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J P Bayly Trust v Attorney General [2012] FJHC 17; HBC204.2006 (20 January 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 204 of 2006

BETWEEN:

J P BAYLY TRUST a Charitable Trust
registered under the Charitable Trusts Act and having its registered office at Bayly House, Rodwell Road, Suva in the Republic of Fiji.
Plaintiff

AND:

THE ATTORNEY GENERAL OF FIJI
1st Defendant

AND:

COMMISSIONER WESTERN
2nd Defendant

AND:

PROVINCIAL ADMINISTRATOR, RA
3rd Defendant

Appearances:
Ms. N. Khan for the Plaintiffs
Mr. Green for the Defendants.

ORDER

1. This action was filed by Originating Summons by the Plaintiff in 2006, and on the 7th of March 2007 pursuant to Terms of Settlement signed and filed on the same day, of consent of parties this action was concluded on terms agreed between parties and order entered accordingly on the said terms. The said order of consent was sealed on the 19th March 2007.
   
2. On the 7th May 2010 the Defendants filed a Summons seeking;
   
   1. that an injunction be ordered against the Plaintiff; and,
   2. that this matter be consolidated with the matter in action number 218 of 2009.
      
3. On this Court pointing out the deficiencies in the said Summons inter alia in that it does not even set out the nature of the injunction sought, the Defendants filed an amended Summons on the 1st July 2010 seeking;
   
   1. that the enforcement of the consent order entered on the 7th March 2007 in this matter be stayed until the determination of the issues pleaded in action number 218 of 2009; and,
      
   2. in the alternative, that this matter be consolidated with the matter in action number 218 of 2009.
      
4. Subsequently parties took much time to settle their differences without avail. At the hearing the Plaintiffs Counsel submitted that the "Survey Report" annexed as SC2 to the affidavit of Sangeeta Chand on behalf of the Defendants is in fact not a Survey Report, but merely a map downloaded from the internet. Plaintiffs Counsel very observantly drew the attention of this Court to the fine print at the bottom of SC2 which confirmed the submission of the Plaintiffs Counsel that SC2 in fact is a map downloaded from a data base. SC2 does not incorporate a report or observations of a surveyor.
   
5. The Defendants rely on SC2 referring to it as a survey report to seek a stay of the implementation of the terms of settlement sealed in this action.
   
6. It is clear that this action was concluded on the terms of settlement being filed and order in terms being entered on the 7th March 2007 and sealed on the 19th March 2007. As such this Court is functus officio and cannot re visit such terms. If it is a stay of the implementation of such terms that the Defendants seek then they must satisfy Court of grounds to justify such a stay. SC2 is not a survey report and fails to satisfy or support any contention as it hangs in the air so to speak with no report of a surveyor.
   
7. It is further observed that the Defendants have filed another action seeking to set aside/ clarify or otherwise alter the terms of settlement entered in this action. As such it would be further inappropriate to make any orders in this action as it would be sub judice according to the Defendants own submission that the issues in both cases are the same.
   
8. The Defendants further seek in the alternative to consolidate this action with action no. 218 of 2009. However it is two pending actions that can be consolidated. An action already concluded need not be consolidated with a pending action as the concluded action could at the most only be evidence in the pending action.
   
9. As such the Summons filed on the 7th May 2010 and "Amended Summons" of 1st July 2010 are for the reasons aforesaid dismissed with costs assessed at $500/- to be paid by the Defendants to the Plaintiff.
   

ORDERS;

a. Defendants Summons of 7th May 2010 and "Amended Summons" of 1ST July 2010 are dismissed.

b. Defendants to pay costs in $500/- to the Plaintiff.

.............................................
Yohan Fernando.
JUDGE.

High Court of Fiji
At Lautoka
20th January 2012.