Trustees of Nabua Matua Taxis v Baleilevuka [2015] FJHC 1038; Civil Action 20.2012 (24 November 2015)

IN THE HIGH COURT OF FIJI AT SUVA
Civil Jurisdiction

Civil Action No. 20 of 2012

Between:

Trustees of Nabua Matua Taxis
Plaintiff

And:

Lomaca Baleilevuka
Defendant

Appearances: Ms P. Preetika for the plaintiff
Mr S. Valenitabua for the defendant
Date of hearing: 13th October, 2014

Judgment

1. I have before me two applications filed by the defendant. The first is an application to strike out the statement of claim on the ground that it discloses no reasonable cause of action. The second is to strike out the amended statement of claim filed without leave of Court.
   

The first application

2. Mr Valenitabua, counsel for the defendant moved for a striking out on the basis that the parties stated in the statement of claim to be trustees of the plaintiff were not trustees, at the time the writ was filed on 26th January,2013. They do not have locus to bring this action. Mr Valenitabua relies onan interlocutory judgment of Balapatabendi J of 23rd September,2013.
   
3. The statement of claim moved inter alia for the removal of Lomaco Baleilevuka, the defendant, one of the trustees of the plaintiff. The statement of claim recites that the "surviving and appointed trustees" of the plaintiff are:
   
   1. Lomaco Baleilevuka
   2. Savenaca Nadruguca
   3. Tevita Toganivalu

iv) Jonacani Koroi

v) Enele Ratumaitavuki

vi) Savenaca Tabilai

vii) Eroni Beraki

4. Subsequently, the plaintiff had sought injunctive relief against the defendant. Balapatabendi J, in setting out the facts stated that the trustees were appointed for a period of two years, in accordance with the Deed of Trust of 19 April,2004. The ultimate paragraph of the judgment reads:
   

However it should be noted that the term of the trustee expires in every two years. There is no evidence of the extension office of the current trustees. This judgment enables the current trustees to continue until the election of new trustees and therefore early election or appointment of new trustees to administer and manage the affairs of the trust and the company in my view, is imminent.(emphasis added)

5. The Deed of Trust provides that the following shall be trustees for a period of two years:
   
   1. Lomaco Baleilevuka
   2. Josua Tuni
   3. Savenaca Nadruguca
   4. Ifereimi Kubukawa
   5. Tevita Toganivalu
   6. Apisai Vasuturaga
   7. Jonacani Koroi
   8. Enele Ratumaitavuki
   9. Savenaca Tabilai
   10. Kelevi Radarodro
   11. Solomoni Dakumataka
   12. Eroni Beraki
   13. Tomasi Tavakatoga
   14. Taitusi Naiduki.
       
6. A supplementary affidavit filed on 30 December,2013, by order of Court contains a resolution of the plaintiff passed at a meeting held on 18th December,2013. This provides that the trustees at the time of the meeting were the following:
   
   1. Lomaco Baleilevuka
   2. Josua Tuni(deceased)
   3. Savenaca Nadruguca
   4. Ifereimi Kubukawa
   5. Enele Ratumaitavuki
   6. Apisai Vasuturaga
   7. Tevita Toganivalu
   8. Savenaca Tabilai
   9. Kelevi Radarodro
   10. Solomoni Dakumataka
   11. Jonacani Koroi
   12. Eroni Beraki
   13. Tomasi Tavakatoga
   14. Taitusi Naiduki.
       
7. In terms of that resolution, the seven persons referred to in the statement of claim (as set out in paragraph 3 above) were trustees of the plaintiff, at the time the writ was filed.
   
8. In my judgment, the defendant's contention is unfounded.
   
9. In concluding this part of my judgment, I would for completeness refer to a passage from the judgment of Megarry VC in Gleeson v. J. Wippell& Co, [1977] 1 WLR 510 at 518 as cited inthe defendant's submissions on the trite principle in striking out applications:
   

. there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, only in plain and obvious cases that are clear beyond doubt.

The second application

10. The plaintiff has filed an amended statement of claim without leave of Court. The amended pleading has inter alia added several parties as plaintiffs and one, as defendant.
    
11. Or 20,r 1(1) provides that a plaintiff may without leave of court, amend writ " once at any time before the pleadings in the action ..are deemed to be closed.Or 20,r 3(b) provides that this rule shall not apply in relation to an amendment which consists of the addition of parties, as in the present case .
    
12. MsPreetika, counsel for the plaintiff concedes that parties cannot be added without leave of Court.
    
13. It follows that the amended statement of claim must be struck out.
    
14. Orders
    
    • (a) The application to strike out the statement of claimis declined.
    • (b) The amended statement of claim is struck out.
    • (c) The defendant shall file statement of defence on 8th December,2015.
    • (d) The matter is to be called before the Master on 20th January,2016, to make necessary orders for the progress of the case.
    • (e) Costs in the cause.
      

24thNovember 2015

A.L.B. Brito-Mutunayagam
Judge