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Ali v Vitiana Timbers (Fiji) Ltd [2013] FJHC 105; HBC20.2009 (12 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No: HBC 20 of 2009.

BETWEEN:

SARUN ALI
of Squatter Settlement, Davuilevu Housing, 9 ½ Miles, Nakasi, Nasinu, Student.
PLAINTIFF

AND:

VITIANA TIMBERS (FIJI) LIMITED
a limited liability company having its head office at Lot 1, Nokonoko Road, Bailey Bridge, Laucala Beach Estate, Nasinu.
DEFENDANT

BEFORE : Justice Deepthi Amaratunga

COUNSEL : Mr. D. Singh for the Plaintiff
Mr. V. Prasad for the Defendant

Date of Hearing : 5th March, 2013
Date of Decision : 12th March, 2013

DECISION

1. INTRODUCTION
   

1. The Plaintiff filed an endorsement of claim and writ of summons on 20th January, 2009 for alleged incident for negligence happened on 19th January, 2006. The Defendant who is a legal person filed acknowledgment of summons on 1st February, 2009. The Plaintiff did not take steps to file a statement of claim and summons was filed seeking strike out of the action in terms of Order 18 rule 18 (a), (b), (c) and (d). At the same time the court also served the summons for strike out in terms of the Order 25 rule 9 of the High Court Rules of 1988. The Plaintiff did not take any step to file a statement of claim in lieu of the endorsement that was filed nearly four years ago. The Plaintiff was required to file a statement of claim before 14 days of the service of the Defendant's intention to defend. The conduct of the Plaintiff, filing an endorsement and also not to act upon it for nearly four years is an abuse of process and the action should be struck off.
   

2. ANALYSIS
   

2. Order 18 rule 1 of the High Court Rules of 1988 states as follows
   

'(1) Unless the Court gives leave to the contrary or a statement of claim is indorsed on the writ, the plaintiff must serve a statement of claim on the defendant or, if there are two or more defendants, on each defendant, and must do so either when the writ is served on that defendant or at any time after service of the writ but before the expiration of 14 days after that defendant gives notice of intention to defend.' (emphasis added)

3. The Plaintiff after the Defendant's filing of the intention to defend did not file the statement of claim at all. The Defendant filed the acknowledgment through an agent.

Order 5 rule 6(2) states

'(2) Except as expressly provided by or under any enactment, a body corporate may not begin or carry on any such proceedings otherwise than by a barrister and solicitor'

4. Supreme Court Rules (1988) White Book at p31 5/6/1 states as follows
   

'As an exception to the general prohibition laid down by para(2) a body corporate, including a limited liability company is expressly empowered itself to acknowledge service of a writ of summons and an originating summons and to give notice of its intention to defend by a person duly authorized to act on its behalf, instead of acting by solicitor(see O12, rr1(2). But, except as aforesaid, or as expressly provided by any enactment, such a defendant may not take any other step in the action except by s solicitor (ibid). In view of the expression "except as expressly provided" it would seem to be doubtful whether in a writ action a body corporate is entitled to state its intention in its acknowledgment o service of applying for a stay of execution and thereby to obtain the benefit of such a stay on a default judgment entered by the plaintiff under O.13.r.8 or whether in a district registry action, it is entitled to apply for the transfer of the action to the Royal Courts....'

5. Order 12 rule 1(2) deals with the mode of acknowledging service of a body corporate and states as follows
   

'1(2) The defendant to such and action who is a body corporate may acknowledge service of the writ and give notice of intention to defendant the action either by a solicitor or by a person duly authorized to act on the defendant's behalf but, except as aforesaid or as expressly provided by any enactment, such a defendant may not take steps in the action otherwise than by a solicitor.' (underlining is mine).

6. The acknowledgment of legal person by a duly authorized person is a valid acknowledgment and in this case the acknowledgment done without the assistance of the solicitor has to be considered as valid for all purposes. The Plaintiff is then required under Order 18 rule 1 to serve the statement of claim before 14 days of such intention to defend is given. In ANZ Banking Group v Fredric William Caline [2006] HBC 500R/04 (Ruling on 3rd February, 2006) Jitoko J held the provision is mandatory. I agree with said decision of Jitoko J.
   
7. The Plaintiff is given an opportunity of filing an endorsement for a very limited purpose and cannot continue with the same for 4 years as in this case, and if done it will not only a non compliance of a rule but also an abuse of process. This is more reinforced as the Plaintiff was also served with a notice under Order 25 rule 9 to strike out the action, but did not fit to seek to take necessary action to file and serve a statement of claim.
   
8. The interpretation of the Order 18 rule 1 has to be done with the purpose of the said provision in mind. The Plaintiff 'must' file a statement of claim 'before the expiration of 14 days after that defendant gives notice of intention to defend' can be interpreted as a mandatory requirement as the 14 days before the expiration of the notice of intention to defend is the latest where the Plaintiff was given ample opportunity to comply before that. In the case before me the Plaintiff not only did not file a statement of claim, but also no request or effort was made even after the Order 25 rule 9 notice was given to strike out, to file a statement of claim.
   

100. CONCLUSION
     

9. The Plaintiff did not file a statement of claim for 4 years from the notice of intention to defend was given. The court issued a notice under Order 25 rule 9 to strike out the action and Defendant also filed summons subsequently to strike out in terms of Order 18 rule 18(1)(a),(b),(c), and (d). The conduct of the Plaintiff is an abuse of court process where the Plaintiff had also failed to comply with the mandatory requirement under Order 18 rule 1. In the circumstances the Plaintiffs action is struck off and a cost of $500 is granted for the Defendant assessed summarily.
   

4. FINAL ORDERS
   
   1. The Action is struck off.
   2. The Defendant is granted a costs of $ 500 assessed summarily.
      

Dated at Suva this 12th day of March, 2013.

Justice Deepthi Amaratunga
High Court, Suva