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Nagaiya v Mudaliar [2007] FJHC 13; HBC088.2003L (3 May 2007)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. 88 OF 2003L

NO. 53 OF 2007

BETWEEN

NAGAIYA f/n Subramani
Plaintiff

AND

KRISHNA SAMI MUDALIAR, ARMOGAM MUDALIAR, PREM KRISHNA MUDALIAR
Defendants

Appearances: Messrs Suresh Verma & Associates for plaintiff
Vasantika Patel for defendants

Date of Submissions: 1st & 9th February, 5th and 20th April 2007
Date of Decision: 3 May 2007

Ruling

[1] This is an application by the original defendant, Narayan Swamy Mudaliar (Mr. Mudaliar) to dismiss the action for want of prosecution or as an abuse of the process of the court. The application is brought pursuant to Order 25 rule 9.

[2] The writ was issued on 3 March 2003. The principal relief the plaintiff seeks is an order for specific performance of an agreement to purchase land made in 1990 (the agreement). A comprehensive statement of defence was filed on 4 May 2004. The defendant’s case is that the plaintiff breached the agreement by failing to pay the balance purchase price within the time specified in the agreement entitling the defendant to rescind the agreement for sale which he did. A reply to the statement of defence has not been filed.

[3] After filing the writ in March 2003, the plaintiff did not take any further step in the action. Following the filing of the statement of defence, the next step was the filing of the present summons in April 2006.

[4] In support of the application Ms. Patel relied on the length of the delay – 2 years and the difficulty the defendant would face in producing witnesses and documents to rebut the plaintiffs allegations particularly when the principal witness, Mr. Mudaliar is now dead.

[5] The plaintiff took no step in the matter apart from filing these proceedings in 2003. As submitted by Ms. Patel, he did not bother to take any action even after the defence was served and pleadings closed in May 2004. Mr. Mudaliar died in July 2006 three months after this application was filed. The plaintiff failed to take any steps to substitute the defendant until this issue was raised in Ms Patels submission of 8 February 2007. Even at the stage of facing the present application, the plaintiff was dilatory in taking steps in the action.

[6] In answer Mr. Verma suggested that the delay was not inordinate or inexcusable. The defence was not filed until May 2004. The plaintiff says he relied on his previous solicitors and was unaware of the delays in moving his case along. Mr. Verma also submitted that the defendant had not sufficiently particularized which aspects of the case had been prejudiced by the delay. He suggested that a fair trial could still be held.

[7] The basic principles governing dismissal for want of prosecution were explained by the Fiji Court of Appeal in Merit Timber Products Ltd –v- Native Land Trust Board[1] where the Court adopted the principles from Allen –v- Sir Alfred MacAlpine & Sons[2]and Birkett –v- James[3]. In order that an application of this kind succeed the defendant must show:

(i) that there has been inordinate and inexcusable delay by the plaintiff; and

(ii) that the defendant is likely to be prejudiced by the delay, one aspect of the prejudice being that it is unlikely that a fair trial can be held.

Delay

[8] In the context of this case, a delay of 2 years (after defence filed) and 3 years (inactivity after writ filed) is inordinate and inexcusable. The agreement upon which the plaintiff’s claim is premised was made on 31 October 1990, between him and Mr. Mudaliar as Administrator of the Estate of Nadesan Mudaliar. The agreement is exhibited N "D" in the plaintiffs affidavit sworn on 23 February 2003. The agreement required the plaintiff to settle by 31 October 1993. He did not pay the balance sum under the agreement but allegedly arranged to pay the balance in 1997, four years after the settlement date. Under the terms of the agreement time was of the essence. There is no suggestion, even by the plaintiff that Mr. Mudaliar had agreed to extend the date for settlement or that the parties had varied the agreement. The plaintiffs action was filed 13 years after the date of the agreement and 10 years after the date for settlement. In the course of writing this decision, it occurred to me that the plaintiffs claim was time barred. But that is not an issue I have been asked to determine. Suffice it to say that the delay, in firstly filing the action and then not taking any steps to move it along for at least 2 years constitutes inordinate and inexcusable delay by the plaintiff.

Prejudice

[9] Mr. Mudaliar is now dead. Ms. Patel submitted that he would have given oral evidence of the dealings between the plaintiff and him. The plaintiff pleads a letter of 1 November 1998 which is critical to his claim. Mr. Mudaliar denied sending the letter in paragraph 17 of his defence. The alleged letter was exhibited in the plaintiffs affidavit opposing the present application. That affidavit was not filed until 8 September 2006. Mr. Mudaliar could not respond to the affidavit. He died in July. His oral evidence would have been critical in rebutting the plaintiff’s assertions about the validity of that letter and whether the letter was written and sent by him. Moreover, the plaintiff’s submissions contained in paragraph 8 of his submissions dated 5 April 2007, re-enforces the prejudicial consequences for the defendant as a result of the delay. I accept Ms. Patel’s submissions in this regard. The claim is against the Estate of Nadesan Mudaliar. Mr. Mudaliar’s oral testimony of his dealings with the plaintiff in regard to transactions he undertook in his capacity as administrator of the estate would have been critical to the defence. Those dealings and conversations would have occurred more that 17 years ago.

[10] In this situation the words of Lord Diplock in Allen’s case are applicable:

"where the case is one in which at the trial disputed facts will have to be ascertained from oral testimony of witnesses recounting what they can recall of events which happened in the past, memories grow dim, witnesses may die or disappear. The chances of the court being able to find out what really happened are progressively reduced as time goes on. This puts justice to a hazard."

[11] On the pleadings and evidence before me I am satisfied that owing to the time that has elapsed since the occurrence of events complained of, a fair trial of the action is no longer possible. Whatever reason the plaintiffs previous solicitors failed to prosecute the claim with the diligence required, the defendant should not be prejudiced. A litigant cannot merely give instructions for the institution of proceedings and then abdicate all responsibility for their conduct.[4]

Abuse of process

[12] If I am wrong in my conclusions above, I adopt the principle expressed by Justice Coventry in NBF Asset Management Bank –v- Adi Sainimili Tuivanuavou[5] that it is an abuse of the court process if actions are commenced or maintained without the intention to pursue them with reasonable diligence and expedition. The record of these proceedings shows this to be the case here. In these circumstances therefore I strike out the claim in this case for want of prosecution and as an abuse of process of the court.

The application to amend

[13] Given my findings on the defendants application it is not necessary to consider the plaintiffs motion of 8 February 2007. However having had a look at the proposed amendments, it is clear that the plaintiff is abandoning completely his original claim. The proposed amendments would introduce an entirely new claim. Moreover the proposed new prayers include a declaration that the agreement of 31 October 1990, the basis of his present claim, be set aside and declared null and void and that the plaintiff have declaratory judgment on an agreement dated 9 June 1982. The new cause of action would be based on events which occurred 25 years ago!

Plaintiffs preliminary objection

[14] The plaintiffs objection to the present defendants standing to pursue the application has been rectified. On 30 April, I granted the defendant’s leave on an ex-parte summons to amend the name of the defendant’s as Adiministrator De-Bonis-Non of the Estate of Nadesan Mudaliar.

Orders

[15] The plaintiffs claim is struck out and dismissed. The defendants are awarded costs assessed at $500.00.

Gwen Phillips
JUDGE

At Lautoka
3 May 2007

^[1] [1994] 40 FLR 279
^[2] [1968] 2 QB 229
^[3] [1978] AC 297
^[4] Per Scott J in Kung Wah Trading Co. Ltd –v- Burns Phillip Shipping Co. HBC 2/975 at p. 2
^[5] CA 0174/2000 page 11