Singh v Lata [2015] FJHC 417; HBC162.2004 (8 June 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 162 of 2004

BETWEEN :

CHATTAR SINGH of Tavua, Fiji, Retired
Plaintiff

AND:

PRAVINA LATA of Nadawa, Nasinu, Machinist
Defendant

Appearance : Mr Mishra V. Counsel of Mishra Prakash & Associates for the Plaintiff
Mr Sharma S. with Mr Naidu K. Counsels of Patel Sharma Lawyers for the Defendant

Date of Judgment : 8 June 2015

JUDGMENT

[1] The Writ of Summons was issued by the Plaintiff on 6 May 2004 against the Plaintiff for extension of the caveat and by the amended statement filed on 22 November 2004, the following reliefs were prayed:

1) An order for declaration that the Defendant is holding the property comprised in Housing Sub-Lease No. 335780 Lot 28 on DP6927 as trustee for the Plaintiff.

2) An order that the Defendant do transfer Housing Sub-Lease No. 336780 Lot 28 on DP 6927 to the Plaintiff.

3) Costs of this action.

[2] This matter was taken up for formal proof due to non appearance by the Defendant on 13 September 2011 and fixed for 12 December 2011. On 9 December 2011 the matter was taken up for formal proof and the order was granted favouring the Plaintiff to transfer the lease to himself and the Plaintiff claims this was the final Judgment.

[3] The Defendant filed summons to set aside the formal proof on 19 October 2012 which was heard by Hettiarachchi J. and made order as follows (as per the sealed order and Judge's notes):

(a) that the judgment dated 1st June 2012 is declared null and void given that the matter had already been struck out;

(b) that on the aforesaid premise, the judgment dated 1 June 2012 is hereby set aside;

(c) that the order given the Honorable Master of the High Court of 1st May 2008 shall remain in force; and

(d) costs to be taxed if not agreed.

[4] When the matter was called on 9.12.2011, Mr Dogie had appeared for the Plaintiff and the matter was taken up for formal proof. The Plaintiff's counsel being aware of the case being struck out on 1st May 2008 which was not appraised to the Judge when it was taken up for formal proof. I also find that thereafter, Mr Haroon Ali Shah Esquire, the solicitor for the Plaintiff had filed the written submissions and he had not stated that there is a pending application for reinstatement after struck out and it was clearly misleading and abuse of the process of the court. Accordingly, the Judgment on this matter was delivered on 1 June 2012 on the formal proof, by His Lordship, has no force or avail in law.

[5] It is abundantly clear that the Judgment on formal proof cannot stand on the face of it since there was no matter pending before His Lordship since it was struck out. Before reinstatement of the matter the Plaintiff cannot obtain a Judgment on the formal proof. The Plaintiff and his solicitor/counsel had obtained the judgment by misleading the court and once His Lordship had perused the record on 14 November 2014, he himself had found out that the matter was struck out by the Learned Master on 01/05/2008 and declared the judgment delivered by him as null and void. In other words the Judgment did not have any effect in law (refer to Judge's notes).

[6] I specifically state that the formal proof judgment was obtained by the Plaintiff by misleading the court and both counsel/solicitor and the Plaintiff are guilty of the abuse of the process of the court. The reliefs stated in the summons in the paragraphs 1 and 2 are not pursued by the counsel for the Plaintiff, however, for completeness of this Judgment. I determine there is no basis for the Plaintiff to urge the reliefs 1 and 2 of the summons. The only two reliefs considered by this court are the reliefs prayed in the paragraphs 3 and 4, and the Plaintiff has urged to use the inherent jurisdiction of this court. The reliefs prayed in the paragraphs 3 and 4 are:

"(3) Alternatively it be confirmed that the Plaintiff's action has been reinstated by the High Court setting aside the Order by the Master of the 1st day of May 2008, striking out the Plaintiff's action for non appearance or not proceeding with the High Court Action;

or

(4) Alternatively the Plaintiff's application to reinstate the action be set down for hearing if it be held that the action is not reinstated".

[7] The Orders made by Mr Justice Hettiarachchi on 14th November 2012 (detailed in paragraph 3 above) were final Orders of the High Court and the said Order were made after hearing the submissions on behalf of the Counsel for the Plaintiff and the Counsel for the Defendant. It was an inter-partes hearing.

[8] I agree with the counsel for the Defendant that the Learned Judge's Orders of 14th November 2012 were clearly made with the full knowledge of the history of the proceedings, and made the finding that the Plaintiff and his counsel mislead the court.

[9] The chronology of the events are stated in the Annexure 'E' to the Affidavit of the Defendant filed on 19 October 2012 and I have already made my findings in the preceding paragraphs on this.

[10] In the Judgment of 25th November 2005, where Pathik J. ordered that:

"......the Caveat remains until further order of this court and it is further ordered that the parties proceed with due diligence with the prosecution of the action".

[11] No action was taken by either party until the Plaintiff filed a Notice of Intention to Proceed and Affidavit in Reply (to the Originating Summons) on 25th July 2007. The Defendant filed Summons for Directions subsequently. Since, there was no appearance for the Plaintiff on 12th October 2007, the Master Udith made an "Unless Order", worded as follows:

"Unless the Plaintiff proceeds with this action with 'due diligence' as ordered by Justice Pathik on 25/11/2005 by 15/11/2007 this action be struck out. Adjourned to 19/11/2007 and NOAH to be sent to Mr Shah".

[12] When the case was called on 19/11/2007, the Plaintiff's counsel appeared and the Defendant's counsel did not appear and the Master adjourned the matter to 1/2/2008. On this day the Defendant did not appear and the Plaintiff was given directions to file some papers (hand writing not clear) by 31/3/2008 and the matter was adjourned to 2/4/2008.

[13] When the matter was called on 2nd April 2008, the Plaintiff had not appeared and failed to comply with the directions made by the Master on 1st February 2008. The Master could have struck out the matter on 2nd April 2008 itself. However, the Master had given a further opportunity for the Plaintiff to proceed with the matter by making an Unless Order.

[14] On 2nd April 2008, the Master made the following Order:

"Unless the Plaintiff proceeds with the action by 30/4/2008, it is struck out. Adjourned to 1/5/2008".

[15] When the matter was called on 1/5/2008 before the Master, the Defendant was present and the Plaintiff or his counsel did not appear and the Master made the following order:

"Unless Order applies, action is struck out. Cost if not agreed to be taxed".

[16] The Order by the Master is not only for non appearance of the Plaintiff but the Plaintiff and his counsel's failure to proceed with the case diligently and disobeying the directions. The Plaintiff's position that this matter was struck out for the mere reason of non-appearance cannot be accepted.

[17] The Plaintiff on 4th December 2012 filed an Appeal in the Court of Appeal being Civil Action No. ABU 70 of 2012 and the Notice and Grounds of Appeal are as follows:

(1) The Learned Trial Judge erred in law and in fact in:

(a) setting aside the judgment delivered on formal proof and/or holding that the same were a nullity as the order had been sealed and seven days had expired;

(b) and when the same could only have been heard and delivered if there was a re-instatement of the action on the Appellant's application after the Master had ordered the Appellant's action to be struck out on the 1st of May 2008;

(2) The Learned Trial Judge erred in law and in fact and setting aside the Judgment delivered on formal proof after hearing evidence on oath from the Appellant on the 1st day of June 2012 and sealed on the 11th day of September 2012 without giving reasons and a formal judgment.

(3) The Learned Trial Judge erred in law and in fact and setting aside the Judgment delivered on formal proof on the 1st day of June 2012 and sealed on the 11th day of September 2012 when there was no jurisdiction in the High Court to do so; it being functus officio when the proper course was to appeal the said decision.

[18] The Grounds of Appeal are identical to the present issues raised by the Plaintiff in this matter and the said appeal was not pursued by the Plaintiff and it was abandoned.

[19] Now the issue to be determined by this court is as to whether this court can exercise its inherent jurisdiction to grant reliefs to reinstatement of the Struck Out Order. The Defendant referred to Halsbury's Laws of England 4th Edition Volume 37 paragraph 38 states as follows:

"The general rule of practice is that where proceedings are irregular, the party affected by the irregularity is entitled to have the proceedings set aside ex debito justitiae, and he is ordinarily entitled to the costs of the application; the court may set the proceedings aside in its inherent jurisdiction and it is not necessary to appeal against the order".

The Plaintiff stated that the proceedings are irregular for the reasons that the judgment is without reasons. I deny this submission and state Judge's note explains why the order was made against the Plaintiff which I dealt in the previous paragraphs. I deny the submissions and further state His Lordship made the orders by perusing the record and that it did not prevent the Plaintiff from lodging an appeal.

[20] The Plaintiff also cited Trade Air Engineering (West) Limited & Ors vs. Laisa Taga & Ors Fiji Court of Appeal Civil Appeal No. ABU 062 of 2006 in paragraph 12 which states:

"[12] The first problem is that, as already observed, the Judge apparently took notes of the March hearing and provided no written reasons for his decision to dismiss. Such information as we have been supplied with (hear say from the bar table) suggests that counsel for the Appellants told the Judge that their inaction was the result of oversight, not of any lack of intention to proceed. Why the Judge apparently refused to accept this explanation, we do not know. The failure to provide reasons for the decision reached in March was, with respect unsatisfactory".

[21] Inlimine this decision do not assist the Plaintiff since His Lordship had found the Plaintiff had not only complied with the directions but also misled the court to obtain a judgment by formal proof. The Plaintiff also submitted in the said judgment in paragraph 14 that a re-hearing by the same Judge on the same issues is to be avoided if possible. My view it is not mandatory, it depends on the circumstances. The Fiji Court of Appeal did say that the rationale for granting after the decision for dismissing the action was not easy to discern and in paragraph 17 it went on to quote the Bhawis Pratap vs. Christian Mission Fellowship decision which says as follows:

"[17] In Bhawis Pratap vs. Christian Mission Fellowship (Civ App ABU 93/05 – 14 July 2006) this court reviewed the authorities and explained that mere delay without prejudice to the other parties is not ordinarily a sufficient ground for striking out an action for want of prosecution".

[22] I hold in this matter the Plaintiff cannot rely on this authority for the reason that the facts of the case are totally different from the present case, and striking out was not merely on the delay. I state that the Plaintiff did not take any steps to proceed with the matter for 4 years and that it had caused great prejudice to the Defendant, and the Plaintiff cannot be excused.

[23] I conclude that the Judgment by the court on 12 November 2012 are final orders and there is no legal basis to revisit them by this court.

[24] I have considered the principles laid down in case of Chandler vs. Alberta Association of Architects [1989] 2 SCR 848 at:

"Page 13 – "Jowitt's Dictionary of English Law" (2nd ed. 1977) defines functus officio as "having discharged his duty"; an expression applied to a judge, magistrate or arbitrator who has given a decision or made an order or award so that his authority is exhausted. The holding of Morton J. in Re V.G.M. Holdings Ltd [1941] 3 All ER 417 (Ch. D.), is well summarized in the head note.

Where a judge has made an order for a stay of execution which has been passed and entered, he is functus officio, and neither he nor any other judge of equal jurisdiction has jurisdiction to vary the terms of such stay. The only means of obtaining any variation is to appeal o a higher tribunal".

In this matter, appeal is also being abandoned.

An editorial added that:

"This is practice point. It is well settled that the court can vary any order before it is passed and entered, the court is functus officio and can make no variation itself. Any variation which may be made by a Court of appellate jurisdiction.

Black's Law dictionary (5th ed. 1979) defines functus officio as "a task performed".

Having fulfilled the function, discharged the office, or accomplished the purpose and therefore of no further force or authority. Applied to an officer whose term has expired and who has consequently no further official authority and also to an instrument, power, agency, etc, which has fulfilled the purpose of its creation, and is therefore of no further virtue or effect".

I hold in favour of the Defendant and state that His Lordship's Order on 12 November 2012 is final and that this court had become functus officio as such this court cannot use its inherent jurisdiction in favour of the Plaintiff, by revisiting the Judgment.

[25] The Plaintiff had cited Madhwan Keshwan vs. Keshni Devi & Others – Civil Appeal No. ABU 0035 of 2006 (unreported). The issues arisen out of this case are different to the said case and hold that the inherent jurisdiction of this court cannot be exercised in favour of the Plaintiff, inter-alia the Plaintiff had misled the court by suppressing the fact that the matter was struck out. The Plaintiff cannot be excused and this court is inter-alia functus officio.

[26] Accordingly, I make the following Orders:

(1) The summons filed on 30/11/2012 dismissed.

(2) The Plaintiff is ordered to pay summarily assessed costs of $1,500.00 to the Defendant within 14 days of this Judgment.

Delivered at Suva this 8th Day of June 2015.

...............................

C. KOTIGALAGE

JUDGE