Ravuiwasa v Telecom Fiji Ltd [2011] FJHC 585; HBC92.2011 (14 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 92 of 2011

BETWEEN:

MIKA RAVUIWASA
for and behalf of himself and behalf of the members of Mataqali Vusaratu of Tavuki, Taveuni.
PLAINTIFF

AND:

TELECOM FIJI LIMITEDa
company incorporation and having its registered office at Thomson Parade, Suva.
1ST DEFENDANT

AND:

DIGICEL FIJI LIMITED
a company incorporated and having its registered office at Victoria Parade, Suva..
2ND DEFENDANT

AND:

NATIVE LAND TRUST BOARD
a body established under the Native Lands Trust Act having its registered office at 431 Victoria Parade, Suva.
3RD DEFENDANT

BEFORE: Master Deepthi Amaratunga

COUNSELS : Nawaikula Esquire for the Plaintiff
In-House Counsel (Telecom Fiji Ltd) for the 1st Defendant
Siwatibau& Sloan for the 2nd Defendant
Legal Department (NLTB) for the 3rd Defendant

Date of Hearing: 1st August, 2011
Date of Ruling: 14th September, 2011

RULING

1. INTRODUCTION
   

1. The Plaintiff instituted this action against the Defendants seeking declaration that 1st and 2nd Defendants are trespassing over the Plaintiffs' land and for damages. Earlier, similar action was filed and the court has struck off the same for want of prosecution and the Plaintiff has filed this action against the same Defendants and Defendants are alleging abuse of process.
   

2. FACTS
   

2. The Plaintiff filed an action against the Defendants for a declaration and also for damages in respect of alleged trespassing.
   
3. The Plaintiff has filed a similar action against the same defendants seeking similar reliefs, but the same was struck out for want of prosecution.
   
4. In Shaw v Fiji Development Bank [2008] FJHC 362 Master Udit in striking out, held at paragraph 13 as follows:
   

"[13] It is trite law that where an action is struck out for want of prosecution either under the first or second limb (save for orders made in the absence of the party) of Brikett v James [1977] 2 All ER 801, the proper recourse is to file an appeal against such an order. The Court of Appeal (Ward P, Baker JA, Scott JA) in Trade Air Engineering (West) Limited v Laisa Taga & Ors Fiji Court of Appeal Civil Appeal No ABU 0062/2006 (9th March, 2007) at paragraph 13 of the judgment held-

'...although the judge rejected the appellant's submission he did give leave for them to apply for the action to be reinstated. Mr Hanif was unable to refer us to any provision in the Rules granting the Court power to re-instate an action struck out in these circumstances. Generally, parties only remedy following the striking out of its appeal or its action is appealed. Exception to this general rule such as Order 13, Rule 10, Order14 Rule 11, Order 24 rule 17, or Order 22, Rule 6 have no application to Order 25'

5. In the said decision of Master Udit at paragraph 14 stated that the plaintiff has not distinguished the said Court of Appeal decision from the facts of that case and the same can be said about the present case, where no effort was made to distinguish the facts from the above Fiji Court of Appeal case.
   
6. The application of the above two cases would clearly indicate that the present application for striking out for abuse of process should be granted with cost.
   

100. CONCLUSION
     

7. The application for striking out of the action is granted with cost of $750 each for 2nd and 3rd Defendants, assessed summarily '
   

Final Orders:

1. The action is struck off;
   
2. The Plaintiff is ordered to pay a cost of $750 for 2nd and 3rd Defendants.
   

Dated at Suva this 14th Day of September, 2011.

.............................................
Mr D. Amaratunga
Acting Master of the High Court
Suva