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Tonu'hae v NBF Asset Management Bank [2005] FJHC 178; HBC0588.1998 (12 July 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0588 OF 1998

BETWEEN:

TONU’HAE a.k.a. TONU HAE NATANIELA
PLAINTIFF

AND:

NBF ASSET MANAGEMENT BANK
DEFENDANT

Counsel: Ms L. Vaurasi for Plaintiff
Ms R. Lal for Defendant

Hearing: 1st June 2005
Decision: 12th July 2005

DECISION

By summons dated 18th April 2005 the plaintiff is seeking reinstatement of his action which was struck out on 5th April 2004 and stay of Defendant’s application for vacant possession under Order 88.

BACKGROUND:

The writ of summons was filed in November 1998. The plaintiff owned a piece of land being CT 9360. He mortgaged the property to the defendant Bank. The substance of his claim is that there was a mortgage protection policy in place under which he was informed by the Bank that balance due under the mortgage would be paid off upon the death either of the plaintiff or his wife the co-owner of the property. He alleges his wife passed away so the mortgage ought to have been paid off. Instead the Bank is exercising powers under the mortgagee’s sale. The reliefs he sought were an injunction restraining the Bank from removing the plaintiff from the property, an order restraining the Bank from exercising its powers of sale under the mortgage and also damages.

On 13th November 1998 Justice Pathik had granted the plaintiff an order restraining the defendant from evicting the plaintiffs. On 30th September 1999 in a considered ruling Justice Pathik ordered the plaintiff to pay amount due under the mortgage into court in twenty-eight days. Failure to do so would render the order of 13th November 1998 dissolved.

The amount has not been paid into court so the order stands dissolved. Subsequently on 30th March 2005 the defendant has filed an Order 88 application to seek vacant possession so it can sell the property under the mortgage and provide vacant possession to the purchaser.

I had on the application of the defendant struck out the entire action for want of prosecution. The plaintiff had not appeared. The plaintiff now wishes to have the action reinstated.

At the hearing of this application Ms Lal submitted that there is nothing to reinstate in view of the fact that his application for interim injunction has been dissolved. The only practical relief left for the defendant is that of damages.

The basis of my earlier decision to strike out was prejudice to the defendant. The defendant had deposed that certain material witnesses were not available and it would not be able to present its case fully and fairly. In the affidavit in support of application for reinstatement, at paragraph 20 the plaintiff addresses this issue and has disclosed the whereabouts of the various witnesses. The plaintiff being an ex-Bank officer probably kept in touch with them. Hence, the availability of evidence from them would no longer be an issue.

The defendant here was served personally with summons to strike out. He deposes after service of summons he contacted solicitor Kini Maraiwai who had custody and possession of his file. He was promised by Mr. Maraiwai that he would attend to the case. The plaintiff even wrote to the Law Society in trying to retrieve his file. However, Mr. Maraiwai held no practicing certificate at the time so his assurances were hollow. The plaintiff was not aware of this fact.

Given these circumstances now that the witnesses whereabouts is known, I would exercise my discretion and order reinstatement of the action so the damages issue can be decided. I note that even till today reply to defence has not been filed. I order the plaintiff to file and serve a reply to defence and also file summons for directions in the next ten days. The minutes of pre-trial conference are to be filed no later than forty days from today.

The plaintiff in his submissions ironically blames the defendant for abuse of process. I ask what can a defendant do when it takes a plaintiff six years to file a reply to defence. The plaintiff must pay costs of this application which I fix at $400.00 to be paid in ten days.

I ask the Civil Registry to send a copy of this ruling to the Law Society which can then investigate the propriety of Mr. Maraiwai’s actions.

FINAL ORDERS:

(1) Action is reinstated.

(2) Plaintiff to file and serve reply to defence in ten days.

(3) Plaintiff to file and serve summons for directions in ten days.

(4) The plaintiff is to file minutes of Pre-trial conference in forty days.

(5) The plaintiff is to pay costs to the defendant which is entirely blameless in the sum of $400.00 to be paid in ten days.

[ Jiten Singh ]
JUDGE

At Suva
12th July 2005