Janardhan v Khan - ruling on strike out application [2005] FJHC 625; HBC0358.2004 (22 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 Maharaj for the Plaintiff
Ms N. Khan for the 1st & 5th Defendants
Mr K. Kumar for the 2nd Defendant
Mr F. Abu for the 3rd, 4th, 6th & 7th Defendants

Date of Hearing: 22 July 2005
Date of Ruling: 22 July 2005

RULING OF FINNIGAN J ON INTERLOCUTORY APPLICATION
FOR STRIKING OUT PLAINTIFF’S CLAIM

On 5 July 2005 I issued a ruling on an application by the 1^st, 2^nd and 5^th Defendants to strike out the Plaintiff’s statement of claim. I went only so far as to find that to grant the application would be wrong in principle “at this stage”. I left the matter open pending determination of what I identified as a necessary factual issue [whether the 2^nd Defendant was the common solicitor for all these parties], and perhaps a second issue about the application of any limitation defence to the facts as then found.

I did not in that ruling address every argument that had been put before me though as stated I had considered them all. I have been asked by Counsel for the 1^st and 5^th Defendants to give my specific ruling on one particular ground for having the claim stuck out, namely that there has been no repudiation by them of the contract pleaded by the Plaintiff which say they stand ready to perform.

To me, this is one of the issues that cannot be determined on the affidavit evidence alone. To me it is one of the substantive issues to be determined in the Plaintiff’s action. I now formally reject it as a ground for striking out the statement of claim. I reject also all of the other arguments of both Defendants and now formally refuse their application to strike out the statement of claim. I do so in reliance on a single authority Native Land Trust Board –v- Narawa & Matanabua Appeal No. HBV0007.2002S, Judgment 21 May 2004, (S.C.). That was not an action to strike out a statement of claim but an application for leave to appeal from a judgment which set aside an order which had summarily dismissed proceedings. I think the principle in that case applies. As stated by the Supreme Court in that judgment [para 41] the issue was whether the appellant in that case had a sufficient cause of action. The Court said that was a complex factual and legal issue. It is the same here. The important questions of law [and I might add of fact] which may arise are not able to be determined on the basis of untested assertions of fact. The Court stated it is simply not appropriate at pre-trial stage to determine the important questions of law [and I might add, of fact] which the proceedings are said to raise in a factual and evidentiary vacuum.

I believe all or most of the matters raised in this interlocutory hearing and the submissions made about them will be relevant in the trial of the substantive issues.

I refuse the application and as in my earlier interlocutory ruling I make no order for costs.

D.D. Finnigan
JUDGE

At Lautoka
22 July 2005