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Man Enterprises Ltd v Turaga [2010] FJHC 500; HBC260.2008 (12 November 2010)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Civil Case No. HBC 260 OF 2008

BETWEEN

MAN ENTERPRISES LIMITED, a limited liability company having its registered office at Lautoka, Fiji
Plaintiff

AND

EPARAMA TURAGA, of Vomo Street, Lautoka, Bailiff
1st Defendant

AND

CREDIT CORPORATION (FIJI) LIMITED, a limited Liability Company having its registered office at Suva and carrying on business throughout Fiji
2nd Defendant

Before: Master Anare Tuilevuka
Counsels: Plaintiff unrepresented
Messrs Samuel K. Ram Lawyers for the Defendants

Date of Hearing: 29th October 2010
Date of Ruling: 12th November, 2010

RULING

[1]. Before me is an application to dismiss the statement of claim for want of prosecution under Order 25 Rule 9 of the High Court Rules.

[2]. In the alternative, the defendant seeks an Order under Order 18 Rule 18 of the High Court Rules that the plaintiff's claim be struck out on the following grounds:

• (a) that it discloses no reasonable cause of action.
  
• (b) that it is friction and /a vexatious and/a scandalous.
  
• (c) it is otherwise an abuse of process of the Court.
  

[3]. By way of background, the plaintiff's statement of claim was filed on 1st December, 2008 by Messrs Yash Law. In a nutshell, the claim alleges that on the 30th of September 2000, the 1st defendant, Mr. Turaga, seized and took possession of a Timber Skidder Registration No. E. 9029 without any lawful basis.

[4]. Mr. Turaga was a registered bailiff. He had been instructed by Credit Corporation Limited to seize a certain Skidder registration No. DZ 797 pursuant to a Bill of Sale in favour of Credit Corporation.

[5]. The plaintiff alleges that instead of seizing DZ 797, Mr. Turaga in fact seized a different skidder registration number E 9029 which belongs to the plaintiff and over which a different financier has a bill of sale.

[6]. It is common ground between the parties that skidder registration No. E. 9029 was not encumbered in any way to Credit Corporation Limited. The issue between the parties however is whether the skidder that Mr. Turaga seized was in fact DZ 797 or whether it was E 9059.

[7]. From affidavits filed in December 2008 and February 2009 pursuant to a mandatory injunction application for the release by the second defendant of the skidder - it appears that the confusion about whether what was in fact seized was DZ 797 or whether it was E 9029 was due to the fact that most of the features that were to have distinguished one from the other had been interchanged. Which means that both skidders had been tampered with.

[8]. DZ 797 in fact is encumbered to Credit Corporation by one MHK Enterprises Limited. I gather that one Mohammed Hanif Khan is the "proprietor" of MHK Enterprises Limited. He had hired out DZ 797 out to the plaintiff on a monthly rental.

[9]. Khan in fact had sworn an affidavit on 26th March, 2009 asserting that the skidder that Turaga seized in fact was E 9029 which belongs to the plaintiff.

[10]. What remains unresolved is the issue as to which of the parties had interchanged the parts of the two skidders which led to the confusion. The plaintiff blames the first defendant. The first defendant appears to blame the plaintiff. No one blames Khan.

[11]. In any event, the plaintiff's claim is essentially about loss of income from the alleged unlawful seizure of the said skidder.

[12]. When the current summons to strike out was first called on 27th July, 2010, a Mr. Manasa Nayago, a Director of the plaintiff company, appeared in Court and advised that the company had closed and that he was considering Legal Aid assistance.

[13]. I gave him three weeks to file an Affidavit in Opposition. I then adjourned the case to 18th October 2010 for hearing at 11.00am.

[14]. On 18th October 2010, a Mr. Semi Nayago appeared. He advised the court that he is the Operations Manager of the plaintiff company and that Mr. Manasa Nayago, his father, was away in Sydney. He advised the court that "we want to proceed with case". He also confirmed that the company "is no longer running". When I asked him if he was opposing the striking out application - he advised that his father had spoke to Mr. Qoro to appear for the company.

[15]. I then stood the case down for a few minutes. When I resumed Mr. Saimoni Nacolawa was in Court for the plaintiff. Mr. Nacolawa advised the Court that Mr. Manasa Nayago had in fact spoken to him. I gave Mr. Nacolawa a further 7 days to file and serve an affidavit in opposition.

[16]. I then adjourned the case to 29th October 2010 for hearing at 11.00am and awarded costs in sum of $250.00 in favour of the defendant.

[17]. On 29th October 2010 at 11.00 a.m., no one appeared for the plaintiff.

[18]. Mr. Ram then made submissions and sought order in terms of his application to strike out under Order 25 Rule 9 of the high Court Rules.

[19]. The plaintiff's inability to file an affidavit in opposition and certainly its non-attendance in Court does not leave a good impression. The only conclusion one can draw from that is that it is not interested in pursuing the claim.

[20]. That is rather sad when one considers the serious allegations and issues raised which would have merited at least two days of full trial. In my view, there is real merit in the claim.

[21]. What has surfaced from the affidavits filed in December 2008 and February 2009 also merit a full police criminal investigation. I gather that the police had started some investigation but as to its status - is unclear to me.

[22]. All that the plaintiff could have done in an affidavit in opposition is highlight the pending police investigations and /or changes and/or criminal case - and I would have refused to grant Order in Terms.

[23]. However, as the plaintiff has not bothered even to file a affidavit, let alone turn up in Court – and considering that it has been given some extensions hitherto to file an affidavit in opposition - I will grant Order in Terms and Strike Out the claim pursuant to Order 25 Rule 9 with costs in the sum of $350-00 (three hundred and fifty dollars) to be paid in 14 days.

Anare Tuilevuka
Master

At Lautoka
12th November 2010.