact that this Court may well be functus officio. I consider this application as a fit matter in which this Court should award indemnity costs to Mr. Shah, and Mr. Shah seeking $750/-, I award Mr. Shah costs in $750/- as indemnity costs summarily assessed.
As such Notice of Motion of 8/March/2012 of Sun Insurance Company Limited is dismissed in limine subject to indemnity costs summarily assessed in $750 to be paid to Plaintiff.

Sgd.
Y.I. Fernando
JUDGE

12/3/2012