One Hundred Sands Ltd v Tulevu [2012] FJHC 1460; Civil Action 10.2012 (5 December 2012)

IN THE HIFGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION No: 10 of 2012

BETWEEN:

ONE HUNDRED SANDS LIMITED a duly
incorporated limited liability company having its registered office at
C/- BDO Zarin Ali, Level 8, Dominion House, Thompson Street, Suva and having its postal address at Po Box 500 Savusavu, Fiji.
PLAINTIFF

AND:

ILIMO TULEVU,
retired Pastor of Nukubalavu,
Natewa Bay, Vanua Levu.
1st DEFENDANT

AND:

ADI VANI TULEVU
domestic duties of Nukubalavu,
Natewa Bay, Vanua Levu.
2nd DEFENDANT

BEFORE: Master ROBINSON H Esq.
COUNSELS: Ms. MUIR of Siwatibau & Sloan for Plaintiff
Ms. Koroi of Nawaikula Esq. for the Defendants

RULING

INTRODUCTION

This is an application by Notice of Motion filed by the Defendants for an order for the consolidation of this action with Civil Action No 45 of 2012. In the latter action, Civil Action 45 of 2012, the Defendants are two of the Plaintiffs and the iTaukei Land Trust Board is the Defendant. The application is supported by an affidavit deposed by the 1st Defendant which gave the grounds for or reasons for the application for consolidation as:-

1. That this matter and Civil Action No: 45 of 2012 are in respect of the same land, being Ref No. NLC Lot 50 (part of) that is owned by Mataqali Sinu TK No: 389 Map Ref. F/3.2 containing an area of 20.3128 Ha.

2. That the two actions are in respect of the same land and ought to be consolidated;

3. That the facts in this case are not straight forward, there being many facts in dispute, and in the circumstances the Plaintiff for the matter to take its proper course ought now to convert the matter to a writ.

The Plaintiff strongly opposes the application for consolidation. Its affidavit in opposition deposed by one Ronlyn Ratiram solicitor of Suva states, so far as is relevant, the following:-

1. That she is authorised by the Plaintiff to depose of the affidavit on its behalf;

2. That in paragraph 2 & 3 of the said affidavit in support the 1st Defendant refers to land described as NLC Lot 50 (part of) owned by Mataqali Sinu, and states that the two actions are in respect of the same land. I disagree. The Plaintiff's action is in respect of NLC Lot 35 not Lot 50.

3. The whole procedure under Order 113 would be defeated by consolidating the two actions, as the Plaintiff's Originating Summons would be considerably delayed if it had to wait on the 1st Defendants writ of summons.

4. That the Defendants alleges in his affidavit in support that there are many facts in dispute. I disagree. The only facts in dispute is whether the 1st Defendant was actually in occupation of the land to the lease being issued to the Plaintiff.

At the hearing of the application to consolidate the matters on 25th October the Defendant was given 7 days to file its submission. Counsel for the Plaintiff had already prepared its submission and although both parties addressed the Court very briefly orally both parties rely on their submissions. Counsel for the Defendant's filed their submission within the specified time of seven (7) days.

THE COURT'S CONSIDERATION

An application for consolidation is made under Order 4 rule 1 of the High Court Rules, this rule states:-

1. Where two or more causes or matters are pending, then, if it appears to the Court-

(a) that some common question of law or fact arises in both or all of them, or

(b) that the rights to relief claimed therein are in respect of or arise out of the same transaction or series of transactions, or

(c) that for some other reason it is desirable to make an order under this rule, the Court may order those causes or matters to be consolidated on such terms as it thinks just or may order them to be tried at the same time or one immediately after another or may order any of them to be stayed until after the determination of any other of them.

The practice in applications for consolidation is that the application should be made as soon as possible by summons or at the hearing of the application for summons for direction. Most importantly the application should be made by summons on both files to be consolidated or one summons may be issued provided it fully sets out the title of each action. It is also possible to make the application by motion (see page 31 Supreme Court Practice 1981). My view is that if only one application is made whether it be by motion or by summons, the motion or the summons must clearly set out the title of each of the actions which is requested to be consolidated. For the purposes of this application I will accept the Defendant's motion as an application for consolidation.

The application or the motion does not set out the title to each of the action which the applicant wants to be consolidated. This information can only be obtained from the affidavit in support of the application paragraph two (2) of which states "That Civil Action No: 10 of 2012 Civil Action No: 45 of 2012 are in respect of the same land being Ref No. NLC Lot 50 (part of) that is owned by Mataqali Sinu TK No. 389 Map Ref f/3.2 containing an area of 20.3128 Ha." What the deponent says in this affidavit is in my view insufficient to cure the defect in the motion. The motion should show the title of the two actions whilst the affidavit to give the reasons for the consolidation. It is true that the actions may relate to the same portion of land, an issue denied by the Plaintiff, but the causes of action are different and could not be said to arise out of the same transaction or series of transaction, they therefore give rise to separate remedies. Damages, in my view, is sufficient remedy for the Plaintiff in the latter action against the Defendant (iTLTB) if it succeeds.

The Plaintiff in this action has raised some pertinent points in its submission opposing the application. The first is that the application itself is defective in that the rules under which the application is made is Order 27 of the High Court Rules. Order 27 refers to admissions on pleadings and not consolidation. The Defendant has partly cured this defect by referring to Order 4 rule 2 in its submission as the appropriate Order but as I have already stated above the motion is defective in other ways which could not be cured without leave being first obtained.

The second point raised by the Plaintiff is that the parties are not the same in both actions. The Plaintiff in this action is not a party in the latter action and that there are four (4) different parties in Civil Action 45 of 2012 who are not parties in this action.

The third and perhaps most important point against consolidation raised by the Plaintiff in this action is the principle that "two actions cannot be consolidated where the plaintiff in one action is the same person as the defendant in another action, unless one action can be ordered to stand as a counterclaim or third party proceedings in another action". It is unlikely given the nature of the transaction which gave rise to the two causes of actions that the latter action, that is CA No: 45/12 can be ordered to stand as a counter claim or third party proceedings in this action.

I agree with the points raised by the Plaintiff's Counsel in opposition to consolidation.
For the above reasons the application for consolidation is refused with costs to be costs in the cause.

Master H Robinson
High Court LABASA
5 December 2012.