Singh v Kaur [2012] FJHC 939; HBC83.08L (15 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 83 of 2008L

BETWEEN :

RAJEND SINGH
Plaintiff

AND:

PHUL KAUR & SHIU NARAYAN as ADMINISTRATORS AND OF THE ESTATE OF PRITAM SINGH (DECEASED)

1st Defendant

PREM SINGH as ATTORNEYS OF PHUL KAUR & SHIU NARAYAN
2nd Defendant

PRAJAY INVESTMENT LIMITED
3rd Defendant

DIRECTOR OF LANDS
4th Defendant

ATTORNEY GENERAL OF FIJI
5th Defendant

FIJI SUGAR CORPORATION
6th Defendant

JUDGMENT ON APPLICATION TO STRIKE OUT

Judgment of: Inoke J.

Counsel Appearing: Mr Degei (Plaintiff)

Mr J Lewaravu (4th & 5th Defendants)

Mr E Maopa (1st, 2nd & 3rd Defendants)

Solicitors: Haroon Ali Shah Esq (Plaintiff)

AG's Chambers (4th & 5th Defendants)

Vuataki Law (1st, 2nd & 3rd Defendants)

Dates of Hearing: 13 March 2012

Date of Judgment: 15 March 2012

INTRODUCTION

[1] This action is ready for hearing and has been set down for the substantive hearing on 17 and 20 April 2012. However, the 4th and 5th Defendants contend that the plaintiff has no claim against them and filed an application on 15 February 2012 asking the Court to strike out the plaintiff's claim against them pursuant to O 18 r 18(1)(a) of the High Court Rules 1988. This is my judgment after hearing the application on 13 March 2012.

[2] The claim against these defendants is one based on alleged fraud and negligence by them in certain dealings over a sugar cane farm which the plaintiff stood to inherit from his father.

THE BACKGROUND

[3] The dispute is over the family sugar cane farm which was originally leased to the father. It is essentially a claim by the plaintiff beneficiary against the defendant administrators of the estate of the deceased father. The plaintiff is one of the deceased's sons. The defendant Prem Singh is the other son and Phul Kumar their mother and widow. They are all beneficiaries of the estate. The land was a sugar cane farm leased to the father by the Colonial Sugar Refining Company Limited for a period of 50 years from 1 October 1953. That lease was not renewed so it expired on 30 September 2003. The plaintiff's father died on 11 August 1973. Under his will, his sons and widow became entitled to equal shares in the farm and the 1st defendants were to be appointed administrators of his estate. On 10 May 1978, the 1st defendants became registered by transmission by death as proprietors of the farm as administrators. On 8 September 1978 the farm became converted to freehold land (described in CT No 18331) and registered in the name of the Director of Lands (4th Defendant) as proprietor with the father still named as the lessee for the remaining term of the initial lease i.e. expiring on 30 September 2003. On 25 April 1998, the Nadi Town Planning Scheme was approved which changed the zoning of the farm land to Hotel use and open space which restricted the use of the land as a sugar cane farm.

THE CLAIM AGAINST THE 4TH & 5TH DEFENDANTS

[4] The plaintiff's claim against the 4th and 5th defendants is that the 4th defendant, Director of Lands, his servants and agents, negligently and fraudulently, colluded with the 1st and 2nd defendants in issuing an Approval Notice for a Development lease of the land to a company (3rd Defendant) in which his brother and mother had interests thereby cutting him off his inheritance. The 5th defendant was joined pursuant to the State Proceedings Act as the proper person to be sued.

THE APPLICATION TO STRIKE OUT THE CLAIM

[5] It is only in the clearest of cases that an action would be struck out before trial: See National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 July 2000) where the Court of Appeal said:

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. In this case the Judge's task was made more difficult because a considerable amount of factual material was placed before him. We wish to point out that this is inappropriate and undesirable.

[6] Unfortunately, the pleadings in this case have not been very helpful in so far as they set out the relevant facts as I have outlined them above. I have had to seek them out from the documents that have been filed for the trial and from counsel's submissions. These facts are not in dispute, however.

[7] Is this one of those exceptional cases for striking out? I think it is. I have no doubt that the plaintiff's claim against the 4th and 5th defendants cannot be sustained simply because whatever rights the plaintiff's father had in respect of the land were extinguished when the lease expired and there was no application to extend it. It may well be that the administrators failed to apply for the extension but I cannot see how that can be blamed on the Director of Lands or how that could ground a finding of fraud, negligence or collusion.

[8] Further, when the Nadi Town Planning Scheme changed the zoning on 25 April 1998, it removed any possibility of the land being used as a farm and any right to extend for a further term under the Agricultural Landlord and Tenants Act. So even if an application to extend the lease before it expired was made the application would have been rejected in any event.

[9] In short, this claim is purely one for maladministration of the father's estate against the other defendants. It is frivolous, vexatious and an abuse of process against the 4th and 5th defendants.

CONCLUSIONS

[10] The relevant facts are not in dispute. They clearly show that the 4th and 5th defendants could not be liable on these facts. It is a frivolous and vexatious claim and an abuse of process. It is one of those exceptional cases which the Court should dismiss.

COSTS

[11] The plaintiff should pay the 4th and 5th defendants costs for all attendances up to now including pretrial preparations which I summarily assess as $4,000.

ORDERS

[12] The application to strike out the plaintiff's claim against the 4th and 5th defendants is granted.

[13] The plaintiff is to pay the 4th and 5th defendants' costs of $4,000 within 28 days.

............................................................
Sosefo Inoke
Judge