Sing v Sing [2010] FJHC 487; HBC004.2010 (2 November 2010)

IN THE HIGH COURT OF FIJI AT LAUTOKA
CIVIL JURISDICTION

Civil Case No. HBC 004 OF 2010

BETWEEN:

ONLINE MAYA SING
daughter of Shiu Prasad John Lochan of 11 Valetia Street, Lautoka, Domestic Duties.
Plaintiff

AND:

SOHAN SINGH
son of Subran Singh of Lautoka, Businessman
Defendant

Before: Master Anare Tuilevuka

Counsels: Messrs H.A. Shah for the Plaintiff
Messrs Krishna & Co for the Defendant

Date of Hearing: 08th September, 2010
Date of Ruling: 2nd November 2010

RULING

1. Before me is the Defendant's Summons to strike out Writ of Summons and Statement of Claim filed on 08th of March 2010 and filed pursuant to Order 18 Rule 18(1)(a) of the High Court Rules seeking a order that the claim be Struck Out on the ground that it discloses no reasonable cause of action and seeking costs.

2. Order 18 Rule 18(1)(a) of the High Court Rules states as follows:

"18-(1)The Court may at any stage of the proceedings order to be struck out or amended any pleading or 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 and the case may be: or

3. No Affidavit has been filed of course, as this is not required for application under Order 18 Rule 18(1)(a).

4. The jurisdiction to strike our proceedings under Order 18 Rule 18 is only exercised in exceptional cases where on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must so clearly be untenable that they cannot possibly succeed.

5. In this case, the Statement of Claim pleads as follows:

1. The plaintiff and the defendant formerly husband and wife are now divorced and live separate lives.

2. The plaintiff and the defendant jointly own Crown Lease No. 33689 more particularly described as Allotment No. 17 Section 29, Lautoka having an area of 29.6 perches (hereinafter referred to as the said property)

3. The said property is not capable of Partition or further subdivision.

4. The plaintiff had on an earlier occasion offered to buy the defendant's share in the said property and the defendant had agreed to sell and now the defendant has resited from the said agreement.

5. The Parties are unable to manage the said property jointly.

WHEREOF THE PLAINTIFF CLAIMS:

(a) An Order that Crown Lease No. 33689 particularly described as Allotment No. 17 Section 29, of Lautoka be sold to the Highest bidder and the Net Proceeds of sale be distributed equally between the Plaintiff and the Defendant.

(b) The Defendant and all occupants within the said property do forthwith give vacant possession for the said property."

(c) The Plaintiff's solicitors to advertise and sell the said property to the Highest bidder.

(d) An Order that the Defendant do sign all papers necessary to effect registration of Transfer to the Buyer and in default thereof the Deputy Registrar, High Court, Lautoka to sign the necessary papers.

(e) An Order that the Defendant do pay costs of these proceedings and all incidental costs in respect of advertising and sale from his share of the Net Proceeds.

(f) Any other order that may seem just and equitable to this Honourable Court.

6. Mr. Krishna traversed each particular paragraph in the Statement of Claim and for each paragraph – he opined that there is not a single a cause of action raised. He also submits that there is no allegation of a tort committed by the defendant against the plaintiff. Nor is there any allegation of a breach of contract, misrepresentation or any cause of action arising even out of the Property Law Act or the Land Transfer Act.

8. He submits that the plaintiff should have sought redress in the Family Court.

9. Mr. Shah concedes that the property in question is a matrimonial property. The plaintiff and the defendant are now separated and the plaintiff had once offered to buy out the defendant's half interest in the property. But the defendant is not interested. The Statement of Claim at paragraph 4 states:

"...the defendant had agreed to sell and now the defendant has resiled from the said agreement".

10. The nature of that alleged "agreement" is not spelt out. I do not know if the "agreement" was a written Sale and Purchase Agreement or just an oral agreement.

11. But even if there had been a written Agreement, the fact of the matter is that the house in question is a matrimonial property and as such, the proper course for the parties to take is to register the Agreement with the Family Court Registry which may or may not then formally adopt the Agreement after due inquiry and deliberation.

12. I must agree with Mr. Krishna that it is an abuse of process to institute writ-proceedings to settle and/or distribute a matrimonial property. The Family Court is the appropriate forum to deal with such. Accordingly – I strike out the claim and award nominal cost of $200-00 (two hundred dollars against the Plaintiff in favour of the Defendant to be paid in 14 days.

Anare Tuilevuka
Master

At Lautoka
02nd November 2010.