Kento (Fiji) Ltd v Naobeka Investment Ltd [2013] FJHC 540; HBC100.2012 (16 October 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No. HBC 100 of 2012

BETWEEN:

KENTO (FIJI) LIMITED, a limited liability company having its registered office at P O Box 124, Nadi.
PLAINTIFF

AND:

NAOBEKA INVESTMENT LIMITED, a limited liability company having its registered office at P O Box 1719, Nadi.
FIRST DEFENDANT

AND:

iTAUKEI LAND TRUST BOARD formerly known as NATIVE LAND TRUST BOARD, a statutory body registered under the provisions of the Native Land Trust Act having its head office at Suva, Fiji.
SECOND DEFENDANT

AND:

REGISTRAR OF TITLES of Suvavou House, Suva.
THIRD DEFENDANT

BEFORE : Acting Master Thushara Rajasinghe

COUNSEL : Inoke Law for the Plaintiff
Vuataki Law for the First Defendant
Mr. Nayare P. of iTaukei Land Trust Board for the Second Defendant

Date of Hearing : 21st August, 2013
Date of Ruling : 16th October, 2013

RULING

1. INTRODUCTION
   

1. The first defendant filed this summons dated 27th of June 2013, seeking following orders inter alia,
   
   1. That the plaintiff’s action and claim against the Defendants be struck out and dismissed on the following grounds that ;
      
      1. It disclose no reasonable cause of action,
      2. It is scandalous, frivolous or vexatious,
      100. It is an abuse of the process of this honourable court,
           
   2. Alternatively,
      
      1. That there be a trial of a preliminary point that the sublease alleged by the plaintiff was not executed by it and1st defendant had rescinded it’s offer, but if executed by it, the alleged sublease ceased to have effect by virtue of clause 5 (a) of the third schedule of the alleged sublease and the plaintiff is not entitled to any relief.
         
      2. That the determination of the preliminary point be dealt with on the affidavit material filed by the plaintiff in this application for injunction orders and so much of the evidence in the affidavits filed by the defendants filed in opposition which have not been disputed by the plaintiff,
         
      100. Alternatively, this honourable court give directions for the reception of further evidence confined to the issue of the execution and the ceasing to take effect of the alleged sublease.
           
   3. That there be abridgement of time in service of this application,
      
   4. That the cost of this application to be paid by the plaintiff.
      
2. All parties to this proceedings agreed initially to limit the hearing of this summons on the issue of that the plaintiff discloses no reasonable cause of action pursuant to Order 18 rule 18 (1) (a) of the High Court rules. I accordingly set this summons for hearing on the 21st of August 2013. The learned counsel for the parties to this proceedings made their respective oral submissions. Subsequently the learned counsel for the plaintiff tendered his written submission. I then invited the learned counsel for the plaintiff to file his written submissions within 14 days from the hearing date and allowed the first and second defendants to file their reply submissions within 3 days thereafter. However, only the plaintiff and the first defendant filed their respective written submissions within the time allowed for that purpose.
   

2. THE LAW ON STRIKING OUT.
   

3. Having briefly stated the background of this proceedings, I now turn to discuss the applicable laws on the issue of striking out pleadings and indorsements under Order 18 rule 18 of the High Court rules.
   
4. Order 18 rule 18 (1) states that
   

“the court at any stage of the proceedings order to be struck out or amend any pleading or the indorsement, on the ground that –

1. It discloses no reasonable cause of action or defence as the case may be,
   

And may order the action be stayed or dismissed or judgment to be entered accordingly, as the case may be.

5. Moreover, Order 18 rule 18 (2) provides the scope for applications made under O 18 r 18 (1) (a) where it states that
   

“No evidence shall be admissible on an application under paragraph (1) (a)”.

6. Justice Byrne held in Timber Resource Management Limited v The Minister for Information, The Minister for Agriculture, Fisheries and Forests, The Attorney General of Fiji and others ( HBC 0212 of 2000) that
   

“Time and again the court have stated that the jurisdiction to strike out proceedings under Order 18 rule 18 should be very sparingly exercised and only in exceptional cases where legal questions of importance and difficulty are raised – per Marsack J.A. in Attorney General v Shiu Prasad Halka (1972) 18 FLR 210 at page 215

In Hubbuck & Sons Ltd v Wilkinson, Heywood & Clark Ltd (1899) 1 Q.B.86 at page 96 Lindley M.R. said “the ...Procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient even if proved to entitle the plaintiff to what he asks. The use of the expression “reasonable cause of action” shows the summary procedure.... Is only intended to be had recourse to in plain and obvious cases”.

7. Master Tuilevuka (as he then was) having observed Justice Kirby’s findings in Len Lindon v the Commonwealth of Australia ( No 2 ) S. 96/005 held in Sugar Festival Committee 2010 v Fiji Times Ltd ( 2012) FJHC 1404;HBC78.2010 (1 November 2012) that
   

“Court rarely strike out a proceedings on this ground. It is only in exceptional cases where, on the pleaded facts, the plaintiff could not succeed as a matter of law or where the cause of action is so clearly untenable that it cannot possibly succeed will the court act to strike out a claim. If the facts as pleaded do raise legal questions of importance, or a triable issue of fact on which the rights of the parties depend, the court will not strike out the claim. His Lordship Mr. Justice Kirby in Len Lindon v The Commonwealth of Australia ( No 2) S.96/05 summarised the applicable principles as follows :-

1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O26 r 18 or in inherent jurisdiction of the court, is rarely and sparingly provided.
   
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action...or is advancing a claim that is clearly frivolous or vexatious....
   
3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not alone, sufficient to warrant summary termination...even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment,
   
4. Summary relief of the kind provided for by O26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer... if there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigation rather than one determined on imagined or assumed facts,
   
5. If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it had failed to put in proper form, a court will ordinarily allow that party to reframe its pleading... a question has arisen as to whether O 26 r 18 applies to part only of a pleading,
   
6. The guiding principles is, as stated in O 26 r 18 (2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.”
   

8. The scope of the hearing of applications in this nature was discussed in Khan v Begum (2004) FJHC 430; HBC0153.2003L (30 June 2004) where Justice Connors held that
   

“it is said that the fact the court has this inherent jurisdiction is one of the characteristics which distinguishes the court from other institutions of the government. It is a jurisdiction, to be exercised summarily and as I have said, is in addition to the jurisdiction conferred by the rules. It is not in issue that if a party relies solely upon Order 18 rule 18 there no evidence may be considered by the court in making its determination but that limitation does not apply where the applicant relies upon the inherent jurisdiction of the court”.

9. In National MBF Finance (Fiji) Ltd v Buli ( 2000) FJCA 28; ABU0057U.98S (6 July 2000) held that
   

“the law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such application 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 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”.

10. In view of these judicial precedence, I find that in pursuant of O 18 r 18 (2) the scope of the hearing under Order 18 rule 18 (1) (a) is limited to the pleadings; however the court is allowed to take judicial notice on the falsity of any factual matter when it exercise the inherent jurisdiction of the court.
    

100. 1ST DEFENDANT’S SUBMISSION
     

11. The first defendant submitted that the plaintiff’s case be struck out for disclosing no reasonable cause of action on the following grounds;
    
    1. The plaintiff claim cannot succeed as the sublease is null and void,
    2. The plaintiff’s sublease is unregistered and
    3. The plaintiff has no legal capacity.
       
12. The factual background as submitted by the first defendant is that the plaintiff Kento (Fiji) Limited a company owned by Michael Clowes and Patricia Clowes, has obtained a sublease of Malamala island sometime in 2008 from the first defendant who is the lessee to the head lease. The head lease is between the second defendant as lessor and the first defendant as lessee for a period of 99 years from 1st of July 2007. The first defendant has sought to terminate the sublease due to numerous breaches of the sublease by the plaintiff. In the meantime, the plaintiff brought this proceedings to get orders that any cancellation of the sublease is invalid and seeks compensation for not being able to see the sublease.
    
13. In view of these factual grounds, the main contention of the first defendant is that the plaintiff does not have a valid sublease as it appeared to be non existence. The learned counsel for the first defendant submitted that the first paragraph of the statement of claim could not be succeeded as the plaintiff is not the registered proprietor of the land lease commencing from 1st day of August 2007 and was not dully authorized by the first and second defendant.
    
14. The learned counsel of the first defendant invited to take a judicial notice of this court on the affidavit of Michael Clowes dated 8 of May 2012 filed in this case where he deposed that the subleased commenced on 3rd of August 2007 and further deposed that on 1st of August 2007, the plaintiff entered Malamala Island and commenced operations. The said affidavit further deposed that the consent of the second defendant was not granted until 20th of October 2008.
    
15. Having submitted those abovementioned facts, the learned counsel of the first defendant submitted the court that pursuant to section 12 of the iTaukei Land Trust Board Act (TLTB Act) the plaintiff is required to obtain TLTB consent before entering into the Sublease. Under such circumstances, the plaintiff’s sublease is null and void making it impossible for the plaintiff’s claim to succeed.
    
16. Moreover, the learned counsel submitted that the plaintiff has not registered the sublease with the Registrar of Titles as it required under section 54 of the Land Transfer Act as he has no registrable interest because the sublease is null and void.
    
17. In respect of the third limb of the first defendant’s application that the plaintiff has no legal capacity, the learned counsel submitted that the foreign investment certificate granted to the plaintiff does not allow the plaintiff to obtain a sublease for tourism purposes.
    
18. The learned counsel invited my attention to number of case authorities that supported the contention of the first defendant and concluded that in view of the judicial precedence set out in those authorities and section 12 of the iTaukei Land Trust Board Act, the court should not aid the plaintiff because the plaintiff has proceeded illegally to obtain this sublease.
    
19. The counsel for the second and third defendants supported the contention of the first defendant.
    

4. PLAINTIFF’S SUBMISSIONS,
   

20. The response submissions of the plaintiff constitute two stages as he changed his counsel after the oral submissions. Mr. Patel, who represented the plaintiff at the hearing, orally submitted that the word of “registered proprietor” could be amended, however that does not amount to a discloser of no cause of action. He further submitted that the first and the second defendants duly authorized this lease as they had fully agreed to this transaction with the plaintiff from its inception. Both the first and second defendants encouraged the plaintiff into this lease and invited him to commence his obligations of this agreement. The learned counsel submitted that encouragement and invitation to take this lease amount to duly authorization by the defendants.
    
21. The new counsel of the plaintiff, Mr. Inoke submitted in his written submission that the legal position enunciated in Chalmers v Pardoe (1963) All E.R. 552 in respect of the native land and the applicability of section 12 of the TLTB Act has been changed and developed over the time in various subsequent judgments. He invited the court to distinguish the factual background of Chalmers (supra) with this instance case and emphasized that the facts of this present case demand a proper hearing before a judge rather than determine it summarily. The learned counsel of the plaintiff concluding his submissions, reiterated that the statement of claim as pleaded discloses a reasonable cause of action though it may need to be better particularized or better pleaded but that does not constitute a ground for striking out.
    

5. THE LAW ON THE ISSUE OF REASONABLE CAUSE OF ACTION,
   

22. Upon briefly considering the respective oral and written submissions of the plaintiff and the defendants, I now turn to review the law pertaining to the issue of reasonable cause of action.
    
23. Justice Jitoko in “Prasad v Home Finance Company Ltd [2003] FJHC 322; HBC0116D.2002S (23 January 2003)” extensively discussed the issue of reasonable cause of action where his lordship held that
    

“what constitutes a reasonable cause of action or defence does not mean that the Court should delve into whether the claim or defence is likely to succeed. As Lord Pearson stated in Drummond Jackson v. British Medical Association [1970] 1 WLR 688, [1970] 1 ALL ER 1094 CA at P.1101: No exact paraphrase can be given, but I think a reasonable cause of action means a cause of action with some chance of success, when (as required by r.19 (2)) only the allegations in the pleading are considered......................

The Courts view and many decisions on this matter is clear: As long as the statement of claim or the particulars (Davey v. Bentinct: [1892] UKLawRpKQB 216; (1893) 1 QB 185) disclose some cause of action, or raise some question fit to be decided by a Judge or a jury, the mere fact that the case is weak, and not likely to succeed is no ground for striking it out. (Supreme Court Practice 1985 Vol. 1 p.306)........

It is therefore very clear that in both the exercise of its powers under O.18 r.18 and under its inherent jurisdiction, a Court may only strike out a Statement of Claim and dismiss the action if in the words of Lord Blackburn, in Metropolitan Bank v. Pooley (1885) 10 App. (As 210 at p.221, if and when required by the very essence of justice to be done”.

6. PLEADINGS;
   

24. At this point, I turn my attention to review the pleadings of this instance case. In doing such, I do not wish to be repetitive or reproduce the pleadings. However, I summarised the main issues which have embodied in the pleadings.
    

F.1 Statement of Claim of the Plaintiff,

25. The statement of claim of the plaintiff contains four separate alternative cause of actions and mainly seeks among other reliefs sought for, a declaration that any purported cancellation of the sublease is illegal, invalid and void.
    
26. The plaintiff stated that it is a registered company in Fiji and the registered proprietor of land lease known as Malamala Island in the Tikina of Nadi, Province of Ba containing an area of 2.4260 hectares for a period of 25 years commencing on the 1st day of August 2007 and that is duly authorized by the first and the second defendants.
    
27. The first defendant issued two notices on the plaintiff dated 1st of March 2012 and 29th of March 2012 respectively to rescind or cancel the sublease for multiple reasons. Among those reasons, the main issues were that the plaintiff has failed to carry out the survey under clause 5 (a) of the third schedule to the sublease within six months of the sublease, the sublease was signed by one director under common seal of the plaintiff is no longer acceptable to the first defendant and the plaintiff do not have proper approval by the Foreign Trade and Investment board or Investments Fiji as it is now called.
    
28. The plaintiff further stated that the first defendant served them another notice under section 105 of the Land Transfer Act dated 2nd day of April 2012. The plaintiff claimed that the time limit prescribed in clause 5 (a) of the Third schedule in respect of survey the land was specifically extended for further time by the first and the second defendants in writing.
    
29. The plaintiff claimed that it continued its discussion for the sale of this sublease to a third party purchaser with the breaches to be taken over and remedied by the incoming purchaser within six months of the said proposed sale with the full knowledge and encouragement of the first and second defendants.
    

F.2 Statement of Defence of the Defendants,

30. The statement of defence of the first defendant constitutes three separate alternative defenses. The first is that the said sublease was not properly executed by the plaintiff and the first defendant subsequently withdrew its offer. The second is that if the said lease was properly executed, it had ceased to exist due to the plaintiff’s failure to carry out the survey pursuant to clause 5(a) of the third schedule to the sublease. Thirdly, if the lease agreed had continued to exist, it had been properly rescinded by the 1st defendant on 1st of March 2012 and re entered on 16th of March 2012.
    
31. The first defendant stated that it has started to rectify the breaches committed by the plaintiff and does not need the plaintiff to rectify them under the agreement. The first defendant further stated that the plaintiff only constructed a bure but failed to take any required steps to carry out its obligations under the sublease.
    
32. Moreover, the first defendant stated that it gave its consent for the re sale of the sublease to a third party subject to a memorandum of understanding, however, such memorandum of understanding was never materialized due to the plaintiff’s lack of commitment. Wherefore, the first defendant withdrew its consent subsequently.
    

F.3 Statement of Defence of the Second Defendant.

33. The second defendant categorically denied the proprietorship of the plaintiff. The second defendant claimed that the plaintiff has no legal capacity to enter into any lease for the purpose of operating a day cruise business. The plaintiff has no proper approval to operate a day cruise business by the Investment Fiji. In view of this lack of legal standing of the plaintiff, the second defendant denied the averments in the statement of claim.
    

F.4 Reply to the Statements of Defence of the Defendants

34. The plaintiff claimed that the first and the second defendants cannot deny the existence of the sublease as they had been obtaining benefits from that for a period over 4 ½ years. The plaintiff further stated that it has already applied for the extension of its activities and it is being processed with the Investment Fiji.
    

7. ANALYSIS
   

35. Bearing in mind the relevant laws on the issue of striking out and no reasonable cause of action and the pleadings of this proceedings, I now turn to analyses the submissions of the respective parties with these relevant applicable laws in order to reach my conclusion.
    
36. The main contention of the first defendant is that the plaintiff’s claim cannot succeed as the sublease is null and void pursuant to section 12 of the TLTB Act.
    
37. Section 12 of the iTaukei Land Trust Board Act states that
    

“Except as may be otherwise provided by regulations made hereunder, it shall not be lawful for any lessee under this Act to alienate or wial the&#1he land comprised i lease or any pany part thereof, whether by sale, transfer or sublease or in any other manner whatsoever without the ct of 160;B#160;essor or head lessor first hast had andd and obtained. The granting or withholdinolding of g of consent shall be in the absolute discretion of the Board, and ane, transfer, ser, sublease or other unlawful alienation or dealing effected without such consent shall be null and void:

Provided that nothing in this section shall make it unlawful for the lessee of a residential or commercial lease granted before 29 September 1948 to mortgage such lease. (Substituted by Ordinance 30 of 1945, s. 8; amended by 29 of 1948, s. 3.)”.

38. The submissions of the learned counsel of the first defendant is mainly founded on the decision of Sir Terence Donovan in Chalmers v Pardoe ( supra) where his lordship held that
    

“Even treating the matter simply as one where a licence to occupy coupled with possession was given, all for the purpose, as Mr. Chalmers and Mr. Pardoe well knew, of erecting a dwelling house and accessory buildings, it seems to their lordships that ,when this purpose was carried into effect, a “dealing” with the land took place. On this point their lordships are in accord with the court of appeal; and since the prior consent of the board was not obtained it follows that under the terms of s 12 of the ordinance, this dealing with the land was unlawful. It is true that in “Hernam Singh and Backshish Sing v Bawa Singh, the court of appeal said that it would be an absurdity to say that a mere agreement to deal with land would contravene s 12, for there must necessarily be some prior agreement in all such cases. Otherwise there would be nothing for which to seek board consent. In the present case, however there was not merely agreement, but on one side, full performance and the board found itself with six more buildings on the land without having the opportunity for considering beforehand whether this was desirable. It would seem to their lordships that this is one of the things that s12 was designed to prevent. ..............their lordships after full and anxious consideration of the whole matter have reached the same conclusion as the court of appeal namely that a dealing in the land took place here without the prior consent of the board as required by s 12 of the ordinance; that the dealing was accordingly unlawful and that in these circumstances equity cannot lend its aid to Mr. Chalmers”.

39. Gould V.P. held in Singh v Sumintra (1970) 16 FLR 165 (13 November 1970) that
    

“if an agreement is signed and held inoperative and inchoate while the consent is being applied for I fully agree that it is not rendered illegal and void by section 12. Where the, is the line to be drawn? I think on a strict reading of section 12 in the light of its object, an agreement for sale of native land, would become void under the section as soon as it was implemented in any way touching the land without the consent having been at least applied for”. (my emphasis)

40. Tompkings J.A. observed in Singh v Sumintra ( supra) that
    

“I do not think that the Panchayat Agreement of 27th May 1961, was null and void from the date of its execution, and that, had consent been applied for before the agreement was put into operation and within a reasonable time, the obtaining of consent would have validated it. But once the agreement was acted on as a valid agreement for the sale of the plaintiff’s interest in the leased land it became null and void for lack of consent. Here, the agreement was acted on for four years before consent was applied for, if such a consent were to be held to be retrospective effective the whole purpose of the legislation would be defeated”.

41. The principles enunciated in Chalmers (supra) and Sumintra (supra) were further distinguished and elaborated in Native Land Trust Board v Subramani ( 2010) FJCA9; ABU0076.2006 (25 February 2010) where the Fiji Court of Appeal held that;
    

“In respect of Mr. Chalmers' claim for an equitable charge or lien over the land because of the substantial buildings he had erected on the land, the Privy Council in Chalmers v Pardoe (supra) said this

“The claim is based on the general equitable principle that, on the facts of the case, it would be against conscience that Mr. Pardoe should retain the benefit of the buildings erected by Mr. Chalmers on Mr. Pardoe's land so as to become part of the land without repaying to Mr. Chalmers the sums expended by him in their erection...

There can be no doubt on the authorities that where an owner of land has invited or expressly encouraged another to expend money on part of his land on the faith of an assurance or promise that that part of the land will be made over to the person so expending his money a court of equity will prima facie require the owner by appropriate conveyance to fulfil his obligation; and when, for example for reasons of title, no such conveyance can effectively be made, a court of equity may declare that the person who has expended the money is entitled to an equitable charge or lien for the amount so expended. (my emphasis)

It is clear from the above passages from Chalmers v Pardoe (supra) that that case is authority for the proposition that an arrangement between the head lessee and his sub-tenant of native land, where the head lessee grants the sub-tenant a licence to occupy coupled with possession, is a "dealing" within the meaning of s. 12 of the Native Land Trust Act and is therefore null and void if the prior consent of the NLTB is not obtained. In such a case, as between the head lessee and the sub-tenant, the Court of Equity will not assist the sub-tenant”................

Further, we think Chalmers v Pardoe (supra) is distinguishable from the present case because of the facts. In that case, in contrast to the present case, the NLTB and the landowners played no active part in the grant of the sublease. It is our respectful opinion that the principle in Chalmers v Pardoe (supra) is an exception to the general rule and is not a rule of general application to cases involving native land where s. 12(1) of the Native Land Trust Act is in issue. As we have said above, it is not true that in all cases where s. 12(1) is invoked, the Court will not assist the tenant or the subtenant".

42. Having carefully considered the judicial precedence enunciated in the cases of Chalmers v Pardoe, Singh v Sumintra, and Native Land Trust Board v Subramani, I would concur with the contention of the learned counsel for the plaintiff that the principle enunciated in Chalmers ( supra) have been moved from absolute prohibition to prohibition only if the application for consent is lodged after a reasonable time after the entering into the dealing and before it is completed in the aforementioned authorities. Perhaps I would like to employ the word of "elaborated further" than the word of "moved".
    

8. CONCLUSION.
   

43. In view of these findings, I find that in order to determine the validity of the sublease between the plaintiff and the first defendant the court is mainly required to consider the terms of the agreement between the parties to enter into this sublease, the time of the application for consent was lodged, whether the first and the second defendants invited and encouraged the plaintiff to enter into this sublease and whether the plaintiff have completed his part under the sublease.
    
44. The parties agreed during the hearing that the 2nd Defendant subsequently granted its consent for this sublease on 20th of August 2008 with retrospective effect from 1st of August 2007. This specifically distinguishes the factual background of this case from abovementioned case authorities. It is evidence from the pleadings, that the 2nd Defendant had been involved in this transaction and granted its consent within a reasonable time unlike in Chalmers and Sumintra.
    
45. Apart from that the plaintiff contended that his failure to carry out the survey as per the clause 5 (a) of the third schedule was considered by the defendants and granted extension. The first defendant mainly contended that the plaintiff failed to fulfill his obligation under the sublease.
    
46. The plaintiff stated in his reply to the statement of defence of the defendants that he has already applied for the amendment and extension of activities with the Investment Fiji.
    
47. In view of the reasons set out above, I find that the plaintiff has disclosed a reasonable cause of action. The facts as pleaded raise legal question of importance and the factual issues arise from the pleadings need to be determined by a judge in a proper hearing. I accordingly make following order that;
    
    1. The first defendant's summons for strike out plaintiff's claim made pursuant to Order 18 rule 18 (1) (a) of the High Court rules is therefore dismissed.
       

Dated at Lautoka this 16th day of October, 2013.

R.D.R. Thushara Rajasinghe
Acting Master of High Court, Suva