Fiji Electricity Authority v NMBF Insurance (Fiji) Ltd [2002] FJHC 211; HBC0134d.2001s (3 April 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0134 OF 2001

Between:

FIJI ELECTRICITY AUTHORITY
Plaintiff

and

1. NMBF INSURANCE (FIJI) LIMITED
2. NMBF FINANCE (FIJI) LIMITED
Defendants

Mr. A. Patel for Plaintiff
Mr. A. Tikaram for 1st Defendant
Mr. J. Savou for 2nd Defendant

DECISION

This is NMBF Finance (Fiji) Limited=s (the second defendant D2) motion seeking an order that the claim against it be struck out or dismissed under Order 18 rule 18(1) (a), (b) & (d) of The High Court Rules 1988.

Applicant=s/Second Defendant=s submission

Under the Writ of Summons herein the Plaintiff is claiming the sum of $76,916.05 (V.E.P) on the ground that D2 >used electricity in meter 2 but never paid for it. The 1st defendant and 2nd defendant have now merged/incorporated into the same office. The amount of $76,916.05 (V.E.P) is due to the plaintiff and ought to be paid off by the 1st and/or the 2nd defendant.=

The dispute on the pleadings relates to meter No. 2. Mr. Savou says that there was no contract between D1 and D2 in respect of the said meter and this is fatal to the Plaintiff=s claims as against D2. He says that there is no reasonable cause of action against D2. Mr. Savou submits that the alleged agreement between D1 and D2 does not, at law, create an obligation for D2 to the Plaintiff. He goes on to say that even if the agreement is found to exist between D1 and D2, that still does not >create a legal obligation= from D2 to the Plaintiff because no privity of contract will lie between D1 and D2. He referred the Court to the following passage from the judgment of Wrightman J in the case of Dunlop v Selfridge [1915] AC 84):

AIn the law of England certain principles are fundamental. One is that only a person who is party to a contract can sue on it. Our law knows nothing of a jus quaesitum tertio arising by way of contract. Such a right may be conferred by way of property, as, for example, under a trust, but it cannot be conferred on a stranger to a contract as a right to enforce the contract in personam.@

Mr. Savou further submitted that the Plaintiff has no locus standi to bring an action against D2.

The Plaintiff=s/Respondent=s contention

The Plaintiff says through its counsel that the defendants are related companies and that the premises in question is occupied by them; D1 applied under s15 of the Electricity Act to supply electricity to the premises. Counsel further stated that the defendants shared the electricity bill in respect of electricity supplied to the premises; there is no denial by D2 that it did not consume electricity. The plaintiff, he says, will rely on the fact that both admitted consuming electricity which was supplied to the premises shared by them.

Counsel submits that the pleadings disclose a reasonable cause of action. He says that D2 admits to consuming and paying for electricity measured by meter No. 2 since September 1998 after the meter was properly read and electricity charges billed.

Consideration of the application

It is for the Court to consider whether on the arguments put forward by counsel for the applicant the Court ought to grant the order sought.

In dealing with this issue, I bear in mind the following passage for Halsbury=s 4th Ed. Vol. 37 para 435.

The power to strike out, stay or dismiss under the inherent jurisdiction is discretionary. It is a jurisdiction, which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed, it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the circumstances of the case, and to this end affidavit evidence is admissible. (my emphasis)

I have already outlined the applicant=s arguments and the respondent=s response. I find that it will not be possible to determine the issue between the parties to this application without a trial of the action. The fact that the two defendants occupy the same building and appear to have some connection with one another, the possibility of the plaintiff missing out on the amount claimed is great if I were to accede to D2's application at this stage and without the trial of the action and without adducing evidence.

The law on the application of this order on the facts of this case is as stated in the Notes to Or 18 r.19 in The Supreme Court Practice 1979 Vol I p312 that: >it is only in plain and obvious cases that recourse should be had to the summary process under this Rule= and that >it can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable= (A.G. of Duchy of Lancaster v L. & N.W. Ry. Co [1892] UKLawRpCh 134; [1892] 3 Ch 274, C.A.).]. This appears to me to be the situation here. This is not a case where the court will permit a plaintiff to be Adriven from the judgment seat@ except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v Attorney-General [1911] 1 KB at 419.

I therefore find that the grounds on which this application is founded are unsustainable. For these reasons in the exercise of my discretion the application is dismissed with costs in the sum of $250.00 to be paid within 7 days. The action is to take its normal course.

D. Pathik
Atg Judge

At Suva
3 April 2002