Begum v Kuar [2016] FJHC 42; Civil Action 243.1986L (2 February 2016)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
Civil Action No. 243 of 1986L

BETWEEN:

ZOHRA BEGUM & MOHAMMED KHALIL
of Kennedy Avenue, Nadi, Domestic Duties and Security Officer respectively.
Plaintiffs

AND :

TEJ KUAR f Votualevu, Nadi, Domestic Duties.
1st Defendant

AND :

PUBLIC TRUSTEES OF FIJI
as the Administrator of the Estate of Puran Jorawar late of Fiji and as the body named under Section 8 of the Succession Probate and Administration Act.
2nd Defendant

AND :

VIJAY CHAND (practicing as VIJAY CHAND AND COMPANY)
Barrister and Solicitor of Nadi, but now of Auckland, New Zealand.
3rd Defendant

RULING

1. Before me is a Summons filed pursuant to Order 25 Rule 9 of the High Court Rules 1988 filed by first and third defendants. They seek the following Orders:
   

(1) that the claim against them be dismissed for want of prosecution and/or abuse of process.

(2) the Order and extended on 4th July 1991 till further Order of this Honourable Court be dissolved.

(3) caveat number 282563 registered on 1st March 1990 by the first plaintiff against Lot 10 on DP 2631 being Certificate of Title No. 11362 and extended by this Court under the Court Order No, 303835 'A' registered on the fourth of July 1991 until further order be removed and/or dissolved.

(4) costs of and occasioned by this action including this application be summarily assessed and be paid by the Plaintiffs to the 1st and 3rd Defendants on a solicitor client indemnity basis.

2. The defendants cite the following grounds in support of their application:
   

(a) that this action now constitutes an abuse of this Court.

(b) that the default and delay on the part of the plaintiffs to proceed with this action since the Amended Writ of Summons on 13th February, 1990 has been intentional and contumelious and that there has been no initiative on the part of the Plaintiffs to set the matter down for trial.

(c) that there has been inordinate and inexcusable delay on the part of the Plaintiffs or their lawyers and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in this action or is likely to cause or have caused serious prejudice to the 1st and 3rd Defendants.

(d) that the Plaintiffs have not taken any step in the matter since 1999 and hence for the last six months.

3. The originating process in this matter was filed in 1986, as far as one may gather from the case number. For many years, the original file relating to this matter has been missing from the Court Registry. This much I gather from the letters written by the defendants' solicitors, Pillay Naidu & Associates.
   
4. I do not know what the nature of the plaintiffs' cause of action is against the defendants.
   
5. All I have before me is a duplicate file which contains only a few documents namely:
   
   • (i) Notice of Change of Solicitors filed by Messrs Pillai Naidu & Associates on 01 May 2012.
     
   • (ii) Summons to Dismiss Action for Want of Prosecution filed 26 August 2012 filed by Messrs Pillai Naidu & Associates plus Supporting Affidavit of Tej Kuar sworn on 19 June 2012.
     
   • (iii) Affidavit of Service of one Krishneel Kunal Kumar sworn on 28 February 2013.
     
6. There is, however, enough material in the affidavit of one Tej Kuar, the first defendant and applicant in this matter, to at least enable me to sketch in the broadest of terms what the issues might be between the parties.
   
7. Kuar deposes as follows in paragraphs 5, 6, 7, 8, 9, 10, 11:
   

5 (a) The ...proceeding was issued by the Plaintiff on or about 13th February, 1990 in respect of events that took place sometimes in the years 1985.

(b) ...the Plaintiffs lodged a Caveat No. 282563 against the 1st Defendant's land being Certificate of Title No. 11362 Lot 10 on DP No. 2631 registered on 1st March 1990 against the said Title and upon application being made by the 1st Defendant for its removal, the Plaintiff instituted this action. (Annexed herein and marked as annexure "TK1" is a copy of the said Certificate of Title).

6 The Plaintiff has done absolutely nothing since filling of the Minutes of Pre-Trial Conference on 30th June, 1998 more than 13 ½ years ago.

7 Indeed no attempt whatsoever has been made by the Plaintiff to push the matter to trial.

8 I am aware of no matters which might render the period of delay excusable and I say that the Plaintiff's conduct is such as to amount to wholesale disregard to the Rules of the High Court and thereby constitutes an abuse of process which alone justifies the order which I am seeking. In particular, the plaintiff has failed to comply with Order 34 Rule 1 of the High Court Rules 1988.

9 The Plaintiff has not taken any step in the matter in the last six months and must now show cause why the matter should not be struck out under Order 25 Rule 9 of the High Court Rules 1988.

10 It is clear that the Plaintiff has shown no interest in pursuing its claim and has not diligently prosecuted this matter.

11 The delay in the prosecution of these proceeding is inordinate in the extreme. The defendants will be severely prejudiced if these proceedings were allowed to continue to trial. Such prejudice rises from the fact that the proceedings concern events that took place in 1985 and with the passage of time recollections of witnesses will be severely affected and there is the substantial risk that a fair trial will not be possible.

8. The duplicate file also contains some letters written by Pillai Naidu & Associates dated 07 February 2012 and 25 July 2012. From these letters, I gather that there is a caveat (No. 282563) which the plaintiffs had registered on a certain piece of property purportedly belonging to the said Tej Kuar. The details of the nature of the plaintiffs' purported interest on the said property, I do not know.
   
9. It is not clear to me whether or not the plaintiffs are at all aware of these proceedings. The affidavit of service of Kuar was served on Messrs Krishna & Company on 13 February 2013 because the principal of the said firm, Mr. Salen Krishna, was then the appointed Receiver for the plaintiffs' former solicitors' practice namely M/s Sahu Khan & Sahu Khan.
   
10. It appears to me from the letters written by Messrs Pillai Naidu & Associates and from the affidavit of Kuar that certain events happened in 1985 which then prompted the plaintiffs to file this claim against the defendants.
    
11. The plaintiffs then registered the caveat in question on 01 March 1990 against Certificate of Title No. 11362 Lot 10 DP No. 2631. Kuar had then applied to the Registrar of Titles for the removal of the said caveat. When the Registrar of Titles sent the relevant statutory notice to the plaintiffs to justify sustaining the caveat on the title, the plaintiffs applied to court and obtained Orders to extend the caveat.
    
12. A copy of the Certificate of Title in question is annexed to the affidavit of Kuar. The memorials on the Certificate of Title do give some perspective on what the issues might be.
    
13. The original registered proprietor was one Puran Jorawar.
    
14. A Transfer (No. 198189) to the plaintiffs is memorialized on the said CT and purportedly registered on 21 January 1983 at 11.00 a.m. However the signature of the Registrar of Titles is not endorsed on the said purported transfer.
    
15. A mortgage (No. 198190) is also memorialized on the CT and also dated 21 January 1983. This memorial, which appears on the CT immediately below the above purported transfer, and bears the next consecutive transaction/memorial number from the said purported transfer, and is dated the same as the above purported transfer. This memorial (198190) records the original registered proprietor, namely, Puran Jorawar, as the mortgagee.
    
16. It would appear then that the purported transfer to the plaintiffs (No. 198189), as far as the Registrar of Titles was concerned, really did happen, even though his signature does not appear on the memorial.
    
17. I also observe that a caveat was also registered on 21 January 1983 at noon to one Mohammed Ismail Sharif and one Sogra Bibi. This was the same date of the purported transfer (198189) and mortgage (198190).
    
18. I observe that both the mortgage and the said caveat were later cancelled. The dates of cancellation are not clear.
    
19. The next memorial on the title is a transfer number 221566 registered on 26 March 1985 to Tej Kuar, the first defendant and last registered proprietor. This was then followed by a caveat registered some five years later on 01 March 1990 by the first plaintiff, Zohra Begum. The memorial records that the transfer to Kuar was "under mortagage 198190".
    
20. Some nine months after Begum had her caveat registered, Kuar filed an application for the removal of the caveat (No. 294184) on 06 December 1990. Thereafter, as memorialized, followed six successive Court Orders (dated 17 and 31 January 1991, 12 and 27 March 1991, and 04 July 1991) extending the caveat from time to time. The last Order though registered on 4 July 1991 extended the caveat until further orders.
    
21. The property in question is situated in Waqadra in Nadi and comprises 29.8 perches.
    
22. What I can reconstruct from the memorials is that the original registered proprietor, Puran Jorawar, (purportedly) transferred the property to the plaintiffs on 21 January 1983 (198189). Jorawar and the plaintiffs obviously had an arrangement, which saw Jorawar securing a mortgage over the property. On 26 March 1985, the property was transferred to Kuar (first defendant). The notation on the memorial records that the transfer was made "under Mortgage 198190".
    
23. I note that the original proprietor/mortgagee is not named as a defendant in this matter. Should I strike out the claim for want of prosecution?
    
24. Order 25, Rule 9 provides;
    

"If no step has been taken in any cause or matter for six months then any party on application or the court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the court.

Upon hearing the application the court may either dismiss the cause or matter on such terms as maybe just or deal with the application as if it were a summons for directions".

25. The first defendant, Kuar, deposes at paragraph 6 that the plaintiffs have done absolutely nothing since filing of the Minutes of Pre-Trial Conference on 30 June 1998 and that the plaintiff has made no attempt whatsoever to push the matter to trial. From where I sit, it certainly looks that way.
    
26. I observe that the Court has extended the caveat six times and currently, there is a Court Order that the caveat is to remain until further Orders. In obtaining that Court Order, the plaintiffs would have convinced the court that:
    
    • (i) there is a serious issue to be tried, and in doing so, would have convinced the court that they do have a proprietary interest in the land in question.
      
    • (ii) the balance of convenience favours the maintenance of the caveat
      
    • (iii) the overall justice of the case favours keeping the caveat until trial
      

(see Fiji Court of Appeal'sment in B>Bahadur Ali v Fiji Development Bank)

27. In the peculiar circumstances of this case, I would have to exercise my discretion under Order 25 Rule 9 and treat the application before me as a Summons for Directions. Accordingly, I do make the following directions:
    
    • (i) the defendant, Kuar is to file an application to discharge the Court's injunctive Order which is still in force within 21 days
      
    • (ii) the application is to be served personally on the plaintiffs, or, the personal representatives of their respective estates if in fact they or either of them is now deceased.
      
28. This case is adjourned to Tuesday 23 February 2016 at 1o.30 a.m. for mention only.
    

................................
Anare Tuilevuka
JUDGE
02 February 2016.