Singh v Housing Authority [2011] FJHC 656; HBC367.2007 (14 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. 367 of 2007

BETWEEN :

JAGJIT SINGH
(fathers's name Bhagat Singh) as Attorney for Ranjit Singh and Basant Kuar as Executors and Trustees of the Estate of Bhagat Singh of 4 miles Nasinu in Fiji, Lecturer.
PLAINTIFF

AND :

HOUSING AUTHORITY
of Valelevu, Nasinu in Fiji.
FIRST DEFENDANT

AND :

MINISTRY OF URBAN DEVELOPMENT, HOUSING AND ENVIRONMENT
of Suva in Fiji.
SECOND DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Plaintiff In Person

Mr. V. Maharaj for the 1st Defendant
Ms. Sami R. for the 2nd Defendant

Date of Hearing: 13th September, 2011

Date of Ruling: 14th October, 2011

RULING

1. INTRODUCTION
   

1. Plaintiff has filed this action in person, for the alleged encroachment by the 1st Defendant to his land. Though the action was instituted by way of originating summons the action was converted to a Writ Action in 2009. The statement of claim filed by the Plaintiff only mentions the 2nd Defendant's name as the ministry under which the 1st Defendant functions. 1st Defendant is an independent legal person created by a statue and could sue and be sued in its name alone, without the ministry under which it operates being added as a party so there should be a good reason for addition of 2nd Defendant and that should be disclosed in Statement of Claim. The 2nd Defendant has filed this summons to strike out 2nd Defendant from this action in terms of Order 18 rule 18 (1) (a) since there is no disclosure of reasonable cause of action.
   

2. FACTS
   

2. The Plaintiff filed this action by way of an originating summons which was converted in to an action by way of a writ of summons in 2009 and the said writ of summons was filed on the record on 11th August, 2009. The 2nd Defendant did not realize that this action is a writ action, until at the hearing of this application, but parties were not misled or prejudiced and the merits of this application was argued by all parties.
   
3. The Plaintiff claims encroachment of 1st Defendant to his land and claims general as well as special damages. 1st Defendant is a statutory body created by statue and has a distinct legal personality.
   
4. The alleged encroachment is done by the 1st Defendant and only in paragraphs 2 and 14 makes any reference to the 2nd Defendant. Those paragraphs are quoted below
   

'[4] The Second Defendant is the relevant ministry under whom the First Defendant operates and to whom it is answerable and it is liable either directly or indirectly for the acts and or omissions or actions howsoever of the first Defendant.'

5. It is an admitted fact that the 1st Defendant comes under the 2nd Defendant ministry, but merely because 1st Defendant comes under a ministry that ministry cannot be added to this action unless there is a legal basis for addition of them. Under a ministry there will be many more natural as well as legal personalities and the liability and reason for addition should be explained and the involvement of theme in the alleged cause of action should be explained or described. In other words the liability of the ministry should be specifically pleaded in the statement of claim for them to put forward a defence. If not a party would be before the court, not knowing their status and alleged involvement, merely because they are the ministry that 1st Defendant's subject is allocated. A ministry can be liable in certain instances, but clearly their involvement has to be pleaded for them to file a proper defence and the Plaintiff cannot add a party without explaining the cause of action against the said party. If that is allowed a plaintiff can add a party without knowing the involvement properly, and can use the proceedings to engage in 'fishing expedition' which should not be encouraged.
   
6. Allocation of subjects to ministries cannot per se would make them liable for any actions done by a statutory authority like 1st Defendant as it is an independent legal person. Though the 1st Defendant comes under the subject of the 2nd Defendant's ministry it cannot be held liable for all the works without the proof of the cause of action against the 2nd Defendant. The paragraph 4 does not disclose any reasonable cause of action against the 2nd Defendant and clearly it cannot be the reason for addition of 2nd Defendant in the absence of any averment attributing wrongdoing or liability on the part of the 2nd Defendant.
   
7. Paragraph 14, the only other paragraph that refers to the 2nd Defendant sates as follows
   

'[14] The Second Defendant responded by way of communication in writing to the Plaintiff acknowledging the survey findings suggested that there was encroachment and advising the Plaintiff to take the matter further with the First Defendant'

8. Clearly the said letter cannot impute any liability on the 2nd Defendant as it was a communication that was addressed to the plaintiff which was done in good faith since the subject of the Ministry concerned, is the ministry under which the 1st Defendant operates. According to the statement of claim what the letter has indicated was to direct the Plaintiff to the 1st Defendant, and even now 2nd Defendant is taking asking the Plaintiff to do the same thing and the 2nd Defendant has not changed its position. What the Plaintiff has to do is to demonstrate the 2nd Defendant's involvement fully in the statement of claim before adding them as a party to the action as admittedly the encroachment was from the 1st Defendant, who is an independent legal personality.
   
9. The 1st Defendant is a legal personality and can sue and be sued under its name. So, the actions of the 2nd Defendant in involving the said encroachment has to be explained in the statement of claim. It is clear merely because the 1st Defendant is under the 2nd Defendant's ministry
   
10. Imtiaz v Rizvi [2011] FJHC 108; HBC194.2009L (3 February 2011) Justice Inoke stated as follows as regards to the applicability of the law.
    

"[6] The law is well settled. I refer to the Court of Appeal in National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 July 2000):

The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention. It follows that an application of this kind must be determined on the pleadings as they appear before the court

[7] See also Tawake v Barton Ltd [2010] FJHC 14; HBC231.2008 (28 January 2010), a decision in which Master Tuilevuka summarised the law in this area and which I respectfully adopt:

[33] The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only 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 be so clearly untenable that they can not 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.

[34] His Lordship Mr. Justice Kirby in Len Lindon –v – The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-

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 ...
   

100. 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 ...
   

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." (emphasis is added)

11. It is clear that the strike out of a party from an action is done rarely, nevertheless it is necessary and important provision which allows a party who was joined to an action without any clear basis and if there is no cause of action revealed in the statement of claim to seek discontinuance of proceeding against them. In this case there is no cause of action disclosed against the 2nd Defendant even if the allegation against 2nd Defendant in the statement of claim is proved and, the claim against 2nd Defendant should be struck off.
    

100. CONCLUSION

12. The statement of claim does not disclose a reasonable cause of action against the 2nd Defendant, and the reference in the statement of claim that the 1st Defendant is a statutory body under which the 2nd Defendant's scope comes is clearly not a sufficient reason for addition of them to this action. So the application of the 2nd Defendant for strike out of claim against this case for non-disclosure of reasonable cause of action against them is granted, but no cost is awarded.
    

4. THE FINAL ORDER
   

1. The claim against second Defendant is struck out
2. No cost.
   

Dated at Suva this 14th day of October, 2011.

.................................................
Mr. Deepthi Amaratunga
Master of the High Court
Suva