Prasad v Commissioner of Police 1 [2004] FJHC 383; HBC0164.2004L (2 March 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0164 OF 2004L

BETWEEN:

GEORGE KAMLES PRASAD
f/n Kamta Prasad
Plaintiff

AND:

THE COMMISSIONER OF POLICE
1st Defendant

AND:

DC 507 SALESI SIGANISUCU VULAKORO
2nd Defendant

AND:

ATTORNEY GENERAL OF FIJI
3rd Defendant

Plaintiff in Person
Counsel for the Defendants: Ms. S. Tabaiwalu

Date of Hearing & Judgment: 2 March 2004

EXTEMPORE RULING

Before the court is a Summons dated the 13^th September 2004 filed by the plaintiff wherein the plaintiff seeks pursuant to Order 18 Rule 18 of the High Court Rules an order that the defendants’ statement of defence be struck out and the judgment be entered for the plaintiff in the terms of the statement of claim.

The grounds upon which the Summons is filed are those that specified in Order 18 Rule 18 that is the defence discloses no reasonable cause of defence, its scandalous, frivolous and/or vexatious, may prejudice, embarrass and/or delay the fair trial of this action and it's otherwise an abuse of the process of this court.

The provisions of Order 18 Rule 18 have been considered by the court on numerous occasions and the authorities which those considerations consistently rely on have not changed in recent times. In Akariva Vula Rokotuitavuki v Methodist Church in Fiji and Attorney General – HBC0018 of 1996, Mr. Justice Byrne considered the issues and referred to the relevant authorities at page 4 of his judgment where he said the law governing applications such as this is well settled. Lindley MR in Hubbuck v Wilkinson [1889] 1 Q.B. 86 at 91 said:

“It is only in plain and obvious cases that recourse should be heard to the summary process under Order 18 Rule 18(1) of the Rules of the High Court. This was affirmed in Kemsley v Foot & Ors [1952] A.C. 345. In Attorney General of Duchy of Lancaster v L.N.W. Ry Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274 said that Rule 18 can only be invoked when the claim is on the face of it “obviously unsustainable.”

The caution that should be exercised when consideration application of this type was highlighted by Mr. Justice Pathik in Hemant Kumar v Suresh Kumar & Ors [2003] Civil Action No. 33 of 2003 where His Lordship in applying Attorney General v Shiu Prasad Halka [1972] 18 FLR 210 at 215 said:

“I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 19 should be very sparingly exercised, and only in exceptional cases. It should not be exercised where legal questions of importance and difficulty are raised.”

It is with these authorities in mind that I cautiously approach the application and I take into consideration required by the court with respect to this application.

When looking at the defence filed by the defendants, I note that it contains some 40 paragraphs which would appear to deal with each of the paragraphs pleaded in the plaintiff’s statement of claim, whilst some of the statements of defence are a mere denial, others are not. The defence could not be described as being scandalous, frivolous or vexatious and I am not of the view that it would prejudice, embarrass or delay the fair trial of this action and accordingly, it is not in my opinion an abuse of the process of the court.

In forming those views, I have taken account of the very cautious approach that the courts required to take in application of this type and accordingly, the Order of the Court will be:

1. Summons filed on the 13^th September is dismissed.

2. Costs to be costs in the cause.

JOHN CONNORS
JUDGE

At Lautoka
2 March 2005