Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Yabakidrau v Bahadur [2002] FJHC 244; HBC0266d.2000s (8 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0266 OF 1990

Between:

SEMI YABAKIDRAU
Plaintiff

and

1. BANS BAHADUR
f/n Ram Harak

2. VISHNU HOLDINGS LIMITED
Defendants

Mr. M. B. Patel for Plaintiff
Mr. A. Tikaram for Krishna & Co. for Defendant

DECISION

This is the defendant=s summons dated 14 December 2000 for an order >that this action be struck out ... for want of prosecution, the plaintiff not having taken any further action since 9th day of July, 1993. Alternatively, the alleged cause of action did not arise within three (3) years before this action and is therefore barred by section 4(1)(d)(1) of the Limitation Act Cap. 35 upon the grounds contained in the Affidavit of Ritesh Anthony Gopal and filed herein in support of this application=.

It is to be noted from the record in the file that Byrne J had on 12 July 1990 granted leave to commence proceedings. Hence the prayer in the alternative cannot be entertained.

On 9 July 1993 Affidavit Verifying List of Documents was filed by counsel for the defendant (Krishna & Co.). Then on 18 October 1993 Notice of change of Solicitors was filed by Patel Sharma & Associate who started acting for the plaintiff.

The Plaintiff or his solicitor took no further steps in this action to have it entered for trial. Then over 7 years later the present application is made to strike out the action for want of prosecution.

There are two issues before the Court. The first is whether the claim should be struck out or not for want of prosecution and secondly, whether the action is statute-barred and ought to be struck out.

I do not propose to deal with the second issue as leave was already granted to institute proceedings.

I shall deal with the first issue. As ordered, both counsel filed written submissions on this application.

It is clear from the chronology of events (as set out on page 7 of defendant=s submissions in writing) no steps have been taken by the plaintiff to prosecute the action. The action was commenced on 20 July 1990.

In his affidavit filed on 12 March 2001 at paragraph 7 and 8 he gave certain reasons for not proceeding with the case but as Messrs. Patel & Sharma filed change of Solicitors on 18 October 1993 surely he must have known then what was happening to his matter. May be that the solicitors have an explanation to make as to why they slept on the file without taking the necessary steps to have the action entered for trial.

There is no doubt that there has been an inordinate and inexcusable delay. As a result the defendants are seriously prejudiced. In this context the following extract from the Fiji Court of Appeal case of Owen Clive Potter v Turtle Airways Limited (Civil Appeal No. 49 of 1992), the meaning of >inordinate= and >inexcusable= is to be noted:

A(Inordinate) ... means so long that proper justice may not be able to be done between the parties. When it is analyzed, it seems to mean that the delay has made it more likely than not that the hearing and/or the result will be so unfair vis a vis the Defendant as to indicate that the court was unable to carry out its duty to do justice between the parties.@

And at page 4, their Lordships stated:

A... Inexcusable means that there is some blame, some wrongful conduct, some conduct deserving of opprobrium as well as passage of time. It simply allows the Judge to put into the scales the Plaintiff=s conduct or reasons for not proceeding, as well as the lapse of time and the prejudice that would result to him from denying his opportunity from pursuing his action or perhaps any action against the defendant.@

The prejudicial effect of this long delay is great. The alleged accident took place on 26 May 1986 resulting in certain injuries to the plaintiff. I agree with Mr. Krishna, counsel for the defendants, that none of the defendants= witnesses may or could be located by reason of death, relocation to new addresses or migration or, that if available may not be able to recall with clarity the events pertaining to the accident which occurred so long ago.

The learned counsel for the plaintiff relies on the case of Owen Clive Potter (supra) in support of his argument against the application. Having considered his submission I do not find any substance in them and also Potter=s case (supra) has no relevance to the facts of this case. Counsel is throwing the burden on the defendants to prove how they are prejudiced when on the other hand the plaintiff has come up with a lame excuse for not taking any steps in this action for so many years. There are Rules laid down in regard to the prosecution of action. Time tables are given when certain steps are to be taken. Court cannot be expected to wait for 7 years before any steps are taken. One cannot throw one=s common sense out the window to realize the serious prejudicial effect such lengthy delay will cause the defendant. I see no merit whatsoever in the plaintiff=s arguments that he be allowed to prosecute the action further.

For these reasons I order that the plaintiff=s action be dismissed for want of prosecution with no order as to costs in the circumstances.

D. Pathik
Judge

At Suva
8 February 2002