Fiji Development Bank v Khan [2013] FJHC 135; HBC06.2012 (22 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 6 of 2012.

BETWEEN:

FIJI DEVELOPMENT BANK
a body corporate duly constitute under the Fiji Development Bank Act, Cap 214 and having its principal office at 360 Victoria Parade, Suva in Fiji
PLAINTIFF

AND:

ANWAR KHAN
of 12 Nakula Street, Lami, Businessman.
DEFENDANT

BEFORE : Justice Deepthi Amaratunga
COUNSEL : Mr. Lajendra for the Plaintiff
Mr. Fa I. for the Defendant

Date of Hearing : 21st March, 2013
Date of Decision : 22nd March, 2013

DECISION

1. INTRODUCTION
   

1. This is the Defendants summons seeking strike out of the Plaintiff's statement of claim in terms of the Section 4 of the Limitation Act. At the outset the counsel for the Plaintiff raised preliminary issue and both parties agreed that a determination of the preliminary issue has to be done initially, before proceeding to the hearing of the merits of the said summons for strike out. The preliminary issue is that the Defendant in its statement of defence has not averred limitation as a defence and in the circumstances whether the Defendant can by way of summons seek for a strike out based on limitation.
   

2. Preliminary Issue
   

2. Order 18 rule 7 of the High Court Rules of 1988 states as follows
   

'Matters which must be specifically pleaded (O.18 r.7)

7(1) A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality

(a) Which he alleges makes any claim or defence or the opposite party not maintainable; or

(b) Which, if not specifically plead, might take the opposite party by surprise; or

(c) Which raises issues of fact not arising out of the preceding pleading.

(2) Without prejudice to paragraph(1), a defendant to an action for the recovery of land must plead specifically every ground of defence on which he relies, and a plea that he is in possession of the land by himself or his tenant is not sufficient.

(3) A claim for exemplary damages must be specifically pleaded together with the facts on which the party pleading relies.' (emphasis added)

3. The plea regarding Limitation Act must be pleaded in any statement of defence since the Defendant is relying on the Section 4 of the Limitation Act for the dismissal of the Plaintiff's claim and whether it is mandatory or directory is the issue before me. The words in the Order 18 rule 7(1) (a) are unambiguous and clear and in those circumstances the correct meaning of the words should be given effect and in those circumstances the requirement to plead limitation if it is to be relied upon by a party is a mandatory requirement.
   
4. The Defendant's contention for strike out in this summons is solely based on Order 18 rule 7(1) (a) which deals with any allegation regarding the maintainability of the claim of the Plaintiff and the maintainability is questioned in this strike out based on the Section 4 of the Limitation Act, namely an action instituted outside the time period for Limitation Act. The Defendant argues that they need not plead the defence in terms of Limitation Act, since the purpose of the Order 18 rule 7(1) (a) is based on that a party should not be taken by surprise, and since this is a summons based on limitation, sufficient notice is given, hence no requirement to include defence of limitation in the statement of defence.
   
5. The issue of opposite party being taken by surprise will not arise since the requirement for specific plea for the issue of limitation is required in terms of Order 18 rule 7(1)(a) and not in terms of Order 18 rule 7(1)(b) which deals with the opposite party being taken by surprise. So, the issue of opposite party being taken by surprise is not the basis of the Order 18 rule 7(1) (a), as contended by the Defendant's counsel. Order 18 rule 7(1) (a) of the High Court Rules of 1988 is a standalone mandatory requirement whether the opposite side is taken by surprise or not, and the basis is not the element of surprise, in the said provision but the very basis of the maintainability of claim is at stake and the Plaintiff should be allowed to consider its pleadings before it is closed by giving notice of such a serious contention in the statement of defence. The argument of the counsel for the Plaintiff that the Defendant is not taken by surprise is irrelevant since he is seeking strike out solely based non the Section 4 of the Limitation Act which falls under the Order 18 rule 7(1) (a) of the High Court Rules, which has to be read along with the Order 18 rule 10 where a party is also given an opportunity to plead any point of law, in terms of Order 18 rule 10 of the High Court Rules. Recent decision of Fiji Court of Appeal decided on 8th February 2013 Civil Appeal ABU 49 of 2011 Ali Hassan Khan Vs Livia Buanasolo and Prakash emphasised on requirement of Order 18 rule 7 (1)(a).
   
6. The rationale is clear that a party who is claiming the Plaintiff's claim is not maintainable in terms of any provision of law has to specifically plead in the pleading so that the Plaintiff is informed of the said issue early and may either seek amendment to the Pleading or otherwise. This will not only save costs but also save much of the valuable time for every one, while granting the Plaintiff an opportunity to amend its pleadings or to seek leave of the court for suitable amendment. It is also illogical to allow a summons for strike out, based on limitation without such being pleaded in the statement of defence since the court is required to make a determination to strike out a stamen of claim which is not substantiated in the statement of defence. The counsel of the Defendant was unable to explain why the statement of defence did not plead Limitation or sought to amend the statement of defence to include the defence of limitation which is a mandatory requirement in terms of the Order 18 rule 7(1)(a).
   
7. The law relating amendments are separately contained in the High Court Rules of 1988 and I do not wish to discuss about it in this determination, but suffice to note that different rules will apply to amendments depending on the circumstance of the case where the amendment is sought, and this is not the opportunity for such determination. The Defendant had not fulfilled the mandatory requirement, contained in Order 18 rule 7 (1) (a) which is fatal for the present summons.
   
8. An action is strike out as the last resort and if an amendment could rectify any deficiency the court should allow the party to amend without striking out the pleadings. So, summons for strike out is allowed when no amendment would cure the deficiency and the claim is doomed to fail. In order to determine a strike out the Plaintiff should be granted an opportunity to encounter the serious allegation based on maintainability of the action in its pleadings before the court makes a determination and in this instance, since the statement of defence did not contain such allegation based on Limitation no such opportunity was given to the Plaintiff and summons for strike out based solely on Limitation cannot maintain and should be dismissed on the ground of it being premature, too.
   

100. CONCLUSION
     

9. The mandatory requirement contained in the Order 18 rule 7 (1) (a) cannot be circumvented by filing a separate summons to strike out based on the Section 4 of the Limitation Act. In order to maintain any plea for dismissal of the Plaintiff's claim, the issue is the maintainability of the Plaintiff's claim which is specifically covered in terms of the Order 18 rule 7(1)(a) of the High Court Rules of 1988. The statement of Defence must contain a specific plea for limitation to the effect that the Plaintiff cannot maintain this action and in the absence of such a plea the summons for strike out solely on the basis of Section 4 of the Limitation Act cannot be maintained and it should be dismissed in limine and the Plaintiff's preliminary objection is sustained and the summons for strike out is dismissed. Considering the circumstances of the case I will not award a cost.
   

4. ORDERS
   

1. The Defendant's summons seeking strike out of the Plaintiff's action is dismissed in limine.
2. No cost.
   

Dated at Suva this 22nd day of March, 2013.

.................................................
Justice Deepthi Amaratunga
High Court, Suva