Navualaba v Commander, Republic of Fiji Military Forces [2004] FJHC 277; HBC0355d.2003s (11 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0355 OF 2003

Between:

TAITO NAVUALABA
Plaintiff

and

THE COMMANDER, REPUBLIC OF FIJI
MILITARY FORCES

THE COMMISSIONER, REPUBLIC OF FIJI
POLICE FORCES

THE ATTORNEY-GENERAL OF FIJI
Defendants

Mr. S. Valenitabua for the Plaintiff
Mr. W. Calanchini for the 1st Defendant
Mr. K. Keteca for the 3rd Defendant

DECISION

This is the first defendant’s (D1) summons to strike out the plaintiff’s Statement of Claim under Or.18 r.18(1)(a), (b) & (d) of the High Court Rules 1988 on the grounds that: (a) it discloses no reasonable cause of action against the first defendant, (b) it is scandalous, frivolous and vexatious and (c) it is otherwise an abuse of the process of the Court.

I have before me in 4 paragraph of the affidavit filed in support of the application, and that is the only relevant paragraph, which states that “no notice regarding this action was given to the RFMF one month or at any time before the commencement of the Action”.

The learned counsel for the plaintiff filed an affidavit in reply, stating in essence that there is no such requirement that a month’s notice is to be given and that it is only required for an action that is brought against any Officer or soldier for anything done by him under the Fiji Military Forces Act, Cap. 81

It is the applicant’s submission that D1 should not have been joined a party to the action. Counsel submits that D1 himself has not been involved in the alleged assault nor is it claimed that he authorised, ordered or sanctioned the alleged assault. It is further submitted that the “Commander cannot be joined as an employer since it is the State which is the only proper defendant in relation to vicarious liability. Members of the RFMF of differing rank are all regarded as employees of the State and not as employers” (Bainbridge and Another v The Postmaster-General [1905] UKLawRpKQB 170; [1906] 1 K.B. 178).

Consideration of the application

This application is made under Or.18 Rule 18(1)(a)(b) & (d) of The High Court Rules 1988.

In this case there is allegation of assault against soldiers who came under D1’s command and some policemen under D2. Although no soldier or policeman has been named as having taken part in the assault, the allegation is that they come under the control and supervision of D1 and D2 respectively. As to how the plaintiff proves his case is a matter of evidence at the trial of the action.

Upon considering the affidavit evidence before me and the submissions of counsel, I am of the view that the plaintiff has raised triable issues which merit adducing of evidence in the trial of the action to prove the case.

I am of the view that this action is not an abuse of the process and in considering this application on this aspect I have borne in mind the following passage from Halsbury’s Laws of England 4th 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.”

Although the application is on the grounds stated hereabove, it is actually an alleged misjoinder of D1 as a party in that D1 should not have been joined, on the grounds stated in this application. On the facts and circumstances of this case I apply the following principles of law: “it is not the practice in the civil administration of our Courts to have a preliminary hearing, as it is in crime” (per Sellers L.J. in Wenlock v Moloney [1965] 1 W.L.R. at p.1242). As stated in the Notes to Or.18 r.19 in The Supreme Court Practice 1979 Vol 1 312 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 fact 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.). It cannot be said here that the action is one which cannot succeed or is in some way an abuse of the process.

Also, in the context of this case I find the following statement of Megarry V.C. in Gleeson v J. Wippell & Co. [1977] 1 W.L.R. 510 at 518 apt:

“First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial”.

The applicant says that there is no reasonable cause of action but on the evidence before me I hold there is; and in coming to this conclusion I have borne in mind the following Notes to Or.18 r.19/11 of the Supreme Court Practice (U.K.) 1979 Vol.1 where it is stated:

“.........A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 All E.R. 1094, C.A.). So long as the statement of claim or the particulars (Davey v Bentinck [1892] UKLawRpKQB 216; [1893] 1 Q.B. 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking it out (Moore v Lawson) (1915) 31 T.L.R. 418, C.A.; Wenlock v Moloney [1965] 1 W.L.R. 1238 [1965] 2 All E.R 871, C.A.).....”

Similarly, Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywood & Clark Limited [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86 at page 91 said:

“...summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression “reasonable cause of action” in rule 4 shews that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases”.

In Attorney General v Shiu Prasad Halka [1972] 18 FLR 210 Marsack J.A. said of the predecessor to order 18, r.18 of High Court Rules at page 215:

“.... I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 rule 19 should be very sparingly exercised where legal questions of importance and difficulty are raised”.

The Fiji Court of Appeal in its decision in National MBf Finance (Fiji) Limited v Nemani Buli, (Civil Appeal No. ABU0057 of 1998) very clearly enunciated and determined the principles for striking out. At page 2 of the judgment their Lordships said:-

“The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not to do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention...”

Conclusion

For the above reasons on the facts and circumstances of this case, on the authorities and in the exercise of Court’s discretion I refuse the first defendant’s application.

The summons is therefore dismissed with costs in the cause.

D. Pathik
Judge

At Suva
11 February 2004