Khan v Rahman [2012] FJHC 854; HBC173.2011L (2 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC CA 173 of 2011L

BETWEEN:

SAHEED KHAN of Maravu Street, Lautoka, Fiji
PLAINTIFF

AND:

SAIFUL RAHMAN of 17 Ahmet Circuit, Oakhurst, NSW 2761, Australia but presently in Fiji
1st DEFENDANT

AND:

RAYS HAULAGE PTY LTD having its registered office at 17 Ahmet Circuit, Oakhurst, NSW 2761, Australia.
2nd DEFENDANT

AND:

THE SHERIFF OF FIJI at High Court, Lautoka
3rd DEFENDANT

AND:

THE ATTORNEY GENERAL OF FIJI
4th DEFENDANT

INTERLOCUTORY JUDGMENT

Judgment of: Ms Dias Wickramasinghe J.
Counsel: Mr M. Degei for the Plaintiff
Ms L.Tabuakuro for the 1st and 2nd Defendants
Ms Sangeeta Chand for 3rd and 4th Defendants
Solicitors: Haroon Ali Shah Esquire for the Plaintiff
Koyas for the for 1st and 2nd Defendants
AG's Chambers for 3rd and 4th Defendants
Date of Judgment: 2 February 2012

Keywords: section 3(5) of the Crown Proceedings Act; immunity given to judicial officers exercising statutory powers

INTRODUCTION

[1] This is the third and fourth defendant's summons to strike out plaintiff's writ of summons and statement of claim on the grounds that it does not disclose a reasonable cause of action. The application is made under O.18. r. 18 (1)(a) of the High Court Rules, 1988 and the inherent jurisdiction of this court.

[2] The plaintiff by his writ of summons seeks damages against the defendants either jointly or severally, for negligently causing damages to the driveway and the gateway entrance to the property situated at 11 Maravu Street, Drasa Avenue, Lautoka whilst executing a writ of Fieri Facias (FIFA).

[3] The defendant's application to strike out is made prior to filing the statement of defence. The law is however settled that the defendant could make an application to strike out a writ of summons without filing a statement of defence. Charan v- Narayan [1993] FJHC 45. HBC 388d.92s. (21 May 1993); Smith v Croft No.2 (1988) 8 ch 114; Helferman v Byrne [2008] FJHC 154.

[4] It is also well-established law that when courts exercise the discretionary power of examining an application to strike out, such power must be exercised with great caution and must only strike out a cause in plain and obvious cases. Factors such as the case is weak or not likely to succeed are not grounds for striking out a summons. Navualaba v Commander, Royal Fiji Military Forces [2004] FJHC 352; HBC 172j.2003s (11 February 2204); Korovusere v Attorney – General [2004] FJHC, HBC 0314d.2003s (11 February 2004); Halsbury's Laws of England 4th Ed. Vol 37 para 435.

[5] Order 6 r.2(1)(a) of the High Court Rules, 1988 requires a plaintiff to set out the nature of the claim in a concise statement and the relief or remedy sought in an action.

[6] The plaintiff has based his cause of action on negligence. It is imperative that the statement of claim of the plaintiff dated 25 October 2011, must clearly and concisely set out the negligent acts or the liabilities of all four defendants individually i.e. separately, enabling them to defend their respective actions. I am unable to understand the basis of including the fourth defendant- Attorney General in this action. Nor am I able to fathom the basis of joining the first or the second defendants. The statement of claim does not set out the nexus or the relationship of any of the defendants to justify joining them in one action. When reading the written submissions filed by the defendants it appears to me that the defendants had followed a 'guessing game' to determine their liability due to some issue that pre-existed between the parties. On a plain reading of the statement of claim, it is unclear to me the basis of joining the parties or of their respective negligent acts. On that ground alone, the plaintiff's writ should be stuck out for non-disclosure of a reasonable cause of action.

[7] The third defendant also drew my attention to the statutory immunity conferred on judicial officers by section 3 (5) of the Crown Proceedings Act (Cap 24). The sections read thus:

"No proceedings shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connexion with the execution of judicial process."

[8] In Parmanandam v Attorney-General [1989] FJHC 52; [1989] 35 FLR 259 (18 December 1989) Palmer J. held that the aforesaid section is clearly directed at the Sheriff and his officers.

[9] In Naco v Sheriff of the Republic of Fiji [1990] FJHC 84; [1990] 36 FLR 139 (7 September 1990); Williams v. Williams & Nathan [1937] 2 All ER 559; Prasad v Divisional Prosecuting Officer [2008] FJHC 382; HC HBC 003. 2008 the courts considered at length the statutory protection given to judicial officers and its extent, when judicial officers discharge their duties.

[10] The only exclusion to the provisions laid down in section 3(5) would be if the judicial officer acted mala fide. The Northern Territory of Australia & Others v Mengel & Others [1995] 69 ALJR 542; Three Rivers Leading Council & Others v Bank of England (No 3) [1996] 3All ER 558.

[11] The third defendant is the Sheriff of the Lautoka, High Court. Assuming the alleged act contemplated by the plaintiff was on the Execution of FIFA, such an official act is clearly exercised within the ambit of section 3(5) stated above, hence protects the third defendant. The plaintiff's statement of claim does not allege mala fide asserting any malicious motives. The plaintiff in his written submissions also admits that the third defendant is protected from civil liability under section 3(5) of the Crown Proceedings Act, if he acted in his judicial capacity without malicious motive.

[12] I am satisfied that the plaintiff had not disclosed a reasonable cause of action as required under the law. The first and second defendants have not filed an application for striking out. As said earlier, the statement of claim does not disclose the basis of joining any of the defendants and therefore a reasonable cause of action against them. This is therefore a fit case for me to use my inherent jurisdiction to dismiss the case against first and second defendant albeit there is no application for same before me.

[13] Accordingly, I dismiss the plaintiff's action against all the defendants. I summarily access costs at $750.00 each to be paid to the third and fourth defendants by the plaintiff.

Orders

1. The plaintiff's writ of summons dated 25 October 2011 and the statement of claim is dismissed.
   
2. The plaintiff to pay the third and fourth defendant in total $1500.00 as Costs within 21 days hereof.
   

D. Dias Wickramasinghe
Judge