Masirewa v Colonial Mutual Life Assurance Society Ltd [2001] FJHC 178; HBC377.2000 (23 March 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 377 OF 2000

Between:

MOSESE MASIREWA & ANA MASIREWA
Plaintiffs

And

COLONIAL MUTUAL LIFE ASSURANCE
SOCIETY LTD

KRISHNA SAMI GOUNDER f/n Subba Gounder
Defendants

Mr. P. Howard for Plaintiffs
Dr. S. Sahu Khan for 1st Defendant
Ms. Gwen Phillips for 2nd Defendant

DECISION

There are two applications before this Court and they were heard the same day one after the other.

First is an application by Summons (undated) filed 12 September 2000 by the Plaintiffs’ solicitors Messrs. Peter Howard and Associates seeking relief as follows:-

1. that the transfer of C.L.2721 by Mortgagee sale by the First Defendant to the Second Defendant be set aside for being unconscionable conduct on the part of the First Defendant.
   
2. that the First Defendant failed and/or neglected to act in good faith and failed to exercise its duties as a Mortgagee properly in realising the Mortgaged debts.
   

The Summons stated that the application is made "pursuant to Order 29 r.2 and r.7 of The High Court Rules 1988 and the Inherent Jurisdiction of the High Court".

The second application is made on 20 October 2000 by Summons to strike out on behalf of the Second Defendant by Messrs. Munro Leys seeking an order that:

"the Writ of Summons and Statement of Claim filed herein be struck out as disclosing no reasonable cause of action against him".

The background facts are that the Writ of Summons herein was served on both the defendants and Acknowledgment of Service has been filed. Both the first and second defendants have filed Statement of Defence. The First Defendant has also filed a Counterclaim. A Reply to Defence and Defence to Counterclaim has been filed for the plaintiffs by Mr. Peter Howard on 26 October 2000 and 7 November 2000 respectively.

Consideration of the applications

I shall deal firstly with Summons under Or.29 r.2 and r.7.

Although Mr. Peter Howard is on record as solicitor for the Plaintiffs he failed to appear on 8 February 2001 i.e. the day of the hearing of the Summonses. This date was given by the Deputy Registrar on 22 November 2000 when Mr. Kato appeared for Mr. Howard.

Dr. Sahu Khan counsel for the first Defendant submitted that there is no one present on behalf of the Plaintiffs to present the case or argue. The Plaintiffs are not present either. He submitted that Order 29 deals with interlocutory injunction and preservation of property. He asked as to how can application to set aside transfer by interlocutory application under Order 29 be made. He says that this Order is inappropriate for the reliefs sought in the Summons. The Summons he says is completely misconceived.

Dr. Sahu Khan asks that the Summons be struck out for these reasons and for want of prosecution with costs.

Upon hearing counsel and accepting his submissions with which I agree I orally dismissed the Summons for want of prosecution as well as for being an abuse of the process of the Court and also as being wholly misconceived. I awarded costs against the Plaintiffs in the sum of $500 in favour of the first defendant.

As for the second Summons, namely, Summons to strike out, Ms. Phillips submitted, after referring to the Affidavit in support, that there is no allegation
against the second defendant in the Statement of Claim. She submitted that there is allegation of fraud against the first defendant without stating any particulars of it. The property was transferred to the second defendant under mortgagee’s sale and in that regard there is no fraud alleged against him in the Statement of Claim. The defendant should not be a party to the action and that the claim against him should be struck out.

She submits that there is no cause of action against the second defendant and that his name be deleted as a party to the proceedings.

Upon hearing counsel for the second defendant and upon reading the Affidavit filed herein in support of the Summons and there being no submission for the Plaintiffs I find that there is no cause of action against the second defendant. The claim against him is therefore struck out and his name as a party to the action is also deleted. I award costs against the Plaintiffs in the sum of $150.00 in favour of the second defendant.

With the making of the above two orders the position of the Writ of Summons herein is that the second defendant is no longer a party to the action and that the action is to continue under the writ against the first defendant.

D. Pathik
Judge

At Suva
23 March 2001