Deo v Raidu [2015] FJHC 218; HBA20.2013 (26 March 2015)

IN THE HIGH COURT OF FIJI
[WESTERN DIVISION] AT LAUTOKA
Civil Action No. HBA 20 of 2013

BETWEEN:

RAJ DEO
formerly of Wailailai, BA, Fiji, Priest but now of Sydney,
Australia.
APPELLANT
(ORIGINAL PLAINTIFF)

AND:

RAMESH RAIDU, RAIDU BHIM KRISHNA, TATAIYA
as Executors and Trustee of the Estate of Krishna Raidu of Wailailai, BA, Fiji.
RESPONDENTS
(ORIGINAL DEFENDANTS

Counsels Appearing:
Mr Rupesh Singh for the Appellant
Mr Sahu Khan for the Respondents

JUDGMENT

Introduction

1. The Plaintiff Appellant on 12th August, 2013 filed Notice of Intention to Appeal the decision delivered by the Master of the High Court on 23rd July, 2013 in Civil Action No. 89 of 2009. The Appellant also submitted the Grounds of Appeal against the said decision of the Master dismissing the action on the High Court's Notice delivered pursuant to Order 25 Rule 9 for want of prosecution.
   
2. When the matter was taken up for hearing on 6th March, 2015 the Learned Counsel for the Defendants/Respondents made Oral Submissions opposing the Submissions of the Appellant filed earlier. The Learned Counsel for the Appellant made Oral Submissions in Reply and submitted to Court Written Submissions in Reply and a Supplementary Written Submission.
   

Background

3. In this matter Writ of Summons was filed against the Respondents on 1st June, 2009 for a claim under an agreement made in January 1981 for a sale of property. The Appellant filed an Amended Claim on 22nd February, 2012 inter-alia including the substitution of a new Plaintiff. The Respondent had filed a Statement of Defence in July, 2009.
   
4. The Respondents were represented by Messrs Samuel K. Ram who later withdrew upon lack of instructions, and thereupon, due to lack of appearance by the Defendants the matter was fixed for formal proof.
   
5. When the matter was called for formal proof the learned Counsel for the Appellant tendered the Certificate of Title No. 18992 and a copy of the Agreement as well as an Affidavit of Manoj Kumar Sharma (the Original Plaintiff and son of Raj Deo the new substituted Plaintiff). The Appellant sought an order that the Respondent's specifically perform the Agreement between the Appellant and the late Mr Krishna Raidu (Vendor in the said Agreement).
   
6. The Honourable Master having carefully considered the way the formal proof proceeded and the evidence and/or material before him refused to grant an Order for specific performance against the Respondents for the reasons given in the Ruling dated 21st August, 2012.
   
7. However, the Honourable Master gave directions to the Appellant to file Summons for Specific Performance under Order 86 of the High Court Rules 1988. The said Directions were as follows:
   

"DIRECTIONS:

[7] Raj Deo is to file Summons for Specific Performance under Order 86 of the High Court Rules 1988. The supporting affidavit must be sworn by him and must clarify the issues set out above. The application will also have to be formally served on the Defendants and if service is difficult, an application for substituted service is to be considered in due course.

[8] Meanwhile, this matter is taken off the cause list and to be reinstated upon the filing of the Order 86 Summons"

8. On 8th July, 2013 (almost one year after the Directions) the Honourable Master issued Notice pursuant to Order 25 Rule 9 of the High Court Rules 1988 requiring the Appellant(Plaintiff) to show cause why the matter should not be struck out for want of prosecution.
   
9. In response to the said Notice Manoj Kumar Sharma the Plaintiff's Attorney filed an Affidavit to show cause on 11th July, 2013. The Respondents filed their Affidavit in Reply sworn by Raidu Bhim Krishna on 11th July, 2013 and a Supplementary Affidavit sworn by him on 15th July, 2013.
   
10. Having considered the Affidavit evidence before him, the Honourable Master struck out the Claim for Want of prosecution under Order 25 Rule 9 by his Ruling dated 23rd July, 2013 with the finding that the Appellant failed to act promptly and/or with diligence to file Summons under Order 86 as directed by him and also on the grounds that:
    
    • (i) Fair Trial is not possible in this matter.
    • (ii) The Plaintiff (Appellant) did not have a particularly strong case against the Defendant's (Respondents).
      
11. This Appeal is from the said Ruling delivered by the Honourable Master,

striking out the claim for want of prosecution under Order 25 Rule 9.

Grounds of Appeal

12. The Appellant submits 3 grounds of Appeal against the above decision pronounced by the Honourable Master. I will consider each ground of appeal in its numerical order.
    
13. Ground of Appeal No. 1:
    
    • (1) The Master erred in law in holding that a fair trial was not possible without "great prejudice" to the Respondents and did not take into account the following:-
      
    • (a) The Respondents had not filed an affidavit on which it could be said that great prejudice had been shown.
      
14. The learned Counsel for the Appellant strongly contended in his submissions that the

Respondents needs to show prejudice in the event the court find that there has been inordinate or inexcusable delay on the part of the Plaintiff for the court to look at the issue of prejudice and see whether 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 part" (Brikett v James [1977] 2 All ER 805).

15. The principles laid down in Brikett v James [1977] 2 All ER 805 stated in paragraph 66 of Gulf Seafood Fiji Ltd v NLTB HBA 28/2011 is quoted by him in support of his argument. Those principles are as follows:
    
    • (a) That the default has been intentional and contumelious;
      

(b) That there has been inordinate and inexcusable delay on the part of the

Plaintiff or his Lawyers;

(c) That such delay give rise to a substantial risk that it is not possible to have a

fair trial of the issues in 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."

16. However, I don't find any provision in the High Court Rules requiring the Respondents to file an affidavit to show prejudice when the Court of its own motion lists the cause or matter for the parties to show cause why it should not be struck out for want of prosecution under Order 25 Rule 9.
    

There is no onus on the Respondents to file affidavit to show prejudice; according to Order 25 Rule 9 of the High Court Rules. It is clear once the Notice has been issued by Court, it is the defaulting party that has to show cause why the matter should not be struck out. It doesn't say that a party must show cause why the matter ought to be struck out. Therefore it is my view that it is the Court that should look into the history of the matter and the conduct of the parties to assess the degree of prejudice caused to the Defendants before striking out a claim under Order 25 Rule 9.

17. In his ruling dated 23rd July, 2013 Honourable Master has considered the prejudice to the Defendants when he decided to strike out the claim for want of prosecution.
    

In paragraph 23 he states as follows:

"However, I believe that a fair trial is not possible in this case for all the reasons stated above without great prejudice to the Defendants. Accordingly, I strike out the claim for want of prosecution under Order 25 Rule 9."

18. In arriving at the said decision the Master has considered that the Appellant (Plaintiff) did not have a particularly strong case against the Defendants. He has stated that no evidence of the balance of purchase price has ever been presented to, and the impression he got from Manoj Kumar Sharma's Affidavit is that this could be determined by way of viva voce evidence at trial. He also states that it would be difficult to do so as Krishna Raidu who would have received instalment payments under the contract upto 31st January, 1984 is obviously not alive and the Executors deny receiving any other payments.
    
19. It is my view that the Master has taken into consideration the strength of the Plaintiff's case, the availability of witnesses due to the delay in prosecuting and decided that a fair trial is not possible in the case without prejudice to the Defendants.
    
20. Therefore, it is clear that the Master had not erred in law in holding that a fair trial is not possible without "great prejudice" to the Respondents when the Respondents had not filed an affidavit in which it could be said that great prejudice had been shown.
    
21. The next ground of appeal is as follows:
    

1(b) There had been steps taken in the action over the six months period in question and the Court ought not have its own motion listed the cause for striking out for want of prosecution.

22. In his ruling the Master says that he has not found any action by the Appellant for about a year since his Directions and he does not accept the Affidavit of Manoj Kumar Sharma for the delay. In his earlier Ruling dated 21st August, 2012 the Master has directed the Plaintiff to file Summons for Specific Performance under Order 86 of the High Court Rules 1988. He has also directed that the Supporting Affidavit must be sworn by him and must clarify the issues set out in the Ruling. It is stated further that the application will also have to be formally served on the Defendants and if service is difficult, an application for substituted service is to be considered in due course.
    
23. In the written submissions filed the Plaintiff contends that he struggled to comply with the directions given by the Master as he could not serve the Summons on the Respondents and one of them had died. It is stated further that reading of Section 44 (2) of the Succession, Administration and Probate Act Cap 60, the Respondents are obliged to leave an address for service in Fiji if they do not reside in Fiji but here, after they migrated they did not leave such an address.
    
24. The issue of not leaving an address in Fiji under Succession, Administration and Probate Act is not averred in the Show Cause Affidavit filed by Plaintiff's Attorney Mr Manoj Kumar Sharma. In the said Affidavit, Manoj Kumar Sharma has deposed that there was a difficulty in tracing the addresses of the Defendants, one live in Australia, one in United States and the third Defendant who was in Fiji had died. It is also deposed by him that otherwise a Summons for Judgment had been drafted by his Solicitors and a copy is annexed marked as "B".
    
25. It is clear from the Affidavit evidence of Manoj Kumar Sharma that there has been no steps taken in the action for almost one year since the Master's direction. The Master has held that the explanation given for the delay in the Affidavit of Manoj Kumar Sharma is not acceptable. The learned Master by his earlier Ruling had directed the application to be formerly served on the Defendants and if service is difficult an application for substituted service to be considered in due course. The Master has in his ruling stated that the Plaintiff could have applied for substituted service if he had difficulty locating the Defendants. Therefore, I am of the view that the finding of the Master of inactivity by the Appellant for almost one year from his first Order is correct and he has not erred in law in coming to that finding.
    
26. I will now consider the second ground of appeal against the Master's decision.

Grounds of appeal Number 2:

(a) The contract included sub-division of land and obtaining consent to sub-division and

was in the hands of the Respondents and was their obligation for carry out.

(b) The Respondent's Affidavit filed in person and sworn on 15th July, 2013 itself showed in paragraph 6 that there was part performance in the Respondents and/or late Mr Krishna Raidu and that possession had been given to the Appellant who had built on the same and developed the land;

(c) That the Appellant had lodged a caveat number 7286968 to protect his rights for performance which was duly registered against the title;

(d) The Appellant wrote a letter dated 19th May, 2000 (annexure "E" in the Affidavit of Manoj Kumar Sharma filed on the 12th July, 2013) asking for title and offering the sum of $500.00 to be paid on delivery of title.

27. As correctly argued by the learned Counsel for the Defendants this ground of appeal has nothing to do with the striking out for want of prosecution of the matter. In this application only issue that has to be determined by Court is whether there has been inordinate and inexcusable delay in the Appellant in advancing the case and the prejudice to the Respondents as a result of that. The grounds of appeal no. 2 goes to the matters of proof of the Appellant case and not matters relating to a striking out application for want of prosecution. The Plaintiff may have the strongest case but if he does not prosecute his claim with due diligence and there is inexcusable and inordinate delay then even such case may be struck out for want of prosecution pursuant to Order 25 Rule 9 0f the High Court Rules. It is my view that the Court need not go into the merits of the Plaintiffs claim in an application of this nature. Therefore I hold that this ground of appeal has no merits and should be dismissed.
    
28. I will finally consider the ground of appeal no. 3 which is as follows:
    

The Master erred in law and/or in fact in striking out the action on the basis that the Plaintiff had not progressed the action with diligence and applied the wrong principle(s) for striking out when:-

(a) The Respondents Counsel have withdrawn on the basis of not being given further

instructions by the Respondents;

(b) When service of certain documents had been effected prior to the Court issuing the

application to strike out;

(e) When the Master himself has held in (paragraph 11 page 5) that the action based on

specific performance does not have a finite limitation period and that there was no inexcusable delay in terms of the law and then going on the follow the Tabata-v-Hetherington;

(d) The Master erred in law and/or in fact in striking out the action on the basis that the Appellant had not progressed the action when the onus was on the Respondents to show that they had performed the necessary sub-division and obtained the necessary consent and when they were under a duty to refund monies paid if they were held not to be obliged to specifically perform.

29. As regard ground 3(a) whether the Respondents Counsel withdrew or not is in my view completely irrelevant to the issue. What is relevant is to see what the Plaintiff did to advance his claim when the learned Master directed him to issue an Order 86 Summons for Specific Performance. If the Appellant is trying to say that he could not serve documents then why did he not follow the direction given by the Master to make an application for substituted service.
    
30. Ground of Appeal 3(b) states that the Master erred in law and/or fact in striking out when service of certain documents had been effected prior to the Court issuing the application to strike out. The Affidavit of Manoj Kumar Sharma does not mention the service of any documents prior to the Court issuing the application to strike out. The only mention is paragraph 1 of the Affidavit which states that Summon for Judgment had been drafted by his Solicitor. Therefore, I hold that the Master has not erred in law and/or in fact as alleged in grounds of appeal no. 3(b).
    
31. The next ground of appeal(3d) is that the Master erred in law and/or in fact in striking out the action when the Master himself has held in (paragraph 11 page 5) that the action based on Specific Performance does not have a finite limitation period and that there was no inexcusable delay in terms of the law and then going on to follow the Tabata – v – Hetherington.
    
32. What the learned Master has said in his ruling is that any delay permitted by the Limitation Act cannot come within [inordinate and inexcusable delay]. In paragraph 15 of his Ruling he states as follows:
    

"In other words, if there is no finite period of limitation applicable to a claim for an equitable relief (including Specific Performance), then any delay in filing a claim is not an inordinate and inexcusable delay if the claim is allowed under Section 4(7).

33. In paragraph 16 he states:
    

"However, having said all that, I also embrace Tabata-v-Hetherington, The Times, December 15; 1983, which is cited in the white Book at 25/1/6 as authority for the following position:

..........the later the Plaintiff starts his action the higher his duty to prosecute it with diligence.

Furthermore in his decision the Master said in paragraph 17 to 19 as follows:

"(17) Hence, I start by saying here that the Plaintiff, having commenced his action 27 years after the contract was entered into, and quite a few years yet again after the purported breach by the Defendant, has a high duty to prosecute his claim with due diligence.

(18) It is that "higher duty" that I have in my starting point in assessing whether or not to strike out his claim under Order 25 Rule 9.

(19) Regrettably, I cannot say that the Plaintiff prosecuted his action with that higher duty of diligence."

34. In reading the above paragraphs, I am of the view what the Master had said is that the

limitation period does not apply to an action for specific performance and due that the limitation act cannot come within [inordinate and inexcusable delay] but that is for filing the claim. In other words what the Master has meant is that there is no finite period of limitation applicable to a claim for an equitable relief (including specific performance) and any delay in filing a claim is not an inordinate and inexcusable delay if the claim is allowed under Section 4(3) of the Limitation Act.

35. Having said that the Master also embraced the case of Tabata-v-Hetherington as an authority for the following position:
    

".................the later the Plaintiff starts his action the higher his duty to prosecute it with diligence."

With that position in mind the Master has held that the Plaintiff who commenced his action 27 years after the contract was entered into, and quite a few years yet again after the purported breach by the Defendants, has a higher duty to prosecute his claim with due diligence.

36. Looking at the conduct of the Plaintiff in prosecuting his claim the Master has then found that the Plaintiff has not prosecuted his action with that higher duty of diligence.
    
37. In my view the Master has embraced the case of Tabata-vs-Hetherington to distinguish between the "duty to prosecute" and the "higher duty to prosecute" in his Ruling. He has taken into account the 27 year period to file the claim and determined that the Plaintiff had a "higher duty to prosecute" his claim. Therefore I find that the grounds of appeal no. 3(c) also lack any merit and it is formulated by taking the Learned Masters' finding completely out of context.
    
38. The next ground of appeal to be considered is ground 3(d).
    

3(d) The Master erred in law and/or in fact in striking out the action on the basis that the Appellant had not progressed the action when the onus was on the Respondents to show that they had performed the necessary sub-division and obtained the necessary consent and when they were under a duty to refund monies paid if they were held not to be obliged to specifically perform.

39. As discussed above in regard to ground of appeal no. 1(a) it is re-iterated that there was no onus in this matter for the Respondents to show anything. Here the Notice to Show Cause had been issued by the Master for the Plaintiff to show cause before striking out the claim. The issue of necessary sub-division and obtain the necessary consent etc, are of no relevance to the issue of "inexcusable and inordinated delay" in prosecution a claim
    
40. For all of the above reasons the Appeal is dismissed. The Appellant is ordered to pay $2000.00 to the Respondents costs summarily assessed within 21 days of this Judgment.
    

Lal S. Abeygunaratne
Judge

At Lautoka
26th March, 2015