Fiji Development Bank v United Landowners Co Ltd [2019] FJHC 885; HBC152.2010 (13 September 2019)

IN THE HIGH COURT OF FIJI

WESTERN DIVISION

AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 152of 2010

BETWEEN : FIJI DEVELOPMENT BANK a corporate body having its Head Office at 360 Victoria Parade, Suva, Fiji

Plaintiff

AND : UNITED LANDOWNERS COMPANY LIMITED a limited liability company having its registered office at the Fiji Pine Commission, Drasa Avenue, Lautoka

1^st Defendant

AND:

OSEA NAIQAMU aka OEA NAIQAMU aka OSEA NAIQAMA,ESALA NAKALEVU, NASOGO ILIVASI aka ILIVASI NASOQO. VIVITA NACEWA, MARIKA SENIBUA, LEMEKI NAITAU, FILIPE NACEWA AND SOLOMONE NAREBA all of Simla, Lautoka Fiji, Company Directors.

2^nd 3^rd 4^th 5^th 6^th 7^th 8^th and 9^th Defendants

Before : Master U.L. Mohamed Azhar

Counsel : Ms. J. Naidu (on instructions) for the Plaintiff

The Defendants were absent and unrepresented

Date of Ruling: 13^th September 2019

RULING

(On striking out under Or 25 r 9)

Introduction

01. The plaintiff, pursuant to several loan agreements entered into between the periods from 25.07.1991 to 26.01.2009, granted loan facilities to the first defendant. The first defendant on the other hand provided securities in the form of bills of sale over vehicles Registration Numbers ULCL 01, EH 786, EC 098 and DD 076, assignment over Cartage Proceeds with Pine Landowner Company Limited and adequate insurance cover to secure the loans so granted by the plaintiff bank. There were variations on securities as per the agreement entered by the plaintiff and the first defendant. The plaintiff, for the purpose of further securing the loans advanced to the first defendant, obtained Deeds of Guarantees executed by the second to ninth defendants to this action. The first defendant defaulted in repayment of loan which resulted in the plaintiff exercising its rights under the securities and selling the items under the Bills of Sale. Though the sale proceeds were credited to the loan account of the first defendant, there was a remaining balance of $ 116, 293.30 and the plaintiff sued the first defendant and the other defendants – the guarantors to recover the said balance amount together with the interest at the rate of 10.01 per annum from 01.06.2010 and cost.

02. Some defendants failed to file the notice of intention to defend, whilst some others defaulted in pleading. As a result, the plaintiff sealed the default judgment against them. In the meantime, the plaintiff’s action was struck out on 19.05.2011 under Order 25 rule 9 as it appears from the minutes made on that day. However, the matter was re-instated and the parties filed their respective pleadings and filed the affidavits verifying their lists of documents. The matter was then adjourned for the parties to complete the discoveries and to finalize the Pre-Trial Conference Minutes. It was also informed to the court on 16.07.2013 that, the ninth defendant passed away in 1995 about 15 years before filing this action and the first defendant company was wound up. The court then adjourned the matter for finalizing the Pre- Trial Conference Minutes. However, the plaintiff neither appeared thereafter nor did he file the minutes of the Pre- Trial Conference. As a result, the then Master of the High Court took the matter off the cause list on 27.09.2013.

03. After about three months, the plaintiff, on 08.01.2014 filed a notice requesting a Pre-Trial Conference pursuant to Order 34 rule 2 of the High Court Rules. However, nothing was materialized and the court, having waited for another three years issued the notice on 23.01.2017, on its own motion on the plaintiff company, pursuant to Order 25 rule 9 of the High Court Rules requesting it to show cause why this matter should not be struck out. The plaintiff company filed the affidavit showing cause for inaction. Though the notice issued on the plaintiff company was served on the defendants’ solicitors, they did not take part in this proceeding. At the hearing the counsel for the plaintiff filed his legal submission and moved the court to make the ruling based on the affidavit and his legal submission.

Law

04. The law on striking out under Order 25 rule 9 is well settled and there is number of cases decided by both the high court and the appellate courts. Thus this does not need much deliberation. However, it is necessary to brief the law for the purpose of this ruling. The Order 25 rule 9 provides for jurisdiction of the court to strike out any cause or matter for want of prosecution or as an abuse of process of the court if no step has been taken for six months. The said rule reads;

"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 may be just or deal with the application as if it were a summons for directions".

05. The grounds provided in the above rule are firstly, want of prosecution and secondly, abuse of process of the court. This rule was introduced to the High Court Rules for the case management purpose and is effective from 19 September 2005. The main characteristic of this rule is that, the court is conferred with power to act on its own motion in order to agitate the sluggish litigation (see: Trade Air Engineering (West) Ltd v Taga [2007] FJCA 9; ABU0062J.2006 (9 March 2007). Even before the introduction of this rule, the courts in Fiji exercised this power to strike out the cause for want prosecution following the leading English authorities such as Allen v. McAlpine [ 2 QB 299; [1968] 1 All ER 543 and >Birk. James&#/b> [1978] AC 297; [1977]l ER Justiott, stt, strikinriking out of plaintiff’s action inon in Hussein v Pacific Forum Line Ltd [2000] Fiji Law Report 24; [2000] 1 FLR 46 (6 March 2000), stated that;

“The principles governing the exercise of the Court's jurisdiction to strike out for want of prosecution are well settled. The leading English authorities are Allen v. McAlpb> [1968] 1 All ER 543 and s [1968] 2 Q.B. 276 (reported in a note to Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 Q.B. 229) and Fitzpatrick v Batger & Co Ltd [1967] 1 W.L.R. 706

The dismissal of those actions was upheld and shortly after, in the three leading cases which were heard together and which, for brevity, I shall refer to as Allen v McAlpine [1968] 2 Q.B. 229