Singh v Singh [2014] FJHC 574; HBC457.2002 (6 August 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 457 of 2002

BETWEEN:

ARUN SINGH
of 110 Milverton Road, Suva, Joiner/Carpenter.
Plaintiff

AND:

PREM SINGH and BASANT KUMARI
as the Executor/Executrix and Trustees of the Estate of Ranjit Singh, deceased of 110 Milverton Road, Suva.
Defendants

Appearance: Mr S Chandra for the Plaintiff
Mr S Sharma for the Defendants

Date of Judgment: 6th August 2014

INTERLOCUTORY JUDGMENT

1. An Inter-Partes Notice of Motion was filed by the Plaintiff on 7 January 2013 and sought the following orders pursuant to Order 20 Rule 7 of the High Court Rules and the inherent jurisdiction of this court:

(a) An Order for discovery of further documents listed in paragraph 7 of the Plaintiff's Affidavit filed in Support herein;

(b) An Order that the Plaintiff be recalled to give further evidence in respect of the discovered documents;

(c) An Order that the Defendants be permitted to cross-examine the Plaintiffs evidence in respect of the discovered documents.

2. The said Notice of Motion was supported by the Affidavit dated 3 November 2012 sworn by the Plaintiff stated:

2.1 This matter was taken up for trial on 15 November 2012 and the Plaintiff gave his evidence.

2.2 About 3 days before the hearing, the Plaintiff realized that the copies of the invoices were handed to his solicitors some 10 years before were not actual evidence of payments for purchase of materials to complete the top flat of the home at 110 Milverton Road.

2.3 The Plaintiff had conducted another search and found further documentary evidence relating to the payments he had made to purchase of materials for building.

2.4 During the evidence, the Plaintiff he said that actual payment receipts were with my solicitors given to them 3 days before the trial and the Plaintiff did not realize that those documents could not be produced in the court during the trial on 15 November 2012.

2.5 The documentary evidence discovered recently were annexed to the Affidavit marked A1 to A61 and the valuation report dated 14 August 2012 was marked "B" were annexed to the Affidavit.

2.6 The Plaintiff was advised if he does not produce those documentary evidence his claim would be prejudiced.

2.7 Since the continuation of hearing is fixed for 13 and 14 of March 2013, the Defendants would have sufficient time to analyse the documents and the Defendants are not prejudiced.

2.8 The Plaintiff personally paid the costs of each of the materials of the building and he wish to give further evidence.

3. The Defendants replied to the said Affidavit sworn by the Plaintiff on 30 November 2012, by his Affidavit sworn on 27 September 2013 that stated the sequence of proceedings since filing of the Writ of Summons on 5 November 2005 up to 2013 and further stated:

3.1 That the Plaintiff's application does not have proper legal or factual basis and it is not in accordance with the Rules of the High Court. The attempt by the Plaintiff to introduce further evidence in this manner is highly prejudicial to the Defendants and has the potential to undermine a fair trial of the action.

3.2 Replying paragraph 3, the Defendants stated on n15 November 2012 case was adjourned on completion of the evidence of the Plaintiff.

3.3 Replying to the paragraph 4 and 5, the Defendants stated the plaintiff's averment was made without any evidential foundation.

3.4 Replying to the paragraph 6 the Defendants stated that the Plaintiff had the opportunity to produce the documentary evidence if it existed thus disputed the contents.

3.5 Replying to the paragraphs 7 and 8, the Defendants stated that the Plaintiff's counsel could have informed the court if they were not ready to proceed with the hearing and the proper procedure and rules of evidence need to be followed.

3.6 Replying to the paragraph 9, it was stated that the Plaintiff initiated this case based on his evidence and pleadings therefore he had sufficient opportunity to adduce all the relevant evidence from at the opportunity afforded to him in litigation. If further evidence is allowed from the Plaintiff himself it would cause prejudice to the Defendants.

3.7 The paragraph 10 is denied.

3.8 Replying to the paragraph 11, the Defendants stated the Plaintiff's oral and documentary testimony has been dealt with by the court on 15 November 2012 and granting leave to the Plaintiff to give evidence at the second instance would afford him an opportunity to tailor and align his evidence to circumvent the issues already raised when cross-examined on his evidence.

3.9 The paragraph 12 was disputed by the Defendants.

3.10 The Defendants further stated that if the Plaintiff is allowed to adduce further evidence it will cause severe prejudice to the Defendants.

4. The matter was taken up for hearing on 1 November 2013 and the counsel made their submissions.
The Plaintiff's counsel submitted:

4.1 The Plaintiff's evidence was concluded. The documents intend to be produced were not traced for 10 years and the Plaintiff was not in a position to produce the documents.

4.2 The Plaintiff kept on maintaining the property which he occupies. It will be unfair to disallow the documents being tendered in evidence.

4.3 The Plaintiff had not closed the case and there are two more witnesses to be called and the Defendants has the opportunity to rebuild his case. The Defendants seeks to recall the Plaintiff as a witness to give evidence for further discovery. The counsel also submitted this matter cannot be decided without producing the documents which is the subject matter of this case.

4.4 The Defendants' counsel submitted that the motion filed by the Plaintiff under Order 20 Rule 7 of the High Court Rules and the inherent jurisdiction of this court is incorrect.

4.5 When the matter was taken up for trial, the Plaintiff gave evidence. The Plaintiff in paragraph 6 of his Affidavit sworn on 30 November 2012 stated the Plaintiff in fact had the documents and submitted that it was decided not to introduce the documents which create doubt. The Plaintiff had not justified why he could not produce the documents at that stage.

4.6 It was further submitted that the Rule to be relied upon by the Plaintiff was Order 24 Rule 16 and the counsel tendered 2 case authorities Murgessa v. Shell (Fiji) Ltd HBC 65 of 1997 (unreported decided on 27 August 2003) and the Appeal Judgment on the same case FJCA 14J of 2004 (unreported) decided on 24 March 2006. I shall deal with these two Judgments in my analysis.

4.7 The counsel stated that the Plaintiff should have acted diligently. The Plaintiff attempt to produce documentary evidence after thoughts and the said documents were not produced before deliberately.

4.8 In reply the counsel for the Plaintiff stated the court has the power to allow any application to correct or amend under Order 24 Rule 16.

5. Analysis and Conclusion

5.1 The Plaintiff had filed this motion under Order 20 Rule 7 of the High Court Rules and relies on the inherent jurisdiction of this court. On the other hand Defendants' counsel submitted inter-alia that the Plaintiff relying on Order 20 Rule 7 is wrong and the application would have been made pursuant to High Court Rules Order 24 Rule 16.

5.2 Order 20 Rule 7 states:

"Amendment of certain other documents

7.-(1) For the purpose of determining the real question in controversy between the parties to any proceedings, or of correcting any defect or error in any proceedings, the Court may at any stage of the proceedings and either of its own motion or on the application of any party to the proceedings order any document in the proceedings to be amended on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct.

(2) This rule shall not have effect in relation to a judgment or order.

5.3 Order 24 Rule 16 states:

16.-(1) If any party who is required by any of the foregoing rules, or by any order made there under, to make discovery of documents or to produce any documents for the purpose of inspection or any other purpose, fails to comply with any provision of that rule or with that order, as the case may be, then, without prejudice, in the case of a failure to comply with any such provision, to rules 3(2) and 11(1) –

(a) that party shall not be entitled subsequently to produce a document in respect of which default was made without the leave of the Court; and

(b) the Court may make such order as it thinks just including, in particular, an order that the action be dismissed or, as the case may be, an order that the defence be struck out and judgment be entered accordingly.

(2) ............................

5.4 On careful study of both the rules, it is abundantly clear the Plaintiff would have filed his Notice of Motion under Order 24 Rule 16(1) a. I agree with the argument that the Plaintiff had relied on wrong High Court Rule, Order 20 Rule 7 and hold in favour of the Defendant.

5.5 For the completeness of the Judgment, it is my duty to consider the facts placed before me to consider as to whether this court can use its inherent jurisdiction to grant leave to produce the further documents after the witness completed his evidence.

It was stated Williams J. in Young v. Harper NZLR at 176 is cited in Fiji Care Murgessa v. Shell (Fiji) Ltd which states:

"With respect to the discovery of fresh evidence, it is a most dangerous ground on which to grant a new trial. It ought only to be allowed under extremely exceptional circumstances. In England there are only two or three cases in the books in which a new trial has been allowed on this ground. There can be no more fruitful encouragement to perjury than the granting of new trials for this reason."

It was also stated in case of Cook v. Benny (1 Wilson K.B 98) where it is stated:

"New trials are never granted upon the motion of a party where it appears he might have produced and given material evidence at the trial if it had not been his own default, because it would tend to introduce perjury and there would never be an end of causes if once a door was opened to this."

In this matter the Plaintiff had these documents for 10 years and as stated in the paragraph 6 of the Plaintiff's Affidavit in his own admission the documents were brought to the notice of his solicitors. As submitted by the Defendants' counsel after the cross-examination of the Plaintiff it is now the Plaintiff's attempts to bring in new evidence.

The Affidavit filed by the Plaintiff clearly states the evidence was in his possession at the time of the Plaintiff gave evidence and the Plaintiff and his counsel had not exercised reasonable care and diligence to produce the evidence. As such I conclude this court should not exercise its inherent jurisdiction in favour of the Plaintiff.

6. Accordingly, I make the following order:

1. Inter-partes Notice of Motion filed on 7 January 2013 is struck out and dismissed.

2. The Plaintiff is ordered to pay summarily assessed cost of $1,500.00 to the Defendants.

Delivered at Suva this 6th Day of August 2014

C. KOTIGALAGE
JUDGE