Singh v Chandra & Associates [2011] FJHC 42; Civil Action 384.2009 (8 February 2011)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 384 of 2009

BETWEEN:

PRAKASH SINGH
(father’s name Dharam Singh) and

DEO RAJ
(father’s name Dwarka Prasad)

Plaintiffs

AND:

MAHARAJ CHANDRA & ASSOCIATES

1st Defendant

EPHRAIM GROUP PROPRIETORY LIMITED
2nd Defendant

Before: Master Anare Tuilevuka
Counsels: Plaintiff: In Person
1st Defendant: Mr. Awash Prasad
Date of Ruling: 08th of February 2011

RULING

[1]. Before me is an application by the 1st defendants filed on 4 June 2010 under Order 18 Rule 18 of the High Court Rules 1988 to strike out the plaintiff’s statement of claim filed on 17 November 2009 on the following grounds:

• (a) discloses no reasonable cause of action; or
  
• (b) is frivolous and/or vexatious; or
  
• (c) is otherwise an abuse of the process of the Court.
  

[2]. The plaintiff is the registered proprietor of CT35726 Lot 2 on Plan DP5108 (“property”). The 1st defendant is a firm of solicitors which acted for the second defendant and a Mr Anand Prasad, a director of the second defendant.

[3]. Apparently – the plaintiff had entered into sale and purchase agreement dated 23 August 2006 (“Agreement”) of the property. I have not seen a copy of that Agreement. There are enough hints in the submissions filed by both parties that the agreement was with Mr. Anand – although in what capacity, I do not know. It is suggested by the defendants though that the 2nd defendant is the nominee of Mr Anand to purchase the property.

[4]. Anyhow, Mr. Anand at some stage began to suspect that the plaintiff was having a change of heart and would renege on the Agreement. That prompted Mr. Anand to lodge a caveat against the title.

[5]. The plaintiff responded by having the caveat removed – presumably – under section 110 of the Land Transfer Act. Then a second caveat was lodged – this time – in the 2nd defendant’s name by the 1st defendant.

[6]. This second caveat now stands in the way of some major development that the plaintiff has earmarked for the land. And so - on 17th November 2009, the plaintiff, in person, filed a writ of summons against both defendants.

[7]. Let me just state here that the statement of claim does not comply with the rules of pleadings in that it pleads both facts and evidence throughout. I shall not hold it against the plaintiff seeing that he has drafted and filed it in person and has acted in person throughout this case.

[8]. In essence, the claim against the 1st defendant is for loss and damage that the plaintiff has suffered as a result of the 1st defendant’s act in registering the second caveat over the property. The plaintiff says that he had requested the 1st plaintiff to remove the second caveat but to no avail. The plaintiff’s cause of action against the 1st defendant appears to be that the 1st defendant owes a duty of care to the plaintiff to remove the caveat when being asked to do so.

[9]. The issues to be determined are:

• (a) whether the 1st defendant owes a duty of care to the plaintiff?
  
• (b) depending on the answer to (a) above, should this matter be struck out?
  

[10]. The jurisdiction to strike out proceedings under Order 18 Rule 18 is exercised only in exceptional cases where, on the pleaded facts, the plaintiff could not succeed as a matter of law – or - where the cause of action must be so clearly untenable that they cannot possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney -v- Prince Gardner [1998] 1 NZLR 262 at 267. It is not exercised where legal questions of importance are raised. The applicable principles are so succinctly summarized by His Lordship Mr. Justice Kirby in Len Lindon -v- The Commonwealth of Australia (No. 2) S. 96/005^[1].

[11]. In my view, the claim against the plaintiff is clearly untenable and cannot possibly succeed. In arriving at this conclusion, I am persuaded by Mr. Prasad's submissions.

[12]. Mr. Prasad submits that the second defendant has a right to protect its interest and is entitled to utilise the caveat process accordingly. He submits that the first defendant was engaged by the second defendant as solicitors. The first defendant owes a duty of care to the second defendant which is its client. It does not owe a duty of care to the plaintiff. The plaintiff, when asked whether or not he had ever written to the Registrar of Titles to remove the caveat said that he had not.

[13]. The whole point behind a caveat is to provide security for those interests which it seeks to protect. Whether or not those interests are sustainable under the caveat – cannot be determined on the evidence before me.

[14]. Although section 112 of the Land Transfer Act (Cap 112) forbids the registration of a second caveat by a person whose first caveat on the same land had earlier been removed under section 109 or section 110, this section does not apply in this case as the 2nd defendant is a totally different legal personality from Mr. Anand.

[15]. Mr. Prasad discusses several authorities in paragraphs 5.1 to 5.9 of his submissions which reiterate the position that the first defendant, as solicitor for the second defendant, owes no duty of care to the plaintiff who is not their client (see Charan v Narayan [1993] FJHC 45; Ross v Caunters (1980) ICH 297; Young v Borzoni et al, 2007 BCCA 16; Baypark Investments INC v Royal Bank of Canada, 2002).

[16]. The cases that Mr. Prasad relies on collectively espouse the following principles:

• (a) a solicitor does not owe a duty of care to non-clients.
  
• (b) his duty is only to his client to do for his client all that he properly can.
  
• (c) no such duty is owed to those who are not his clients as he is no guardian of their interests.
  
• (d) the above is so – even if in serving his client's interests, the solicitor is hostile and injurious to the interests of his client's adversaries.
  

[17]. Mr. Prasad then cites the following from Charan v Narayan at page 20:

"The status of the second Defendants as officers of the court does not create a duty of care in tort to an opposing party in litigation."

And at page 21:

"If the First Defendants do not owe a duty of care to the Plaintiff in the conduct of their litigation then such a duty of care could hardly be said to devolve upon the solicitors acting within the ambit of the their instructions for and on behalf of the First Defendants."

[18]. To reiterate, I fully endorse Mr. Prasad's submissions and accordingly, I strike out the claim against the 1st defendant only with costs which I summarily assess at $550-00 to be paid in 21 days.

Anare Tuilevuka
MASTER

At Suva
08th of February 2011

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^[1] 1. it is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided.
2. to secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ....or is advancing a claim that is clearly frivolous or vexatious...
3. an opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination......Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4. summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer....... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5. if, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading ......A question has arisen as to whether O 26 r 18 applies to part only of a pleading
6. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.