Korovusere v Attorney-General [2004] FJHC 278; HBC0314d.2003s (11 February 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 314 OF 2003

Between:

RUSIATE KOROVUSERE
Plaintiff

and

THE ATTORNEY-GENERAL, REPUBLIC OF THE FIJI ISLANDS
THE COMMANDER, REPUBLIC OF FIJI MILITARY FORCES
Defendants

Mr. R. Matebalavu for the Plaintiff
Mr. K. Keteca for the 1st Defendant
Mr. W. Calanchini for 2nd Defendant

DECISION

This is an application by the Commander Republic of Fiji Military Forces (D2) under Order 18 Rule 18(a)(b) and (d) of the High Court Rules 1988 to strike out the plaintiff’s claim against him on the grounds stated in his application in support.

Briefly, the grounds advanced are that upon request made to His Excellency the President by letter dated 29 May 2000 to invoke Regulation 22 of the Public Emergency Regulations and for members of RFMF to perform all the duties and functions of police officers, accordingly they were directed to perform certain duties which would otherwise have been performed by police officers.

The plaintiff was apprehended by members of RFMF as a result of his participation in the unlawful take-over of Parliament between May and July 2000.

The applicant further complains that no notice regarding this action was given to RFMF one month or at any time before the commencement of this action.

Both counsel filed written submissions which I have considered.

Briefly, it is alleged by the plaintiff in the Statement of Claim filed by him herein that:

On the 27th July, 2000, while the Plaintiff was in a gathering with friends in a residential home at Denison Road, Suva, servants, agents and/or employees of the Fiji Military Forces under the control and responsibility of the Second Defendant rudely interrupted the said gathering and under threat of force and arms seized the Plaintiff and led him away in a vehicle under heavy armed guard.

He further alleges that:

Having seized the Plaintiff under heavy armed guard as aforesaid the said servants, agents and/or employees of the Second Defendant proceeded to escort the Plaintiff without his consent and against his will under said armed guard to Queen Elizabeth Barracks under the control and responsibility of the Second Defendant wherein the Plaintiff was detained and imprisoned unlawfully between the 27th of July 2000 and early 29th July 2000.

The Plaintiff said that he was being taken to Nukulau Island and on being escorted on board the Fiji Naval Vessel by ‘armed servants’ he was assaulted “by tying both his hands behind his back and by striking him on his body with unnecessary force by kicking him on the side of his face with heavy boots and imprisoned by detaining him and by preventing him from leaving” the vessel.

The plaintiff says as a result he has suffered pain and injuries and was deprived of his liberty and has suffered loss and damage.

In the affidavit in support of the application it is stated, inter alia, that the plaintiff “was apprehended by members of the RFMF as a result of his participation in the unlawful take-over of Parliament between May and July 2000”. The Island of Nukulau was declared a prison on 27 July 2000. It is further stated that no notice in regard to this action was given to RFMF one month or at any time before the commencement of this action.

In response to the applicant’s affidavit the plaintiff says that the only charge outstanding against him is a charge of ‘consorting’ and none for ‘unlawful assembly’. He says that ‘unwarranted and unlawful use of physical force’ was used against him by armed servicemen under the command of the second defendant.

The learned counsel for the applicant has filed a very comprehensive written submission. Although the application is made under Order 18 R18, the application is actually one alleging misjoinder of the second defendant as a party to the action. Counsel says, inter alia, that because there is no allegation against D2 as a primary tortfessor acting in his personal or private capacity he cannot be joined. He further states that the time limit for bringing the action as required by section 52 of the RFMF Act Cap. 81 has not been complied with.

Mr. Calanchini has also raised the point that the Statement of Claim does not comply with Order 77 of the High Court Rules 1988. He further submitted the time limit for bringing the action as required by Section 52 of the RFMF Act Cap. 81 has not been complied with either.

On the other hand the learned counsel for the plaintiff in his submission states, inter alia, that this was a claim for wrongful and unlawful acts of assault resulting in personal injury.

Mr. Matebalavu submitted that assuming that notice is required under the said section 52(1) of the RFMF Act the Court has a discretion to allow the claim.

He further submitted that this action involves difficult and complicated question of law, namely, whether D2 as Commander and with overall control and responsibility of the Force can lawfully disassociate himself in such position from the acts complained of, and also the claim relates to acts allegedly committed during a political crisis.

I have already stated hereabove what the issues are for my determination.

There is no doubt that questions of law have been raised by the plaintiff in his Statement of Claim. On the facts and circumstances of this case, on the authorities, I do not consider this to be an appropriate case to strike out the action against the second defendant.

The following passage from Halsbury’s Laws of England 4th Ed. Vol 37 para. 435 is apt and I have borne this in mind in dealing with the issues before me:

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).

Further, law in the application of Order 18 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’. (AG. of Duchy of Lancaster v L. & N.W. Ry. Co [1892] UKLawRpCh 134; [1892] 3 Ch 274, C.A.).].

In my view, on the material so far before me, I do not consider this to be a case of ‘abuse of the process’. The following passage from Halsbury’s Laws of England 4th Ed. Vol. 37 para. 435 sets out the circumstances in which an abuse of the process arises:

“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.”

Certain points of law have also been raised. On the facts and circumstances of this case I apply the principle of law that “it is not the practice in the civil administration of our Courts to have a preliminary hearing, as it is in crime” (Wenlock v Moloney [1965] 1 W.L.R. at 1242).

The following passage from the judgment in Megarry V.C. in Gleeson v J. Wippell & Co. [1977] 1 W.L.R. 510 at 518 sums up the principles to be applied and this I have considered in determining the issue before me:

“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”.

On the meaning of ‘reasonable cause of action’ I have borne in mind the following Notes to Or.18 r.19/11 of the Supreme Court Practice (U.K.) 1979 Vol I and this I have considered in this application:

“.........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”.

On striking out, in Attorney-General v Shiu Prasad Halka [1972] 17 FLR 210 at 215 Marsack J.A. said of Or.18 r.18:

“.... 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”.

Conclusion

I conclude with the following extract from the judgment in National MBf Finance (Fiji) Limited v Nemani Bili (Civil Appeal No. ABU0057 of 1998 at p.2) which clearly enunciates and determines the principles for striking out:

“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...”

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

The summons is therefore dismissed with costs in the cause.

D. Pathik
Judge

At Suva
11 February, 2004.