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Chaudhary v The Fantasy Company of Fiji Ltd [2007] FJHC 29; HBC111.2003L (25 September 2007)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICITON

CIVIL ACTION NO.: HBC 111 OF 2003L

BETWEEN:

UMENDRA JIT CHAUDHARY,
JAI PRASADand
EDWARD HENRY THOMPSON
all of Nadi, Company Shareholders
Plaintiffs

AND:

THE FANTASY COMPANY OF FIJI LIMITED
a limited liability company having its registered office at Waqadra, Nadi
First Respondents

AND:

ABBAS ALI, SAIYAD HUSSEIN,
ASATOSHI KAYANO,
FUMIYO KAYANO and
APISAI DERE NAEVO
all of Nadi, Company Directors/Shareholders
Second Respondents

Mr. R. Singh for the First Plaintiff
Mr. R. Singh for Mr. F. Koya for the Second Plaintiff
Mr. R. Singh for Patel & Sharma for the Third Defendant
Mr. S. Maharaj for the Defendants

Date of Hearing: 11th September 2007
Date of Ruling: 25th September 2007

RULING OF DISCOVERY

This yet another summons for further discovery. This time it is by the second plaintiff. The last one was by the third named plaintiff. The basic principle is that all relevant evidence must be made available to the parties and to the court. Although the court has a discretion at discovery stage to grant or refuse disclosure, this discretion is very limited. Hence if disclosure will need to be made at the trial, it would not be right to deny disclosure at the discovery stage and thus deprive the other party opportunity to prepare and meet that evidence. The test for discovery is whether the documents might lead to a train of inquiry which might assist the party in his conduct of litigation: Cie Fianciere ef Commerciale du Pacifique v. Peruvian Guano Co. [1883] UKLawRpKQB 95; (1882) 11 QBD 55.

Our system of civil litigation is an adversarial process, but it is not a process devoid of rules. The High Court Rules complement the inherent jurisdiction and powers of the court. The overriding objective of the Rules and the inherent jurisdiction is to ensure a fair trial to the parties. Central to the conduct of a fair trial is the process of discovery of documents. Discovery is particularly critical where documents may be voluminous and play significant part in the result of the case. Some times one of the parties has access and custody of the relevant documents. Disclosure may be inimical to its own interests. Nevertheless a party which controls access to the documents cannot deprive the other of them unless it claims some form of privilege. Courts ensure that parties to an action have the opportunity to inspect and use the documents. Parties and their solicitors have a duty to disclose fully and frankly of what has become of all relevant documents which have been in their possession, control in custody.

A court will order documents to be disclosed if they are relevant to an issue in the proceedings. The issues are determined by looking at the pleadings.

The statement of claim alleges that the plaintiffs and the defendants formed the company the Fantasy Company of Fiji Limited for purposes developing and selling for profit land at Wailoaloa, Nadi. The second plaintiff says that pursuant to a meeting and resolution of the company on 9th September 1988, he was allotted Lot 13 on SO 3956. He has not however got the lot. According to him he has spent $71,551.00 of his own money for purposes of the company. He also worked for four and half years as company secretary without wages.

One of the remedies which all the plaintiffs seek is payment of dividends. The second plaintiff alleges he has not been given the promised lots for which he seeks $150,000.00.

Clearly such allegations would entail parties and the court looking at the finances of the company and any receipts, deposits, cheque books etc. Financial statements alone will not do. Manipulation of financial statements is not unheard of. I am not suggesting that the defendants have done that. Any doubts which the plaintiffs or their financial advisors might have can be laid to rest if such documents are disclosed. I consider them to be extremely relevant. Accordingly I order the defendants to file and serve a supplementary affidavit verifying and disclosing the following:

(a) Bank statements for the years 2000 to 2005 inclusive.

(b) All receipt books for the same period.

(c) All cheque butts for the first defendant for the same years.

(d) All account ledgers for the same years.

(e) All invoices and payment vouchers of the first defendant.

(f) Lot numbers and sale price of every lot sold by the defendants from 2000 to 2005.

These orders are to be complied by 10th October 2007.

This action I note has spiraled out of control and needs to be controlled. I order:

(a) The plaintiffs to file and serve copy pleadings by 10th October 2007.

(b) Parties are to agree to those documents which are to be tendered by consent by 25th October 2007 and file these in court. A certificate is to be signed by all solicitors concerned that those are agreed documents.

(c) A list of disputed documents separately for plaintiffs and defendants are to be filed by 25th October 2007.

[ Jiten Singh ]
JUDGE

At Lautoka
25th September 2007