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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
Civil Action No. HBC 41 of 2017
BETWEEN: KAMLAS LATTA of Kabesi, Sigatoka, Retired.
Plaintiff
AND: DHAVENDRA SINGH aka DHANENDRA SINGH of Kabesi,
Sigatoka, Retired.
Defendant
Before: Master U.L. Mohamed Azhar
Counsels: Ms. R. Lata for the Plaintiff
Ms. A. Swamy for the Defendant
Date of Ruling : 17.12. 2021
RULING
01. The plaintiff took out the originating summons issued by this court on 03.03.2017 and sought an order on the defendant to transfer one third of the property comprised in CL 91868; Lot 32, Waqaliqali Subdivision, (Plan No. 1093), Cuvu, Nadroga to herself (plaintiff). The plaintiff also sought an order restraining the defendant from subdividing and selling the above property until determination of this matter. The summons is supported by an affidavit sworn by the plaintiff. The defendant through his solicitor opposed the summons and was directed to file the affidavit in opposition. Thereafter, the solicitor for plaintiff moved to file the writ instead of the originating summons and sought further time to file a formal application for the same. The defendant’s solicitor did not object the application of the plaintiff.
02. Upon filling the formal application, the solicitor for the defendant unconditionally consented for the summons and moved the court to direct that, the matter to take normal cause. Accordingly, the court, on 24.07.2017 ordered that, the matter to continue as it begun by way of writ and set the timeline for the pleadings of the parties to be closed. The court further ordered the matter to be on its normal cause until the parties complete the pleadings. However, the plaintiff did not take any step for nearly one year and eight months till the defendant filed the current Motion on 28.02.2019 seeking an order to strike out the plaintiff’s action for abuse of process under Order 29 r 5 of the High Court Rules. The plaintiff did not even available to file the affidavit to oppose the Motion of the defendant, instead the law clerk of the solicitors for the plaintiff deposed affidavit that was filed in opposition of the Motion. The affidavit in reply was sworn and filed by the defendant himself.
03. The counsels who appeared for the parties agreed to file their written submission for hearing and moved the court to make the ruling based on the affidavits filed on behalf of the parties and legal submission filed by their counsels. The counsel for the defendant took up a preliminary objection to the affidavit in opposition sworn by the law clerk on behalf of the plaintiff. The counsel cited several authorities and submitted that, deposition of affidavit by the law clerk for a substantive matter renders the affidavit defective and the legal principles prohibit the law clerks from deposing affidavits on behalf of clients.
04. The affidavits sworn by non-litigants, such as a third party, law clerks, solicitors and directors of companies, in civil suits have been the point of objection for long time, though the courts, both local and overseas, settled the very point in several cases. This court too on many occasions analyzed relevant rules of the High Court Rules and settled the same point. Singh v Lautoka General Transport Co Ltd [2020] FJHC 391; HBC260.2006L, which was decided on 05 June 2020, is the latest case by this court on this issue. However, it has now become necessary to repeat the same discussion in this case too as the impugned affidavit was sworn by the law clerk of the solicitors for the plaintiff.
05. Affidavits are source of providing evidence and anyone privy to knowledge and information has a right to depose to an affidavit (Vodafone Fiji Ltd v Pacificconnex Investment Ltd [2010] FJHC 419; HBE097.2008). The Order 41 of the High Court Rules deals with the matters connected with the affidavits that are filed in civil suits in the High Court. Though the rules do not directly state who can depose an affidavit, rule 5 provides for the contents of an affidavit which can give a clear idea as to who can depose it. The rule 5 reads:
Contents of Affidavit (O.41, r.5)
5.-(1) Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.
(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof. (Emphasis added).
06. As emphasized in the above rule, a person, who is able of his own knowledge to prove such facts, can depose an affidavit to that effect, subject however to the specific rules mentioned therein and paragraph 2 of that rule. In this sense, the affidavit is equated to the oral evidence given in court. The Supreme Court Practice (White Book) 1988 has the identical rule under Order 41. However the Supreme Court Practice (White Book) 1988 clearly explains effect of the rule in an useful manner and it reads:
41/5/1 Effect of rule
This rule was taken from the former O.38, r.3. Its effect is to require that save in the excepted cases, an affidavit must contain the evidence of the deponent as o such facts only as he is able to speak of to his own knowledge, and to this extent, equating affidavit evidence to oral evidence given in Court.
The excepted cases are:
(1) affidavits under O.14, rr.2(2) and 4(2) either by the plaintiff or by the defendant:
(2) affidavits made pursuant to an order under O.38, r.3(2)(a) that evidence of any particular fact may be given at the trial by statement on oath of information or belief; and
(3) affidavits for use in interlocutory proceedings. See also, O.49, r.2 (affidavit to obtain garnishee order nisi); O.50, r.1 (4) and r.3 (affidavit to obtain charging order on land or securities).
07. Since the rules are identical the above passage from the White Book can be used to understand the effect of our rules as well. Accordingly, the general rule is that a person, who is able to speak of the matter to his own knowledge, can depose an affidavit. The first category of exceptions is the affidavits under Order 14, rules 2(2) and 4(2), Order 86, rule 2(1). These affidavits must be sworn by the respective party to an action. If an affidavit under this category is sworn by a person other than the party to that action, he or she should state his or her means of knowledge and also the fact that he or she is authorized to make such affidavit. On that note, it must be emphasized that, the authorization is required only when a person other than the plaintiff or the defendant deposes an affidavit in relation to an application that falls under the first category of exception. It must also be emphasized that, there is no requirement to call for an authority be in writing and attached with the affidavit, as sometimes it is argued. Those who argue that an authority must be in writing and attached with such affidavit to consider it admissible, often rely on the note that appears at page 117 of the White Book 1967. It states as follows;
‘The affidavit may be made by the Plaintiff or by any person duly authorized to make it. If not made by the Plaintiff, the affidavit itself must state that the person making it is duly authorized to do so- Chingwin –ussellssell (1910) 27 T.L.R. 21”.
08. On the face of it, the above note makes a general inference that, there must be an authority from the party, either the plaintiff or the defendant, if the affidavit is not deposed by him. However, a careful reading of the said authority Chingwin –v- Russell reveals that, it was decided under Order 14, which is one of the common exceptions mentioned in both High Court Rules of Fiji (Order 41 rule 5) and White Book 1988 as stated above. The following dictum of Vaughan Williams L.J. in that case makes it crystal clear that, the courts required the authority from the respective party only in cases of first category of exceptions, which requires the respective parties to swear the affidavits, as identified by the above rules. His Lordship Vaughan Williams held that;
“Where an affidavit in support of a summons under Order 14 is sworn by a person other than the plaintiff he should state his means of knowledge and also the fact that he is authorized to make the affidavit.” (Emphasis added).
09. The above dictum makes two propositions abundantly clear. Firstly, the case (Chingwin –v- Russell) decided under one of the exceptions (Order 14) should not, generally, be applied to all the affidavits in the civil suits. Secondly, the court did not call for a written authority to swear the affidavit to be attached when a person other than the party deposed such affidavit, but, the court required the deponent to state the fact that he was authorized to do so, as emphasized above.
There was a liquidated demand, but that the affidavit was irregular, in as much as the deponent was not a person who could swear positively to the facts and verify the cause of action and the amount claimed within Order XIV, r.1, and his affidavit was only made on information and belief. The conditions imposed by the rule were not fulfilled, and the Court had no jurisdiction to make an order under Order XIV. (Emphasis added).
He says, “I verily believe that there is no defence to this action,” and then, “It is within my own knowledge that the said debt was incurred and is still due and owing, such knowledge being obtained from correspondence received from the plaintiff and also from correspondence and conversations I have had with Messers. Pritchard, Englefield & Co. I am duly authorized by the plaintiff to make this affidavit.” In my opinion it is impossible to say that this is an affidavit made by a person who can swear positively to the facts. It is obviously nothing more than a statement made on his information and belief, that information being derived from his own client, the plaintiff, who tells him this is due – and that obviously will not be enough to enable him to make the affidavit – and from further statements made by Pritchard, Englefield & Co., who, beyond all doubt, were not the solicitors for the defendant Grunwaldt at the time when those statements were made. Is it possible that the deponent can swear positively to the facts as to the stamped paper for forty-three documents, which is the first item in the bill which is given here? Is it possible that he can swear this sum was paid? I might go through all the items. Is it possible that he can swear that the fees charged by Dr. Lagos and another attorney, amounting to 1,500l in all, were due? It seems to me we should be giving an irrational and improper extension to Order XIV, r.1, if we said that such an affidavit as that, made in aid of the plaintiff, was sufficient to bring his claim within the peculiar provisions of Order XIV. In my opinion on that ground there was no jurisdiction under Order XIV, to make the order which was made. We might as well say that the plaintiff’s solicitor in every case could make an affidavit to satisfy Order XIV, and that would be dangerous beyond anything. There may be cases (I do not wish to be misunderstood on this point) in which the plaintiff’s solicitor or the plaintiff’s solicitor’s clerk may be perfectly competent to make an affidavit satisfying the conditions of Order XIV, r.1. There are no conditions here which justify us in saying that the plaintiff’s solicitor could make the affidavit and swear positively to the facts, and swear positively verifying the amount claimed. (Emphasis added)
It is obvious from r 5(2) itself that it operates as an exception from the primary rule of evidence stated expressly in Ord 41, r 5(1) that a person may only give evidence as to 'facts', which he 'is able of his own knowledge to prove'. Rule 5(2), by including statements of information or belief, plainly allows the adduction of hearsay. It also allows a statement of belief, that is to say an opinion but in its context that belief must be that of the deponent, and such statements will have no probative value unless the sources and grounds of the information and belief are revealed. To my mind the purpose of r 5(2) is to enable a deponent to put before the court in interlocutory proceedings, frequently in circumstances of great urgency, facts which he is not able of his own knowledge to prove but which, the deponent is informed and believes, can be proved by means which the deponent identifies by specifying the sources and grounds of his information and belief. What r 5(2) allows the deponent to state that he has obtained from another must, in my judgment, be limited to what is admissible as evidence.
“...for the purpose of this rule those applications only are considered interlocutory which do not decide the rights of parties, but are made for the purpose of keeping things in status quo till the rights can be decided, or for the purpose of obtaining some direction of the court as to how the cause is to be conducted, as to what is to be done in the progress of the cause for the purpose of enabling the court ultimately to decide upon the rights of the parties. Now many of the cases which are brought before the court on motions and on petitions, and which are therefore interlocutory in form, are not interlocutory within the meaning of that rule as regards evidence. They are to decide the rights of the parties and whatever the form may be in which such questions are brought before the court, in my opinion the evidence must be regulated by the ordinary rules, and must be such as would be admissible at the hearing of the cause.
This case is one of general importance as regards the practice of the admissibility of evidence by affidavit. In my opinion some of the affidavits in this case are wholly worthless and not to be relied upon. I notice that in several instances the deponents make statements on their “information and belief,” without saying what their source of information and belief is, and in many respects what they so state is not confirmed in any way. In my opinion so-called evidence on “information and belief’ ought not to be looked at, at all, not only unless the Court can ascertain the source of the information and belief, but also unless the deponent’s statement is corroborated by someone who speaks from his own knowledge. If such affidavits are made in future, it is as well that it should be understood that they are worthless and ought not to be received as evidence in any shape whatever; and as soon as affidavits are drawn so as to avoid matters that are not evidence, the better it will be for the administration of justice.
I will add a few words to what the Lord Chief Justice has said with regard to affidavits and the way in which they are often framed.
In the present day, in utter defiance of the order (Rules of the Supreme Court, 1883, Order xxxvɪɪɪ., r. 3) (1), solicitors have got into a practice of filing affidavits in which the deponent speaks not only of what he knows but also of what he believes, without giving the slightest intimation with regard to what his belief is founded on. Or he says, “I am informed,” without giving the slightest intimation where he has got his information. Now, every affidavit of that kind is utterly irregular, and, in my opinion, the only way to bring about a change in that irregular practice is for the judge, in every case of the kind, to give a direction that the costs of the affidavit, so far as it relates to matters of mere information or belief, shall be paid by the person responsible for the affidavit. At any rate, speaking for myself, I should be ready to give such a direction in any such case. The point is a very important one indeed. I frequently find affidavits stuffed with irregular matter of this sort. I have protested against the practice again and again, but no alteration takes place. The truth is that the drawer of the affidavit thinks he can obtain some improper advantage by putting in a statement on information and belief, and he rests his case upon that. I never pay the slightest attention myself to affidavits of that kind, whether they be used on interlocutory applications or on final ones, because the rule is perfectly general-that, when a deponent makes a statement on his information and belief, he must state the ground of that information and belief.
With regard to affidavits of the sort before us, it is quite a sufficient or satisfactory remedy to throw upon the party upon whose behalf such affidavits are put forward the liability of paying the costs of those affidavits. The only more satisfactory remedy is one which I am aware is difficult, if not impossible, to apply as the law stands : namely, that no one should pay for these affidavits at all, and that the solicitor who has drawn these affidavits and made copies of them, and so forth, should be left out of pocket thereby.
Order 41 rule 5(2) permits an affidavit sworn for the purpose of being used in interlocutory proceedings to contain statements of information or belief with the sources and grounds thereof. This practice can be traced back at least as far as the nineteenth century. So long as the requirement to state the source of information is adhered to, the practice is beneficial given that time may be of the essence. If there is a genuine contest about the information thus sworn to, it can be raised by a counter- affidavit as well as a submission as to weight. We would point out that any practice of disregarding the letter or spirit of Order 41 r 5(2) may have adverse consequences both in regards to timeliness and cost that must be kept in mind.
Further I find it impossible to accept counsel for SIB's submission that it is sufficient in order to comply with r 5(2) that the deponent should identify only the source to him of his information even though it is clear that that source was not the original source. Thus, if the deponent was informed of a fact by A, whom the deponent knows not to have firsthand knowledge of the fact but who had obtained the information from B, I cannot believe that it is sufficient for the deponent to identify A as the source of the information. That, to my mind, would largely defeat the requirement that the sources and grounds should be stated and would make it only too easy to introduce prejudicial material without revealing the original source of hearsay information by the expedient of procuring as the deponent a person who receives information second hand. By having to reveal such original source and not merely the immediate source, the deponent affords a proper opportunity to another party to challenge and counter such evidence, as well as enabling the court to assess the weight to be attributed to such evidence.
"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".
“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. McAlpine/60; [1968] 2 QB 229; [1968] 1 All ER 543 and Birv. Jab>s [1978] AC 297; [1977] 2 All ER 801 and these have been followed in Fi, for example, Meri>Merit Timroducts Ltts Ltd v. NLTB (FCs 94/609) and OwOwen PotteTurtle Aile Airways Ltd (FCA 93/205)”.
“Although the rules of the Supreme Court contain express provision for ordering actions to be dismissed for failure by the plaintiff to comply timeously with some of the more important steps in the preparation of an action for trial, such as delivering the statement of claim, taking out a summons for direction and setting the action down for trial, dilatory tactics had been encouraged by the practice that had grown up for many years prior to 1967 of not applying to dismiss an action for want of prosecution except upon disobedience to a previous peremptory order that the action should be dismissed unless the plaintiff took within a specified additional time the step on which he had defaulted.
To remedy this High Court judges began to have recourse to the inherent jurisdiction of the court to dismiss an action for want of prosecution even where no previous peremptory order had been made, if the delay on the part of the plaintiff or his legal advisers was so prolonged that to bring the action on for hearing would involve a substantial risk that a fair trial of the issues would not be possible. This exercise of the inherent jurisdiction of the court first came before the Court of Appeal in Reggentin vs Beecholme Bakeries Ltd (Note) [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, the Court of Appeal laid down the principles on which the jurisdiction has been exercised ever since. Those principles are set out, in my view accurately, in the note to R.S.C, Ord. 25, R. 1 in the current Supreme Court Practice (1976). The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party”.(emphasis added)
“The court exists to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution. However, if there is an abuse of process, it is not strictly necessary to establish want of prosecution under either of the limbs identified by Lord Diplock in Birkett v James 78] A.C 297. In this case case once the conclusion was reached that the reason for the delay was one which involved abusing the process of the court in maintaining proceedings where there was no intention of carrying the case to trial the court was entitled to dismiss the proceedings".
“During the course of his careful and comprehensive ruling the judge placed considerable emphasis on the judgment of the House of Lords in Grond Ors v Doctor [19 ALL ER 417. That was anas an important decision and the judge was perfectly right to take it into account. It should however be noted that Felix Grovit's n wasck out not becausecause the accepted tests for striking outg out established in Birkett v b> [1977] 2 ALL ER 8060; [1978] AC 297 had batisfieisfied, but bect because the court found that hhat he had commenced and continued the proceedings without any intention of bringing them to a conclusion. In those circumstances the court was entitled to strike out the action as being an abuse of the process of the Court. The relevance of the delay was the evidence that it furnished of the Plaintiff's intention to abuse the process of the Court"
U.L. Mohamed Azhar
Master of High Court
At Lautoka
17.12.2021
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