Nand v Reserve Bank of Fiji [2012] FJHC 1329; HBC189.2011 (12 September 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No HBC 189 of 2011

BETWEEN:

AMBIKA NAND Mount Roskil, Auckland,
New Zealand, Businessman.
Plaintiff

AND:

THE RESERVE BANK OF FIJI
First Defendant

AND:

THE REGISTRAR OF TITLES
Second Defendant

Appearances: V.M. Mishra for the Plaintiff
J. Lewaravu – Registrar of Titles for 2nd Defendant

ORDER

1. The 1st Defendant made an application to strike out under Order 18 Rule 18 of the High Court Rules which application carried the date seal of 20th January 2012 though dated 23 January 2012 by an obvious clerical error which the parties agreed to amend to read as 20th January 2012, and so amended by Court.
   
2. There are two affidavits in support of the striking out application, of E. Msaitabua and of Usenia Losalini on behalf of the 1st and 2nd Defendants respectively. Both affidavits refer to a judgment of Datt J which is alleged by both 1st and 2nd Defendants to have decided part of the relief sought by the Plaintiff (res judicata). The Masitabua affidavit has a series of correspondence annexed as well.
   
3. It should be noted that Order 18 Rule 18 is available, especially when considering whether to strike out under rule 18(1)(a), only where the Court can arrive at a decision without the admission of evidence as set out in rule 18(2).
   
4. When the Court is called upon to determine the issue of res judicata it is required to admit by way of evidence the previous judgment as well as even the evidence on record as well as the judges notes and carefully examine whether the causes of action coincide.(see- Halsbury's Laws of England 4th Ed. Vol. 16 para 974.).
   
5. It is the view of this Court that the evidence of the Plaintiff too must be had to determine the particular cause of action of the Plaintiff before the Court could proceed to determine whether that same cause of action had been previously decided and that too to bind the Plaintiff.
   
6. Such an exercise is not possible under Order 18 Rule 18 in summary proceedings. It is only in plain and obvious cases that recourse should be had to Order 18 Rule 18 as even submitted on behalf of the 1st Defendant citing Calanchini J in NBF Asset Mangement Bank v. Taveuni Estated Limited & Ors. Suva High Court Action 543 of 2004, at paragraph 3.2 of its written submissions in support of the striking out application.
   
7. Therefore the 1st Defendants application for striking out the Plaintiffs claim is dismissed.
   
8. This Court is not inclined to award costs against this application to strike out as the Plaintiff too has benefited by the material presented by the Defendants of which according to his own affidavit he asserts to be unaware of.
   
9. As such 1st Defendants application to strike out Plaintiffs claim dismissed without costs.
   

.............................................
Hon. Justice Yohan Ian Fernando.
JUDGE.

High Court of Fiji
At Lautoka,
12TH September 2012.