Sami v Bala [2014] FJHC 621; HBC128.2010 (21 August 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 128 OF 2010

BETWEEN:

KUP SAMI fathers name Janaiya of Malaqere, Sigatoka, Farmer.
PLAINTIFF

AND:

SASHI BALA daughter of NandRanjan and ROHIT KUMAR fathers name PuskharCharan of Malaqere, Sigatoka, Farmers
DEFENDANTS

RULING

INTRODUCTION

1. The land in question is Certificate of Title Number 19074 comprising eleven acres two roods and sixteen perches. It is situated at Malaqereqere near Sigatoka, just off the main Queens Highway. The plaintiff is the son of the first defendant and brother of the second.
   
2. That land is owned jointly by the plaintiff (who owns 1/5 undivided share) and the defendants (who, between themselves, own the balance 4/5 share).
   
3. The plaintiff is keen to subdivide his own 1/5 share into nine lots and to sell these off. He says he is being hindered by the defendants’ lack of cooperation.
   

PLAINTIFF’S AFFIDAVIT ON SUBSTANTIVE MATTER

4. In his supporting affidavit sworn on 22 June 2010, the plaintiff deposes as follows:
   
   3. ....I am one of the registered proprietors of Certificate of Title Number 19074 comprising eleven acres two roods and sixteen perches (11a 2r 16p) and situated off the main Queens Highway at Malaqere, Sigatoka whereby I am having one fifth share and the Defendants having the balance four fifths
      
   4. ....I acquired the said Certificate of Title in my own right in January 1995 and I was in possession and occupation of the whole of the property prior to the said acquisition for upwards of forty five (45) years.
      
   5. ....with the concurrence of the Defendants I have subdivided my own one fifth share into nine (9) lots, which sub-division has been approved by the Director of Town and Country Planning
      
   6. ....I require the Defendant’s signature to the approval plans and the production of the Certificate of Title Number 19074 at the Registrar of Titles office for issuance of separate Certificate of Titles over my nine (9) lots.
      
   7. ....I requested the Defendants to comply and the Defendants have refused.
      
   8. ....on my own cost I hired the services of a registered surveyor who drew the Deposit Plan for the said land however the Defendant refused and neglected to contribute equally for the hiring of a registered valuer for the preparation of valuation report.
      
   9. ....due to the continuous refusal from the Defendants to execute the necessary transfer documents I am unable to sub-divide the land and thus I have suffered loss and I am unable to transfer the sub-divided lots to potential purchasers.
      
   10. ....I now undertake to pay the necessary surveyors cost, solicitors costs and other legal cost and charges which may arise in separating this Certificate of Title Number 19074 into two separate titles whereby the Defendants have new Certificate if Title containing the 4/5 of this property and myself to have a separate Certificate of Title containing an area of 1/5 of the property.
       
   11. ....upon this separation of the Title I would be able to sub-divide my property into 9 lots as proposed in the plan and approved by the Director of Town and Country Planning.
       
   12. ....I therefore pray that the Defendant or alternatively the Deputy Registrar of the High Court at Lautoka do execute all documents necessary for the issuance of separate Certificate if Title over one fifth of share of land contained in Certificate of Title Number 19074.
       

DEFENDANTS REPLY

5. The second defendant’s affidavit in opposition sworn on 13 September 2010 deposes as follows:
   
   3. ....this application by way of Originating Summons I understand and verily believe as advised by my solicitors, is also an abuse of process.
      
   4. ....neither my mother nor I were personally served with this Originating Summons which was served on my brother Nitin Kumar at 7.00pm last Friday night 10th September 2010.
      
   5. ....the Plaintiff had earlier brought an action by way of Writ in the High Court Lautoka Civil Action No. 332 of 2004 which had been struck out and later applied for by re-instatement by the Plaintiff and which was dismissed by the Honourable Mr Justice SosefoInoke on 25 November 2009. That a consent order was made earlier in the Civil Action No. HBC 332 of 2004 which the Plaintiff failed to abide by. A copy of the Interlocutory Judgment is annexed hereto marked “RK1”.
      
   6. I further crave leave to refer to my affidavit sworn on 11 August 2009 in Court Action No. HBC 332 of 2004 and annexed hereto marked “RK2”.
      
   7. .... the land in question is held as tenants in common by the Plaintiff and the Defendants. That the land in question is also an agricultural holding. Further the Plaintiff was only occupying part of the land and not the bulk of the land. That the Plaintiff holds1/5th undivided interest and that my mother and I hold 4/5th undivided interest in the said land. Annexed hereto marked “RK3” is the said Certificate of Title No. 19074.
      
   8. .... I say that no arrangement had ever been reached between the Plaintiff and the Defendants for the subdivisions of the said land. There had never been an agreement between the Plaintiff and the Defendants to subdivide the land and or to subdivide part or whole of the land into residential lots and in spite of the Plaintiff’s earlier attempt to create a subdivision which was certainly not in our interests but in his own self-serving interest.
      
   9. .... the Plaintiff could not have possibly obtained any approval from the Town and Country Planning as we have never given our consent at any stage and that we cannot agree with the Plaintiff’s so called requirement.
      
   10. .... the Plaintiff has not provided any formalised request with reference to any proposed subdivision scheme plans through his solicitors or to us.
       
   11. ....as to paragraph 8, I say that this is unknown to us. I crave leave to refer to earlier Affidavit sworn on 11 August, 2009 referred to earlier. The Plaintiff is misleading.
       
   12. .... it is the Plaintiff who has refused to act in good faith and is the cause of any loss or damages.
       
   13. ....I am advised and verily believe the Plaintiff’s solicitors also after the earlier aforesaid Writ action was struck out including their attempt to re-instate; which was also in fact struck out, then wrote to my solicitors, Messrs Wm. SCOTT GRAHAME & CO. proposing a subdivision, to which correspondence my solicitors responded to, copies of self-explanatory correspondence are annexed hereto as follows:-
       
       • (i) Letter dated 19th April 2010 from Samusamuvodre Sharma Law to my solicitors.
       • (ii) Letter dated 21st April, 2010 from my solicitors to Samusamuvodre Sharma Law.
       • (iii) Letter dated 2 July 2010 from my solicitors to Samusamuvodre Sharma Law.
       • (iv) Letter dated 7 July 2010 from Samusamuvodre Sharma Law to my solicitors.
       • (v) Letter dated 8 July 2010 from solicitors to Samusamuvodre Sharma Law.

And marked “RK4”, “RK5”, “RK6”, RK7” and “RK8” respectively.

14. ....at no stage have we come to any arrangement in regard to the subdivision nor have we signed any documents and that this is effectively another ill-advised attempt by the Plaintiff to force the issue.
    
15. ....the Plaintiff has not acted in good faith when he knew very well that we have not agreed to any subdivision.
    
16. .... it is very strange but that I can only note how the Plaintiff all of sudden now decides to given an undertaking of this nature in the circumstances.
    
17. ....I am advised that the Plaintiff cannot be allowed to subdivide in the circumstances, let alone obtain a separate title for his undivided 1/5th share.
    
18. ....I am verily advised and this Honourable Court with all respect cannot make such orders to force us to sign and execute any such documentation as requested by the Plaintiff in the circumstances herein.
    
19. ....I am saying that we are not opposed to the idea of a subdivision itself; but we are concerned about the manner and nature in which any subdivision is to be made. A formalised and amicable agreement must be made where all parties have fully given their consent. This has never taken place. If the Plaintiff and Defendants cannot agree, then the land again should be ordered to go on sale and vacant possession to be given to any successful buyer by parties concerned herein and that each party may be at liberty to bid even if it were to go on tender.
    
20. ....I am amazed that whilst we are in negotiation, the Plaintiff through his solicitors has unreasonably brought this Summons while we are still attempting to negotiate in good faith to bring about an amicable solution in terms of finding a properly drawn up subdivision which is acceptable to all.
    

PLAINTIFF’S ANSWER

6. The plaintiff’s affidavit in reply sworn on 10 November 2010 deposes as follows:
   
   4. ....I verily believe and have been advised by my Solicitors that on the 26th day of May, 2008 I changed by Solicitors and my Solicitors failed to appear on my behalf on the 9th day of September, 2008 and the Master of the High Court struck the matter out.
      
   5. ....my solicitors did file a motion for reinstatement on the 3rd day of August, 2009 which was struck out on the day of the hearing on 13th day of October, 2009. The Counsel who had the carriage of civil action no. 332 of 2004 was on leave and sought an adjournment of the hearing.
      
   6. ....Counsel for the Defendant did not consent to the adjournment and oral submissions was made and hence the civil action no. 332 of 2004 was struck out.
      
   7. ....I verily believe and have been advised by my counsel that this application made by way of Originating Summons is not an abuse of Court process as I am seeking special remedy and relief in this action as prescribed under Order 7 of the High Court Rules 1988 and filing of Writ of Summons and motion of reinstatement would have been an abuse of Court process and I am seeking directions from this Honorable Court.
      
   8. .... I sought services of Mr.KeshwaNand who is a Registered Bailiff for some 7 years now and he has advised my Solicitors that he personally served both the Defendants and the contents of paragraph 4 is denied and the allegation made is false.
      
   9. ....I verily believe and admit that the civil action no. 332 of 2004 was struck out by the Master of the High Court.
      
   10. ....I am one of the registered proprietors of Certificate of Title Number 19074 comprising eleven acres two roods and sixteen perches (11a 2r 16p) and situated off the main Queens Highway at Malaqere, Sigatoka whereby I am having one fifth and the Defendants having the balance four fifth.
       
   11. ....there was no arrangement between the Defendants and me and I had sub-divided my one fifth share of the land and I needed the signature of the Defendants for issue of separate Certificate of Titles over the nine new lots. That the subdivision was approved by the Director of Town and Country Planning and I hired the services of a registered surveyor who drew the Deposit Plan for the said land however the Defendant refused and neglected to contribute equally for the hiring of a registered valuer for the preparation of the valuation report as ordered by Justice Connors on 28th day of April, 2006 in civil action no. 332 of 2004.
       
   12. ....I have obtained the approval from the Director of Town and Country Planning but the consent for sub-division or part of the land to residential lots required the consent of the Defendants.
       
   13. ....I did personally inform the Defendants of the proposed sub-division scheme plans through my Solicitors. I crave leave to refer to the Defendants own Statement of Defence in Civil Action No. 332 of 2004 in paragraph 3 (d) in their defence has stated that the sub-division will give the Plaintiff direct access from the highway and the Defendants will be obliged to enter their portion of the land through the Plaintiff’s proposes subdivision. It is submitted that the Defendants were aware of the sub-division. Annexed hereto and marked with the letter “A” is a copy of Statement of Defence.
       
   14. ....I did hire the services of a registered surveyor who drew the Deposit Plan for the said land and the contents are not misleading.
       
   15. ....I have approached the Defendants on a number of occasions with the proposed sub-division plan but they have neglected and/or refused to execute the necessary transfer documents as their main concern was the direct excess from the highway.
       
   16. ....my Solicitors wrote to the Defendants Solicitors on my instructions for the Defendants to execute to necessary transfer documents and for both the Defendants to have legal opinion on the issue of sub-division.
       
   17. ....I advised the Defendants of the sub-division and my intentions and upon the transfer when I asked the Defendants to execute the documents they neglected or failed to do so.
       
   18. ....I now undertake to pay the necessary costs because I have done the necessary requirements for the sub-division and the Defendants are well versed with my intentions and to proceed with the sub-division quicker I undertake to pay for all costs.
       
   19. ....I have been in possession and occupation of the whole property prior to the said acquisition for upwards of forty five (45) years and I am the registered proprietor of one fifth (1/5) of the property and I am willing to pay for all costs for the necessary transfer and for a separate title to be issued under my name then I would be able to sub-divide my property
   20. into 9 lots as proposed in the plan and approved by the Director of Town and Country Planning without the consent of the Defendants.
       
   21. ....I verily believe and have been informed by my Solicitors that in many occasion this Honourable Court has appointed the Deputy Registrar of the High Court to execute the necessary documents and the Deputy Registrar is authorize to do so as ordered by the Court.
       
   22. ....the Defendants have never consented to the sub-division and executed the necessary transfer documents. I personally cannot agree to the land been sold on tender as I have made sub-division plans and would like to reside in the said property. The Defendants should consider the sub-division and execute the documents and alternatively an excess road can be made by the Defendants from the main highway by themselves.
       
   23. ....I have instituted this proceedings because I have made several attempts and make requests for the Defendants to consider the sub-division and the plans and my Solicitors have written to the Defendants Solicitors on a number of occasions on the same issue but the Defendants and their Solicitors have failed to respond to the requests made and in order to get the plan approved and for a separate Certificate of Title to be issued under my name I had to seek orders from this Honourable Court.
       

DEFENDANTS’ FURTHER REPLY

7. Rohit Kumar’s affidavit sworn on 28 January 2011 deposes as follows:
   
   4. .... I reiterate that this application by the Plaintiff is an abuse of process in the circumstances.
      
   5. .... I reiterate that neither my mother nor I were personally served.
      
   6. That as to paragraphs 9 and 10 of the Affidavit is noted.
      
   7. ....[a]fter the Order by Justice Connors on 28th of April, 2006 in Civil Action No. 332 of 2004 and as per the Order dated 6th July, 2006, my solicitors on 4th September 2006 wrote to the Plaintiff’s then solicitor, Haroon Ali Shah Esq. informing him that I was happy to engage a valuer to value the property and was prepared to pay fifty percent of the costs for the valuation. A copy of the said letter is annexed hereto marked “RK1”. No response in confirmation was ever received from the Plaintiff’s then Solicitor.
      
   8. ....according to the Director of Town and Country Planning no approval was granted by them to the Plaintiff in 2006 (last approval granted 21/10/03). A copy of self-explanatory letter dated 19 January 2011 from Director of Town and Country Planning confirming the same annexed hereto marked“RK2”(my emphasis)
      
   9. ....the Plaintiff had tried to hoodwink the Defendants into his self-serving subdivision plan that he was to derive benefit from the detriment of the Defendant’s majority interest.
      
   10. .... there was no agreement with the Plaintiff.
       
   11. ....the Plaintiff has self-serving interests at the forefront of his mischievous attempts to get his own way.
       
   12. ....the Plaintiff has gone about matters in the wrong manner and has not shown good faith.
       
   13. ....
       
   14. ....the Plaintiff should read the terms of the earlier order which was made by the Court and is annexed hereto and marked “RK3” and which he failed to adhere to.
       
   15. ....the Plaintiff is misleading the Court by putting his interest before the Court and trying to ride roughshod over the Defendant’s interest.
       
   16. ....the Plaintiff should be honest and transparent with the Court and has not done so.
       
   17. ....
       

MATTER TAKEN OFF CAUSE LIST

8. On 18 March 2011, I did Order that the matter be taken off the cause list following three consecutive non-appearances by the plaintiff on 16 February 2011, 07 March 2011, and on 16 March 2011.
   

APPLICATION FOR REINSTATEMENT

9. Nearly two months later, on 09 May 2011, the plaintiff filed his Notice of Reinstatement. The application is supported by an affidavit of Nitesh Madhwan sworn on 05 May 2011 in which he deposes as follows:
   
   1. That I am the law clerk employed by Messrs Samusamuvodre Sharma Law, Sigatoka and I am duly authorised by the Plaintiff to swear this affidavit on his behalf.
      
   2. That on the 7th day of March, 2011 our office received a notice of Adjournment from the High Court adjourning this matter to the 16th day of March, 2011. Annexed hereto and marked with the letter “A” is a copy of Notice.
      
   3. That on the 15th day of March, 2011 our office instructed Messrs. Natasha Khan& Associates to appear and obtain a hearing date on our application filed before this Honourable Court. Annexed hereto and marked with the letter “B” is a copy of letter dated the 15th day of March, 2011.
      
   4. That I verily believe and have been informed by a staff member of Messrs. Natasha Khan & Associates that this matter was called prior to the arrival of their solicitor.
      
   5. That I verily believe and have been informed by the staff that Ms. Khan did ask the clerks of the Master to call this matter and quash the orders made but the Master of the Court had already adjourned the Court.
      
   6. That upon an enquiry with the High Court Registry I was informed that this matter has been taken off the cause list and a formal application needs to be done to get the matter re-instated.
      
   7. That this is a very long pending matter and our office had filed the Originating Summons on the 24th day of August, 2010 which has not been heard by this Honourable Court and the time lapsed is tremendous.
      
   8. That the Plaintiff will be greatly prejudiced if his application of Originating Summons is not heard and determined by this Honourable Court at the earliest.
      
   9. That the Plaintiff has made several attempts and requests for the Defendant to consider the sub-division but the Defendants and their Solicitors have failed to respond to any requests made in order to get the plan approved and for a separate Certificate of Title to be issued under the name of the Plaintiff.
      
   10. That I therefore pray that Order in terms be granted as per the Notice of Motion filed herein.
       

OPPOSITION TO REINSTATEMENT

10. Rohit Kumar’s affidavit in opposition sworn on 16 May 2011 deposes as follows:
    
    1. That I am the Second named Defendant herein and am authorised to swear this Affidavit also on behalf of my mother SASHI BALA (daughter of NandRanjan), the First named Defendant herein.
       
    2. That I have read the unsigned and undated Affidavit in Support of Notice of Motion by NiteshMadhwan (f/n Madhwan Nair), and effectively defective.
       
    3. That I oppose the application by the Plaintiff as it is an abuse of process in the circumstances and crave leave to refer to my Affidavits sworn on 13th September, 2010 and 28th January, 2011 filed and served on the Plaintiff and annexed hereto marked “RK1” and “RK2” respectively, to re-list and effectively attempt to re-instate is without any real merit.
       
    4. I therefore pray that this Summons should be struck out with costs on an indemnity basis.
       

HBC 332 of 2004L

11. The parties in this case were involved in exactly the same matter in Civil Action No. HBC 332 of 2004L. In that case, Inoke J had dismissed the plaintiff’s motion to reinstate the matter on the cause list on 25 November 2009.Inoke J’s Ruling is reproduced below:
    

INTRODUCTION
1. This is the Plaintiffs application for reinstatement of his action after having been struck out on 9 September 2008.

THE CLAIM
2. The Plaintiff claims in his Statement of Claim filed on 28 October 2004 that he and the Defendants were joint owners of freehold land comprising about 11 acres of freehold land in Sigatoka from January 1995. The Plaintiff held 1/5th and the Defendants held 4/5th. For 45 years prior to January 1995, the Plaintiff occupied the whole of the land. With the concurrence of the Defendants, the Plaintiff subdivided his 1/5th part of the land into 9 lots which the Director of Town and Country Planning has approved. However, the Defendants have refused to sign the approved subdivision plans and the Plaintiff brought this action for orders to compel the Defendants and others to do certain things to give effect to his subdivision.

3. The Defendants in their Defence filed on 25 November 2004 denies that there was any agreement between for the proposed subdivision and they further say that the proposed subdivision would in fact adversely affect the value of the land and they complain that the subdivision as proposed does not allow them direct access from the highway. The Defendants therefore counter claim that any subdivision should be on the basis that they have direct access to their portion of the land from the highway.

CASE HISTORY
The Summons for Directions was filed on 20 January 2005 and the Order made on 2 February 2005. The Defendants filed their list of documents on 6 April 2005. The Plaintiff filed his list of documents on 20 April 2006.

5. On 28 March 2006, the Plaintiff filed a Summons for orders that the land be sold by public auction and the parties paid their respective shares. On 28 April 2006, this Court ordered, by consent, that the land be valued and put to sale by public tender. Many mentions followed before the Judge, the Master and the Deputy Registrar whilst the parties attempted to sell and or settle without success. On 26 May 2008 the Plaintiff changed his solicitors. On 7 July 2008, on the Plaintiffs solicitors failing to appear, the Master ordered the Plaintiff to pay the Defendants wasted costs of appearance and wasted Court costs by 31 July 2008. Neither the solicitors nor the Plaintiff appeared on two further mentions of the matter and the costs orders were not complied with so on 9 September 2008 the Master struck the action out. On 3 August 2009, the Plaintiffs current solicitors, despite not having filed a notice of change of solicitors, filed a Motion for reinstatement of the action and to set aside the consent order of 28 April 2006. The application was supported by the Plaintiffs affidavit and opposed by an affidavit by the Second Defendant. The application was first called on 14 August 2009 and all the parties, represented by Counsel, were directed to file written submissions and the application set for hearing on 13 October 2009. Counsel for the Defendants filed his submissions on 3 September 2009 but no submissions have been filed for the Plaintiff.

HEARING OF THE APPLICATION
6. When the application was called for hearing on 13 October 2009, the Court was advised by a note written on the appearance slip by a clerk from the Plaintiffs solicitors that the Counsel involved was on leave and sought further time to file his submissions and an adjournment of the hearing. Mr Krishna, Counsel for the Defendants, urged me to hear him and to strike out the application. I did not think that the application should be adjourned any further having regard to the many delays caused by the Plaintiff and heard Mr Krishna. He relied on his written submission supplemented by oral submissions and after hearing him, I dismissed the application. These are my reasons. (my emphasis)

CONSIDERATION OF THE APPLICATION
7. There has been considerable delay caused by the Plaintiff and his lawyers. He has also failed to comply with costs orders made by this Court despite being given ample opportunity and time to comply with them. He has not, and, as Mr Krishna submitted, is in contempt of Court and should not be heard until he has complied with those orders. He has clearly shown no intention to comply with them despite this Court having been lenient with him in the past.

8. The Plaintiffs application was set down about 2 months before the actual hearing date. His Counsel had ample time to file submissions and advise opposing Counsel if he needed an adjournment. Mr Krishna rightly complained that at the very least, a courtesy phone call from opposing Counsel that an adjournment was being sought, was to be expected. No such call was made.

9. The law on adjournment of proceedings has been stated by the Court of Appeal (Byrne and Scutt JJA) in Goldenwest Enterprises Ltd v Pautogo [2008] FJCA 3; ABU0038.2005 (3 March 2008) as follows:

37. Generally, this is the principle covering courts’ discretion to adjourn or not to adjourn. If refusal to grant an adjournment amounts to a denial of a fair hearing and hence denial of natural justice or procedural fairness, or where a refusal to adjourn would cause definite and irreparable harm to the party seeking it, an adjournment should be granted. If it is not, an appeal court has power – and one might say a duty – to redress the wrong by allowing an appeal against the denial of the adjournment: Gasparetto v. Sault Ste-Marie [1973] 2 OR 847 (Div. Ct); see also Jim Patrick v. United Stone (1960) 21 DLR (2d) 189 (Sask. CA)

38. An objecting party is compensated by costs – unless the adjournment would cause irreparable damage to it. Then a court must weigh up the competing interests and consequences ruling according to the fairness and justice of the particular case.

10. In respect of costs orders, the Plaintiff has not complied with them in the past so the Defendants can take no comfort in that respect for further costs orders. The Plaintiff has been given ample opportunity to put his case before the Court but has chosen not to exercise his right to natural justice. This Court cannot be expected to continue to accommodate him. Further, the history of this matter shows that the Plaintiff can hardly complain of procedural unfairness if he or his lawyers fail to appear in Court.

11. In considering whether to dismiss this application with the result that the whole action is struck out without a hearing on the merits, I am obliged to not only consider the prejudice that the Defendants may suffer as well as the Plaintiffs right to have his claim heard in this Court.

12. The Plaintiff started his action on 28 October 2004. On 28 April 2006, the parties agreed to a compromise. The land was to be sold by auction and the proceeds shared. Many adjournments followed and the Plaintiff failed to appear either by Counsel or in person on several occasions resulting in the Master ordering him on 7 July 2008 to pay the Defendants' costs and for his solicitor to appear personally on 14 August 2008. Neither order was complied with despite several requests by the Plaintiffs solicitors. The matter was then struck out by Connors J on 9 September 2008.

13. The delay in filing this application and the delay in prosecution of this action has not been adequately explained in the Plaintiffs affidavit in support. He instead blames the Defendants' failure to contribute equally to the cost of the registered valuer for the delay in complying with the consent order of 28 April 2006. The dilatory and prima facie contemptuous behaviour of the Plaintiff and his lawyers is, in my view, highly prejudicial to the Defendants in terms of unrecovered legal costs and other expenses and the stress of having unresolved court proceedings hanging over their heads.

14. On the other hand, all that the Plaintiff will lose is his ability to subdivide his portion of the land for the moment. He is still in occupation and can pursue his rights further without the assistance of this Court. There is no definite and irreparable harm caused to him by his action being struck out.

15. Further, the Plaintiff should not be surprised that the Court will not assist him if he is not willing to comply with its procedures and orders. His affidavit in support filed on 3 August 2008 made no reference to the order for costs made by the Master a month earlier on 7 July 2008 although I am doubtful that he did not know of the existence of the order when he swore his affidavit.

16. In the circumstances, I think the Plaintiffs application for reinstatement should be dismissed with the end result that his whole action is struck out and the consent order of 28 April 2006 is vacated.

COSTS
17. I think the normal rule applies and costs should be awarded to the Defendants in the sum of $600 to be paid within 21 days.

ORDERS
18. The Orders are as follows:

1. The Plaintiffs motion filed herein on 3 August 2009 for reinstatement of this action is dismissed.

2. The Plaintiff is to pay the Defendants' costs of $600 within 21 days.

OBSERVATIONS

12. I observe that the current Originating Summons was filed in August 2010, almost a year after his writ action was dismissed in November 2009, and concerns the same land and the same issues, which Inoke J succinctly summarises above.
    
13. The plaintiff seems to have a pre-disposition to dilatoriness. His conduct as outlined by Inoke J seems consistent with his attitude in the present case before me.
    
14. On the papers before me now, he does not have a strong case. His whole case hinges on the premise that the Director of Town & Country Planning has, in fact, already approved the subdivision which he proposes. But there is no evidence before me that the said approval has been sought, let alone obtained.
    
15. I accept the defendants submissions that their consent to subdivision is needed before the DTCP can even approve any subdivision scheme.
    
16. I find it rather misleading of the plaintiff to be asserting that the DTCP has in fact approved his proposed subdivision. As this is an Originating Summons process, it is crucial that the said evidence be exhibited in the plaintiff's affidavit.
    
17. While I accept that the plaintiff may have a genuine interest in having his share carved out of the land in question, he is hardly in a position to dictate what specific portion of the land, commensurate with his share, is to be carved out to him. That, in my view, is what he appears to be attempting to achieve through this and his previous case.
    

CONCLUSIONS

18. I endorse here also all the observations of Inoke J which I have reproduced in full above. I am convinced that it would serve no purpose to reinstate this action. If I do not reinstate this action, then the only other option open to me is to strike out the claim or have it stayed permanently.
    
19. It would not prejudice the plaintiff to have this action struck out because, as Inoke J noted, he would still be the owner of 1/5 undivided share of the property, and he can still pursue sub-division through the proper channel. The defendants though will suffer in having to pay legal costs.
    
20. I refuse to reinstate the matter on the cause list and hereby order that this case be stayed permanently. Costs to the defendants which I summarily assess at $850-00 (eight hundred and fifty dollars only).
    

AnareTuilevuka
JUDGE

21 August 2014.