IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0054 OF 2003L

BETWEEN:

SURUJ KUMARI
Plaintiff

AND:

KAMLA PRASAD and MAHENDRA PRATAP
both sons of Devi Prasad
Defendants

Counsel: Mr. F. Khan o/i from Mr. M. Prakash for the plaintiff
Dr. Sahu Khan for the defendants

Date of Hearing: 5 May 2003
Date of Ruling: 2 September 2005

RULING

This matter came before Byrne J. on the 11th April 2003 on which date it was adjourned for argument on the 5th May 2003. On that date, His Lordship made orders for the filing of written submissions by the parties. The plaintiff was to file its written submission by the 19th May 2003 and the defendants by the 2nd June 2003 and the plaintiff to file its reply by the 17th June 2003.

The timetable was not met. The plaintiff filed its submissions on the 25th June 2003, the defendant on the 4th August 2003 and the plaintiff filed its submissions in reply on the 5th July 2005, some 2 years late. Byrne J. did not deliver a ruling prior to his retirement from the court and I have been asked now to rule on the written submissions.

The application before the court is a summons filed on the 11th February 2003 in which various orders are sought pursuant to Order 29 Rule 1.

The action was commenced by the filing of the writ of summons on the 11th February 2003 and identical relief is sought in the summons as in the writ of summons.

The matter has suffered from ineptitude from its commencement. The summons is not executed nor is it dated. The relief sought in the summons includes final relief notwithstanding that it purports to be an application made pursuant to Order 29 Rule 1 of the Rules of the High Court and the plaintiff and/or her counsel has shown a complete lack of interest in the proceedings to the degree that some 2 years have elapsed since the order for the filing of submissions in reply expired.

The interests of justice would have been far better served by the plaintiff proceeding to have the writ of summons brought to trial in a timely manner.

One might well wonder what point there is in granting the relief sought when the plaintiff has seen no need for that relief to be in place for the past 2 years.

The plaintiff in its submissions now seeks to have the summons read as an application under Order 14 for summary judgment. The defendant naturally opposes such a course.

The plaintiff is the administrator of the estate of Devi Prasad and the defendants are the sons of Devi Prasad.

Background

On the 8th May 1995 (over 10 years ago), the plaintiff and the defendants entered into a Sale and Purchase Agreement, Crop Lien and Mortgage whereby the defendants had agreed to purchase from the plaintiff Native Lease No. 14829 having an area of 77 acres and 2 roods. The Crop Lien and Mortgage was a secure the balance of purchase monies. The bulk of purchase monies are paid however it is alleged the sum of $8,679.00 is outstanding by the defendants to the plaintiff.

The native lease, the subject of the agreement, expired on the 30th June 2000. Following the expiration of that lease, the defendants were able to negotiate a fresh lease with the mataqali and the Native Land Trust Board for an area of 6.7787 hectares with respect to each of the two defendants. They are unable to secure a lease for the balance of the 77 acres 2 roods comprised in the agreement for Sale and Purchase. In obtaining the new lease, the defendants were required to pay a premium.

The defendants argue inter alia that the agreement is frustrated.

The High Court Rules

Whilst normally I would think it inappropriate for there to be an unnecessarily strict adherence to the High Court Rules to the point where the timely resolution of matters before the court might become frustrated, however in the circumstances of this matter, I think it quite inappropriate for the summons which is clearly stated to be pursuant to Order 29 Rule 1 and which has been so poorly drafted, to be deemed an application for summary judgment pursuant to Order 14 Rule 2 of the High Court Rules. Even if I were not of this view, the test as expressed in Expressed Newspapers plc v News (UK) Ltd & Others [1990] 3 All ER 376 where Browne-Wilkinson VC said at 379:

“Summary judgment under Order 14 is a judgment given in the clearest cases before an ordinary trial has taken place. Summary judgment is only given where it is clear that there is no arguable defence to the claim. If there is an arguable issue to be tried, in particular where there are matters of fact to be resolved which can only be resolved at trial, the court gives leave to defend and the case goes to trial to be heard out.”

The statement of defence filed clearly puts an arguable defence. It is not necessary to consider the strength of that defence but merely that it is an arguable defence.

The further orders sought in the summons are discretionary and I decline to exercise my discretion in favour of granting those orders in the light of the conduct of the plaintiff in these proceedings to date. The summons is therefore dismissed. The plaintiff is to pay the defendants’ costs as agreed or assessed.

I direct that these proceedings be immediately referred for mediation before the Deputy Registrar, if it is that the plaintiff wishes to pursue her claim. 

JOHN CONNORS
JUDGE

At Lautoka
2 September 2005