Hussain v Prasad [2002] FJHC 225; HBC0036d.2002b (27 August 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0036 OF 2002

Between:

KHADIM HUSSAIN
s/o Hussain Buksh
Plaintiff

and

CHANDRIKA PRASAD
s/o Halka
Defendant

Mr. A. Sen for the Plaintiff
Mr. V.P. Ram for the Defendant

DECISION

By summons dated 26 October 2001 the defendant is applying to Court for the following Orders:

1. The Plaintiff=s Statement of Defence to the Defendant=s Counter Claim for Possession be struck out on the grounds that there is no defence to the Defendant=s Counter-Claim for Possession.
   
2. An Order for Immediate Possession of the land comprised in Certificate of Title No. 27862 occupied by the plaintiff as set out in the Defendant=s Counter-Claim.
   

Affidavits in support of the summons have been filed by Chandrika Prasad and Usman Ali. Chandrika Prasad has also filed an Affidavit in Reply to plaintiff=s affidavit followed by the Plaintiff=s affidavits in reply.

This application for summary judgment on counterclaim is made under Or.14 r.5(1) of the High Court Rules which provides as follows:

5. - (1) Where a defendant to an action begun by writ has served a counterclaim on the plaintiff, then, subject to paragraph (3), the defendant may, on the ground that the plaintiff has no defence to a claim made in the counterclaim, or to a particular part of such a claim, apply to the Court for judgment against the plaintiff on that claim or part.

The issues

The questions for the Court=s determination are whether: (a) this procedure for applying for summary judgment is appropriate and (b) is the defendant entitled to the relief sought, namely, judgment for possession.

High Court Rules

Order 14 Rule (1) of the High Court Rules is pertinent to this application as it is applicable as much to a counterclaim as to where there is no counterclaim.

The said Order 14 Rule 1(1) under which an application for summary judgment can be made provides:

1. - (1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that that defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgment against that defendant.

Background facts

Very briefly, the plaintiff by a writ of summons issued 30 July 2001 claims to be entitled to possession of certain lands comprised in an instrument of tenancy dated 5 October 1989. This tenancy he says is covered by sugar cane registration number 312/04159 issued by the Sugar Industry Tribunal. The defendant has however served the plaintiff with a notice to quit and has applied for a >new cane contract= over the said land, which the plaintiff says the defendant cannot do. The plaintiff says that he is entitled for a continued tenancy, occupation and cultivation of the said land and >specifically entitled to cultivate and deliver= his cane crop to the Fiji Sugar Corporation under the said registration number 312/04159.

The plaintiff therefore claims to be entitled to possession of the said land.

The defendant who has filed a Statement of Defence, on the other hand submits, inter alia, that the extension of the lease expired on 31 December 1999 and the plaintiff was given written warning that no new tenancy would be given and that he was to vacate. He was given a grace period to 31 December 2000 on which date he was required to vacate. He has refused to do so and has no right to occupy the said land. The defendant says that the plaintiff unlawfully retains possession and has no right to do so and to bring this action which is an abuse of the process of the Court. He says that the plaintiff has no cause of action.

The defendant has counterclaimed. He says that he is the registered proprietor of the said land and after the lease expired on 31 December 1999, the plaintiff has no rights over it (the land) and is illegally occupying it.

Determination of the issue

It is in the light of the above background that this summons herein has to be considered. The plaintiff has opposed the application. As ordered, both counsel have filed written submissions to which I have given due consideration. At the time of the application the pleadings herein were complete.

Under Order 14 is provided the procedure for obtaining a summary judgment without proceeding to trial. With due deference to the very comprehensive and lengthy submissions made by counsel for the parties, I consider that I ought to consider at some length the principles governing the grant of summary judgment.

On the affidavit evidence before me I find that there are disputed questions of fact and law. The question for Court=s determination is whether the plaintiff is rightfully on the land or not under the instrument of Tenancy originally granted to him in compliance with section 6(b) of the Agricultural Landlord and Tenants Act (>ALTA=) i.e. whether the Tenancy No. 3624 expired on 1 January 2000. The plaintiff maintains that he is entitled to possession of the said land whereas by his counterclaim the defendant says that he is not and that he should get immediate vacant possession.

On the facts of this case I find that there are triable issues. Hence in these circumstances judgment cannot be entered on the defendant=s counterclaim for possession. If I were to grant the relief sought, it will automatically wipe out the plaintiff=s claim. The issue is that each party wants possession. Who is entitled to it is the question. On >triable issues= the following passages from the judgment in Powszechny Bank Zwiakowy W. Polsce v. Paros (1932) 2 K.B. 353 are worth noting:

Greer L.J. at .359 said:

AIt has long been the rule that in proceedings under Order XIV, what the Court, whether this Court or the King=s Bench division, has to ascertain is whether there is a triable issue. If there is, no matter how strongly the Court may anticipate that it will be decided in the plaintiff=s favour, it must order a trial.@

He goes on to say that:

AAll the defendant need say is that he requires the plaintiff to prove his case, and the law puts upon the plaintiff the onus of proving it. When the defendant says he does not admit the claim he need not carry the case any further than to say: >There is a triable issue and I want to have it tried=.@

Great care should be exercised in granting summary judgment and should not be exercised unless there is no real question to be tried (Fancourt v Mercantile Credits (1983) HCA 25; (1983) 154 CLR 87 at 99; Theseus Exploration NZ v Foyster (1972) 125 CLR 507).

Also on the affidavit evidence before me I am satisfied that judgment should not be entered against the defendant after bearing in mind the principles as to the burden of proof as stated by Thomas J in Hibiscus Shoppingtown Pty Ltd v Woolsworths (Q=Land) Ltd [1993] NTSC 21; (1993) 113 FLR 106 at 109. He said:

AThe legal burden of proof is borne by the plaintiff throughout the application, however when he has established a prima facie right to an order, a Apersuasive@ or Aevidential@ burden shifts to the defendant to satisfy the court that judgment should not be given against him:@ see Australian & New Zealand Banking Group v David [1991] NTSC 74; (1991) 105 FLR 403; 1 NTLR 93.

In the context of this case, on the purpose of Ord.14, the following extract from the judgment of Parker L.J . in Home and Overseas Insurance Co. Ltd v Mentor Insurance Co (UK) Ltd (in liq) (1989) 3 All E.R. 74 at 77 is pertinent:

AThe purpose of Ord.14 is to enable a plaintiff to obtain a quick judgment where there is plainly no defence to the claim. If the defendant=s only suggested defence is a point of law and the court can see at once that the point is misconceived the plaintiff is entitled to judgment. If at first sight the point appears to be arguable but with relatively short argument can be shown to be plainly unsustainable the plaintiff is also entitled to judgment. But Ord.14 proceedings should not in my view be allowed to become a means for obtaining, in effect, an immediate trial for an action, which will be the case if the court lends itself to determining on Ord.14 applications points of law which may take hours or even days and the citation of many authorities before the court is in a position to arrive at a final decision.@

Conclusion

To conclude, applying the principles stated hereabove, on the affidavit evidence before me, the defendant is not entitled to summary judgment on his counterclaim.

In this case it was incumbent on the applicant (the defendant) to ensure that the case was a proper case for summary judgment (Barclays Bank plc v Piper (The Times 31 May 1995): The following passage from the judgment of Roch L.J. is apt in this case:

AOrder 14 proceedings were unlike applications for interlocutory injunctions in which liberty to the defendant to apply to set aside the order would be a standard term. An Order 14 judgment finally disposed of the action in a summary manner.

The purpose of the rules relating to the contents of the affidavit in support was to ensure that the plaintiffs had demonstrated that the case was a proper case for summary judgment.@

In deliberating on this aspect of the case I have noted the following statements from the judgment of Denman J in Manger and Another, Syndics Under the Bankruptcy of N. Rodrigues Et Cie., Cash (5TLR at p271-272)

AThe jurisdiction was one to be exercised with great care, so as not to preclude a party from raising any defence he may really have. The Judge was not to make the order if either he was satisfied that there was a defence, or that the defendant should be allowed to defend. There had been many cases decided on this Order, and especially two which appeared to support this view. One was, ARay v. Barber@, in the Court of Appeal in 1879, in which it was laid down that the Judge had a discretion if facts were shown on which he thought the defendant should be allowed to defend the action, conditionally or unconditionally, even though a defence was not clearly established. So in the case of, AWallingford v. Mutual Assurance Company,@ in the House of Lords, in which a similar view was adopted. It was a hard thing to hamper a man who might probably have a defence by requiring him either to pay money into Court or find sureties for a large sum, which he might not be able to find. It was sufficient if facts were shown which made it very probable that there might be a defence, even though a defence was not clearly shown.@

Here on the Counterclaim the plaintiff has put up a defence and whether it is sham or not it is difficult to say on affidavit evidence alone. In this regard I have borne in mind the following statements of Manisty J at 272 in Manger & Another (supra):

Aif there was a real and bona fide defence, the plaintiff ought not to be allowed to take a summary judgment, nor the defendant required to find money or security. In some cases it had been found that this ought not to have been required, and this showed how cautious the Courts should be in making such orders. Now, he could not say in this case that the defence set up was a sham; on the contrary, he thought it was bona fide, and, that being so, he felt compelled to concur in allowing the appeal.@

For these reasons, in the exercise of my discretion, I refuse the application for summary judgment under Order 14. Now that the pleadings are complete, it would be in the interest of both parties that they should without further delay proceed with due diligence with Summons for Directions and apply to have the matter entered for trial. The defendant is to pay plaintiff=s costs in the sum of $250.00.

D. Pathik
Judge

At Labasa
27 August 2002