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Elahie v Boodoo et Al

Id. vLex Justis VLEX-792536057

Link: https://justis.vlex.com/vid/elahie-v-boodoo-et-792536057

Text

High Court

Rajkumar, J.

CV 1903 of 2013

Elahie
and
Boodoo et al

Appearances:

Mr. R. Gosine for the claimant

Mr. Vashist Maharaj for the defendants

Civil practice and procedure - Extension of time to file witness statement — Whether the time
taken to file witness statements should be extended where the claimant had been provided over
a month to file the witness statements and the date chosen would be after the date of trial —
Application denied.

Rajkumar J.

The claimant filed her claim on the 3rd day of May, 2013 and an amended claim on 6 th
December, 2013. In it she claimed against the defendants, inter alia:

i. A declaration that the claimant is entitled to a right of way over the Road Reserve running
in a South to North direction from the Endeavour Extension Road to the existing Drain
demarcated and more particularly described in Schedule 3 of the Deed No.
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DE200600370997.

ii. An Order compelling the defendants to forthwith break and/or remove the iron gate
standing on the said right of way;

iii. A Declaration that the said right of way is not private property;

iv. A Declaration that the said right of way is the only means of access to the claimant's
land.

v. An injunction restraining the defendants, by themselves or by his agents or otherwise

howsoever, from erecting any structure and/or obstructing the said right of way.

PROCEDURAL HISTORY

The procedural history of the action is as follows:

Claim form and statement of case filed 3rd day of May, 2013. 2. Defence filed on the 13th
day of September, 2013. 3. Amended claim form including 2nd, 3rd and 4th defendants
filed on 6th December, 2013. 4. On the 10th March 2014 it was ordered by consent that
Lynn Roopchand, a surveyor, conduct a survey of the lands in question. 5. On the 14th of
May, 2014 the matter was adjourned to 9th July 2014 for mention pending the surveyor's
report. 6. On the 9th July 2014 a further adjournment was granted for defendants to
consider the survey report received on the 8th July 2014 and indicate their position. 7. On
the 19th September 2014 the court ordered inter alia that:– The claimant and the defendant
file and exchange witness statements on or before the 23rd October 2014 and a trial date
was set for 3rd December, 2014 in SF 14. 8. A notice of application was filed on behalf of
the claimant on October 20th 2014 in which she sought inter alia, an extension of time to
January 30th 2015 for filing and exchange of witness statements. 9. A notice of application
was also filed by Attorney for the defendants on the 22nd October 2014 and an order was
granted in terms of paragraph 1 of the application that the date of the 23rd October
2014fixed for filing and service of the defendant's witness statement and witness
summaries be varied and extended to the 30th October 2014. 10. On the 21st November,
2014 an order was made extending time for the claimant's witness statement and those of
her witnesses to be filed and served on or before 1't December 2014 and trial for 3rd
December 2014 was confirmed.

JOINT SURVEY REPORT

A survey report was commissioned jointly and a detailed survey report was produced by the
surveyor. Despite receiving the survey report since on or around July 8th 2014 the claimant
indicated to the court that it considered that matters of fact remained which needed to be
determined at a trial. Therefore on September 19th 2014 the trial date was set for December 4th
2014, with a pre-trial review being set for November 21st 2014.

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On October 20th 2014, subsequent to the setting of the date of trial, the claimant filed an
application seeking an extension of time for the filing of her witness statements from October 23rd
to January 30th 2015 - beyond the trial date. This was well over a year from the institution of her
action.

Attorney at law requested on her behalf an extension of time for the filing of her witness
statements and requested the opportunity to “source” witnesses to obtain witness statements
from them.

The basis for the extension sought was that the original timeframe of over a month - (from
September 19th to October 23rd 2014-) for the filing of witness statements was “insufficient time”
for the claimant to obtain instructions from her witnesses, and one month is insufficient time for
the claimant's attorney at law to prepare witness statements for the claimant and the witnesses in
this matter. She requested an extension until January 30th 2015 well knowing that the trial date
had already been set.

The agreed survey report was available since July 8th 2014.

She should have known since approximately that date that she was not accepting it as being
determinative of the matter.

She would have known since filing her claim, and presumably providing instructions to her
attorney at law to do so, of the matters of fact that she wants to now include in a witness
statement/s.

10 She should have been aware from the time of filing of her claim, and at the very latest by shortly
after the date of receipt of the agreed survey report, that she would need to make contact with
witnesses.

11 She would have, or certainly should have, provided these instructions in a sufficiently definite
form. Best practice would have been a written proof of her evidence at least.

12 The failure to file witness statements in accordance with this court's earlier order required that
permission to do so beyond the time frames stipulated therein be obtained, especially as the time
sought would have required vacating the fixed trial date.

13 The failure to file a witness statement by the original deadline is incomprehensible even if the
claimant had heart surgery approximately two years ago and was now experiencing “breathing
problems”, and was allegedly unable to travel.

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14 In the 21st century the fact that a party is based out of the jurisdiction is not by itself a sufficient
excuse for failure to provide instructions to an attorney based in this jurisdiction. There are widely
available technologies, inter alia e-mail, Skype, fax, Facetime, telephone, as well as mail, and
international courier, especially in the United States of America, where her attorney claims she
has been residing permanently.

15 It is simply not acceptable that extreme inefficiency in the conduct of pre-trial preparation should
be countenanced at the expense of other parties, even more so in the case where the dilatory
party is the claimant.

16 An adjournment of the trial in this case would obviously have been necessary if the application
to permit the claimant to file her witness statements, even including those of witnesses yet to be
identified, beyond the date fixed for trial, had been acceded to.

17 In that application it was revealed for the first time that she was permanently resident out of the
jurisdiction in the United States of America.

18 She had had heart surgery approximately 2 years ago. She was allegedly unable to travel as at
October 20th 2014.

19 She was to forward a medical “in due course” to attorney at law who deposed to the affidavit in
support of the application, which she would then forward to the court. The alleged medical report
was never forwarded to the court, even by November 21st 2014 when the pre-trial review was
held.

20 It was alleged that the claimant can only determine the number of witnesses when the
documents are agreed (sic). The agreed documents were to be filed on October 21st and witness
statements on the 23rd October 2014. Therefore, and illogically, it was contended that “it would
be impossible to comply with this direction.”

21 The claimant disingenuously omits mention of the fact that a survey report was jointly
commissioned.

22 Any issues of fact as to the user of the alleged right of way did not need to depend on whether, or
what, documents might be agreed. If in doubt as to what documents might be agreed, the
claimant would have been prudent to assume that she would have to prove her case in
accordance with her statement of case as filed.

23 It is simply not true that it was the structure of the directions in this matter which rendered it
impossible for her to comply with them. They permitted her over one month to have her witness
statements filed, 9 months after her amended statement of case had been filed, and over 3
months after she would have decided that the surveyor's report did not assist her, and that if she
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months after she would have decided that the surveyor's report did not assist her, and that if she
wished, she would have had to prove user as an issue of fact.

24 Perhaps more credible was the third reason proffered for the request for the extension, namely-
“there are several deadlines which our office must comply with during the months of October,
November and December 2014. This order will be difficult to comply with having regard to the
amount of work to be done in this office”.

25 But without specifying what were the unusual deadlines that rendered the deponent so certain
that, despite her best efforts and those of others in her firm, she would not be in a position to
comply with the deadlines, even to the extent of at least obtaining a witness statement from the
claimant via exchange of email, fax, or mail, nothing there deposed is any different from what
applies to every practising Attorney at Law. By definition there are constant deadlines in a
professional practice. Competent professionals strive to balance, prioritize, manage, and meet
them.

26 She concluded by asserting that having regard to the nature of this matter the issues to be
decided are not urgent.

27 This matter involves a claim to be entitled to a right of way over land enclosed by the defendants.
The earlier the matter is resolved the less stressful uncertainty that will be suffered by all parties.
Even if the matter is not considered urgent by the claimant or her advisors, she cannot claim that
this is the case for the defendants, or to impose her lack of urgency on them.

28 It is curious and unreasonable that a claimant who approaches a court for relief does not take
steps to prepare her case, but instead seeks to delay even providing her own witness statement
beyond the date set for trial, resulting in the wastage of a trial date.

29 The court nevertheless, in the circumstances, did grant an extension of time from the original
date of October 23rd 2014 to December 1st 2014 for the filing of the claimant's witness
statements, two days before the trial date which had been fixed, giving Attorney at Law for the
defendants, with his concurrence, less than 48 hours to prepare his cross examination thereon.

30 The claimant has not provided satisfactory reasons for the extraordinary indulgence that she
sought which would have the effect of vacating the date for trial. The court therefore refused to
provide the further extension sought to January 30th 2015, and refused to vacate the trial date, as
the reasons provided were not credible, were uncorroborated by the alleged medical evidence
promised, were not logical, and were more in the nature of excuses for not having done work
which would normally be expected to have been done at a much earlier stage of this matter.

PETER A. RAJKUMAR

JUDGE

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