IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. 278 of 2008

BETWEEN:

NAGIN LILADHAR of Namaka, Nadi, Businessman
PLAINTIFF

AND:

NADI TOWN COUNCIL a body corporate duly incorporated under the provisions of the Local Government Act Cap 125.
1st DEFENDANT

AND:

J. K.BUILDERS LMITED a limited liability company having its registered office at Nadi.
2nd DEFENDANT

AND:

PENI T KACIMAIWAI practicing under the name and style of KACIMAIWAI ENGINEERS in Nadi and Suva, Engineer
3rd DEFENDANT

AND:

THE NEW INDIA ASSURANCE COMPANY LIMITED a limited liability company having its registered office at Lautoka
THIRD PARTY

Counsel: Mr E Maopa for plaintiff
 Ms PMataika for 1st defendant
 Mr R Singh for 2nd defendant
 No appearance for 3rd defendant
 Mr S Krishna for 3rd party 
 
Date of hearing: 24 August 2015 
Date or Ruling: 28 September 2015 

RULING

Introduction

[1] This is a notice issued pursuant to Order 25, Rule 9 of the High Court Rules (as amended) 1988 (‘the HCR’) by the High Court Registry at Lautoka to strike out the action for want of prosecution. 

[2] By notice dated 17 June 2014 the court required all the parties to attend the court and show cause why the action should not be struck out for want of prosecution or as an abuse of the process of the court.

[3] In response to the notice, the plaintiff filed affidavit of Sandhya Devi, litigation clerk at Messrs Babu Singh Associates sworn on 15 August 2014, and affidavit in response to the affidavit of Mariappa Pillay. The first defendant filed affidavit (in support of the notice to show cause) of Mariappa Pillay, employee (prosecutor) of the first defendant sworn on 7 July 2015. Third Party filed affidavit of Avinesh Rai employed by the third party.

[4] The matter came on for hearing in court on 24 August 2015. At hearing the parties orally argued the matter. And, only the first defendant and third party tendered their respective submissions.

Background 

[5]In December 2008 the plaintiff took out a writ of summons against the defendants claiming special damages, general damages and a declaration that the plaintiff is indemnified by the 2nd and 3rd defendant and they are liable to pay for any loss, damages or claim made against the plaintiff in Civil Action No.013 of 2004. In February 2010 the second defendant filed third party notice. The court granted leave to serve third party notice upon New India Assurance Company Limited. The plaintiff and third party filed summons for direction and the court granted orders in terms of summons for direction. The matter reached PTC stage. On 4 April 2011 neither the plaintiff nor his solicitor appeared in court. The court adjourned the matter to 20 April 2011 for mention. On 20 April again the plaintiff defaulted in appearance. Hence the learned Master ordered: ‘take off cause list with liberty to apply to reinstate. Costs to defendant and third party at $250.00 each. Matter not to be reinstated unless proof of payment.’ After this the plaintiff did not take any step to progress the matter to trial. Then the court issued Order 25, rule 9 notice.

The Law

[6] The relevant law applicable in these proceedings is Order 25 rule 9 of the HCR which provides:

‘9.-(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.’ (Emphasis added).

Discussion

[7] The court on its own motion issued notice under O.25, r.9 of the HCR on all parties to show cause why the action should not be struck out for want of prosecution. The action had been dormant since 20 April 2011.

[8] In accordance with O.25, r.9 the court may on its own motion list the cause 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, if no step has been taken for six months.

[9] The matter had been dormant since 20 April 2011. On 17 June 2014 the court issued the show cause notice under O.25, r.9. The plaintiff did not take any step for nearly three years and three months.

Affidavit through litigation clerk 

[10]The plaintiff filed an affidavit through his solicitor’s litigation clerk to show cause. 

[11] Once Order 25, rule 9 notice, issued the plaintiff as defaulting party must show cause why the action should not be struck out for want of prosecution. The opposing party need not show why the action should be struck out.

[12] Counsel for the first defendant put forth an argument that this affidavit sworn by law clerk is objectionable- no valid affidavit. 

[13] MrRupesh Singh, counsel for the 2nd defendant also supported the first defendant’s argument. He cited the case authority of Vatukoula Gold Mines Limited v Dev Anand[2010] Civil Action No. 218 of 2008.

[14] In Vatukoula Gold Mines Ltd’s case learned Master Tuilevuka (as he was then) quoting the case of Deo v Singh [2005] FJHC 23; HBC0423.2004 (10 February 2005) stated that, swearing of affidavits by solicitor’s clerk on contested matters should be a rare exception and the reason why the party is unable to depose ought to be explained.

[15] In Varani v Aanuka Island Resort Ltd [2015] FJHC 73; HBC161.2012 (6 February 2015)I (when sitting as Master) held that an affidavit sworn through solicitor's clerk was improper and the court cannot give it any weight whatsoever.

[16] The onus is on the plaintiff to show cause why the action should be struck out for want of prosecution or as an abuse of the process of the court. The plaintiff did not swear the show cause affidavit by himself. He opted to swear the affidavit through his solicitor's clerk. There is no explanation why the affidavit is sworn by the law clerk. In contested proceedings like this, it would be improper to swear an affidavit through a solicitor's clerk without any explanation. I would therefore conclude that there is no valid and proper show cause affidavit by the plaintiff.

[17] Even if one found that there is valid affidavit, the affidavit offers no satisfactory explanation for the long delay.

 Fails to give notice of intension to proceed

[18] The plaintiff did not even file notice of intention to proceed. Pursuant to O. 3, r.5 of the HCR, he should have filed such a notice after 6 months delay, if he had intention to proceed. O. 3, r. 5 provides: 

'5. Where six months or more has elapsed since the last proceeding in a cause or matter, the party who desires to proceed must give to every other party not less than one month's notice of his intention to proceed.

A summons on which no order was made is not a proceeding for the purpose of this rule'.

[19] The plaintiff should have given the mandatory rule 5 notice since the cause was dormant for over three years.

[20] The plaintiff has not taken any step to progress the matter after 20April 2011. As a result the matter had just been lying in the Registry for more than 3 ¼ years.

[21] In Grovit v Doctor and Others(1997 1 WLR 640 at 641 H.L) it was held in a situation such as the present:

"That for the plaintiff to commence and to continue litigation which he had no intention to bring to a conclusion could amount to an abuse of process; and that, accordingly, once the court was satisfied that the reason for the delay was one which involved an abuse of process in maintaining proceedings when there was no intention of carrying the case to trial it was entitled to dismiss the action" (Emphasis provided).

[22] There is no proper affidavit to show cause why the action should not be struck out for want of prosecution or as an abuse of the process of the court. The plaintiff also failed to give notice of his intention to proceed as required by O.3, r.5. The conduct of the plaintiff shows that he has no intention to bring the matter to a conclusion.

 Conclusion

[22] The plaintiff fails to show cause why the action should not be struck out for want of prosecution or as an abuse of process of court. The matter was dormant for over three year and three months. He did not even give to the defendants the one month's notice of his intention to proceed as required under O.3, r.5. The delay and default remain unexplained. In the circumstances, I am satisfied that the default was intentional. I would therefore strike out the action for want of prosecution. As the matter was moved by the court I would make no order as to costs.

Final outcome

1.	Plaintiff's action is struck out for want of prosecution
2.	No order as to cost.

M H Mohamed Ajmeer
JUDGE

At Lautoka

28 September 2015