Vunimoli Sawmill Ltd v Sen [2012] FJHC 1343; HBC25.2004 (26 September 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 25 of 2004

BETWEEN:

VUNIMOLI SAWMILL LIMITED
[1st Plaintiff]

BASHIR KHAN
[2nd Plaintiff]

AND:

AMRIT SEN
[1st Defendant]

AND:

MOHAMMED YASIN
[2nd Defendants]

AND:

YU SHIN HO
[3rd Defendants]

Counsels : Mr. F. Vasarogo for the 1st and 2nd Plaintiffs
Mr. A. Sen for the 1st, 2nd & 3rd Defendants

Date of Ruling: 26th September, 2012

RULING

[1]. This is the plaintiffs' summons seeking an order to amend the Writ of Summons and the Statement of Claim.

[2]. In support of the summons, Bashir Khan, the second plaintiff filed an affidavit.

[3]. According to the affidavit, the plaintiffs had made a similar application before the Master of the High Court on 3.9.2008 which was dismissed by the Master.

[4]. The plaintiff further stated that the dismissal of the plaintiff's application by the Master was based on mere technicalities but not on merits.

[5]. Opposing the plaintiffs' summon, an affidavit was filed by Uday Pratap, a law clerk of the defendants' solicitors.

[6]. In the affidavit, it is deposed that if the plaintiff was aggrieved by the decision of the Master, then there are procedures which are set down in the High Court Rules, the plaintiffs do not have unfetted right to amend the pleadings or add defendants any time, no cogent reasons were given to justify an amendment and also the plaintiffs have abused the process of the court.

[7]. There is another affidavit sworn on 1.10.2008, filed by the defendants where it is deposed that the plaintiff in this action claims a sum of $16,500.00 being the value of a ten wheeler truck which was allegedly stolen by the 1st and 2nd defendants.

[8]. It is further stated that the plaintiff had instituted similar proceedings in Labasa Magistrate Court, being Civil Action No. 95 of 2002, the 1st plaintiff had called its witnesses, tendered documents but withdrew the action and the court ordered the action to be struck out and summarily assessed the cost in the sum of $200.00.

[9]. A copy of the Magistrate's Court Order dated 21.04.2004 is annexed to the affidavit.

[10]. Therefore, the deponent stated that the plaintiff cannot subsequently bring another action on the same facts as it is an abuse of process of court.

[11]. The plaintiff in his affidavit in reply has stated that he did commence with a Writ of Summons in the Magistrates Court at Labasa but had to withdraw as his claim had exceeded the jurisdiction of the Magistrate's Court. It is further stated that the plaintiff's action in the Magistrate's Court was withdrawn and struck out with cost.

[12]. Furthermore, the plaintiff stated that his case was not fully heard by the Magistrate, but dismissed since he withdrew the case. It is further stated that after withdrawing the matter in the Magistrate's Court, he had the right to commence it in the High Court.

[13]. Both parties have filed their respective submissions and I carefully considered those submissions.

[14]. The defendants submitted that the plaintiff's action had already been decided in the Magistrate's Court and the plaintiff cannot proceed any further in this matter i.e. the plaintiffs' action is res judicata.

[15]. The plaintiff submitted that the Action No. 95 of 2002 was never decided in the Magistrate's Court but was withdrawn to proceed in the High Court.

[16]. The annexure 'C' to the defendants' affidavit is a copy of the proceedings dated 21.04.2004 in case no. 95 of 2002 in the Magistrate's Court.

[17]. When the annexure 'C' is perused, it shows that the plaintiff had made an application to withdraw the action which was allowed by the Magistrate and accordingly the action was struck out.

[18]. However, the action no. 95 of 2002 was part- heard before the Magistrate at the time when the plaintiff moved to withdraw the same. It appears that two witnesses of the plaintiff had already been testified when the action was struck out.

[19]. The defendants submitted that pursuant to Order 32 of the Magistrate's Court Rules, an action cannot be dismissed or withdrawn after the proceedings have begun and evidence has been called and hearing conducted.

[20]. It was further submitted that pursuant to Order 12 Rule 1 of the Magistrate's Court Rules, it was mandatory for the plaintiff to issue a notice in writing of a discontinuance of the suit before the same could have been withdrawn.

[21]. Further, the defendants laid great stress on Henderson v. Henderson [1843] EngR 917; [1843-60] All E.R. 378 at 381. In that case, Wigram V.C stated as follows:

In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special case, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.

[22]. When the above passage is considered it appears that it is not strictly based on the doctrine of res-judicata but on a public policy that litigation should not drag on for over and that a defendant should not be oppressed by successive suits. In other words it expanded the principle of res judicata and its applicability.

[23]. The rule in Henderson v. Henderson was further expanded in Yat Tung Investment Co. Ltd v. Dao Heng Bank Ltd [1975] UKPC 6; [1975] AC 581 to include re-litigating matters which could have been raised in previous proceedings.

'The second question depends on the application of a doctrine of estoppels, namely res judicata. Their Lordships agree with the view expressed by Mc Mullin J that the true doctrine in its narrower sense cannot be discerned in the present series of actions, since there has not been, in the decision in no 969, any formal repudiation of the pleas raised by the appellant in no 534. Nor was Choi Kee, a party to no 534, a party to no 969. But there is a wider sense in which the doctrine may be applied to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.'

[24]. In Barrow v. Bankside Members Agency Ltd and Bankside Underiting Management Ltd, [1996] Vol. 1 Lloyd's Reports 278, the Henderson rules applied and it was held that the principal justification for the rule in Henderson v. Henderson was the desirability of avoiding a multiplicity of proceedings and of bringing a certain end to litigation.\

[25]. In that judgment Saville L.J. stated as follows:

'The rule remains that where a matter could and should have been litigated first time round, then in the absence of special circumstances a party will not be allowed to start subsequent proceedings raising this matter, because that would be an abuse of process of the court."

[26]. Having referred to Brisbane City Council v. Attorney General for Queensland [1979] A.C.411, Stuart Smith L.J. analysed the Henderson rule and its applicability in Talbot v. Berkshire County Council (C.A.) [1994] QB 290 at 296 as follows:

'The rule is thus in two parts. The first relates to those points which were actually decided by the court; this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second is not a true case of res judicata but rather is founded on the principle of public policy in preventing multiplicity of actions, it being in the public interest that there should be an end to litigation; the court will stay or strike out the subsequent action as an abuse of process';

[30]. Stuart Smith L.J further explained the objective of Henderson rule as follows:

.....It is a salutary rule. It avoids unnecessary pleadings involving expense to the parties and waste of court time which could be available to others; it prevent state claims being brought long after the event, which is the bane of this type of litigation; it enables the defendant to know the extent of his potential liability in respect of any event;......

[27]. It is with these legal principles in mind that I consider the legality of the present action.

[28]. The plaintiffs argued that the Action No. 95 of 2002 in Magistrate's Court Labasa was struck out well before it could be proceeded to judgment, and therefore the issue of res judicata or estopple does not arise.

[29]. However, when the proceedings dated 21.4.2002 is perused it reflects a different scenario.

[30]. On 21.4.2002, when the trial was taken up, two witnesses of plaintiffs had already been testified. When the 1st plaintiff was going to give evidence the defence had objected since the plaintiff had heard the evidence of the two previous witnesses.

[31]. Accordingly, the 1st plaintiff was not allowed to give evidence. Then the plaintiffs had asked the court to disregard the evidence of two witnesses who had already testified on oath, which was also disallowed by the Magistrate. Subsequently, the plaintiff moved to withdraw the action and it was struck out by the court.

[32]. The above events show that the plaintiffs' case was fully heard by the Magistrate though it was struck out on the plaintiff's application.

[33]. As it appears to this court the reason why the plaintiff withdrew his case in the Magistrate Court was that the evidence of the two witnesses before the Magistrate's Court would not have helped his action or he would have realised that he had failed to litigate all the issues.

[34]. As can be seen from his proposed amendment to the Statement of Claim, the plaintiff has increased the value of the 10 wheeler trucks which is the subject matter to the action to $16,500 for no apparent reason. He failed to explain as to why he increased the value of the truck to $ 16500.00 as opposed to $ 14500.00, the value he mentioned in case no 95 of 2002 in the magistrate court. At the time of commencement of proceedings in the Magistrate's Court, the plaintiff was well aware of the value of the truck which was the subject matter. Therefore, it is difficult to escape the conclusion that the plaintiff was negligent at the time of the Magistrate's Court action.

[35]. Had he known the value of the truck being more than 14500.00 he could have filed the action in the High Court at the very first instance.

[36]. Furthermore, in the High Court the plaintiff had added two more defendants to the action, namely, Viti Vanua Holdings Ltd and Taiwan Fiji Timber Ltd which he could have done in the Magistrate's Court, if not for want of diligence. There can be no doubt that the plaintiff's claim against them could have been brought at the time of the Magistrate's Court action. The reason for the issue not being taken earlier has also not been explained by the plaintiff.

[37]. Therefore, it is plain and obvious that the plaintiff had increased the value of the truck in order to justify the institution of the proceedings in the High Court and also with the intention to add two more defendants whom he had failed to add in the Magistrate's Court.

[38]. The above facts when considered in toto, clearly leads to an inevitable conclusion that the plaintiff has abused the process in order to rectify errors committed in the Magistrate's Court which in my view should not be allowed in light of the Henderson rules.

[39]. It must be emphasised that court system is designed to grant relief and administer justice and therefore should not and could not be allowed to use its machinery to oppress the litigants by filing frivolous and vexatious actions. One of the main reasons for the rule in Henderson v. Henderson is the prevention of risk that different courts seized of different actions dealing with the same subject matter and raising the same issues leading to different conclusions.

[40]. There are so many reasons which persuade courts to treat re litigating of matters, which have already been litigated or should have been litigated at the first instance, as an abuse of process. It is a substantial waste of court time and is unfair to other litigants. Further, it potentially subjects the defendants to more than one set of proceedings, and increases costs. More importantly, it offends the principle that there should be an end of litigation

[41]. A paramount duty is cast upon the parties in litigation to bring forward their whole claim. So that the multiplicity of the proceedings could be avoided. Similarly, it will save the litigants from unnecessary oppression.

[42]. If parties have failed to bring forward their whole claim in a court of competent jurisdiction due to negligence, inadvertence or omission they should not be allowed to institute and maintain the same cause of action again, because it certainly oppress the defendants and also contravene the principles laid down in Henderson v. Henderson. (ibid)

[43]. Upon consideration of the above, in particular with the Henderson rule, it is my considered view that the institution of this action by the plaintiff in the High Court, which was earlier struck out by the Magistrate is an abuse of process.

[44]. Had the plaintiff been dissatisfied with the decision of the Magistrate when he was not allowed to testify or his matter was struck out he should have appealed against that decision. Without doing so the plaintiff has made an attempt to re-litigate the same issues in the High Court which in my view is highly inappropriate and also an attempt to undermine the judicial process.
[45]. The whole purpose behind the institution of proceedings in the High Court by the plaintiff based on same facts as in the Magistrate's Court as it appears to me is to rectify certain errors and also to litigate or re-litigate certain issues which could have litigated in the Magistrate Court but failed to do so due to negligence and inadvertence.

[46]. On the above promise I disallow the plaintiff's application to amend the statement of claim and strike out the plaintiffs' action.

[47]. Cost has to be taxed if not agreed.

Pradeep Hettiarachchi
JUDGE