Singh v Singh [2010] FJHC 125; HBC261.2006L (15 April 2010)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
LAUTOKA

Civil Action No. HBC 261 of 2006L

BETWEEN:

RANJIT SINGH
father’s name Prittam Singh formerly of Lautoka, Fiji
but now residing in Toronto, Canada, Accountant
PLAINTIFF

AND:

PYARA SINGH
father’s name Prittam Singh of Lautoka,
Company Director
DEFENDANT

Before: Master A. Tuilevuka

Counsel: Messrs Iqbal Khan & Associates for the Plaintiff
Messrs Gordon & Company for the Defendant

Date of Ruling: 15th April 2010.

RULING

INTRODUCTION

(1) The defendant, by summons dated 27th February 2009, seeks an order that this action be struck out with indemnity costs. Alternatively, he seeks an order pursuant to Order 23 of the High Court Rules that the plaintiff do give up security for costs on the ground that the plaintiff is ordinarily resident in Canada – and failing that, that this action be struck out with costs. Also, the defendant seeks an Order that the plaintiff do give further and better particulars and inspection of documents referred to in his statement of claim failing which this action be struck out with costs to the defendant.

(2) The striking out application is made on the ground that the statement of claim:

(i) discloses no reasonable cause of action;

(ii) is scandalous frivolous or vexatious;

(iii) is prejudicial duplicitous, embarrassing or delaying the fair trial of the action and

(iv) is an abuse of process.

(3) The affidavit of Mr. Pyara Singh sworn on the 24th day of February, 2009 and filed on the 27th day of February, 2009 is filed herein support of the application.

FACTS AS PLEADED

(4) The plaintiff resides in Canada. The defendant is his brother. At some point, the plaintiff granted a General Power of Attorney to the defendant. It appears that, by virtue of that General Power of Attorney, the defendant was able to execute the sale of a piece of residential property which the plaintiff alleges was registered under the his (plaintiffs) name. That property is situated at Savala Street, Lautoka. It is alleged that the property was sold in July 2007 for $83,460-00. It is presumed from the lack of any allegation of fraud and from the general tone of the pleadings that the plaintiff had instructed the defendant to sell the property.

(5) The claim appears to be premised on an allegation that the defendant has since not paid to the plaintiff anything at all out of the proceeds of sale to the plaintiff despite repeated requests from the plaintiff.

(6) The statement of claim then goes on to plead that on the 2nd of July 2001, the defendant executed a "letter of agreement’" in favour of the plaintiff for the sum of $138,501.13 with $13.00 per centum per annum calculated from July 1997 to 2nd July, 2001. A year later, the defendant "executed an agreement admitting that he owes the plaintiff the sum of $156,508.39 which included interest of $13.00 per centum from 2nd July 2001 calculated on the sum of $138,501.13".

(7) The plaintiff then pleads that the defendant refuses to pay up despite requests by the plaintiff. It is claimed that, at the time of filing of the Writ, the defendant owes the plaintiff the sum of $229,865.80.

(8) The plaintiff claims breach of trust as donee. That suggests a cause of action based on an allegation of breach of trust by virtue of the defendants position of trust as Attorney.

(9) The basic factual matrix presented in the statement of claim may support an alternative cause of action based on the defendants’ alleged acknowledgement of the debt (subject to any consideration of the Limitation Act of course).

DEFENDANT’S AFFIDAVIT

(10) The defendant says this action has been before the Court since July 2006. The statement of claim does not particularize the ‘residential property" in question nor the ‘General Power of Attorney’ nor the conveyance details of the sale that the defendant executed. These details he says are being withheld by the plaintiff despite a written request in March 2007 and without them, he (the defendant) will be prejudiced in his defense of this action.

(11) He seeks an order that the plaintiff forthwith disclose to him the documents and details of the ‘residential property’, "General Power of Attorney" and conveyance documents and if the plaintiff fails to disclose these documents, this action should be struck out with costs in my favour.

(12) The defendant says that the bundle of documents filed by the plaintiff on 6th March 2008 discovers both Agreements alleged in the statement of claim. However, the first of those documents is executed by "two persons upon the stamp of "Lautoka General Transport Co. Ltd". Also, he points out that the document does not say who the amounts are owed to, let alone, do they mention the plaintiffs name. The second of those documents he says is written under the letterhead of Lautoka General Transport Co. Ltd.

(13) The defendant then appears to suggest that the plaintiffs cause of action, based on the documents discovered by him by the plaintiff, is against Lautoka General Transport Co. Ltd rather than against the defendant personally. The defendant also highlights in his affidavit that the plaintiff has filed a similar action against him and Lautoka General Transport Co. Ltd in Lautoka High Court HBC 260 of 2006 L. He says that this action against him personally is a duplicity of civil action 260 of 2006 L.

(14) He also deposes that the plaintiff lives in Canada and is not ordinarily resident in Fiji and has not given up security for costs.

(15) He seeks $10,000.00 (Ten Thousand Dollars) as security for costs.

AFFIDAVIT OF JANARDAN NAIDU

(16) The plaintiff has filed the affidavit of Janardan Naidu sworn on the 6th day of October, 2009 to oppose the orders sought. Naidu is the Chief Litigation Clerk at Iqbal Khan & Associates, the plaintiffs lawyers. A copy of the plaintiffs authority is annexed and marked "A" in Naidu’s Affidavit. Naidu deposes that the plaintiff trusted the defendant and had given the latter a General Power of Attorney and all his property documents. He then appears to suggest that as all these documents are in the defendant’s custody, the plaintiff does not have to discover them to the defendant.

(17) Naidu then deposes that the document annexed in the account of monies owed by the defendant to the plaintiff was prepared by the defendant and the signatures on the bottom are of the defendant and his brother MALKIT SINGH and the stamp at Lautoka General Transport was attested to by the defendant himself. He adds that the defendant was the plaintiffs Attorney and not Lautoka General Transport Company and if the defendant had attested his Company Stamp on the account prepared by him, that is the defendant’s own fault.

(18) Naidu explains that Civil Action No. 260 of 2006/L relates to the plaintiffs shares from Lautoka General Transport Company Limited. Civil Action No. 262 of 2006 is against Pyara Singh only for not paying monies he received from selling the plaintiffs properties as his lawful attorney.

(19) That as to Paragraph 15 of the said Affidavit the plaintiff says that he resides in Canada but frequently visits Fiji and also his properties sold by the defendant are in Fiji but is prepared to give security for costs if required by Court.

CONSIDERATION

Striking Out

(20) The only ground for striking out worth considering is whether or not the statement of claim discloses a reasonable cause of action. Order 18 Rule 18(1) of the High Court Rules provides as follows:-

"The Court may at any stage of the proceedings order to be struck out or amended any pleading of the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

(a) It discloses no reasonable cause of action or defence, as the case may be

(21) The jurisdiction to strike out is sparingly exercised and only in clear cases "where the case [is] so clearly untenable that it cannot possibly succeed" (Takaro Properties Ltd –v- Rowling [1978] 2 NZLR 314 at 317). In dealing with an application to strike out a claim, the Court will assume as factually true all the allegations in the statement of claim. If the facts as pleaded do raise a legal issue, then the courts will not strike out a pleading.

(22) In my view, the facts as pleaded in the statement of claim discloses a reasonable cause of action. Admittedly, there is a lot of room to improve the statement of claim, and I would urge the defendant to seek leave to amend the statement of claim by pleading the particulars that the defendant requires. But this is no reason to strike out the claim at this stage. The law requires me to take as accepted all that is pleaded in the claim.

Security for Costs

The plaintiff is prepared to pay security for costs and accordingly, I order that he deposits into Court the sum of $10,000-00 as prayed by the 15th day of June 2010. If the plaintiff fails to pay the said sum by the said date, I will strike out his claim with indemnity costs to the defendant.

Further & Better Particulars

(24) I note that the statement of defence filed by the defendant is but a blanket denial of all the allegations. The defendant alleges that he is not able to plead properly because of the lack of particulars in the claim. It would be desirable to make such an order for further and better particulars now against the plaintiff – if anything - to enable the defendant to plead to specific issues rather than simply raise a bare denial which will greatly assist the Court. I would think that the copies of the Title to the property, the Power of Attorney, the transfer documents – would be readily available at the Office of the Registrar of Titles upon a proper search. The plaintiff should simply instruct his lawyers (in case they do not know this) to search for these documents. There is no reason why the plaintiff cannot provide these documents.

(25) I order that the plaintiff do give further and better particulars and inspection of the following documents by the 15th day of June 2010, failing which this action be struck out with costs to the defendant.

(i) Ttile to Savala Place property

(ii) All conveyancing documents

(iii) Power of Attorney

Costs in the cause. Case adjourned to 16th day of June 2010 for mention.

Anare Tuilevuka
MASTER

At Lautoka
15th April 2010.