Bano v Ali [2014] FJHC 516; HBC221.2009 (11 July 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 221 of 2009

BETWEEN:

HUSSAN BANO
of Lot 37, Narere, 8 Miles, Stage II, Nasinu, Businesswoman
PLAINTIFF

AND:

MANSUK ALI
of Stage II, 8 Miles, Narere, Taxi Driver
FIRST DEFENDANT

NATIONAL BANK OF FIJI LIMITED TRADING AS COLONIAL NATIONAL BANK, a body corporate duly constituted under the companies Act Cap 247 of 3 Central Street, Suva, Fiji
SECOND DEFENDANT

: THE REGISTRAR OF TITLES
whose registered office is situated at Attorney General's Chambers, Level One, Suvavou House, Suva
THIRD DEFENDANT

BEFORE: Master Thushara Rajasinghe

COUNSEL: Ms. Karan N. for the Plaintiff
Mr. Narayan E. for the first Defendant
Ms. Sharma T. for the second Defendant

Date of Hearing: 4th March, 2014
Date of Ruling: 11th July, 2014

RULING

1. INTRODUCTION
   

1. This is the notice issued by the Court of its own motion pursuant to Order 25 rule 9 of the High Court Rules, demanding the Plaintiff and the Defendants to show cause why this action should not be struck out for want of prosecution or as an abuse of the process of the court.
   
2. Upon being served with this Notice, both the Plaintiff and the Defendants appeared in court on 14th of November 2013. Directions were then given to the Plaintiff to file her show cause in 7 days and the Defendants to file their affidavit in opposition in 7 day thereafter. Only the Plaintiff and the second Defendant filed their respective affidavits, whereas the third defendant opted not to file any. The Plaintiff informed the court that the first defendant has passed away. Subsequently, this notice was set down for hearing on the 4th of March 2014, where the counsel for the Plaintiff and the Defendants made their respective oral arguments and submissions. Having considered the respective affidavits and the submissions, I now proceed to pronounce my ruling as follows.
   

2. BACKGROUND
   

3. The Plaintiff instituted this action by way of a writ of summons on 24th of July 2009 seeking following orders inter alia;
   
   1. The Caveat No 717383 be extended indefinitely,
      
   2. A stay on the enforcement of the mortgage sale proceedings pursuant to section 86 of the Consumer Act 1999;
      
   3. The second Defendant provide full particulars of the mortgage loan together with the particulars of interest calculated over the said property so far;
      
   4. The said property be transferred to the Plaintiff with the mortgage loan restructured or refinanced under sections 66, 67, and 68 of the Consumer Credit ( Act) degree 1999 and the terms and condition of the loan varied for a period of 25 years and repayment to be approximately $ 400 per month and $ 5,000 payment by Plaintiff for her contribution over the loan or alternatively;
      
   5. The Second Defendant reconsider the Plaintiff's offer of $ 66,000 with liberty be given to the Plaintiff to seek time and assistance from other financial institutions;
      
   6. General Damages;
      
   7. Interests;
      
   8. Costs of this Action;
      
   9. Any other orders of this honorable court which may seem just;
      
4. The Plaintiff claim is founded on her allegation, that her late husband had negligently defaulted the repayment of the mortgage loan of their matrimonial property. She then made an offer to the second defendant bank to restructure the loan facility and transfer the property together with the mortgage to her, which the second defendant refused.
   
5. The Plaintiff, having instituted this action, filed an ex –parte notice of motion dated 24th of July 2009, seeking an order to extension of caveat No 717383 until further orders of the court inter alia other orders sought in that motion. His Lordship Justice Pathik on 24th of September 2011, granted an interim order to extend the said caveat until further orders of this court.
   
6. Subsequently, the second Defendant filed their statement of defense and the Plaintiff filed her reply to the said statement of defense. The Plaintiff and the 2nd Defendant then filed their respective affidavits verifying list of documents and were ordered to conduct a pre-trial conference. The Plaintiff was granted time till 29th of July 2011 to file the PTC minutes, agreed bundle of documents and Order 34 Summons on the 17th of May 2011. The court record shows that the counsel for the Plaintiff, Mr. Shah appeared on 29th of July 2011, however, no steps had been taken by the Plaintiff. This action has been in abeyance ever since until the court of its own motion issued this summons on the parties.
   

The Plaintiff's Submissions,

7. The Plaintiff blamed her former solicitor for their inaction to take steps to take this matter forward and stated that her file was returned to her by her solicitor in January 2013. She then sought the instruction from another lawyer, but failed to take any step until this notice was served on her in October 2013. Moreover, She stated that she was sick and admitted to CWM hospital on 24th of June 2012, and undergone a surgery on 27th of August 2012. She then went to India and Australia for medical purposes. Having stated these reasons, she urged that the delay was not intentional, inexcusable and inordinate. She pleaded that the matter should not be struck out and allows her to proceed with it.
   

Defendant's case,

8. The Defendant in their affidavit in opposition stated that the delay of the Plaintiff is an inexcusable and inordinate delay. The delay itself prejudices the Defendant.
   

100. THE LAW
     

9. Order 25 rule 9 states that;
   

"If no step has been taken in any cause or matter for six months then any party on application or the court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the court,

Upon hearing the application the court may either dismiss the cause or matter on such terms as maybe just or deal with the application as if it were a summons for directions.

10. According to O 25 r 9, the court is only allowed to strike out an action on the failure of taking of steps for six months on two grounds. The first ground is for want of prosecution and the second is an abuse of the process of the court. The court must satisfy in order to exercise its discretionary power of strike out an action, that such failure to take steps would amount to any of the ground as stipulated under Order 25 r 9.
    
11. The applicable principles on strike out an action on the ground of "want of prosecution" and "abuse of the process of the court" have discussed in Birkett v James (1978) AC 297 at 318 ) (1977) 2 All E.R 801 where Lord Diplock found that
    

"the power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court, or (2) (a) that there has been inordinate and inexcusable delay on the part of the Plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the Defendants either as between themselves and the Plaintiff or between each other or between them and a third party".

12. The Fiji Court of Appeal in Pratap v Christian Mission Fellowship ( ABU 0093 of 2005) has approved and applied this celebrated passage of Load Diplock in Birkett v James ( supra).
    
13. The scope of the definition of abuse of the process of the court and the intentional delay in respect of the application of this nature has further discussed and elaborated in Grovit v Doctor and Others ( [1997] UKHL 13; 1997) 1 WLR 640), (1997) 2 All E.R 417 where Lord Woolf held that;
    

"the court exists to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if the justice so requires (which will frequently be the case) the court will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the Plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James".

4. ANALYSIS,
   

14. The main contentions of the Plaintiff are that she was sick in 2012 and her former solicitor closed down her law office and returned her file in January 2013, which caused this delay. The affidavit of the Plaintiff did not precisely revealed the duration of her sickness; however, the counsel of the Plaintiff admitted in her submission that she was hospitalized only for a week. Again, I find the lack of information about her visit to India for medical purposes. There is no credible evidence to substantiate her claim that she visited India for medical purpose beside the copy of her passport page. Her visit to Australia was not for a medical purpose and it was a family visit.
    
15. In view of these findings, it appears that the Plaintiff's sickness was not a protracted illness which obviously did not prevented her from taking steps to take this matter to a conclusion. The file was returned to her by her former solicitors only in January 2013, which was nearly fifteen months after the last steps taken by the Plaintiff in this action. She again failed to take any steps in this action until the court issued this notice, though the file was returned to her in January 2013. There is no credible explanation for this delay of more than two years beside her effort to find excuses from her sickness and her former solicitor's inaction.
    
16. It is the duty of the Plaintiff, to vigilantly proceed with her claim with the assistance of her solicitors, and not otherwise. No person should be allowed to find refuge with the inaction of his solicitor for delaying the prosecution of his action, unless he satisfied the court with a persuasive reason which prevented him taking the matter forward under such circumstances, such as giving him wrong information or misleading him with the progress by the solicitor. If the court adopted such a lenient approach, it would certainly defeat the fairness in litigation. It is the responsibility of the Plaintiff to actively and timely take necessary steps to take her claim to a conclusion.
    
17. Sir Thomas Bingham MR in Costellow v Somerset County Council (1993) 1 All ER 952, at 959) has extensively discuss the suitable approach for striking out of an action on the ground of procedural default, where he held that;
    

"this problem arises at the intersection of two principles, each in itself salutary. The first principle is that the rules of court and the associated rules of practice, devised in the public interest to promote the expeditious dispatch of litigation, must be observed. The prescribed time limits are not targets to be aimed at or expressions of pious hope but requirements to be met. This principle is reflected in a series of rules giving the court a discretion to dismiss on failure to comply with a time limit;.....this principle is also reflected in the court's inherent jurisdiction to dismiss for want of prosecution. ...

The second principle is that a plaintiff should not in the ordinary way be denied an adjudication of his claim on its merits because of procedural default, unless the default causes prejudice to his opponent for which an award of costs cannot compensate. This principle is reflected in the general discretion to extend time conferred by O 3 r 5, discretion to be exercised in accordance with the requirements of justice in the particular case........................

Neither of these principles is absolute if the first principle were rigidly enforced, procedural default would lead to dismissal of action without any consideration of whether the plaintiff's default had caused prejudice to the defendant. But the court's practice had been to treat the existence of such prejudice as a crucial and often a decisive matter. If the second principle were followed without exception, a well to do plaintiff willing and able to meet orders for costs made against him could flout the rules with impunity, confident that he would suffer no penalty unless or until the defendant could demonstrate prejudice....................

18. In this instance case, the Plaintiff has successfully obtained an interim order to extend her caveat No 717383 until further orders of the court. This obviously prevented the 2nd Defendant to proceed with the mortgage sale to recover the loan amount given to the Plaintiff and her ex-husband. It appears that the Plaintiff had no interest to conclude this action subsequent to this interim order. Furthermore, she has not taken any steps against the first Defendant so far on his failure to serve his notice of acknowledgement of service or statement of defence. Certainly, this stalemate over a period of more than two years, itself prejudice to the 2nd Defendant. The Fiji Court of Appeal held in The New India Assurance Company Limited v Rajesh K Singh and Arun K Singh ( 1999) FJCA69, Abu0031u.96s (26 November 1999), that;
    

"Prejudice can be of two kinds. It can be either specific that is arising from particular events that may or may not have occurred during the relevant period, or general, that is prejudice that is implied from the extent of the delay".

19. Having considered the reasons set out above, I am satisfied that this procedural default of the Plaintiff to take this action to the conclusion is intentional and abuse of the process of the court. Moreover, I hold that the delay of the Plaintiff is an inexcusable and inordinate and it is prejudicial to the Defendants.
    
20. Finally, in my conclusion, I make following orders;
    
    1. This Action is hereby struck out for want of prosecution and abuse of the process of court pursuant to Order 25 rule 9 of the High Court,
       
    2. The 1st and 2ndDefendants are awarded with cost of $ 500 respectively, assessed summarily,
       

Dated at Suva this 11th day of July, 2014.

R.D.R. Thushara Rajasinghe
Master of High Court, Suva