NBF Asset Management Bank v Lutu [2003] FJHC 276; HBC0146d.2002s (31 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0146 OF 2002

Between:

NBF ASSET MANAGEMENT BANK
Plaintiff

and

TUIMASI LUTU aka SAMISONI TUI BALE
Defendant

Ms. R. Lal for the Plaintiff
Mr. I. Tuberi for the defendant

DECISION

By summons filed on 20 June 2003 the defendant (the ‘applicant’) makes an application under Order 18 r.18(1) of The High Court Rules 1988 for an order that this application be struck out on the following grounds:

(a) it is scandalous, frivolous or vexatious;
(b) it may prejudice, embarrass or delay the fair trial of this action;
(c) it is otherwise an abuse of the process;
(d) it is statute-barred.

As ordered the applicant filed his written submission but the plaintiff has failed to do so.

Mr. Tuberi submits that there is a Civil Action No. HBC0216 of 1997 pending in the High Court with an application for the Amendment of the Statement of Claim. In that action the defendant (as plaintiff) claims damages against the plaintiff (defendant therein) for negligence and for vicarious liability in regard to the operation of the defendant’s current account No. 02-236847-2001-2.

Counsel says that the subject-matter of this action is the matter being dealt with in 216/97 for which the plaintiff in that action is seeking damages of over $6,000,000.00. This fact has not been disclosed by the plaintiff in this action. This is ‘scandalous’ he says. He further submits that the plaintiff’s claim ‘constitutes interest on interest’; the plaintiff also claimed interest in 216/97. Therefore the action is frivolous and vexatious and should be struck out.

Mr. Tuberi says that this action has been brought by the plaintiff to cause prejudice, embarrass or delay a fair trial in the said action.

Furthermore, it is submitted that the said account was closed by the plaintiff in 1994 and now after nine years this action is brought. Counsel says that the action is statute-barred.

Consideration of the application

I have considered the submission made by counsel and in absence of a reply from the plaintiff’s counsel who failed to comply with the order of the court to file submission, I am convinced that this action is scandalous, frivolous and vexatious and ought to be struck out.

It appears that the plaintiff has not complied with the rules as to pleadings. It is hard to understand why this claim has not been included in 216/97 or some reference made to 216/97 in this action if it has any relevance. The following passage from the judgment of Bowen L.J in Knowles v Roberts [1888] UKLawRpCh 42; (1988) 38 Ch. D 263 at 270 is pertinent:

“The rule that the Court is not to dictate to parties how they should frame their case, is one that ought always to be preserved sacred. But the rule is, of course, subject to modification and limitation that the parties must not offend against the rule of pleading which have been laid down by the law; and if a party introduces a pleading which is unnecessary, and it tends to prejudice, embarrass and delay the trial of the action, it then becomes a pleading which is beyond his right”

By bringing this action for the dealings between the parties, gives the impression that there is multiplicity of action which should be avoided. All the relevant issues between the parties ought to be decided in one and the same action and that action would in this case appear to be 216/97.

On abuse of process, in considering this application I have borne in mind the following passage from Halsbury’s Laws of England 4^th Ed Vol. 37 para 434 on ‘abuse of process’ which I consider pertinent:

“An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.”

For these reasons, the plaintiff’s action is struck out with costs to defendant the sum of $300.00 to be paid within 21 days.

D. Pathik
Judge

At Suva
31 October 2003