Naidu v Narayan [2017] FJHC 729; Civil Case HBC 251 of 2015 (27 September 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 251 of 2015

BETWEEN : DHANAJAIYA KRISHNA NAIDU and SUBARMANI GOUNDAR both of 11 Kobe Place, Tamavua, Suva, Engineer and Farmer respectively.

PLAINTIFFS

AND : PRAKASH NARAYAN of 21 Sean Fitzpatrick Place, Papatoetoe, Auckland, New Zealand.

FIRST DEFENDANT

AND : THE DIRECTOR OF LANDS for time being.

SECOND DEFENDANT

AND : THE ATTORNEY GENERAL OF FIJI for time being.

THIRD DEFENDANT

BEFORE: Master Vishwa Datt Sharma

COUNSEL: Mr. Suresh Chandra - for the Plaintiff

Ms. Mucunabitu - for the 1^st Defendant

Mr. Chauhan - for the 2^nd & 3^rd Defendants

Date of Hearing: 7^th August, 2017

Date of Ruling : 27^th September, 2017

RULING

[Summons by 1^st Defendant seeking for transfer of the case to the High Court Lautoka pursuant to the inherent jurisdiction of this Honourable Court]

INTRODUCTION

[1] The First Defendant by its Summons filed on 22^nd March, 2017 sought for the following Orders from this Court:

(i) That the current proceedings be transferred to the High Court Lautoka; and
(ii) That Costs of this application be paid by the Plaintiff on indemnity basis.

[2] The Application is made pursuant to the Inherent Jurisdiction of this Honourable Court.

[3] This application is an 'opposed' by the Plaintiff

THE LAW

[4] Order 4 Rule 1 (1) and (4) of the High Court Rules, 1988 provides as follows-

r1 (1) Proceedings must ordinarily be commenced in the High Court registry located in the Division in which the cause of action arises;

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

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

(4) Any action commenced in the High Court may be transferred by the court from one High Court to registry to another or to a Magistrate’s Court.

ANALYSIS and DETERMINATION

[5] It is not in dispute that the subjective matter of the substantive issue is with regards to the State Lease No. 11687 situated in Naqalau, Rakiraki which falls within the Western Division. (Underline is mine).

[6] Therefore, it cannot be denied by the parties to this proceedings that the ‘Cause of Action” arose in Rakiraki where the subject land which is under contention exists. There are two other causes of action in this proceeding in respect of the existing Caveat on the property and the Withholding of Consent by the 2^nd Defendant respectively.
[6] In my considered view the principles that guide the Court in the exercise of its discretion to transfer cases are conveniently set out in Halsbury's Laws of England (4th edition) Vol.37 at para.63 which reads:

"The Court's power to transfer proceedings from one Court to another is a useful corrective to ensure that proceedings, wherever begun or whatever forum the plaintiff has initially chosen, should be dealt with or heard or determined by the Court most appropriate or suitable for those proceedings ... the Court will have regard to the nature and character of the proceedings, the nature of the relief or remedy sought, the interests of the litigants and the more convenient administration of justice. It is a discretionary power which will be exercised having regard to all the circumstances of the case."

[7] The Plaintiff’s substantive claim against the Defendants may be summarised as follows-

This action was begun in the High Court in Suva. The subject matter and the nature of the proceedings pending before the Court is in relation to the State Lease No. 11687 situated in Western side of Viti Levu at Naqalau, Rakiraki. The Plaintiff states that the 1^st Defendant is the registered Lessee of the State Lease No. 1168 and entered into a Sale and Purchase Agreement with the Plaintiff for the consideration sum of $40,000. The First Defendant therefore entered into an agreement and executed an Instrument of transfer in favour of the Plaintiff. The Plaintiffs therefore made various efforts with the Director of Lands [2^nd Defendant] to obtain consent but to date without any success. The final settlement was to take place at the Registrar of Titles Office in Suva when the 1^st Defendant migrated as soon as the transaction entered into and he lives in New Zealand.

The First Defendant has shown intention to re- sell the Lease to a 3^rd Party. The 1^st Defendant has refused and or neglected to transfer the Lease to the Plaintiffs.

The Plaintiff now seeks that the 3^rd Defendant grant the consent to transfer the lease No. 11687 to the Plaintiffs; An order that the 1^st Defendant to transfer the State Lease No. 11687 to the Plaintiffs unconditionally; and Costs or alternatively, 1^st Defendant to refund the sum of $40,000 together with interests, costs and special damages and general damages up to $30,000.

[8] The Plaintiff’s contention for objecting to the transfer of this case to the High Court Lautoka are as follows-

• All the parties to the proceedings are in Suva except for the 1^st Defendant who resides and lives in Auckland, New Zealand;
• The Plaintiff are the two (2) witnesses in this action and the 1^st Defendant may be the only witness;
• The Solicitor who prepared and witnessed the necessary conveyancing and other documents is now a deceased; and
• The action has reached the Pre-Trial stage and is almost ready to have a hearing date fixed and ought to continue in Suva and be finalised in Suva.
  

[9] The Defendant on the other hand submitted-

• That that the cause of action did not take place in Suva;
• It is not where the parties reside;
• The 2^nd Defendant’s office in the West in direct dealing with this matter and the 3^rd Defendant having offices available can just transfer the file;
• The 1^st Defendant was not at his correct address of abode overseas;
• Writ served is stale and all proceedings continued against the 1^st Defendant was ex-parte; and
• The 1^st Defendant put up challenges regarding service and the Writ being stale now.
  

[10] It should be borne in mind that the Plaintiff commenced this proceeding in Suva on 16^th July, 2015. Subsequently, he sought for court’s leave to serve the 1^st Defendant out of Jurisdiction of this court and the leave was granted on 20^th August, 2015. Upon the perusal of the Court Record, it reveals that No action hereafter was taken by the 1^st Defendant and the matter reached its Pre-Trial stages. On 22^nd March, 2017, the 1^st Defendant’ Counsel filed the Notice of appointment of Solicitors together with the current Summons and an Affidavit in Support seeking an order for transfer and various other orders.

[11] Bearing in mind all above and together with what the 1^st Defendants has submitted to court in my view has not established a prima facie case for the transfer of this action to the High Court at Lautoka. Further, all the parties to this proceedings including the Plaintiffs, the 2^nd and 3^rd Defendants are located in Suva except for the 1^st Defendant who has settled in Auckland New Zealand now represented by his Counsel from Lautoka.

[12] This case has remained pending in this Court since 16^th July, 2015, for almost 2 years and 2 months and the only way it can be expedited is to let the case move expeditiously in the current Court at Suva and strict timetable be set out for the Counsels representing the Parties to comply.

[13] In the exercise of the Court's discretion, I hereby order that this action to be maintained at the High Court, in Suva for completion of the pleadings and thereafter be allocated to a High Court Judge for hearing and Determination accordingly.

[14] Following are the Final Orders of this Court:

FINAL ORDERS

1. 1^st Defendants Summons seeking an order to transfer the case to the High Court At Lautoka fails;
   
2. The case stands adjourned to 16^th October, 2017 @ 9 am for further directions;
   

100. Each party to bear their own costs at the discretion of this Court;
     

4. Orders accordingly.
   

Dated at Suva this 27^th Day of September, 2017

..............................................................
VISHWA DATT SHARMA

Master of High Court, Suva

cc: M. C. Lawyers, Suva
Vijay Naidu & Associates, Lautoka
Attorney General’s Chambers, Suva