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Nakuita Enterises Ltd v I Taukei Land Trust Board [2014] FJHC 745; HBC330.2011 (15 October 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No. 330 of 2011

BETWEEN:

NAKUITA ENTERPRISES LIMITED a Limited Liability Company having its registered office at Nausori, Fiji.
1st Plaintiff

MATAQALI NAKUITA BY ITS TRUSTEE'S MANOA RAVOTEA CAKAUNITABUA, SOLOMONI DOMONIUKIBAU AND INIA KEVETIBAU all of Nausori, Turaga ni Mataqali and the mataqali members for and on their own behalf and on behalf of the Mataqali members.
2nd Plaintiff

AND:

I TAUKEI LAND TRUST BOARD, a statutory body established pursuant to the iTaukei Land Trust Act Cap. 134 having its registered office at 431 Victoria Parade, Suva.
1st Defendant

AND:

DIRECTOR OF LANDS an Office established under the State Lands Act Cap. 132 having its registered Office at Nasese, Suva
2nd Defendant

Appearance : Mr N Nawaikula of Nawaikula Esquire for the Appellant
Ms L Komaitai, Legal Officer ITLTB for the 1st Defendant
Mr R Green with Ms L Ramoce of AG's Chambers for the 2nd Defendant

Date of Judgment: 15 October 2014

JUDGMENT

1. The Writ of Summons and the Statement of Claim was filed by the Plaintiffs on 28 October 2011 and sought the orders stated in the prayers of the Statement of Claim.

2. The 1st Defendant filed its Statement of Defence on 7 December 2011 and Summons for Directions filed on 22 February 2012 and the 2nd Defendant filed the Statement of Defence on 14 March 2012. When the matter was called before the Learned Master on 1 February 2013 no appearance was made on behalf of the Plaintiff's and Counsel appeared for the Defendant. The Master had stated that the Summons for Directions was filed in 2012 and the Plaintiffs' Affidavit verifying the list of documents was filed in 2013 and matter was struck off.

3. The summons to reinstate the proceedings and to restore to the cause list was filed on 19 February 2013 together with the Affidavit in support dated 19 February 2013 sworn by Solomone Cakaunitabua, Secretary of the 1st Defendant.

4. When the matter was mentioned before the Learned Master directions were given to file the affidavits by the parties. The hearing of the summons was postponed on several occasions on the application by the Plaintiffs' counsel and consented by the Defendants' counsel. The indication given to the court was matter is under negotiations. For the first time the negotiations was brought to the notice of the court was subsequent to the filing of summons pertaining this application. When the matter was taken up before the Master there was no record to state it was pending for a settlement.

5. Since negotiations for settlement was not for the coming the summons was fixed for hearing on 23 July 2014 and the counsel made submissions.

5.1 This action was struck out by the Master on 1 February 2013 in default of appearance by the Plaintiffs' counsel. The Plaintiffs filed an application to reinstate the matter to the cause list on 19 February 2013. The affidavits in response were filed by the 1st and 2nd Defendants on 29 November 2013 and 18 January 2014 respectively.

5.2 The Plaintiffs' solicitor submitted he did not had any notice that on 1 February 2013 that the Order 25 Rule 9 summons will be called on that day. The counsel further submitted even if the summons was indeed served at his office it was not noted in his diary. On perusal of the record that Notice dated 15 October 2012 pursuant to Order 25 Rule 9 and Order 3 Rule 5 of the High Court Rules was served on the Plaintiffs' solicitor's office on 29 October 2012 and the service was acknowledged by the Plaintiffs' solicitor's office, on 9 October 2012. I further note the said Notice states inter alia:

"Where no step taken in this cause or matter for over six months and you are required to attend the court at Suva on the 1 February 2013 at 9.00am o'clock in the forenoon.

*And that your personal attendance is required.

To show cause why it should be struck out for want of prosecution or as an abuse of the process of the court."

Merely stating that it had not gone into his diary is not an acceptable proposition. The solicitor's office should maintain proper recording and system of the court notices and date specifically when the notice sent under Order 25 Rule 9, which is fatal to the action, and result in dismissal of the action.

5.2.1 The disorganization of the Plaintiffs' counsel's firm does not justify the non appearance. If such excuses are accepted it will create bad precedent for the court and the rules made for proper case management will be redundant. In limine I reject the reason given for non appearance by the counsel that his office did not entered the date in his diary.

5.2.2 The Plaintiffs' counsel also submitted that there were ongoing settlement talks and the Defendants' counsel should have brought during the hearing of Order 25 Rule 9 summons on 1 February 2014. The Plaintiffs' counsel further alleged that the Defendants' counsel remained silent to take advantage of striking out. The 1st Defendant's Affidavit in reply dated 16 January 2014, paragraph 10 states the legal counsel of 1st Defendant had verbally advised the representative of the 1st named Plaintiff Company Mr. Solomone Domoniukibau that the matter was listed for 1st February 2014. It was the duty of the Plaintiffs to remind the date to their solicitors to follow up. The Plaintiffs and their solicitors action shows they were not interested to proper conduct of this case. I further observe in the affidavit in reply by the 2nd Defendant paragraph 21 in fact the court was advised on 1 February 2013 with regard to the settlement however, there was no movement of the case from 12 March 2012 after the summons for directions filed on 22 February 2012. Although the directions were given on a time table the Plaintiff's filed the affidavit verifying list of documents only on 22 January 2013 over 9 months after the directions which shows the disobeying and abusing the process of the court directions by the Plaintiffs. The Plaintiffs and their solicitors failed and neglected to abide by the court directions. The Plaintiff's claim that since there were negotiation for a settlement do not warrant the court action should be stayed or delayed until the settlement is reached. There was no such application made to the court, prior to the striking out of the case. The allegation the Defendants' counsel took undue advantage of the circumstances carries no merits. The decision to strike out the matter was taken by the Master after considering the fact that the summons for directions was filed in 2012 and the Defendants' Affidavit verifying the documents was filed in 2013 and no appearance was made by the Plaintiffs or their counsel on 1 February 2013. As such I conclude that the Master had taken a decision to strike out the case after considering the default of the court's directions and abusing the process of the court not only for the non appearance and the Plaintiff fails in their argument.

5.2.3 The Plaintiffs further argued that the decision by the Master was an administrative action and not a judicial decision pursuant to Order 25 Rule 9.

Strike out of want of prosecution:

"(1) If no step has been taken in any cause or matter for six months then any party on application or the court of its own motion may list the cause or matter for the parties to show cause why it should not be struck out for want of prosecution or as an abuse of the process of the court.

(2) Upon hearing the application the court may either dismiss the cause or matter on such terms as may be just or deal with the application as if it were a summons for directions."

5.2.4 The Plaintiffs' counsel cited the Fiji Court of Appeal case of Trade Air Engineering (West) Ltd v. Taga a Civil appeal No. 062 of 2006 (unreported decided on 9 March 2007) had ruled that any action dismissed by the Master including generally under Order 29Rule 5 must be appealed. It was submitted not it had been established that only apply to cases were an Order 29 Rule 5 must be (in written submission it was stated as Order 25 Rule 5 which is not relevant and I take it as Order 25 Rule 9) appealed. But it has now been established that it only applies to the cases were an Order 29 Rule 9 application was fully argued and a judicial decision given. The counsel submitted striking out of an action for non appearance is an administrative and not a judicial position and correct process to take by way of an application to reinstate, this has been confirmed in recent decision including that of Inoke J. in NBF Asset Management Bank v. Krishna HBC 129 of 1999 (unreported decided on 2 February 2012). For 2 reasons, I cannot apply the Judgment of Inoke J. in this matter since it is a High Court decision and the statement made in Trade Air Engineering (West) Limited v. Taga is by the Court of Appeal. There is no such precedent to accept the decision in a High Court against Court of Appeal decision or views.

The second reason is NBF Asset Management case facts are different. The notice was not sent to the Defendant. In this matter the court by its own motion, ask to show cause on notice served on the Plaintiffs' solicitor. The solicitor had not acted diligently and not recorded the date. Further the decision to strike out the case was not a mere administrative decision for non appearance as submitted by the Plaintiffs' counsel.

As stated in the preceding paragraphs the Master had taken into account the Plaintiffs' failure to comply with the Order 34 Summons for Directions, which was an abuse of the process of the court. As such, I conclude the decision to strike out the matter was a judicial decision and the Plaintiffs' counsel fails in his argument.

5.2.5 The Plaintiffs' counsel also cited the case of Birkett v. James [1978] A.C. 297 and stated the principle is that a case will be dismissed for want of prosecution if the delay is contumelious (deliberate default in compliance with a peremptory order of the court or perhaps conduct amounting to an abuse of the process of the court) and inordinate and inexcusable delay. Applying the said principles I am of the view that in this case the Plaintiffs default is not taking after Order 34 summons and non appearance when the Order 25 Rule 9 notice was served by the court is contumelious. In the case of Grovit v. Doctor [1997] UKHL 13; [1997] 2 All ER 417 it was held:

"The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceeding is brought is entitled to apply to have the action struck out and if justice so requires the courts will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the Plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution."

5.2.6 It was also a matter to be considered as to whether what procedure to be adopted in case of a matter is struck out pursuant to Order 25 Rule 9 and there is no provision to make such application by way of summons.

In this case in my view appeal is the remedy by reinstatement as stated in Trade Air Engineering v. Taga Civil Appeal No. ABU 0062 of 2006 (unreported decided on 9 March 2007):

"13. Although the judge rejected the Appellants' submissions he did give leave to them to apply for the action to be reinstated. Mr Haniff was unable to refer us to any provision in the rules granting the court power to reinstate an action struck out in these circumstances. Generally, a party's only remedy following the striking out of its action is appeal. Exceptions to this general rule such as O 13 r 10; O 14 r 11; O 24 r 17; or O 32 r 6 have no application to Order 25."

As stated in the preceding paragraphs, I determine the decision made by the Master is not an administrative decision. It was made on considering the Plaintiffs' default in taking steps pursuant to Order 34 summons, which amounted to abuse of the process of the court and the Master had made a judicial decision and the said decision cannot be challenged by way of reinstatement but only by way of an appeal.

6. Accordingly, I make the following Orders:

(a) The summons filed on 19 February 2013 for reinstatement of this action dismissed.

(b) The Plaintiff should pay summarily assessed costs of $1,000.00 each to the Defendants.

Delivered at Suva this 15th Day of October 2014.

C. Kotigalage
JUDGE