Naco v Khan [2005] FJHC 730; HBC115D.2003S (28 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC 115D.03S

BETWEEN:

TIMOCI NACO
1ST PLAINTIFF

AND:

MOSESE MASIREWA
2ND PLAINTIFF

AND

DR. M.S. SAHU KHAN
1ST DEFENDANT

KRISHNA SAMI GOUNDER
2ND DEFENDANT

D.S. ROBERTSON
3RD DEFENDANT

COLONIAL MUTUAL LIFE ASSURANCE SOCIETY LIMITED
4TH DEFENDANT

DIRECTOR OF PUBLIC PROSECUTIONS
5TH DEFENDANT

Counsel for the 1st Plaintiff: In Person
Counsel for the 2nd Plaintiff: No Appearance
Counsel for the 1st Defendant: Dr S.M. Sahu Khan: Sahu Khan & Sahu Khan
Counsel for the 2nd Defendant: J. Savou: Jiaoji Savou Esq.
Counsel for the 3rd Defendant: D. Sharma: R. Patel & Co.
Counsel for the 4th Defendant: Ms R. Lal: Jamnadas & Assoc.
Counsel for the 5th Defendant: N. Lajendra: Office of the D.P.P.

Date of Decision: 28 April, 2005
Time of Decision: 9.30 a.m.

DECISION

This is the defendants’ application to Strike Out the plaintiffs’ Originating Summons. In respect of the 1st defendant, the grounds are based on Order 18 Rule 18(1)(a), (b), (c) and (d), and that the action is misconceived in substance and in form, in respect of the 5th defendant, the grounds are based on O.18 r.18 (1) (a) and (d); in respect of the 4th defendant, under O.18 r.18 (1) (a).

In his amended Originating Summons filed on 11 June 2003 the 1st plaintiff sought no less than nine (9) declarations from this Court. I will deal with each of them in turn.

" 1. A Declaration that the First Defendant as Solicitor, Second, Third and Fourth Defendant acted falsely, maliciously and recklessly by writing to the second Plaintiff a letter dated 10 February 1998 that Crown Lease 2721was sold to the Second Defendant by the Fourth Defendant, when in fact it was false, and untrue and later the First Defendant on the basis of the said letter dated 10 February 1988 demanded vacant possession of Crown Lease 2721 and mislead the High Court in HBC 340 of 2000."

This same allegations were the subject of Civil Action HBC 273 of 2002S as against the 4th defendant, Civil Action HBC 377 of 2000 against the 2nd and 4th defendants and CA HBC 69/1999 against the 3rd and 4th defendants. In CA 273/2002, the Court ordered the action against the 4th defendant struck out as disclosing no reasonable cause of action. In CA 377/2000, the action against the 2nd defendant was struck out as disclosing no cause of action, while the action against the 4th defendant was dismissed " for want of prosecution as well as of being an abuse of the process of the Court and also as being wholly misconceived." Finally in CA 69/1999, the action was struck out and had not been restored.

The fact that the plaintiffs have now included the 1st and 3rd defendants as parties to the action and cannot be allowed to provide the plaintiffs yet another opportunity of raising the same allegations and the reliefs which they had previously sought from the defendants in past actions referred to above. As the Court had clearly explained in CA 273/2002, while there may have been discrepancies and inconsistencies in the affidavits and other documentations surrounding the exercise of the powers of the 4th Defendant to sell, they did not, in the end, have any bearing on the primary right of the mortgagee to exercise its power of sale in the face of continuing default by the Plaintiffs.

For the same reasons as advanced by the Courts in CA 377/2000 and CA 273/2002, the first declaration sought by the Plaintiffs is dismissed as having no merit and an abuse of the process of the Court.

The Plaintiffs’ 2nd to 8th prayers are as follows:

"2) A Declaration that the Second Defendant committed perjury by taking an oath on 19th day of August 2000 and exhibiting a letter dated 10th February 1998 that he had in fact purchased Crown Lease 2721 when in fact, it was false and thus breached section 118 (3) and (4) of the Penal Code Cap.17;

3. A Declaration that the First and the Second Defendants mislead the High Court in HBC 340 of 2000 in an affidavit sworn on 19th day of August, 2000 prepared by the First Defendant’s law firm and sworn by the Second Defendant that in fact the Second Defendant had purchased Crown Lease 2721 when in fact it was false and misleading and in breach of the Oaths Act Cap. 42;
   
4. A Declaration that the First Defendant whilst acting as solicitor was fully aware of material facts regarding the Mortgagee Sale of Crown Lease 2721 and yet committed the Second Defendant to swear the said affidavit on 19th August, 2000 exhibiting the letter dated 10th February, 1998 claiming ownership as purchaser, even though there was no consent to a dealing obtained from the Director of Lands at the material time and thus the affidavit content was false and thus breached section 118 (a) of the Penal Code Cap. 17;
   
5. A Declaration that the First and Second Defendant acted in collusion by false misleading and reckless conduct presented to the High Court in Action HBC 340 OF 2000 in a sworn affidavit that the Second Defendant had purchased Crown Lease 2721 prior to 10th February, 1998 as claimed in the said letter, when in fact this was false and untrue and thus breached section 118 (a) of the Penal Code Cap. 17;
   
6. A Declaration that the Third Defendant in an affidavit falsely under oath stated that by a letter dated 10th February, 1998 written on the instruction of the Fourth Defendant to the Second Plaintiff’s demanding vacant possession of Crown Lease 2721 as sold to the Second Defendant and the said Second Defendant claiming ownership by exhibiting the said letter in his affidavit sworn on 19th August thus the Second and Third Defendant’s committed perjury under section 118 (a) of the Penal Code Cap. 17;
   
7. A Declaration that the Fourth Defendant through its Director and Secretary, Culden Kamea, made a declaration that was false, misleading and deceptive under the Statutory Declarations Act Cap. 43, when in fact, the said Culden Kamea was fully aware that the contents of the Statutory Declaration was false and untrue and knowingly committed an offence under the said Act.
   
8. A Declaration that the affidavits sworn by Second and Third Defendants and the Statutory Declaration sworn on behalf of the Fourth Defendant by its Secretary and Director and the First Defendant'’ conduct as solicitor there is sufficient evidence contained in the said documents referred hereto that the First to Fourth Defendants breached section 126 (1) and (2) of the Penal Code, Cap.17."
   

All the above reliefs being sought by the Plaintiffs relate to alleged breaches by the Defendants of the Penal Code, Oaths Act, and Statutory Declarations Act. These allegations are properly in the province of the criminal Courts. As Scott J explained in CA 273/2002, these are matters which can only be pursued and prosecuted under section 121 of the Penal Code (Cap. 17) adding:

"The proper venue for determining the truth of such questions is the Criminal Courts where evidence can be heard on oath and tested such a procedure is wholly unsuited to proceedings commenced in a Civil Court by Originating Summons."

The Plaintiffs’ prayers 2 to 8 are hereby dismissed as disclosing no reasonable cause of action in this Court and an abuse of the process.

The Plaintiffs’ final prayer states:

"9. A Declaration that based upon evidence contained in exhibits annexed to the affidavits sworn and filed in support of the application, the Fifth Defendant has sufficient evidence to prosecute First to Fourth Defendants in breach of the Oaths Act Cap. 42; the Statutory Declaration Act Cap. 43; Sections 118, 121, 125 (a) and (b) and 126 (1) of the Penal Code."

The office of the Director of the Public Prosecutions is independent and protected under section 114 of the Constitution. It is his sole discretion to institute and conduct criminal proceedings. To suggest, as the Plaintiffs are arguing in this case, that the 5th Defendant had failed to perform his functions, is clearly not in the purview of the Court to decide upon. It is tantamount to this Court assuming the role of the Director of Public Prosecutions and thereby usurping his Constitutional responsibilities. Should the Plaintiffs be dissatisfied with the exercise of the DPP’s discretion, he can, under common law, always pursue his right to private prosecution.

The declaration sought by the Plaintiffs as set out under paragraph 9 of its Summons, is dismissed as an abuse of the process of the Court.

In the end, this Court finds merit in the Defendants Summons. The 1st Plaintiff seems to believe that he can continue to file actions on the same allegations against the same parties with impunity regardless of the law and Rules, governing litigation. The fact that he has acted In Person in many of these occasions has allowed some exercise of the Court’s discretion in his favour. The Rules however must prevail lest the system is brought into disrepute.

The Plaintiff’s Originating Summons is hereby Struck Out. There will be also a further Order preventing the Plaintiffs from commencing any new proceedings unless with leave of the Court, against any of the defendants with respect to the same Cause of action arising out of the same facts and allegations or substantially the same facts and allegations as contained in this action.

The Defendants have asked for costs on indemnity basis. While the background facts of the case certainly favours the ordering of costs on such basis, the circumstances of the Plaintiffs do not. I therefore award costs of $400.00 to each of the Defendants against the 1st Plaintiff.

F. Jitoko
JUDGE

At Suva
28 April 2005