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Chandra v Fiji National Provident Fund [2015] FJHC 240; HBC208.2014 (8 April 2015)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
(WESTERN DIVISION) AT LAUTOKA
Civil Action NO. HBC 208 of 2014

BETWEEN:

MOHINI CHANDRA
of 5339 Laguna Park Drive, Elk
Grove, California 95758,USA, as Widow and Administratrix in the Estate of Ramesh Chandra.
PLAINTIFF

AND:

THE FIJI NATIONAL PROVIDENT FUND,
a body corporate established under the Fiji National Provident Fund Act.
DEFENDANT

Before : Mohamed Ajmeer, J.
Counsel : No appearance for plaintiff
Ms A Rogovakalali for defendant

Date of Hearing : 8 April 2015
Date of Ruling : 8 April 2015

INTERLOCUTORY RULING

[1] By originating summons filed 6 February 2015 the plaintiff, inter alia, seeks the following orders against the defendant:

1. That the defendant render a statement of account of all monies that were kept to the credit of Ramesh Chandra, Fiji National Provident Fund membership number EE 297 to the plaintiff forthwith.
   
2. That the defendant pay out the plaintiff and the dependents of late Ramesh Chandra all the monies together with all accrued interest that were kept to the credit of late Ramesh Chandra with the defendant as provided for and in accordance with the Fiji National Provident Fund Act and its amendments.
   

[2] The matter came up for hearing today (8 Apr. 15) when there was no appearance by or for the plaintiff. Counsel for the defendant did not apply for the dismissal of the action for default of appearance on the part of the plaintiff on hearing day. Instead, she made an application for conversion of the originating proceeding into proceeding begun by writ on the ground that the matter is a contentious one with facts that need to be verified further which cannot be wholly determined in an originating summons process as BSP need to be added as nominal defendant, for the money has been released to an account at BSP following withdrawal application. This application is made pursuant to O.28, r.9 (1) of the High Court Rules 1988 ('HCR') which provides that:

'9.-(1) Where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof.'

[3] Rule 9 (1) empowers the court to convert, at any stage of the proceedings, any cause or matter begun by originating summons into a proceeding begun by writ for any reason. The use of word 'may order' in r.9 (1) suggests that the court has discretion in this regard.

[4] The defendant in its affidavit in reply states that it was not in a position to reveal Mr Chandra's account details to the plaintiff as it is prohibited under the FNPF law. Counsel for the defendant submits in court that the fund standing to Mr Chandra's account was released to an account at BSP following a full withdrawal application dated 25 September 2008. It ought to be noted that the alleged withdrawal application has been made after the concerned member (Chandra) had passed away in June 2000. According to the defendant further particulars and discovery are necessary to ascertain as to what had happened to the fund released to the BSP account.

[5] It appears to me that there is likely to be substantial dispute of fact. I therefore, acting under O.28, r.9 (1), order the proceedings to continue as if the matter begun by writ. I further order that the affidavits filed by the parties will stand as pleadings. Parties are at liberty to add thereto or to apply particulars thereof. I would make no order as to costs.

Final Orders:
[6] I would therefore make the following final orders:

1. The originating summons filed 6 February 2015 by the plaintiff is to be treated as writ;
2. The affidavits filed by the parties will stand as pleadings;

100. Parties are at liberty to add thereto or to apply particulars thereof; and

4. No order as to costs.
   

M H Mohamed Ajmeer
Puisne Judge

At Lautoka
8/4/15