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Ali v Subamma - Ruling No 2 [2005] FJHC 740; HBC0061.2001L (19 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0061 OF 2001

ABBAS ALI and Others

V

ANITA SUBAMMA and Others

Gates J.

Mr S. Maharaj for the Plaintiffs
Mr F. Koya for the Executrix of the 1^st named Defendant [Subamma]
Mr R. Singh for 2^nd named Defendant [Jai Prasad]
Mr J. Sharma for 3^rd named Defendant [Thompson]

19th May 2005

RULING NO. 2

[1] I made this ruling in short form so that the necessary orders could be put into effect. I said the reasons for the orders would follow my return to Suva. I give them now.

[2] It is clear, without going into the responsibility for, or origin of, the failure to produce all of the company documents taken from the registered office of the Fantasy Company of Fiji Ltd, that that failure resulted from an inability to produce the documents. The documents were either in the custody of Mr Umendra Jit Chaudhary when he was still alive, or had been destroyed then or since, or were lodged with the police for an investigation, or have been produced to the court in the last 2 days.

[2] In these circumstances I decline to make an interlocutory mandatory order for the production of any of the documents, through the plaintiffs’ summons of 14th October 2004, or the amended originating summons of 18th November 2004 [paragraph (a)].

[3] As for the documents with the police, I order a subpoena to be issued for the production of the original documents at Lautoka High Court on 3rd June 2005 at 10.30 am. The subpoena is to be issued to the investigating officer in the case, or to the Commissioner of Police or his delegate. Original documents in this instance refers to all of the company documents lodged with the police when complaint was first filed by one or all of the defendants.

[4] If there are any other company documents in the possession of the police in the same complaint, which have not so far been photocopied, they are to be photocopied at the expense of the defendants and one set of copies provided to the defence.

[5] The photocopies that were made in the course of these proceedings from the documents produced by the defendants from the deceased’s car boot, and which were given to the plaintiffs are similarly to be copied at the defendants expense and one set given to the defendants. The defendants have agreed to make further copies for each counsel once the single set is made.

[6] Once the original company documents are photocopied in this way, and suitable certificates obtained, the documents lodged with the police are to remain in police custody. Those original documents brought to court by the defendants, are to be handed over to the plaintiffs, after one set of copies is made for the defence at defence cost.

[7] Although the defendants succeeded in having the forfeiture claim struck out from the summons, that did not occupy much of the 4 days hearing time in this matter. This was a costly proceeding through which the company tried to regain its rightful documents. Each defendant should bear $750 costs of this application.

[8] Unhappily, this case file has reached a voluminous size. The papers occupy a large box. I had deliberately retained the file upon my transfer to Suva so as not to inflict so many papers upon another judge. After the shareholding ruling, I had hoped the parties would have been able to resolve their remaining issues. But it seems that attainment is some distance off. I have no option now but to return the file to the Lautoka High Court for the Deputy Registrar to assign the case to one of the resident civil judges.

A.H.C.T. GATES
JUDGE

Solicitors for the Plaintiffs: Messrs Suresh Maharaj & Associates, Lautoka.
Solicitors for the Executrix of the 1st named Defendant [Subamma]: Messrs Koyas, Nadi.
Solicitors for the 2nd named
Defendant [Jai Prasad]: Messrs Patel & Sharma, Nadi.
Solicitors for the 3rd namedDefendant [Thompson]: Janend Sharma Lawyers, Nadi.