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Unisan Company Ltd v Virs Construction Company Ltd [2011] FJMC 24; Civil Case 40 of 2009 (11 March 2011)

IN THE RESIDENT MAGISTRATE’S COURT
AT NASINU

Civil Case No. 40/09

UNISAN COMPANY LIMITED
Plaintiff

- v -

VIRS CONSTRUCTION COMPANY LIMITED
Defendant

Ms. Ulamila Fa Tuituku (Law Solutions) for the Plaintiff
Ms. Goundar (Lajendra Law) for the Defendant

Ruling on Wasted /Indemnity Cost

[1] This case was set for hearing of the Plaintiff’s Claim on 18th January 2011. On that day the defence was ready for hearing with their counsel. Defence witnesses were present. The matter was called for hearing there was no appearance or no application on behalf of the Plaintiff. The defendant counsel made an application that Plaintiff’s claim to be stuck out and judgement awarded in favour of the Defendant as per the counter claim. The Defendant application was allowed and orders were made accordingly. Subsequently, on the same day on or about 10.15am Ms. Fa appeared for the Plaintiff and made an application for reinstatement. Then Court noted the application and The Plaintiff was allowed to file formal application for reinstatement. Then The Plaintiff filed reinstatement papers along with the affidavit of one Lusiana Marama-legal clerk in the law firm of Law Solutions. This matter came up on 31st January 2011 for supporting the reinstatement application and on that date the Defendant consented to the reinstatement subject to wasted cost. The Plaintiff opposed to pay wasted cost as they were ready to proceed the hearing on 18th January 2011. The matter was reinstated and for hearing on today. By the time parties filed their written submission on wasted cost application.

[2] I now consider the facts and merits of this application. According to the Plaintiff the chronology of events that took place on the morning of the 18th January 2011 as follows;

[3] The Plaintiff says that this matter should never have been struck out had normal Court practice been followed. The normal practice that the court follows to deal with all other mention matters or first calls before the hearing of substantive matter begins. Therefore the Plaintiff is objecting for awarding of wasted cost on following grounds.

A] The plaintiff was also ready for hearing and had 4 witnesses that were outside the court room.

B] The Defendant’s solicitor aware that plaintiff was outside with his witnesses; however he went on ahead and asked matter should be stuck out.

C] The Defendant’s solicitor told the Plaintiff’s solicitor’s clerk that he had other commitments elsewhere and that he could not wait around at the court house for the plaintiff solicitor’s arrival.

D] The court clerk should have advised the Magistrate when the matter was called that there was a request for stand down until 10.30am.

[4] I have carefully considered the facts before me. In considering item A] and B], I note that were no appearance for the Plaintiff nor the Plaintiff came in person before this court when matter called and struck out. Court’s Proceeding is open and the Plaintiff should have come forward when case was called. Normally, Court acts on applications by the respective parties if there is no application; no order would be made; if there is an application then appropriate order would be made. Fiji has adversarial system and parties should make available for their respective cases. On a hearing date, if any party is not present deemed to be not ready. This is the normal practice of the Court and ignorance of law excuses nobody. This principle derives from legal maxims “Ignorantia legis neminen exusat- Ignorance of law is excuse nobody” or Ignorantia facti excusat; ingnorantia juris non excusat- Ignorance of fact is excuse, but ignorance of law is no excuse”. The plaintiff may have been in the court each and every date; but he should come forward and mark appearance especially when his counsel is not present.

5] In considering the item C] it was an allegation which points out to the Defendant’s attorney. The Plaintiff relies on plaintiff’s solicitor clerk’s version that the Defendant attorney said that he had other commitments in elsewhere. Surprisingly this context was not in Lusiana Marama’s affidavit in support for reinstatement which is deposed on 21st January 2011. If this was really happened it could have been mention at first instance. I hold that the failure to mention that fact is fatal for truthfulness of the fact.

6] The Plaintiff said the court clerk should have advised the Magistrate when matter was called. Administration of justice is machine and hub of the machine is Judges, Magistrates or Presiding Officers. It cannot be smoothly run without subordinate officers. But it should be noted that Court clerks are not advisers of the Presiding Officers. I refer pertinent sections of the Magistrates Courts Act Chapter 14 in relations to court clerks. Section 13

“The clerk of the court attached to a magistrates' court shall, subject to the general supervision and control of the Chief Justice, be under the immediate direction and control of the magistrate.” (Emphasis is mine)

7] Duties of clerk of the court are articulated in section 14 of said Act;

“The duties of the clerk of the court shall be-

(a) to attend at such sittings of the court as the magistrate may direct;

(b) to fill up or cause to be filled up summonses, warrants, orders, convictions, recognizances, writs of execution and other documents, and submit the same for the signature of the magistrate;

(c) to issue civil process in accordance with rules of court for the time being in force;

(d) to make or cause to be made copies of proceedings when required to do so by the magistrate, and to record the judgments, convictions and orders of the court;

(e) to receive or cause to be received all fees, fines and penalties, and all other moneys paid or deposited in respect of proceedings in the court, and to keep or cause to be kept accounts of the same; and

(f) to perform or cause to be performed such other duties connected with the court as may be assigned to him by the magistrate.” (Emphasis is mine)

8] Instant case it is seen that special duty had been assigned to the court clerk to appear on behalf of the Plaintiff and ask matter to be stood down. This is not be done as a court clerk, an officer of the court, he should maintain the impartiality and neutrality. In R. V. Sussex Justices, ex –parte McCarthy [1923] EWHC KB 1; [1924] 1 KB 256 Lord Hewart stresses “ It is not merely of some importance, but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done” (Emphasis is mine)

9] Thus, Mr. Nilesh Naidu, the court clerk has rightly acted and remained silence when the matter was called.

10] Then, question arises who should pay the wasted or indemnity cost? Whether the Plaintiff or solicitors of the Plaintiff pay this could to be decided.

11] It is to be noted in Rao v Goundar [1998] FJHC 237; [1998] 44 FLR 82 (22 May 1998) His Lordship Pathik J observed similar type of situation. His Lordship went on saying;

“In all the circumstances of this case, I have given serious consideration to the making of a " wasted costs is likely to be late then he should instruct another counsel to appear in Court on his behalf and not send messages through other people. This mode of communication is not the right practice when it involves a hearing in open Court and it must cease forthwith.” (Emphasize is mine)