Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

Chand v Khan [2012] FJMC 284; Civil Action 263.2008 (25 October 2012)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI
CIVIL ACTION N0: 263 of 2008

BETWEEN:

SUBASH CHAND
PLAINTIFF

AND:

MOHAMMED AFZAL KHAN and SHAIRUL BEGUM,
HEMENDRA NAGIN and VIREN KAPADIA,
BANK OF SOUTH PACIFIC
DEPENDANTS

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Messrs Gordon & Chaudhry Lawyers for the Plaintiff,

Messrs Ram Chand Lawyers for the 1st Dependants,
Messrs Sherni Law for the 2nd Defendants,
Messrs R. Patel lawyers for the 3rd Defendant,

Date of the Ruling: 25th of October 2012.

RULING

1. The Plaintiff / Applicant (hereafter refers as the Plaintiff) filed this notice of motion together with an affidavit in support on the 5th of July 2011 seeking following order inter alia
   

"that the above matter Civil Action No 263 of 2008 as struck out on 21st of June 2011 be reinstated on the cause list and cost in the cause"

2. However the reasons best known to the Plaintiff, He has filed another Notice of Motion on the 12th day of August 2011 seeking the same orders as it was in his previous Notice of Motion dated 5th of July 2011 with another affidavit in support. The learned counsel for the plaintiff then withdrew his notice of motion dated 12th of August 2011 together with the affidavit in support he filed in respect of the notice of motion dated 5th of July 2011 since all the Defendants have responded to the affidavit dated 12th of August 2011.
   
3. The Affidavit of Gyaneshwari Ram an employee of Messrs Gordon & Chaudhry, stated she is aware of this matter and deposed the averments in the affidavit in her personal knowledge as the chief clerk in the office of Messrs Gordon and Chaudhry. She stated that this matter was called on 27th of July 2011 which is not true as this matter was never called on that day. Wherefore, the facts pertaining to the 27th of July 2011 in her affidavit is not true and irrelevant to this application.
   
4. Mrs. Ram only stated that this matter was earlier struck out on 21st of June 2011 and Messrs Gordon and Chaudhry had instructed a counsel to appear as their counsel Mr. Valenitabua had high court matters and when he appeared his attendance was noted and he was asked to make an application for reinstatement.
   
5. Having stated the factual background of their application, Mrs. Ram contended in her affidavit that this matter should not have been stuck out at the first instance as the 1st Defendant had a 3rd party notice to join the Suva City Council and that issue should be dealt with by the court. The matter was called on 21st of June 2011 to ascertain the progress of the 1st defendant application for 3rd party notice. Further she deposed that this court has no powers to strike out the plaintiff writ when the matter was not set for hearing and when the plaintiff was represented by a counsel. In conclusion she stated that plaintiff's writ was irregularly struck off as the Defendants were in the process of joining 3rd party notice to join Suva City Council and no fault of the plaintiff or his lawyers.
   
6. The 1st Defendant filed his objection to the application of the plaintiff in an affidavit of Suman Narayan, the legal executive of Messrs Ram Chand & Company, the counsel for the 1st Defendant. She stated that the facts regarding the 27th of July 2011 is incorrect. Further the Deponent stated that the matter was stuck out due to the non appearance of the plaintiff's counsel Mr. Simione Valenitabua who lacked not only courtesy but also ethics in keeping the court and three other legal counsels in this proceeding. Mrs. Narayan stated that the 1st Defendant has withdrawn the third party application against the Suva City Council on or about 28th day of February 2011.
   
7. Mr. Hemendra Nagin filed his affidavit in opposition on behalf of the 2nd Defendant and vehemently objected the plaintiff application for reinstatement as it was stuck out due to non appearance of the Plaintiff or his counsel. He further contended that the plaintiff has not shown any reasonable cause of action against the second defendants. In conclusion he prayed that the plaintiff's application for reinstatement be dismissed with cost.
   
8. Lemeki Sevutia filed an affidavit in opposition on behalf of the 3rd defendant and objected this application of the plaintiff. She contended in her affidavit that the order of strike out is regularly made due to non appearance of the plaintiff or his counsel.
   
9. The plaintiff then filed his affidavit in reply which I do not consider in this ruling as the said document filed by the plaintiff does not content a deponent statement and affirmation. Hence it is bad in law and should not be considered as an evidence of the plaintiff.
   
10. Subsequent to filing of Affidavits, the matter was set down for hearing. All parties to the proceeding agreed to have the hearing by way of written submissions. The plaintiff filed his submission which was followed by the three defendants. Finally the plaintiff filed his reply submission.
    
11. Having carefully perused and considered the affidavits filed by the parties to the proceeding and their respective written submissions, I now proceed to pronounce my ruling.
    
12. The plaintiff's main contention is that the order of strike out of his writ is irregular and wrong in law. He argues that the court has no powers to strike out his claim on the day other than a hearing day as the matter was called on 21st of June 2011 to ascertain the progress of the 1st Defendants' application against the third party Suva City Council. Further the plaintiff contended that there is no provision in the Magistrates' court Act that states that certain counsel has to be present or that the whole action would be struck out.
    
13. The magistrate court is a court of summery proceedings and no specific provisions for non hearing date and hearing dates could be found within the provisions of Magistrates' court Act or Magistrates' court rules. Order XXVII rule 1, 2 and 4, Order XXVIII of the Magistrates' court rules specifically indicative to that effect. All the cases listed in the cause list of the day are for hearing.
    
14. When this matter was called on 21st of June 2011, all the parties to the proceeding have complied their all pre trial steps but it was the third consecutive date where the plaintiff failed to appear in the proceeding. On the 28th of February 2011, the plaintiff did not appear and the 1st Defendant withdrew his claimed against the 3rd party, the Suva City Council. Since the plaintiff was not present, the matter was adjourned to 16th of May 2011. The plaintiff again did not appear and did not make any application to proceed with his claim, wherefore the matter was again adjourned to 21st of June 2011. On the 21st of June at about 9.30 a.m. the plaintiff again failed to appear and neither did his counsel. At that time the learned counsels for the Defence made an application to strike out the claim of the plaintiff pursuant to Order XXX rule 3 of the Magistrates' courts' rule.
    
15. Once I made my ruling to strike out the writ of plaintiff pursuant to order XXX rule 2, Mr. John Rabuku informed the court that Mr. Valanitabua is appearing for the plaintiff and presently engaged in high court. He requested the court to stand down the matter until Mr. Valenitabua finishes his mater in high court. Then the matter was stood down till 10 a.m. however Mr. Valenitabua did not appear for the plaintiff and I proceeded with my said order.
    
16. In considering the incidents transpired on 21st of June 2011, I am satisfied that the order of strike out the writ of plaintiff due to the non appearance of the plaintiff is a regular order and the court has power to make such orders pursuant to order XXX rule 3 of the magistrates' court rules.
    
17. Having determined that the order dated 21st of June 2011 was regularly made in accordance with the Order XXX rule 3 of the Magistrates' court, I now turn my attention to rule 6 of Order XXX of the Magistrates court's rule. The Order XXX rule 6 states that " Any civil action struck out may, by leave of the court, be replaced on the cause list, on such terms as to the court may seem fit".
    
18. In view of the rule 6 of Order XXX, it is a judicial discretion to set aside any judgment obtained against any party in the absence of such party on a sufficient cause. Salmon L.J. in Allen v Sir Alfred McAlpine & Sons (1968) All E.R 543) discussed the issues to be considered to exercise the discretion to strike out a writ on want of prosecution where Salmon L.J, held that " in order for such an application to succeed the defendant must show that (i). that there has been inordinate delay undesirable and indeed impossible to attempt to lay down a tariff, so many years or more on one side of the line and a lesser period on the other. What is or is not inordinate delay must depend on the facts of such particular case. These very infinitely from case to case, but it should not be too difficult to recognize inordinate delay when it occurs. (ii). That this inordinate delay is inexcusable. As a result, until a credible excuse is made out, the natural inference would be that it is inexcusable. (iii) that the defendant are likely to be seriously prejudiced by the delay".
    
19. It was further held that " if the defendant establishes the three factors to which I have referred, the court, in exercising its discretion, must take into consideration the position of the plaintiff himself and strike a balance. If he is personally to blame for the delay, no difficulty arises. There can be no injustice in his bearing the consequences of his own fault. If however, the delay is entirely due to the negligence of the plaintiff's solicitor and the plaintiff is blameless, it must be unjust to deprive him of the chance of recovering the damages to which he could otherwise be entitled. When however the solicitor or his insurers are good for the damages, the plaintiff is unlikely to be seriously prejudiced by dismissal of the action".
    
20. In view of the judicial dicta of Salmon J in Allen v Sir Alfred McAlpine & Sons (Supra), I find that the plaintiff was in an inordinate delay to proceed with this matter as he was not present or not represented in three consecutive days to fix this matter for hearing while all other parties were present and represented. The excuse given by the plaintiff's counsel through his court clerk is not acceptable as it is contradict with what actually transpired in the court room on the 21st day of June 2011. Ganeshwari Ram stated in her affidavit that the Messrs Gordon and Chaudhry had instructed a counsel to appear since their counsel Mr. Valenitabua had high court matters on the 21st day of June 2011. However, there was no counsel who was instructed by the plaintiff's solicitor to appear for the plaintiff. Mr. John Rabuku only informed the court that Mr. Valenitabua was in high court and requested the court to stand down this matter till he finishes his works in high court. Mr. John Rabuka was not in a position to inform the court the time of Mr. Valenitabua's availability. The Court was not in a position to wait indefinitely for a counsel and it is entirely for the counsel's responsibility to organize his work load if he was double booked in two different courts. However as a matter of judicial courtesy, the court and as a matter of professional courtesy, other three counsels of this matter waited for about thirty minutes, yet the counsel for the plaintiff failed to appear in court. In view of these reasons, I hold this is an inexcusable inordinate delay by the plaintiff. It is indeed the defendants are seriously prejudiced by this delay.
    
21. Having satisfied that there was an inexcusable inordinate delay of the plaintiff, I now turn to consider the position of the plaintiff and proportionately balance it with the serious prejudice cause to the Defendants.
    
22. It is the obligation of the Plaintiff himself to be vigilant and closely monitor the progress of his claim though he has given all instruction to his lawyers. The writ was stuck out at the third consecutive day where the plaintiff solicitor failed to appear in court and move the claim forward. There is no proper and cogent evidence before the court to ascertain that the plaintiff was completely aware of the lack of progress in the proceedings. Wherefore, I am of the view that it is unsafe to form an inference that the plaintiff himself is to be blame for this inexcusable inordinate delay to proceed his claim.
    
23. I am mindful of the contentions of second name defendant and third name defendant where both of them forcefully contented in their affidavits that there is no proper cause of action against them and they are wrongly included this proceedings. However I do not concur with this contention at this stage of the proceedings and such application should be properly heard in a separate hearing to determine whether the plaintiff has a proper cause of action against the second and third defendants.
    
24. It is worthwhile to consider now, whether the solicitor of the plaintiff or his insure are in a position to pay damages to the plaintiff, if the plaintiff's action is stuck out and he instituted an action against his solicitor for negligence. The plaintiff's solicitor is no longer practicing in law in this jurisdiction and definitely it is unlikely that the plaintiff is in a position to obtain damages for his solicitor's negligence in an action against him. In view of these findings, I find the plaintiff is to be seriously prejudiced if this writ is stuck out and the defendants could be compensated with cost for this excusable inordinate delay.
    
25. In conclusion, I allow the application of the plaintiff to reinstate this cause in the cause list of the court subject to $1000 cost for each defendants totaling $3000 cost. Cost to be paid on or before the next hearing date of this cause.
    
26. Seven days to file notice of intention to appeal.
    

On this 25th day of October 2012.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.