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National Bank of Fiji v Hussein [1998] FJHC 193; Hbc0331.94s (13 July 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. 0331 OF 1994S

BETWEEN:

NATIONAL BANK OF FIJI
Plaintiff

and

ABDUL KADEER KUDDUS HUSSEIN
Defendant

Counsel: G. Prasad for the Plaintiff;
P. Howard for the Defendant

JUDGMENT

This Action has had a somewhat chequered and curious history.

The Originating Summons was issued on 5 July 1994. The Plaintiff (the Bank) sought possession of land mortgaged to it by the Defendant, under the provisions of RHC O88.

On 9 February 1995, after a full hearing in November 1994 Fatiaki J gave judgment for the Bank. The Judgment begins by noting that there had been a failure by the Bank to comply with the requirements of part of Order 88 r 3(2) - the original mortgage, and with part of O88 r3(3) - the circumstances in which the right to possession had arisen and the status of the account between the parties. Mr. Prasad told me that the Bank's failure was at least partly attributable to the fact that a printing error had resulted in the Order being wrongly laid out in the 1988 edition of the Rules.

Notwithstanding the breach of O88 Fatiaki J decided to hear the Summons. Relying on the copy mortgage exhibited to the supporting affidavit, authorities cited and section 75 of the Property Law Act (Cap 130) he found himself satisfied (a) that the Defendant had defaulted in his repayments under the mortgage, (b) that the Bank had in these circumstances a right to possession of the property, (c) that the Bank had given the Defendant notice to quit and (d) that the Defendant had failed to hand over possession. It was noted on page 5 of the Judgment that none of these essential matters was disputed by the Defendant whose sole ground of opposition to the Summons was derived from the pendency of Civil Action 0097/92, an action by the Defendant against the Bank. The Defendant argued that the Bank had a legal obligation to proceed under its debenture before exercising its powers under the mortgage. This argument was decisively rejected by applying cited authority and on the basis of the terms of the mortgage document itself. Possession of the property was ordered.

In February 1995 the Defendant filed a Notice of Appeal to the Fiji Court of Appeal. A stay of the Order for Possession pending disposal of the Appeal was granted on 13 April.

On 7 February 1996 the Appeal came on for hearing and on 15 February a copy of the Court's Order was sealed. The entire order reads as follows:

"BY CONSENT: (1) Appeal allowed;

(2) The decision of the High Court of 9/2/95 be set aside and the case formally remitted to the High Court;

(3) Parties at liberty to apply generally to the Judge of the High Court for further directions;

(4) Action to be freshly heard by the High Court;

(5) Costs in the course."

No written reasoned Judgment was delivered although it appears (from paragraph 7 of an affidavit filed on 22 November 1996) that the FCA had observed that the requirements of O88 had not been satisfied.

On 22 November 1996 the Bank sought to have the application of 15 July 1994 relisted for hearing. On 14 May 1997 a further affidavit was filed by the Bank containing the additional information required by O88. The affidavit claimed that the Defendant's indebtedness to the Bank was over $164,000. The Defendant filed an affidavit in answer on 25 August 1997.

On 16 September 1997 the file was once again placed before Fatiaki J who returned it the next day observing that "in the absence of a detailed FCA Judgment ... it would be inappropriate for me to re-hear this action". It will have been noted from the Order of the Fiji Court of Appeal that the Court did not specify before whom the action was to be reheard. On 10 December 1997 the file was reallocated to me. On 2 March 1998 Mr. Howard appeared for the Defence for the first time. The matter was fixed for hearing on 15 April.

On 15 April neither party being in a position to provide all the information necessary for me to hear the matter it was again adjourned to 21 May.

On 14 May the Defendant filed a summons with supporting affidavit seeking to have this action consolidated with 2 pending actions in which he was plaintiff and the Bank was Defendant namely HBC 097/92 (already mentioned in the Judgment of Fatiaki J) and HBC 0285/93.

On 21 May I first dealt with the application for consolidation. I delivered the following ruling:

"RULING: I am satisfied that it would not be in the interest of justice for the 3 Actions to be consolidated. I believe that although there are some common or overlapping issues between the Actions consolidation would only lead to confusion and further delay. It is also notable that the parties are not the same i.e. the Plaintiff herein is the Defendant in the 2 other Actions and the mode of proceeding is also different. This is a much delayed Originating Summons the carriage of which is the Plaintiffs while the other 2 Actions were commenced by Writ and their carriage lies with the Defendant in this Action. The first of the other 2 Actions 97/92 has made no progress at all in 6 years while 285/93 has only reached the Defence stage after nearly 5 years. The Application fails. If indeed there are common issues then they can be resolved in these proceedings."

Having delivered the above ruling the hearing of the Bank's Originating Summons then proceeded. After a long and detailed examination of this file, files 97/92 and 258/93 and taking into account a third partly related action namely 114/90 it was agreed by both counsel (a) that the Defendant's request (paragraph 2 of his affidavit of 25 August 1997) for oral examination of witnesses would not be proceeded with and (b) the following purely legal matters were identified as calling for written submission:

(1) the relevance of Actions 97/92 and 258/93 to this Action;

(2) the relevance of Action 114/90 to this Action;

(3) whether the Bank should enforce the debenture before resorting to the mortgage;

(4) the legal validity of the mortgage;

(5) whether the Defendant had defaulted and if so to what extent;

(6) whether there had been any breach of the Fair Trading Decree 25/92;

(7) whether the Defendant had been subjected to duress.

On 5 June Mr. Prasad's written submission was filed on behalf of the Bank.

On 29 June Mr. Howard told me that he had not filed a written submission in answer because he could not disagree with that filed by Mr. Prasad. He had advised the Defendant accordingly and had told him to go away and think about it. He had not seen the Defendant since.

Having considered the pleadings, the evidence and the oral and written submissions placed before me by Counsel I am satisfied that none of the related actions provides any ground for staying these proceedings; that there was no obligation upon the Bank to have recourse to the debenture before proceeding under the mortgage; that the mortgage was perfectly valid; that the rate of interest charged was unobjectionable; that the Defendant was not subjected to any form of duress and that as at 17 April 1997 he owed the Bank $164,823.08.

There will be judgment for the Plaintiff the Bank in the terms of paragraphs 1 and 2 of the Originating Summons dated 5 July 1994.

M.D. Scott
JUDGE

13 July 1998

HBC0331.94S