Janardhan v Khan [2005] FJHC 612; HBC0358.2004 (5 July 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC0358 OF 2004

BETWEEN:

JANARDHAN
PLAINTIFF

AND:

MOHAMMED NASIR KHAN
1st DEFENDANT

CHEN BUNN YOUNG
2nd DEFENDANT

THE DIRECTOR OF LANDS
AND SURVEYOR GENERAL
3rd DEFENDANT

THE REGISTRAR OF TITLES
4th DEFENDANT

KHANS BUSES LIMITED
5th DEFENDANT

THE DIRECTOR TOWN AND COUNTRY PLANNING
6th DEFENDANT

THE ATTORNEY-GENERAL
7th DEFENDANT

Mr M.S. Sahu Khan & Mr Maharaj for the Plaintiff
Ms N. Khan for the 1^st & 5^th Defendants
Mr B C Patel for the 2^nd Defendant
Mr F. Abu for the 3^rd, 4^th, 6^th & 7^th Defendants

Date of Hearing: 20 June 2005
Date of Judgment: 5 July 2005

INTERLOCUTORY RULING OF FINNIGAN J

The first, second & the fifth Defendants seek to have the statement of claim struck out on the grounds that it is frivolous, vexatious and an abuse of the Court’s process. The third, fourth, sixth & seventh Defendants abide the outcome. I had full and extensive submissions in writing and oral submissions in support which I limited as to time though they were still comprehensive. I have been given copies of all the judgments upon which Counsel rely or to which they make reference. Counsel for the 2^nd Defendant alone handed up copies of 21 cases. Counsel for the Plaintiff referred to several but handed up only, Wenlock –v- Moloney & Others [1965] 2 All ER 871. His argument generally is that if this application amounts to a trial of the case in Chambers, without discovery oral evidence or cross examination, then it is neither authorized by the High Court rules nor a proper exercise of the Court’s inherent jurisdiction.

On the Plaintiff’s application there have been certain interlocutory injunctive orders made, effective until further orders of the Court. It is perhaps indicative that orders for discovery were sought by the Plaintiff against all Defendants and were complied with before this further interlocutory application was heard. The Plaintiff has amended his claim, partly as a result of the discovery process and partly in response to written submissions filed and served before the present hearing. This amended claim document was presented with the submission of Counsel for the Plaintiff. It was addressed particularly by Counsel for the 2^nd Defendant in his written submissions presented at the hearing.

The present application is a determined attempt to stifle the proceedings at birth. The Plaintiff’s pleadings have their own prolixity. The pleadings are not yet closed but the file is already unwieldy. This ruling is deliberately brief and will not refer to all the arguments and authorities cited to me by Counsel. It is the quality of the submissions and the wealth of the authorities that enable me to be brief, and I compliment Counsel.

Decision

From my study of the written and oral submissions of all three Counsel and of some of the authorities supplied I am convinced that to strike out the action at this stage would be contrary to principle.

The statement of claim is wide ranging and includes apparently all the causes of action and claims that the Plaintiff’s advisers could summon up. It pleads causes of action in contract and in tort. The pleaded torts are deceit, negligence, breach of fiduciary duty, conspiracy, misrepresentation, collusion and fraud. The pleading leaves open the injury suffered by the Plaintiff for which he claims “damages and compensation”, although from the statement of claim it seems to amount generally to breach of his claimed rights as registered holder of the Lease in question and as purported client of the 2^nd Defendant.

Included among the fact allegations in the amended statement of claim is Clause 31 which is a wide ranging allegation of loss and damages from which the Plaintiff “further claims exemplary punitive and aggravated damages in pursuance of” certain numbered paragraphs. I respond to the submissions of Counsel for the Defendants about this aspect of the tort claim that the new claims at paragraphs 25 to 31 of the Amended Statement of Claim appear at this state fanciful and confused and little more then an attempt to cover all possible causes of action. The claims appear to arise from the same fact allegations as give rise to the claims in negligence and breach of fiduciary duty. They are nonetheless allegations of identifiable torts which the Plaintiff is entitled to put to trial even though, as Counsel for the 2^nd Defendants contends, one or more of them may be untenable at law. The Plaintiff may need to refine his claims, but that is not a ground for striking them out.

The major headings in the arguments of Counsel for striking out the claim are at the heart of the pleaded claims and I accept that. Several of them however are triable issues and cannot be decided in the Defendants’ favour or otherwise without trial.

The most important is probably the limitation defence. The claims of the Plaintiff are complex and cover a nine year period. Some are in tort, some in contract. The limitation defence cannot be applied universally to them all. There are at least two contracts of which breach is claimed and many alleged torts during the whole of that period. The defence may have to be applied to each claim separately. It is an important issue and I may yet direct that it be laid to rest before the substantive trial, if that can be conveniently done.

One claim that is fundamental to the whole action is the allegation that the Plaintiff was a client of the 2^nd Defendant. This is a triable issue of fact and law which cannot be disposed of by affidavits. This fundamental issue is interwoven with the limitation defence. Its determination will influence much of the rest of the claim.

This claim is the lynch-pin that holds the rest of the action together. It can be decided on its own limited facts [as covered in Counsels’ submissions], but the evidence needs to be heard and evaluated. The application of any limitation defences cannot be decided until after that. Whether the limitation defences need to be treated as a pre-trial issue cannot itself be decided in the meantime.

I direct that there be a pre-trial hearing to determine that one issue.

The matter will now be listed in the callover on 22 July 2005 so the Court can find time for a hearing. Counsel should consider what time will be necessary and be ready to advise whether there is any objection to a trial before one of the resident Lautoka Judges.

D.D. Finnigan
JUDGE

At Lautoka
5 July 2005