Panache Investment Ltd v New India Assurance [2015] FJHC 523; HBC56.2014 (17 July 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTIONNO.HBC 56 OF 2014

In the matter of an application
for Leave to Appeal the interlocutory Ruling of the Master dated 23/01/2015.

BETWEEN:

PANACHE INVESTMENT LIMITED AND/OR ITS SUBSIDIARY COMPANY
a limited liability company having its registered office at Messrs Babu Singh & Associates 73 Sagayam Road, Nadi.
Plaintiff

AND:

THE NEW INDIA ASSURANCE,
155 VitogoParade, Lautoka
Defendant

Counsel:
MrEroniMaopa for the Plaintiff
Mr Shailend Krishna for the Defendant

Date of Hearing : 8 June 2015
Date of Ruling : 17 July 2015

Before : Justice R. S. S Sapuvida

RULING

1. This is an application filed by the defendant pursuant to Order 59 of the High Court Rules (HCR) 1988 and under the inherent jurisdiction of the High Court, seeking leave to appeal the Interlocutory Ruling pronounced by Hon. M.H.M. Ajmeer sitting as Master of the High Court(hereinafter referred to as the Master) dated 23 January 2015.
   
2. The Master by the aforesaid ruling dismissed and struck out the application filed by the defendant dated 22 July 2014, by which the defendant had pleaded to dismiss & strike out the plaintiff's action.
   
3. The defendant in its Summons so filed originally before the Master to strike out the plaintiff's action had pleaded;
   
   • (i) That the plaintiff's writ of summons be struck out & dismissed as it doesnot comply with the Rules of pleading against the Defendant and costs of the application against the plaintiff.
     
   • (ii) That the heading of the Writ of Summons herein fails to identify the true and proper litigant to the claim.
     
4. The Plaintiff in this action is PANACHE INVESTMENT LIMITED AND/ OR ITS SUBSIDIARY COMPANY, a limited liability company having its registered office at c/- Nandha & Company, Chartered Accountants, Nadi, as per the Writ of Summons dated 14 April 2014, and as per the statement of claim dated 10 April 2014 the plaintiff is also named that "at all material times the plaintiff is a limited liability company having a subsidiary company named Genexis Shipping Limited at Lautoka".
   
5. The Defendant is seeking leave of this Court to appeal the Interlocutory Ruling of the Master on the following grounds as deposed in the affidavit of SANIL KUMAR OF NAVATU,BA, A PARA LEGAL CLERK dated 5 April 2015.
   

" (i) THAT the Master erred in law and in fact where he failed and held at paragraph 7 (line 7) that "presumably" the Defendant was relying under Order 18 (1) (a) when at law and in fact the Defendant's Summons clearly and unequivocally stated the grounds relied upon which was that the "Heading of the Writ" of summons herein failed to identity the true and proper litigant to this claim" and the Defendant's Summons clearly and unequivocally says "To Strike Out the Plaintiffs Writ of Summons as it does not comply with the Rules of Pleading"

(ii) THAT the Master erred in law when he held at paragraph 11 he assumed the facts in the Plaintiffs Statement of Claim are trued and undisputed.

(iii) THAT the Master erred in law and fact where he failed to take into account thatthe Defendants Summons and Submissions during and at the hearing of the Defendant's Summons was only towards the Plaintiff's Writ of Summons and not the Statement of Claim thereby misdirecting himself on the issues at hand.

(iv) THAT the Master erred in law when held at paragraph 14 (an endorsement as to capacity in the Writ of Summons is not necessary" when at law at Order 6 Rule 3 of the High Court Rules is clearly says "Before a Writ is issued it must be indorsed – where the Plaintiff sues in a representative capacity, with a statement of the capacity in which he sues...."

(v) THAT the Master erred in law and fact in funding and holding "... AND/OR its Subsidiary Company" can as worded on the Writ of Summons had the capacity to sue.

(vi) THAT the Master erred in law and fact in not finding that "AND/OR it's Subsidiary Company" as worded in the Writ of Summons cannot litigate.

(vii) THAT the Master failed to take into consideration relevant matters and took into account irrelevant matters when reaching his decision.

6. The plaintiff's company filed an Affidavit in Opposition of RAJESH PATEL, DIRECTOR OF THE PLAINTIFF'S COMPANY and deposes that he denies the grounds to seek Leave to Appeal relied upon by the Defendant and also he takes the objection that the application of the Defendant is out of time.
   
7. The Counsel for Plaintiff argued at the hearing and also points out in his Written Submissions the fact that any application for leave to appeal an Interlocutory Order or Judgment shall be by summons with a Supporting Affidavit filed and served within 14 days of the delivery of the order or judgment pursuant to Order 59, rule 11 of the High Court Rules. (emphasis added)
   
8. He further submits that the defendant's summons filed on 5th February 2015 & dated 23rd February 2015 by the High Court. The affidavit of Sanil Kumar in support of the same was also dated and filed on 5 February 2015.
   
9. The Plaintiff's Counsel argues that in the instant case the service was effected 19 days after the filing, whereas the document was clearly filed on 5th February 2015, and thereby the defendant is answerable as to why it was dated 23rd February 2015 by the High Court.
   
10. The defendant caused to file an affidavit by SANIL KUMAR (Law Clerk) in reply to the plaintiff's affidavit in reply and clarifies the reasons for the discrepancy in the dates endorsed on the papers filed and served to the plaintiff and further explains as to how it has been so happened to enter different dates as pointed out by the plaintiff, by which anyone can be misdirected as to the date of filing the papers and the date so entered by the registry for service to the plaintiff's company.
    
11. Plaintiff's Counsel objects to the affidavit filed by the defendant, that of Sanil Kumar a para legal clerk of Messrs Krishna & Co, on a legal basis that, when a limited liability company is a party to a litigation it is a legal requirement that a director of the company with the company seal must sign the affidavit on its behalf.
    
12. Plaintiff's Counsel relies upon the case of CHUL v DOO WON INDUSTRIAL (FIJI) Ltd[2004]FJHC 24; HBC0011R.2004S (4 October 2004) in support of the above.
    
13. In Chul v Doo Industrial (Fiji) Ltd [2004] FJHC 24; HBC0011 R. 2004 S (4 October 2004) F. Jitoko J; commented;
    

"In the first place, the applicant, one was Jin Chae, purports to act for the first Defendant, by virtue of a Power of Attorney given to him by the second Defendant, who along with the third and fourth Defendants, are directors of the first Defendant. The applicant himself is not a director.

Any action taken on behalf of the Company, including this present application, can only be done by a director under the seal of the Company. A director is a creature of the articles of association of the Company, as well as the Act. His duties and responsibilities are specifically set out in the Act and in the articles. In my view, a director, cannot by the instrument of a Power of Attorney, cede his legal authority, duties and responsibilities imposed by law to another except than in accordance with the provision of the Act. But even if were possible to cede the powers vested in the directorship of a Company, to a third party, through a Power of Attorney, it can only be personal, the exercise of which if purportedly on behalf of the Company, will need the sanction of the Company".

14. Therefore, the affidavit filed by Sanil Kumar, law clerk in support of the application should be disregarded as it is without the sanction of the Defendant's company.
    
15. Furthermore, an observation in respect of affidavits deposed by the lawyer's clerks was made by his Lordship Mr Justice Winter in Rupeni Sulimuana Momoivalu vs Telecom (2006) (unrep) Suva High Court Civil Action No. 527/1997s are as follows:
    

"The habit of supporting or opposing applications to decide the rights of parties based on the information and belief of law clerks is an embarrassment to the clerks, her firm and the court file. Justice Madraiwiwi (as he was then) had this to say about the practice of using law clerks this way:

"it is being made clear to counsel that affidavits by law clerks were not being entertained other than in non- contentious matters such as service of documents were not disputed. The most appropriate person to have sworn the affidavit in these proceedings was Mr. Joji Boseiwaqa who appeared on instruction from the plaintiff as the relevant time. The court respectfully endorses the general thrust of dicta by Lyones J in Michael Harvey v Michael Kelly & Ray McGill, Civil Action No. HBC 323 of 1977 about the propriety of law clerks dispensing affidavits".

The affidavit barely engages the applicant defendant in many meaningful ways is in any event quite illegitimated. Although the Defendant has in part responded to his document by law clerk I intend to give it absolutely no weight whatsoever."

16. Therefore, the instant application of the Defendant cannot be considered as a valid application since it is filed without giving due regard to the law stipulated under Order 59 Rule 11 of the HCR.
    
17. The law relating to the instant application of the defendant for leave to appeal is plainly laid down under the High Court rules, Order 59, rule 11 as follows;
    

"Any application for leave to appeal an interlocutory order or judgment shall be made by summons with a supporting affidavit, filed and served within 14 days of the delivery of the order or judgment". (emphasis added)

18. Therefore it is not necessary to explain further with case law in support of the time limit in filing an application for leave to appeal in the nature of instant case, which is mandatory whereas it stipulates the wordings of "shall be made", thereof.
    
19. The defendant filed the summons on the 5th February 2015 for leave to appeal the Master's interlocutory ruling delivered on 23rd January 2015.
    
20. And the para legal clerk blames the Court registry for causing the delay and for not effecting the service within 14 days of filing the summons, whereas it stipulates that the filing and service shall be made within 14 days of the delivery of the Order or judgment.
    
21. The defendant has misdirected of the very clear procedure stipulated under the Order 59, rule 11 as mentioned above.
    
22. The para legal clerk, Sanil Kumar in his Affidavit in reply to the Plaintiff's Affidavit in Opposition goes on to mention as follows:
    

"(1) ............

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

(3) ..........

(4) .........

(5). THAT our office prepared the Summons (for Leave to Appeal the Decision of the Master) and Affidavit in Support and filed the same on 5th of February, 2015 at the High Court Registry. The Honourable Court will note the endorsement by the High Court on the backing of both the documents.

(6). THAT I personally attended to filing of the Documents in Court on 5th of February, 2015. The Court Clerk after receiving the Summons informed me that he could only issued the Affidavit in Support at present and that he will need to put the Summons to the Senior Court Officer.

(7) THAT the court clerk also informed me that the procedure is that the Senior Court Officer will need to take the file with Summons to one of the Honourable Judges for allocation of date for call over of the Summons. She further informed me to come tomorrow to check if the Summons is issued.

(8) I took the issued copies of Affidavit in Support and went back to my office. The next day, I again went back to the Court to see if the Summons was issued but after enquiring, I was told that it was until the Senior Court Officer for it to be allocated of one of the judges.

(9) THAT I made various trips to Court and enquired the Court Clerks and also made several telephone calls to have the Summons issued but there was always a reason given by the Registry for it not being issued as aforesaid.

(10) THAT I also raised issue with the Court Clerks on the Counter that thePlaintiff's Counsel could raise an issue of late filing. I was told by the Court Clerks that we didn't need to worry as they had already received the document and the High Court seal was in place and the Summons will only be issuedonce the Judge allocates a date for the Summons.

(11) The Summons was finally issued by the Court on 23rd of February 2015. Our office after issuance of the summons straight away attended to service of both documents on the Plaintiff solicitor's city agents. (Messrs S B Patel).

23. Counsel for defendant in his oral submissions took up the same position as of para legal clerk Sanil Kumar has deposed above.
    
24. As I have already noted in para 9 above, counsel for Plaintiff has submitted in his written submissions that the defendant is answerable as to why it was dated 23 February 2015 in the Defendant's Summons by the High Court Registry.
    
25. According to the line of argument of the Counsel for Plaintiff as noted in para 9 & 20 above, he is of the view that if the Summons for Leave to appeal filed by the Defendant on 5 February 2015, and served to the Plaintiff on or before 20 February 2015 it is accepted by the Plaintiff as it was served within 14 days as required under Order 59 r 1 1 of the HCR.
    
26. But this view of the Plaintiff's Counsel is incorrect for the very reason that the time limit stipulated pursuant to the Order 59 r 11 is that the 14 days shall be calculated from the date of the delivery of the Order or Judgment, but not from the date of filing the Summons by the party who seeks the Leave.
    
27. Therefore, it is not necessary to explain as to why the Defendant has been unable to serve the papers to the Plaintiff within 14 days from the date of filing the Summons, and yet, the Defendant must explain as to why the Defendant has failed to file the present application and served the same to the Plaintiff within 14 days from the delivery of the Ruling of the Master i.e. on 23 January 2015.
    
28. Then the calculation of the 14 day period starts from the 23 January 2015 and not from 5 February 2015.
    
29. When the Defendant filed the present application on 5 February 2015, it was the final data of 14 day period or in other words that was even after the eleventh hour has already been lapsed that the Defendant has filed the papers with the High Court Registry.
    
30. Therefore, the Defendant must explain with acceptable reasons to the Court as to why the papers were not filed and served within 14 days within the delivery of the Ruling.
    
31. Instead of explaining the reasons for the delay on the part of the Defendant, the para legal clerk who filed the original affidavit in support and the affidavit in reply, is leveling allegations against the High Court Registry for delaying the service from 5 February 2015 to 23 February 2015, which is totally out of the issue here in the instant case.
    
32. The Defendant has been unable to explain any reasonable cause for the delayed papers so filed on the very last day of the 14 day time limit.
    
33. I am of the firm view that the time limit of mandatory nature stipulated under any Order or Rule or Procedure is tobe strictly followed and honored by any party but not to be dishonored and make haphazard (hit – or – miss) applications anticipating anything and taking things just for granted.
    
34. I am therefore observe with emphasis here that, the Defendant in the instant case is guilty of lashes for filing the present application at the expiration of the time limit stipulated under Order 59 rule 11 and seeking Leave for appeal the Ruling of the Master even without submitting any plea for extension of time and/or for not explaining reasons for the delay caused in the same.
    
35. Therefore, I decide that it is not necessary to explore the demerits of the ruling of the Master when the application effected by the defendant by way of summons dated 5 February 2015 before me is from the beginning misconceived in law.
    
36. For the forgoing reasons I decide that the Defendant's Summons for Leave is misconceived in law and liable to be refused and hence make the following orders:
    
    1. That the summons filed by the Defendant dated 5 February 2015 for Leave to Appeal the Interlocutory Ruling of the Master dated 23January 2015 is dismissed and Struck Out.
       
    2. The Defendant must pay cost to the Plaintiff summarily assessed F$2,000.00
       
    3. The cause to be mentioned before Master for further steps to be taken up if necessary.
       
    4. Mention the matter before Master on 27/07/2015 at 8.30am.
       

R.S.S.Sapuvida
JUDGE

17/07/2015

At Lautoka