Khan v Land Transport Authority [2010] FJHC 37; HBC206.2009 (9 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 206 of 2009

BETWEEN:

MOHAMMED WARIS KHAN
son of Kazim Khan of Saru Back Road, Lautoka.
Plaintiff

AND:

LAND TRANSPORT AUTHORITY
a statutory body established by the Land Transport Act 1998.
Defendant

Before: Master A. Tuilevuka

Counsels: H.A Shah for the Plaintiff
Jeremaia N.L Savou for the Defendant

Date of Hearing: 29th January 2010
Date of Decision: 09th February 2010

RULING

BACKGROUND

1. The Plaintiff filed a Writ of Summons and Statement of Claim on the 10th of November 2009. He is the registered owner of vehicle E4008.

2. He alleges that on the 16th of September 2009, he presented his vehicle for inspection and issuance of Certificate of Roadworthiness at the LTA Office in Lautoka. He pleads that the LTA has refused to examine and to pass his vehicle.

3. Meanwhile, as the LTA had not filed a defence, the Plaintiff then filed a Summons on 14th January 2010 seeking :

(i) that there be Orders as per the plaintiffs prayer in the Statement of Claim dated the 5th day of November 2009.

(ii) an Order that there be assessment of general and punitive damages

4. The application is stated to be “made under the inherent jurisdiction of this Honorable Court”.

ORDERS SOUGHT BY THE PLAINTIFF

5. The prayers in the Statement of Claim are as follows:-

(i) an Order that the Defendant do forthwith issue the Plaintiff with a Certificate of road worthiness upon payment of the prescribed fees.

(ii) general damages for breach of and/or neglect and refusal to discharge its statutory duties.

(iii) exemplary or punitive damages

(iv) an Order that the Defendants do pay costs on a solicitor-client indemnity basis.

6. The Plaintiffs Summons seeks order in terms on the above prayers.

LTA’s SUMMONS TO STRIKE OUT

7. Meanwhile, on 27th January 2010, LTA filed a Summons to Strike Out under Order 18 Rule 18(1) on the grounds that the statement of claim:-

(i) discloses no reasonable cause of action.

(ii) is scandalous, frivolous and vexatious, and

(iii) is otherwise an abuse of process of the Court.

8. The Affidavit of Sikeli Lagilagi sworn on 27th January 2010 is filed herein support of the Summons.

9. Lagilagi deposes that the Plaintiff is

8. “...one of ninety two clients whose traffic offence records have been tampered/amended by some of the Defendants’ suspended employees without proper clearance or payment of the same.

9. ...due to the seriousness of the matter customers whom have been identified and call at the Defendants office, are informed by the Defendant that no transaction will be furthered until the Defendant has completed its investigations and is satisfied as to the results.

...the Defendant was informed of the same when he called at the Defendants office.

10. ..investigations into the matter have not been finalized and as such the restrictions still remain.

11. ...the Defendants are exercising discretion as provided for by its empowering legislation

12. ...the courts cannot compel the Defendant to perform its statutory duty as prayed by the Defendant in its Writ

13. ...the Plaintiff has not sought redress from any quasi judicial body which exists through the Land Transport Act 1998.

14. ...the mode of proceeding of the action should have been via Order 53 of the High Court rules

15. ...it is due to the above reasons that the Defendant has not filed its Statement of Defence

LAL -v- LAND TRANSPORT AUTHORITY [2009] FJHC 157

10. As a starting point, I cite the authority of Mr. Justice Inoke in Lal v Land Transport Authority [2009] FJHC 157; HBC213.1994 (31 July 2009).

11. In that case, the issue that he had to consider was: Does the Crown Proceedings Act and Order 77 rules 11 and 12 of the High Court Rules 1988 apply to the LTA thereby prohibiting the Plaintiff from executing its judgment against the LTA by garnishee proceedings?

[24] It must be conceded that the predecessor of the LTA was a “Government department or an officer of the Crown as such” and was therefore protected by subsection 4 of section 20 and could not have been subjected to Order 49 garnishee proceedings. Any process to satisfy a judgment against it would have been limited to that provided for in section 20(1) to 20(3) of the Crown Proceedings Act.

[25] I therefore asked Counsel to consider whether the incorporation of the LTA changed this position.

[26] Put simply, the matter boils down to interpretation of the Crown Proceedings Act to ascertain whether the LTA fell within the meanings of “the State” or “a Government department” or “an officer of the State as such” as used in the provisions of section 20 of the Act and whether the LTA is part of the State for the purpose of the enforcement provisions of the High Court Rules.

12. In deliberating on the issue, Inoke J first rejected the argument that the LTA like the FSC, is a separate legal and independent entity with its own existence and therefore the State Proceedings Act does not apply to it. Inoke J reached that conclusion after distinguishing the legislative framework within which the FSC is set up against that under which the LTA is set up.

“One must examine the provisions of the Land Transport Act 1998 to see if the LTA is an agent or servant of the State”

“In considering whether any subordinate body is entitled to Crown privileges, the question is not so much whether it is an emanation of the State but whether it is properly to be regarded as the servant or agent of the State: see Tamlin (supra) at p. 22 and the case authorities cited therein”.

The weakness in the Plaintiffs argument is that he looks at the transition from a Government department to a statutory corporation superficially by making the presumption that the change in legal personality, i.e. incorporation by statute, severs the connection between the LTA and the State. It is clear from Tamlin that one needs to look further, for example, into the functions that the LTA perform and its purpose and objectives.

13. Inoke J then examined various provisions of the Land Transport Authority Act to see whether they maintain a sufficient nexus between the Government and the LTA so much so that the latter might properly be called a servant or agent of the farmer. Below I reproduce the relevant extract from his Lordship’s Judgment:

[41] The preamble to the Act says:

"TO ESTABLISH THE LAND TRANSPORT AUTHORITY, TO REGULATE THE REGISTRATION AND USE OF VEHICLES, THE LICENSING OF DRIVERS OF VEHICLES AND THE ENFORCEMENT OF TRAFFIC LAWS AND TO PROVIDE FOR THE REPEAL OF THE TRAFFIC ACT AND FOR RELATED MATTERS"

[42] Section 6(2) provides:

"(2) The Authority shall be a body corporate with perpetual succession and a common seal and may enter into contracts and sue and be sued in its corporate name and shall have the power to acquire, hold and dispose of property both real and personal and generally do all such acts and things that are necessary for or incidental to the performance of its functions under this Act or any other written law."

[43] More relevantly, section 24(1) of the Act provides:

"(1) The funds and resources of the Authority shall consist of –

(a) Any property, investments, mortgages and debentures acquired by or vested in the Authority and any money earned or arising therefrom;

(b) The fees and fixed penalties paid to the Authority under this Act;

(c) The Road User Levy collected by the Authority, appropriated for Government.[2]

(d) Money borrowed by the Authority for the purpose of meeting any of its obligations or discharging any of its functions;

(e) All money appropriated by Parliament to the Authority;

(f) All other money or property which may in any manner become payable to or vested in the Authority in respect of any matter incidental to its powers and duties."

[44] Significantly, Subsection 2 of section 24, which provided that the Authority may invest moneys standing to its credit in accordance with the law for the time being in force in Fiji, was amended by the Land Transport Authority (Amendment) Promulgation 2008 (Promulgation 1 of 2009) as follows:

"(2) Any money received by or on behalf of the Authority under this Act or any other written law shall be received and paid by the Authority to the Consolidated Fund except the Road User Levy which shall be paid into the Infrastructure Rehabilitation and Development Fund Account by the Authority for the Ministry responsible for Transport."

[45] I have already referred to section 32 of the Act which vested all real and personal property belonging to the State and administered by the Department of Road Transport and all other property vested or belonging to the State for the use of the Department of Road Transport. By virtue of that section, all land vested in or belonging to the State, as the Minister responsible for land matters may from time to time determine, shall vest in the Authority without further assurance.

[46] Other provisions such section 24(1)(d) and section 27 show a nexus between its funds and the Consolidated Fund. It can only borrow amounts more than $500,000 if the Minister for Finance gives his approval in writing: section 25(2).

[47] It is obvious from an analysis of these provisions that the LTA is a servant or agent of the State. It is required by law to collect money for and on behalf of the State and pay it into the Consolidated Fund or to the Ministry responsible for transport. This is the same money that the Plaintiff here is attempting to garnishee. The Authority holds property previously belonging to the State. It is partly funded by the State. It is clearly a corporation nothing like the British Railway Commission.

[48] I therefore find that the LTA is a servant or agent of the State and is therefore, for the purposes of execution of a judgment against it, immune from garnishee proceedings by virtue of Order 77 Rules 11 and 12 of the High Court Rules 1988.

14. Based on the above authority, the provisions of the State Proceedings Act (Cap 24) will apply to the current proceedings.

CONSIDERATION OF THE ORDERS SOUGHT

15. The first Order that Mr. Shah seeks is that the Defendant do forthwith issue the Plaintiff with a Certificate of road worthiness upon payment of the prescribed fees.

16. Essentially, the order sought is to direct the LTA to issue a Certificate of Roadworthiness upon payment of the prescribed fees. There are many reasons why this order cannot be granted.

17. Firstly, if I was to grant that Order, I would be usurping the LTA in its statutory function and be declaring that the vehicle in question is roadworthy.

18. Secondly, because the relief sought is injunctive in nature, in so far as it seeks a Court Order to direct the LTA to perform its public duties, it would be caught by section 15 of the State Proceedings Act (Cap 24).

19. Thirdly, the order sought is akin to an interim mandatory injunction. I say ("interim") because it may be set aside later. I say "mandatory injunction" because its effect would be to direct LTA to issue certificate of roadworthiness. An interim mandatory injunction is a very exceptional form of relief (Canadian Pacific Railway v Gaud [1949] 2 KB 239 at 249. The case has to be unusually strong and clear before such a relief can be granted. This case is not ‘unusually strong" because of its procedural irregularity.

20. Fourthly, while an injunction may be used to compel a public authority to comply with its statutory duty – such injunctions are sought as a public law remedy by way of a mandamus rather than as a private law mandatory injunction remedy. The Plaintiff in this case should have come by way of an alternative process. A public law challenge disguised as a private law action is an abuse of process (as per Pathik J in Ram Prasad v A-G – Civil Appeal No. ABU 0058 of 1997, 27 August 1999).

21. Fifthly, in public law cases, the Courts are required to consider the wider public interest in considering the balance of convenience. Whether the reasons deposed to in the Affidavit of Lagilagi are sufficient to meet the relevant threshold is more appropriately addressed in a judicial review. Under 0.53 R 2, the Plaintiff could still have sought damages if it arises out of a relates to or is connected with the public law issued raised.

CONCLUSION

22. Because of the above reasons, I refuse to grant any of the orders sought by the Plaintiff against LTA and dismiss the claim. I strike out the claim.

23. No order as to costs.

Tuilevuka
MASTER

09th February 2010