Khan v Connors [2006] FJHC 87; HBC 360.2005 (30 January 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC360 OF 2005

BETWEEN

IFTAKHAR IQBAL AHMED KHAN
f/n Amjad Khan of Lautoka, Barrister and Solicitor
PLAINTIFF

AND

JOHN ROBERT CONNORS
DEFENDANT

Mr Tuilevuka for the Applicant (Defendant)
Respondent (Plaintiff) in person.

Date of Hearing: 30 January 2006
Date of Ruling: 30 January 2006

ORAL INTERLOCUTORY RULING OF FINNIGAN J

I have heard full submissions from both Counsels about this application which is made by the Defendant to add a Second Defendant. The Defendant wishes to add the Attorney General as a Defendant pursuant to S. 12(2) of the Crown Proceedings Acts Cap 24, on the grounds that the Plaintiff's proceedings are against the Defendant as an officer of the Crown.

The Plaintiff appears in person. His submission is that the proceedings are against the Defendant personally. At best, the Defendant might apply to join the Attorney General as a Third Party.

What follows is my ruling -

1. I distinguish this application from Third Party proceedings. This is not a case of the Defendant claiming indemnity or liability against the Attorney General as another party.

2. I distinguish also the White Book point, that an unwilling party should not be joined if relief is not claimed against him. The result is the same, the application is not being made to join the Attorney General as a party against whom relief should be granted. i.e. the Defendant is saying he is being sued as an officer of the Crown.

3. At issue is a statement allegedly made by a Judge at a "National Judicial Conference". The statement is said to be "publication to conference of Magistrates and Judges". Both these statements are taken from para. 8 of the Statement of Claim.

4. The actions alleged against the Defendant are alleged against him in a capacity where prima-facie he was serving the Crown, in my preliminary opinion.

5. I base myself only on Para. 8 of the Statement of Claim. Whether or not this amounts to suing the Defendant, as a Crown Officer may well become a moot point at any trial. But it cannot be disposed of either way without argument by the Attorney General.

6. For this reason, the Defendant's application to have the Attorney General joined as a party must be granted.

7. I see no prejudice to the Plaintiff, no decision is made about the merits of the claim as pleaded and I see the Attorney General's involvement as a party to be necessary on the Plaintiff's pleadings. The application is by the Defendant, it would be open to the Attorney General at trial to argue that the Defendant was not acting as a Crown Officer. Either way for completeness he must be joined. The point may be raised by either party.

8. The application accordingly is granted. Costs will be Defendant's costs in the cause.

(After hearing further submissions) service on the Attorney General is assumed. He will file and serve an Acknowledgment of Service within seven days from today i.e. by 4.00pm 6 February 2006 and will file and serve a Statement of Defence on behalf of both Defendants within 28 days of today i.e. by 4.00pm on 27 February 2006.

The matter will listed before me on Friday 3 March 2006.

D.D. Finnigan
JUDGE

At Lautoka
30 January 2006