Devi v Lal [2014] FJHC 75; HBC120.2008 (7 February 2014)

IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action HBC No. 120 of 2008

BETWEEN:

SUMINTRA DEVI
of 54 Yarawa Rd, Nabua, Suva, Fiji, Domestic Duties
PLAINTIFF

AND:

AJASHMAN LAL
of 4 Miles, Nasinu, Fiji, Occupation unknown to the Plaintiff
FIRST DEFENDANT

CHAMAN LAL
of 4 Miles, Nasinu, Fiji, Businessman
SECOND DEFENDANT

: TOTAL CONSTRUCTION LIMITED
a limited liability company incorporated in Fiji and having its registered office in Nadi
THIRD DEFENDANT

BEFORE : Hon. Justice Kamal Kumar

SOLICITORS : Messrs Naidu Law for Plaintiff/Respondent

Messrs Hanif Tuitoga for Third Defendant/Applicant

DATE OF RULING : 7 February 2014

RULING

1.0 Introduction

1.1 On 7 February 2013 Third Defendant filed Application by way Summons seeking following Orders:-

"1. That the Amended Statement of Claim against the Third Defendant filed on 19 June 2012 be wholly struck out and dismissed under Order 18 Rule 18(1) (b) and (d) of the High Court Rules 1988 and/or under the Inherent Jurisdiction of this Honourable Court.

2. That the Plaintiff pay the Third Defendant the costs of this application and all incidental costs hereto".

UPON THE GROUNDS THAT:

(a) The Amended Statement of Claim against the Third Defendant filed on 19 June 2012 is frivolous, vexatious and an abuse of process of this Honourable Court, on the ground that it is statute barred;

(b) As otherwise appears in the affidavit of SETOKI GALUVAKADUA filed herein."

1.2 Following Affidavits were filed by the Applicant/Third Defendant and the Respondent/Plaintiff:

(i) For Applicant/Third Defendant

(a) Affidavit of Setoki Galuvakadua sworn on 6 February 2013 filed in Support of the Application ("SG 1st Affidavit");

(b) Affidavit in Reply of Setoki Galuvakadua sworn 28 March 2013 ("SG 2nd Affidavit").

(ii) For Respondent/Plaintiff

Affidavit of Sumintra Devi (Respondent) sworn on 15 March 2013;

1.3 On 6 June 2013 Applicant and Respondent were ordered to file and serve Submission by 30 June 2013 with ruling to be delivered on notice.

1.4 Applicant and Respondent filed their Submissions on 17 and 28 June 2013 respectively.

2.0 Background Facts

2.1 On 15 April 2008 Respondent filed Writ of Summons and Statement of Claim against the First and Second Defendants for damages arising out of motor vehicle accident on 15 April 2005 involving motor vehicle registration No. CU475.

2.2 All pre-trial matters between the Plaintiff and First and Second Defendant were completed with Copy Pleadings filed which included Pre-Trial Conference Minutes on 27 September 2011.

2.3 On 21 May 2012 Respondent filed Application to join Applicant as a party to this proceedings.

2.4 On 13 June 2012 upon hearing Counsel for the Applicant and First and Second Defendants his Lordship Justice Balapatabendi (as he then was) joined Applicant as a party subject to any objection by the Applicant.

2.5 On 19 June 2012 Amended Writ of Summons and Statement of Claim was filed which was served on Third Defendant on 9th July 2012.

2.6 On 27 July 2012 Applicant filed:-

(i) Its Statement of Defence

(ii) Notice 1 Pursuant to Order 16 Rule 8(1) against the First and Second Defendants.

2.7 On 11 September 2012 the First and Second Defendants filed their Response to Applicant's Notice.

2.8 On 1st October 2012 Applicant filed Reply to First and Second Defendant's Response.

3.0 Application To Strike Out Claim

3.1 Order 18 Rule 1 (b) and (d) of the High Court Rules provides that The Court may at any stage of the proceeding order to be struck out or amended any pleading of the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that:

1. ......; or
2. it is scandalous, frivolous or vexatious; or

100. ......; or

4. ......; or
5. it is otherwise an abuse of the process of the court."
   

3.2 It is well established that jurisdiction to strike out claim or pleadings should be used very sparingly and only in exceptional case Timber Resource Management Limited v. Minister for Information and Others [2001] FJHC 219; HBC 212/2000 (25 July 2001).

3.3 In National MBF Finance (Fiji) Ltd v. Buli Civil Appeal No. 57 of 1998 (6 July 2000) the Court stated as follows:-

"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...."

Frivolous or Vexatious

3.4 The Applicant seeks to strike out Respondent's Claim against it for being frivolous, vexatious and an abuse of court process on the ground that the claim against it is statute barred.

3.5 At paragraph 18/18/15 of Supreme Court Practice, Vol 1 (White Book) it is stated:-

"By these words are meant cases which are obviously frivolous or vexatious or obviously unsustainable per Lindley LJ in Attorney General of Ducty of Lancaster v. L FN.W.Ry [1892] 3 C... 274, 277;................. The Pleading must be "so clearly frivolous that to put it forward would be an abuse of the Court" (per Juene P in Young v Halloway [1894] UKLawRpPro 42; [1895] P 87, 90; .........."

3.6 The Oxford Advanced Learners Dictionary of Current English 7th Edition defines "frivolous" and "vexatious" as:-

frivolous: "having no useful or serious purpose"

vexatious: "upsetting" or "annoying"

3.7 Therefore for claim to be frivolous or vexatious the Appellant must establish that the claim lacks merit (i.e. has no useful purpose) and is only to upset or annoy the Applicant.

3.8 The Applicant was joined as a party to this proceeding after an Application was made by the Respondent pursuant to Order 15 Rule 4(1) Rule 6(1) and (2), Order 20 Rule 5(1) of High Court Rules and Section 23 of the Limitation Act Cap 35.

3.9 The reason for joining Applicant as a party is stated at paragraph 5 to 8 of Respondent's Affidavit sworn on 16 May 2012 filed in Support of joinder application which is repeated at paragraph 7 to 9 of her Affidavit in Answer sworn on 13 March 2013 as follows:-

"5. I was led to believe that the 2nd defendant had purchased vehicle CU475 from Total Construction Limited and hence the 2nd defendant was the owner of the vehicle at the time of the accident and that the 2nd defendant only registered transfer of ownership of the vehicle with the Land Transport Authority around January 2007.

6. The 1st and 2nd defendants in their statement of defence have alleged that motor vehicle registration no: CU475 was owned by Total Construction Limited at the time of the accident and that the third party policy was issued to Total Construction Limited and not to the second defendant.

7. My lawyers have conducted a search at the Land Transport Authority. The search reveals that Total Construction Limited was the registered owner of CU475 between the period 15 November 2004 to 09 January 2007 and the 2nd defendant was the owner from 09 January 2007 to 19 January 2007. There is now produced and shown to me and exhibited herewith marked "SD 2" a copy of the said search result.

8. My lawyers wrote to Total Construction Limited on 28 July 2008 and 28 August 2008 and sought information on the relationship between Total Construction Limited and the 2nd defendant and whether Total Construction Limited had authorized the 1st defendant to drive the vehicle on 15 April 2005. No response has been received. There is now produced and shown to me and exhibited herewith marked "SD 3" and "SD 4" a copy of the said letters."

3.10 Subsequent to joinder of Applicant as a party, Respondent amended her Statement of Claim in relation to the issue of ownership of motor vehicle Registration No. CU475.

3.11 At paragraph 2 to 5 of the Amended Statement of Claim, Respondent states as follows:-

"2. The 1st defendant was at all material times the driver of motor vehicle registration number CU475 (hereinafter referred to as "the van") and was driving the said van as a servant and/or agent of the 2nd defendant and or the 3rd defendant.

3. The 1st defendant is the son of the 2nd defendant.

4. The 3rd defendant is a limited liability company incorporated in the Republic of Fiji Islands and having its registered office in Nadi.

5. The 2nd defendant and/or the 3rd defendant was at all material times the owner of the van. The 2nd defendant purchased the van sometime after November, 2004 but before 15 April 2005 from a company known as Total Construction but he only registered the transfer of ownership with the Land Transport Authority around 09 January 2007. The 2nd defendant has alleged that the van was owned by Total Construction Limited at the time of the accident. The plaintiff is herself not sure who was the rightful owner at the time of the accident and therefore brings this action against both the 2nd and 3rd defendants."

3.12 Respondent obtained leave to join Applicant due to denial by the Second Defendant as to ownership of motor vehicle registration No. CU475.

3.13 Section 23 of the Limitation Act provides:-

"23. Where an action has been commenced within any period of limitation prescribed by this or any other Act and, after the expiry of such period, it transpires that there has been misjoinder or non-joinder of any party to that action, the court may order that any other party may be joined in the action notwithstanding that the period of limitation has expired against that other party."

3.14 In Dorney v. Sunflower Airlines Limited and Another High Court, Suva Civil Action No. 460 of 1989 (25 November 1914) his Lordship Justice Pathik (as he then was) allowed joinder of party pursuant to Section 23 of Limitation Act and stated as follows:-

"It is not that an amendment cannot and will not be allowed in an application of this nature for in WELDON (supra) at p.395 LORD ESHER, M.R. said that "under very peculiar circumstances the Court might perhaps have power to allow such an amendment, but certainly as a general rule it will not do so." However, in the case before me the said section does vest certain discretionary powers in the Court when the section uses the words "the court may Order that any other party may be joined" (underlining mine). The Court no doubt will only permit 'joinder' if in all the circumstances of the case there is good reason for doing so. Parliament has not defined or sought to limit the circumstances in which or the extent to which the Court may allow "joinder" (ASIANAC INTERNATIONAL PANAMA S.A. v TRANSOCEAN RO-RO CORPORATION (1990 Vol I LLOYD'S LAW REPORTS p.150 at 153. No case has been cited on the interpretation of the said section, evidently there is no authority on this aspect of the matter. In the circumstances of this case, I am satisfied that pursuant to the overall discretion to allow for 'joinder' I have come to the conclusion that it is just to grant the application."

3.15 The Fiji Court of Appeal in Land Transport Authority v. Lal [2008] FJCA 79; ABU0053 2007S (7 November 2008) stated as follows:-

"It cannot be doubted that a High Court judge has the discretionary power under the High Court rules to allow the amendment of a claim by the addition of a new cause of action or the addition of a new party to the proceedings at any time (subject to certain qualifications), even where to do so gives rise to a claim being made against a newly added party outside a limitation period fixed by statute (see also s23 of the Limitation Act). But the exercise of the discretion in allowing such amendments must, as always, be exercised in a principled and considered manner."

3.16 The Court of Appeal adopted with approval the following statement of Lord Keith in Kettemen & Ors v. Hansel Properties Ltd & Ors [1987] 1 A.C. 189 at 203:-

"Whether or not a proposed amendment should be allowed is a matter within the discretion of the judge dealing with the application, but the discretion is one that falls to be exercised in accordance with well settled principles...the rule is that the amendment should be allowed if necessary to enable the true issues in controversy between the parties to be resolved, and if allowance would not result in injustice to the other party..."

3.17 Also Order 15 Rule 6(1) (2), (3) and (5) of the High Court Rules provides:-

"6.-(1) no cause or matter shall be defeated by reason of the misjoinder or nonjoinder or any party; and the Court may determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

(2) Subject to the provisions of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application -

(a) order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b) order any of the following persons to be added as a party, namely -

(i) any person who ought to have joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy in which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.

(3) An application by any person for an order under paragraph (2) adding him as a party must, except with the leave of the Court, be supported by an affidavit showing his interest in the matters in dispute or, as the case may be, the question or issue to be determined as between him and any party to the cause or matter.

(4) ...

(5) No person shall be added or substituted as a party after the expiry of any relevant period of limitation unless either-

(a) the relevant period was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new party should be added, or substituted, or

(b) the relevant period arises under the provisions of subparagraph (i) of the proviso to paragraph 4(1)(d) of the Limitation Act and the Court directs that those provisions should not apply to the action by or against the new party.

In this paragraph "any relevant period of limitation" means a time limit under the Limitation Act."

3.18 In the instant case the cause of action arose on or about 15 April 2005 and action should have commenced by 15 April 2008.

3.19 The vehicle involved in the accident subject to this proceeding was driven by the First Defendant who is the son of the Second Defendant.

3.20 Applicant did institute proceeding against the First and Second Defendants as driver and owner of motor vehicle registration No. CU475 at the material time.

3.21 The Second Defendant in his Statement of Defence denied being ownership of the said motor vehicle and stated that he had the use of the vehicle with the consent of the registered owner.

3.22 The registered owner at the time of accident (i.e. 15 April 2005) was the Applicant.

3.23 It is undisputed that at the time of the accident the Applicant was registered as owner of motor vehicle registration No. CU475 with Land Transport Authority as appears from Annexure "SD6" of Respondent's Affidavit in Answer sworn on 13 March 2013.

3.24 It is undisputed that his Lordship Justice Balapatabendi (as he then was) had the discretion to either grant application for joinder or refuse it.

3.25 Applicant has not provided any tangible evidence in the form any contract of sale between it and the Second Defendant; if it sold the vehicle to Second Defendant then what was the sale price and when was it paid; when did ownership of the vehicle pass to the Second Defendant if it did, to show that at the time of the accident it was not the owner of motor vehicle registration No. CU475.

3.26 At paragraph 5 of Applicant's Notice filed Pursuant to Order 16 Rule 8(1) against First and Second Defendants it states as follows:-

"5. That if the 3rd Defendant should be found liable to the Plaintiff for any loss arising from the negligent driving of the 1st Defendant (which is denied), then the 3rd Defendant claims such loss and damage was caused by negligence of the 1st and 2nd Defendant.

PARTICULARS

i) Failure of the 2nd Defendant to transfer the said vehicle unto himself with Land Transport Authority after purchasing the said from the 3rd Defendant sometime in November, 2004.

ii) The said vehicle was in control, possession and at the utilised at the direction of the 2nd Defendant from sometime in November 2004 onwards.

iii) The 1st Defendant driving the said vehicle as agent and servant of the 2nd Defendant at all material times and not as agent and servant of the 3rd Defendant.

iv) The 3rd Defendant had did not have control, possession and ownership of the said vehicle from sometime in November 2004.

3.27 First and Second Defendants at paragraph (3), (4) and (5) of their Response to Applicant's Notice states as follows:-

"(3) First and Second Defendants deny paragraph 5 of the notice inclusive of particulars save to admit that the said vehicle was in the possession of the second Defendant at the material time with the permission and authority of the third Defendant.

(4) The use of the said vehicle at all material time by the first Defendant was done at the express and/or implied authority either by the second Defendant or third Defendant or both.

(5) At all material time the first and second Defendants were agents of the third Defendant."

3.28 It is obvious that the issue of vicarious liability is in dispute and needs to be determined as between the Second Defendant and the Applicant at the trial of this action.

3.29 Having joined the Applicant as party to the proceedings pursuant to Section 23 of the Limitation Act it would be improper to strike out the proceedings against the Applicant unless claim against it is unsustainable to make it frivolous and vexatious [paragraph 18/19/15 of the Supreme Court Practice (White Book) 1993 Vol 1].

3.30 In view of the fact that the ownership of the vehicle involved in the accident is a live issue in this proceeding I do not agree with Applicant's submission that claim against it is frivolous and vexatious.

Abuse Of Court Process

3.31 At paragraph 18/19/17 of Supreme Court Practice 1993 Vol 1 (White Book) it is stated:-

"This term connotes process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the use improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation......"

3.32 At the same paragraph it is also stated as follows:-

"The issue of a writ making a claim which is groundless and unfounded in the sense that the Plaintiff does not know of any facts to support it is an abuse of the process of the Court and will be struck. (Steamship Mutual Association Ltd v. Trollope and Colls (City) Ltd. (1986) 33 Build. LR 77 C.A.)"

3.33 I tend to agree with the Respondent's submission that if action against the Applicant is struck out and subsequently it is found that it was the owner of the motor vehicle registration No. CU475 at the time of the accident then Respondent will be greatly prejudiced in effectively enforcing any Judgment she may obtain in her favour against the Third party insurer of the said vehicle.

3.34 I hold that Respondent's claim against the Applicant is not an abuse of power.

3.35 I am of the view it is in the interest of justice for Applicant/Third Defendant to remain a party to this proceeding and if it turns out that it was not the owner of the vehicle at the time of accident that it can be compensated by if award of costs against the Plaintiff or the Second Defendant.

3.36 I refuse to strike out claim against the Applicant in exercise of discretion under inherent jurisdiction for reasons stated above.

3.37 Accordingly I refuse to strike out the claim against the Applicant.

4.0 Conclusion

I make following Orders:-

(i) Applicant/Third Defendant's Application to strike out claim against Applicant/Third Defendant by way of Summons filed on 7 February 2013 is dismissed and struck out.

(ii) Costs of the said Application be costs in the cause.

K. Kumar

Judge

At Suva

7 February 2014