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Pillay v Barton Ltd [2018] FJHC 599; HBC63.2014 (13 July 2018)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 63 of 2014

BETWEEN : SUNDRESAN PILLAY of Lot 18, Nadera, Suva, Retired School
Principal.

Plaintiff

AND : BARTON LIMITED a Limited Liability Company, having its

registered office at the office of Price Waterhouse Coopers, 52, Narara Parade, Lautoka

Defendant

Before : Master U.L. Mohamed Azhar

Counsels : Mr. W. Pillay of Gordon & Co. for the Plaintiff
Mr. K. Naidu of Munro Leys for the Defendant

Date of Ruling : 13^th July 2018

RULING

Introduction

01. The plaintiff took out the writ from this court on 16^th April 2014 against the defendant company claiming special and general damages together with the interests for the injuries caused to him due to the alleged negligence of the defendant. At all material times, the plaintiff and his wife were among other the invitees for a wedding and reception held on 22^nd April 2011 at the resort known as ‘Sheraton’ belonged to the defendant company and situated at Denarau, Nadi. The plaintiff claimed that, he was with other invitees on the beach near the wedding chapel at the resort and proceeded to use the bathroom facility located approximately 100 to 200 meters at the main entrance and foyer. Whilst he was approaching the bathroom, he tripped over an exposed/protruding tree roots along the unlit pathway and fell down. The plaintiff sustained injuries and claimed the damages based on both negligence and occupier’s liability.

02. The defendant company filed the statement of defence and admitted that, it was informed to the company that the plaintiff tripped and fell down while taking a short cut through dark and unlit area, however, denied other allegations. The defendant also pleaded that, the plaintiff was negligent in attempting to take a short cut through a dark and unlit area, whilst he was in a state of intoxication and therefore, exposed himself to the risk of sustaining personal injury. Though the statement of defence was filed on 08^th May 2014, no step was taken by the plaintiff till 06^th February 2015, the day he filed the Notice of Intention to Proceed. After another delay for 4 months, on 12^th June 2015, the plaintiff then filed the Affidavit Verifying List of Documents. The defendant then filed the Affidavit Verifying List of Documents on 14^th October 2015. Thereafter, there was no step for more than six months.

03. This court then, on its own motion, issued a notice on 23. 09. 2016, pursuant to Order 25 rule 9 of the High Court Rules, requiring the plaintiff to show cause, why his action should not be struck out for want of prosecution and abuse of the process of the court. The plaintiff filed his affidavit showing cause and the defendant too filed an affidavit sworn by its director. At the hearing of the notice, the counsels for both the plaintiff and the defendant made the oral submissions and filed their respective written submissions. The counsel for the plaintiff, before venturing into his ‘show cause exercise’ for the notice issued by the court, took up a preliminary objection in relation to the affidavit filed on behalf of the defendant company, and stated that, there was no evidence of the position of the deponent and authority he had to swear the affidavit. In fact, the said affidavit was sworn by a director of the defendant company, Andre Caldwell. In his affidavit, he stated that, he is a director of the defendant company and he is authorized to make the affidavit. The counsel for the plaintiff placed reliance on the decisions of High Court in Rawlinson Jenkins Ltd v Hansons (Fiji) Ltd [2016] FJHC 928; HBC70.2013 (17 October 2016), Denarau Corporattd v td v Deo Civil Acti. HBC 32 of 2 of 2013 and Wadigi Investment Ltd v Lau>i [/b> [2016] FJHC 821; HBC211.2015 (16 September 2016). In those three cases, the affidavits were filed on behalf of ompannd there no e no written authorities attached with those affidavits. The courts rejectejected aled all those affidavits for lacking the authority.

04. The authority to swear an affidavit in civil suits has been the arguable point in several cases in Fiji, and there are several cases, where the courts have rejected some affidavits for lacking authority from the actual parties to the suits. In some instances, the courts have accepted the affidavits despite the absence of written authority from the respective parties to the actions. Therefore, two questions to be decided in relation to the preliminary objection of the plaintiff, before analyzing the reasons given by him for his inaction for more than six months. First is who can depose an affidavit in a civil suit? The second is does the deponent need a written authority from a company to swear an affidavit on its behalf?

Who can depose an affidavit?