Sagar v Colonial Health Fiji Ltd [2012] FJMC 148; Civil Action 032.2010 (5 July 2012)

IN THE RESIDENT MAGISTRATES COURT OF FIJI ISLAND
AT SUVA

Civil Action No. 32 of 2010

BETWEEN:

VIDYA SAGAR
PLAINTIFF

AND:

COLONIAL HEALTH FIJI LIMITED
1ST DEFENDANT

CONSTRUCTION ENERGY AND TIMBER WORKERS UNION OF FIJI

2ND DEFENDANT

Plaintiff: In person.
1st Defendant: Mr. Nand .P
2nd Defendant: Mr Samand.

RULING

1. This is an Inter-Parte Notice of Motion dated 9th May 2011 seeking reinstatement of the Plaintiff's action, which was struck out on 23rd February, 2011.

2. The Inter-Parte Notice of Motion was supported by the affidavit of Ms Archana Devi an employee of G.P Lala & Assosiates who had been the solicitors for the plaintiff.

3. Both defendants have filed their objections before my sister magistrate Ms Seravatu by way of affidavits.

4. The record of the Court reflects that this action had been initially filled on 28th January 2010. The matter was called on 19.02.2010 for an ex-parte application of the plaintiff.

5. Thereafter the plaintiff did not appear on the date (04.03.2010) that had been granted as the date of 'First Call'. Then magistrate Ms Irani Arachi had been affable enough to issue Notice of Adjourned Hearing to the counsel and the plaintiff.

6. On 15.04.2010 the counsel for the plaintiff appeared and obtained time to file reply for the 'Statement of Defence'. It appears the plaintiff and his counsel again failed to appear on 07.05.2010. However the learned magistrate granted further time for the plaintiff's pleadings and fixed the case for trial.

7. Inevitably the 'Trial' had been vacated due to Magistrate's monthly meeting that was scheduled on 25.11.2010. The case had been adjourned to 16.12.2010. The Court had noted the non appearance of the plaintiff again on 16.12.2010. But both defendants were present. The case had been adjourned till 23.02.2011.

8. On 23.02.2011 the two defendants of the action applied for a 'strike out' as the plaintiff was not present in Court.

9. The Court Inclined to grant the application in favour of the defendants with $ 200 cost to be paid within 28 days.

10. It appears that the application to 'strike out' was made in accordance with Order 30 Rule 2 of the Magistrate's Court Rules.

ORDER XXX.-NON-ATTENDANCE OF PARTIES AT HEARING

Non-appearance of both parties

1. Where a civil cause on the cause list has been called, if neither party appears, the court shall, unless it sees good reason to the contrary, strike the cause out of the cause list.

Of plaintiff

2. If the plaintiff does not appear, the court shall, unless it sees good reason to the contrary, strike out the cause (except as to any counterclaim by the defendant), and make such order as to costs, in favour of any defendant appearing, as seems just:

Provided that, if the defendant shall admit the cause of action to the full amount claimed, the court may, if it thinks fit, give judgment as if the plaintiff had appeared.

11. The presiding magistrate is empowered to strike out any civil action in the absence of the plaintiff without any good reason.

12. The Court is mindful on the Order 19 of the Magistrate's Courts Rules which deals with the conditions in 'Appearance of Parties'.

ORDER XIX.-APPEARANCE OF PARTIES

Court may permit party to appear by proxy

1. In every civil cause or matter pending before the court, in case it shall appear to the satisfaction of the court that any plaintiff or defendant who may not be represented by a barrister and solicitor is prevented by some good or sufficient cause from attending the court in person, the court may, in its discretion, permit any other person who shall satisfy the court that he has authority in that behalf to appear for such plaintiff or defendant:

Provided that nothing in this rule shall be deemed to authorize any person other than a barrister and solicitor to charge a fee for any advice given or services rendered in relation to any such cause or matter.

Proceeding without authority

2. Any person doing any act or taking any proceeding in the name or on behalf of another person, not being lawfully authorized thereunto, and knowing himself not to be so authorized, shall be guilty of a contempt of court.

13. Plane reading of this rule deals with the issue of 'who can represent a party of an action?'. But the underlying principle compels the parties to attend Court. 'In every civil cause or matter pending before the court, in case it shall appear to the satisfaction of the court that any plaintiff or defendant who may not be represented by a barrister and solicitor is prevented by some good or sufficient cause from attending the court in person, the court may, in its discretion, permit any other person..'

14. Paragraph 04 of the affidavit filed in support, states that the counsels for the plaintiff was busy in the higher Courts on the day it was struck out. But the affidavit is silent as to why the plaintiff did not appear on 23.02.2011. It is the view of this Court that, although there is an option for a litigant to appear with a counsel it does not shift the litigant's obligation to appear in the case.

15. Paragraph 04 of the affidavit further states that,

....the learned magistrate without considering the fact that the said case was ' mention only', Her Worship granted order in terms of the Defendants prayers'

16. In other words the plaintiff's submission is that the Court can only strike out the cases on a day of a 'Hearing'.

17. It is to be noted that the Magistrate's Courts Rules does not identify any action of 'Mention cases'. Order 29 of the Magistrate's Courts Rules stipulates the provisions for 'Sittings of Court'.

ORDER XXIX.-SITTINGS OF COURT

Days of sitting

1. Subject to the provisions of the Act, the court may, in its discretion, appoint any day or days, from time to time, for the hearing of causes and matters, as circumstances require.

Order of business at sittings

2. Subject to special arrangements for any particular day, the business of the day shall be taken, as nearly as circumstances permit, in the following order:-

(a) Judgements standing over for delivery.

(b) Ex parte motions.

(c) Motions on notice, and arguments on showing cause against orders.

(d) Civil causes and matters for hearing.

The above shall be taken in the order in which they stand in the lists, unless the court sees fit to vary the order.

18. Order 29 Rule 01 states 'hearing of causes and matters' and the Rule 02 identifies the Causes and Matters.

19. Order 31 Rule 01 deals with the procedure at a hearing.

ORDER XXXI.-PROCEEDINGS AT THE HEARING

Procedure

1. The order of proceedings at the hearing of a civil cause or matter, in cases in which statements of claim and of defence have been filed, shall be in accordance with rules 2 to 6, inclusive.

20. As per the above Rule any civil action where the statement of claim and the defence had been filed can be considered as a case for hearing. And the only available opportunity for a postponement of hearing should be supported with a justifiable good reason. It cannot make for the purpose of mere delay.

21. The primary considerations to file the claim and the defence had been complied in this action. In my view any date after the said fulfilment is a day for 'Hearing'.

22. Order 30 Rule 6 allows the party to reinstate their action that had been subjected to a 'Strike out'. The reinstatement is at the discretion of the Court.

23. "Qui sentit conmodum, debet et seutire onus"- He who derives a benefit should also bear a burden. It appears that the Plaintiff of this case acted with lack of responsibility.

24. This action was struck out on 23.02.2011 and the application for reinstatement was filed after 78 days on 12.05.2011. The affidavit has not explained any reason for this long delay.

25. The affidavit states that the plaintiff's solicitors have advised the court clerk to stand down the matter but the magistrate dismissed the action. It is to be noted that the court clerks are not the agents of the counsels. The magistrate is not bound by such informal applications. If the solicitor was aware on the dismissal then why did he wait 78 days to file this Notice of Motion?

26. The action of the Court was due to continues laxity and ignorance of the plaintiff and his counsels. Even though the plaintiff would have asked for a reinstatement promptly without waiting for 78days. At this point the Court would like to express the legal maxim "Qui tacet consentire videtur". He who is silent appears to have consented for the action.

27. Before the conclusion, this Court considered and satisfied that there is no merit in the Plaintiff's initial claim.

28. Accordingly the Notice of Motion dated 9th May 2011 for reinstatement of the Plaintiff's action is dismissed without cost.

Yohan Liyanage
Resident magistrate

05th July 2012