Thomas v Commissioner of Police [2005] FJHC 754; Civil Action 505 of 2004 (1 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 505 OF 2004

BETWEEN:

MARJORY GAY THOMAS t/a LIGHTHOUSE RESTAURANT
Plaintiff

AND

THE COMMISSIONER OF POLICE
1st Defendant

THE ATTORNEY-GENERAL OF FIJI
2nd Defendant

Mr. G. O'Driscoll for the Plaintiff
Ms Buresova for the 1st and 2nd Defendants

RULING

There is hardly any factual dispute in this case. The plaintiff owns well known premises called the Lighthouse Restaurant on Queen Elizabeth Drive, Suva. In the year 2000 during the civilian coup, the premises were burnt down. The premises were rebuilt in the year 2004 with the intention of resumption of the restaurant business.

It appears from affidavits and what I was told across the bar table by counsels that the plaintiff applied for a temporary licence to the Central Division Liquor Tribunal. Under section 26(1) of the Liquor Act Cap 192 temporary licenses may be granted, it reads:

"26. – (1) If the licensed premises, or vessel, in the case of a packet license, of any licensee shall, in the course of any alteration or repair, or by fire, tempest or other calamity be or become liable to be rendered unfit for carrying on his business, a Tribunal may, upon an application being made by such licensee in writing, by order in writing under the hand of the chairman, authorize such licensee to carry on his business in any part of the licensed premises or in any neighboring premises (notwithstanding, in the case of a publican's licence, that such part of the licensed premises or the neighboring premises may not possess the accommodation specified in this Act) or in any other vessel, in the case of a packet licence, for any period not exceeding twelve months.
(2) Notwithstanding the provisions of subsection (1), a Tribunal may, in its discretion but subject to the prior consent in writing of the Board, upon an application by the licensee, extend the period of an order made under subsection (1) by a further period or periods not exceeding twelve months on any one occasion."

It appears that acting under the above section a letter was written to the plaintiff on 28th October 2004 which reads:

Plaintiff has exhausted all avenues of appeal available to him against his conviction and sentence."

Acknowledgement of service of the Summons and the affidavit in support were filed by the defendant's on 3 February 2005 with the intention of contesting the proceedings.

On 4 March 2005 the defendants applied through their Summons to Strike Out the action on the grounds that it discloses no reasonable Cause of action, that it is scandalous, frivolous and vexatious, and it is an abuse of the process of the Court. The Application is made pursuant to Order 18 rule 18 (1) (a) (b) and (d) of the High Court Rules.

The Law on Striking Out

This is governed by O.18 r.18. It is a Summary process. A Court may only entertain an application under it if it can clearly be seen that the claim or defence is on the face of it obviously unsustainable. Lindley L. in Attorney- General of the Duchy of Lancaster v. London and Niorth-Westem Railway Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274 said Order XXV r.4, the equivalent of our O.18 r.18, as follows:

"It appears to me that the object of the rule is to stop cases which ought not to be launched – cases which are obviously frivolous or vexatious, or obviously unsustainable."

Lopes LJ., in the same case added, at page.2":

"The object of the rule was to get rid of frivolous actions. The words of the rules are "action or defence for which there is no reasonable cause," by which I understand, no reasonable cause disclosed upon the face of the pleadings."

"CCD. 16/6/147

28/10/2004

TO WHOM IT MAY CONCERN
This is to certify that MS Marjorie Lavaki, Licencee for the premises known as LIGHTHOUSE RESTAURANT situated at Nasese, Suva has formally applied to the Central Division Liquor Tribunal for a Licence.
While the application is in process Ms Lavaki has been approved to operate from tonight 28/10/2004 until Central Division Liquor Tribunal makes a ruling on her application for ORDINARY RESTAURANT LICENCE.
Dated this 28th day of October 2004.

(Sgd) Inoke B. Devo

Acting Commissioner Central Division."

On 11th November 2004 the police pursuant to a search entered and removed from the premises substantial amount of Liquor as per the search list contained in the plaintiffs affidavit. The justification for this course of action according to an affidavit sworn by Jese Ulacake, Acting Inspector is that the permission granted by Inoke Devo was only confined to 28^th October 2004.

That interpretation of the letter is hard to justify when one looks at the words "from tonight ... until the Central Division Liquor Tribunal makes a ruling". Ms Buresova quite correctly made this concession. However she submitted that the plaintiff is seeking a mandatory injunction against the State which is not possible pursuant to Section 15 of the State Proceedings Act Cap 24. I agree but the court in lieu if an injunction can make declaratory orders. So far no charges have been laid against the plaintiff. This is not a complicated case – either the plaintiff had licence or did not have a licence so any prosecution out to have been conducted expeditiously.

It is obvious from what I have said that the police misconstrued the letter dated 28/10/04 given to the plaintiff. The liquor ought not to have been seized from the plaintiff.

However I am mindful of one other difficulty that is interlocutory proceedings of the type before me are generally not suitable for a declaration of a right - see Ocean Holdings Limited v. Olympic Fiji Ltd. & Another - ABU 28 of 2003 Court of Appeal

However the legality of the initial seizure appears to be a separate definable issue which can be dealt now and my ruling would assist the parties in resolving the other issues or issues of damage.

Accordingly I make a declaration that the liquor was unlawfully seized from the plaintiffs premises on 11th November 2004. I also order costs of $200.00 against the defendants.
:

[Jiten Singh]
JUDGE

At Suva
1st February 2005