Rasheed v Mal [2010] FJHC 36; Civil Action 47 of 2009 (8 February 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Labasa Civil Action No: 47/09

IN THE MATTER of Section 169 of the Land Transfer Act.

BETWEEN:

SHEIK ABDUL RASHEED
f/n Mastan Sahib of 43 Richfield Crescent, Westgate Massey, Auckland, New Zealand.
PLAINTIFF

AND:

SURUJ MAL
f/n unknown to the Plaintiff of Nacekoro, Savusavu.
DEFENDANT

Before: Master ROBINSON. H.
Counsel: Mr. KOHLI for HAROON ALI SHAH for the Plaintiff
Mr. SEN for the Defendant

Date of Decision: 8 February 2010.

RULING

(1). This is an application for vacant possession issued by the Plaintiff pursuant to section 169 of the Land Transfer Act, Cap. 131. However before the substantive matter was to be heard the Defendants Counsel raised a preliminary matter as to the form of the application. His objection was that the Summons could not be entertained in the ‘expedited’ form in which it was issued and served.

(2). Both parties were then invited to file submissions on that point alone. The Defendant’s submission was filed on the 9 December and the Plaintiffs on the 26 January.
SUBMISSIONS

(3). The Defendants raises the two issues, the first of which is whether the Plaintiff can issue proceedings through the form in which the application was made, that is, can the Plaintiff commence proceedings through an "originating summons’.

(4). The second issue is that the summons issued did not contain all the information required under section 170 of the Land Transfer Act or comply with the provisions of the Act. The submission was not very useful at all in that it did not give any authority on which to base his objection. More specifically the defendant did not refer to any rules or procedure which prevented the Plaintiff from initiating the action via an "expedited" form of an originating summons.

(5). The Plaintiffs submission states that the objection by the Defendant is frivolous and is a ploy to prolong the matter. That the Summons is self explanatory, contains all the necessary details and was served in time. It further refers to Order 113 of the High Court Rules as self explanatory. As the application was made pursuant to s169 of the Land Transfer Act, the reference to Order 113 was totally irrelevant.

(6). Both submissions as a whole, to put it mildly, were in my view, well below that expected from both Counsels in view of fundamental nature of the question. In any event, the issue to be determined I believe is whether the application for vacant possession under section 169 can be made in form of the originating summons as issued.

ORIGINATING SUMMONS

(7). The question raised in this matter is not new, it has been raised within the English Legal system from the time in which standardisation of legal procedure became an avenue for legal redress. It is as fundamental to the finding of justice as the remedy itself. One of the first case in which this question arose was Re W. HOLLOWAY (a Solicitor). Ex Parte PALLISTER [1894] UKLawRpKQB 76; (1894) 2 QB 163, a matter requesting a solicitor to give up possession of certain documents in his possession and which was initiated by an "originating summons". Here Lord Justice Kay classified summons under three heads and they are:-

1. Summons issued in a pending action. No one could dream of calling these "originating".

2. Summons to originate proceedings in the nature of an action which may be used in certain cases instead of a writ. No one could call these summons anything but "originating".

3. a summons under either the statutory or the general jurisdiction of the Court...It is not issued in any pending proceedings and it does not commence an action".(ibid at 169)

The Master of the Rolls Lord Esher said in the same proceedings that if there was any discrepancies in the rules they arise from the infirmity of human language. And further stated that:-

"It would have been better to say that an ‘originating summons’ is that mode of commencing an action by summons which is now allowed instead of commencing it by writ. That is what is really meant; no one who reads the rules with a fair mind and knowledge of the previous practice could doubt that that was the intention. ...It was found that the old mode of commencing a suit in the Court of Chancery by a bill gave many opportunities for delay and expense, and in order to avoid this delay and expense the system was devised of summons originating proceedings in chambers, which in the course of time came to be called an "originating summons". This procedure was invented for the purpose of quickly determining simple point’ (ibid. at 166)

THE LAW

(8). Order 7 of the High Court Rules determine our mode of initiating proceedings via an originating summons. Order 7 rule 2 sub-rule 1 in particular describes the form of the summons and states:-

2. (1) "Every originating summons (other than an ex-parte summons) shall be in Form No. 3 or if authorised or required, in Form No. 4 in Appendix A, and every ex-parte originating summons shall be in Form No. 5 in Appendix A.

(9). It has been argued that an expedited originating summons cannot be used unless authorised or required and that only actions initiated under Order 17 rule 3(3) or Order 80 rule 9(3) are those which clearly require the use of the expedited form. This is indeed true of expedited originating summons. The question therefore is, is the summons we have before us an expedited originating summons.

(10). The word ‘expedited’ is defined in the Macquarie Dictionary as " to speed up the progress of; hasten; to accomplish promptly..." The Plaintiffs Summons was issued on the 2 June 2009 and was to be put before the Master in Chambers on the 15 September 2009. That is, a period of three months after issue. There is certainly no desire by the Plaintiff to speed up the action looking at the time frame given in the summons, so in a very practical sense this is not an expedited action. In fact one could venture to say that had the phrase "Expedited Form" not appeared in the Summons, this summons would have proceeded normally as a section 169 application. If one is to compare the way in which an expedited form is used in relation to Order 17 or Order 80 summons the distinction becomes clearer, in order 17 the application is in the form of an inter pleader whose purpose is to protect the goods or chattels, in order 80 it is designed to speed up the settlement of monies due to a disabled person requesting the Court approve to settle matters on his/her behalf. Time is of the essence in both this type of applications. Further these applications are almost procedural and are expedient to the ends of justice within the context in which it arose.

(11). The other question that needs to be determined is whether the Summons on its current form is so fundamentally flawed such that it could not be cured. In this regard the application of Order 2 must be considered. The white book (Vol. 1 1999 version paragraph. 7/7/4) states that a failure to complete a form in accordance with the rules does not of itself renders the proceedings void but that it can be dealt with under Order 2. A distinction is drawn here between non compliance with procedural rules which render proceedings a nullity and a non compliance which renders a proceeding irregular. The defendant raised the argument that it is a statutory requirement that the summons should contain within it a note that the summons should be served within sixteen (16) clear days before the hearing. Section 170 of the Land Transfer Act does not actually say that. The section says that the Summons shall ‘contain’ a description of the land and shall ‘require’ the person summoned to appear at the court on a day not earlier than sixteen days after the service of the summons. If the sections states that the summons should contain the description of the land than the description of the land is a fundamental requirement that should be stated in the body of the summons. This is different from the requirement that it be served not earlier than sixteen clear days. This is also a fundamental requirement but is a requirement for the service of the summons and does not have to be necessarily contained within the body of the summons. It has been the practice to include the service requirement within body of the summons and I am in agreement that this good practice should continue. The other side of the above argument is found in the case of The Estate of George Fong Toy –v- Sita Ram HCA No: 858 1987). In this matter the sixteen days requirement under section 170 was contained in the Summons but there was short service. The short service was cured after the Defendant appeared in Court on more than four (4) occasions covering a period of over three months. As no decision was made on the first call his right was not affected. In our case the Defendant’s right has also not been affected by the non inclusion of the sixteen days notice on the summons.

(12). In our case the summons was served on the 4 August and the hearing date was 15 September more than ample time for the Defendant to respond to the Summons. Further the summons describes the land sufficiently to comply with section 170 of the Land Transfer Act. It complies with all the fundamental requirements of a s169 application.

(13). The discretion under Order 2 rule 1 has been applied liberally so far as is reasonable and proper to prevent injustice being caused to one party by mindless adherence to technicalities in the rules of procedure. However the power to cure cannot be used to remedy a failure of a fundamental kind.

(14). For the above reasons I am satisfied that the Originating Summons as filed is not irregular to render the proceedings void and that notwithstanding the phrase ‘expedited form’ on the summons, the summons for all intents and purposes was not expedited. It further complies with the fundamental requirement of a section 169 application and therefore it should be allowed.

In view of the above I therefore make the following Orders:-

1. The Defendant to file and serve an affidavit in opposition within 14 days of this date, that is by the 22 February;

2. The Plaintiff is given liberty to reply to the affidavit in opposition within seven (7) thereafter;

3. This matter is further adjourned to the 2nd March 2010 for hearing on the Summons.

4. No order as to costs.

H A ROBINSON
MASTER