Chettiyar v Latchmi [2015] FJHC 927; HBC55.2014 (27 November 2015)

IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 55 of 2014

BETWEEN:

RAM SAMY CHETTIYAR aka RAMSAMY CHETTY
PLAINTIFF

AND:

LATCHMI
FIRST DEFENDANT

AND:

PARSU RAM
SECOND DEFENDANT

Mr. Jasveel Karan Singh for the Plaintiff
(Ms) Roneesh Shoma Singh Devan for the First and Second Defendants

Date of Hearing: - 17th August 2015
Date of Ruling: - 27th November 2015

RULING

(A) INTRODUCTION
(1) The matter before me stems from the amended Summons filed by the Defendants pursuant to Order 18, Rule 18 (1) (a), (b) and (d) of the High Court Rules and the inherent jurisdiction of the Court seeking the grant of the following Orders;

AN ORDER THAT the Plaintiff's Claim against the Defendants be struck out on the grounds:

(i) that the Plaintiff has no reasonable cause of action; and

(ii) it is scandalous, frivolous or vexatious; and

(iii) it is otherwise an abuse of the process of the Court

(2) The Summons is strongly resisted by the Plaintiff.

(3) At the oral hearing of the matter, the Plaintiff and the Defendants sought to read and rely on the following Affidavits;

❖ Affidavit of "Parsu Ram", the Second Defendant, sworn on 30th May 2014.
❖ Affidavit of "Ram Samy Chettiyar", the Plaintiff, sworn on 10th July 2014.

(4) The Plaintiff and the Defendants were heard on the Summons. They made oral submissions to Court. In addition to oral submissions, they filed careful and comprehensive written submissions for which I am most grateful.

(B) BACKGROUND

(1) What are the circumstances that give rise to the present application?

(2) To give the whole picture of the action, I can do no better than set out hereunder the averments/assertions of the Pleadings.

(3) The Plaintiff in his Statement of Claim pleads inter alia;

Para 1. THAT the Plaintiff at all material is one of the beneficiaries in the Estate of Chinna Chetty who dies testate on the 26th day of June, 1994.

2. THAT the Defendants are the appointed trustees and beneficiaries of the last Will and Testament of the Estate.

CONTENTS OF THE WILL

3. THAT the High Court of Fiji Probate Jurisdiction on 22nd August, 1994 granted Probate in accordance with the last Will dated 11th December, 1980.

4. THAT as per clause three of the Will all the properties of the Estate of Chinna Chetty was to be kept on trust by the Trustees for the beneficiaries.

5. THAT in accordance with clause 3 (c) of the Will the Plaintiff was entitled for house and premises which was already given to him by his late father Chinna Chetty during his lifetime.

6. THAT as per clause 4 of the Will the testator Chinna Chetty devised and bequeathed the remainder of the trust property onto his wife Latchmi and after death of Latchmi to her sons Davend Chetty and Parshu Ram Chetty in equal shares.

DEFENDANTS ACTION

7. THAT the Defendants misinterpreted the contents of the Will and attempting to carry out a subdivision of the land without the consent of the Plaintiff

8. THAT the 2nd Defendant and Davend Chetty are not entitled to any shares in the estate property as testator's wife Latchmi is still alive.

9. THAT 2nd Defendant and Davend Chetty are only entitled for shares after the death of Latchmi.

10. THAT the Defendants have engaged Surveyors and agents/servants of the Defendant have threatened the Plaintiff to execute certain documents.

11. THAT Davend Chetty and Parshu Ram Chetty are not entitled to any shares of the First Defendant as First Defendant has not renounced her rights or shares in favour of them.

SECOND DEFENDANT AS A TRUSTEE

12. THAT the Second Defendant is one of the trustees and for the past 20 years he has been residing in Australia.

13. THAT the Second Defendant is absent from Fiji and did not take any active part to distribute the shares to the beneficiaries.

14. THAT since the Second Defendant has not performed his duties and obligations he should be removed as a trustee of estate.

PLAINTIFFS ENTITLEMENT

15. THAT as per clause 3(c) of the Will the Plaintiff is entitled to approximately one and half acres of the land.

16. THAT prior to the death of his father Chinna Chetty the Plaintiff was using half acre of land for his housing or residential purpose and one acre premises for his farming or own use.

17. THAT prior to the death the said testator ChinnaChetty was fully versed and had the knowledge the area of land the Plaintiff used for housing purpose and farming purposes.

18. THAT the said Chinna Chetty has acknowledged the Plaintiff's rights and entitlements prior to his death.

CAVEAT

19. THAT the Defendants had engaged the surveyors and were in process of subdividing the land without the consent of the Plaintiff.

20. THAT the Plaintiff has lodged Caveat Registration Number 791812 registered at the Registrar of Titles Office.

(4) The Plaintiff claims the followings;

Para 1. An order or declaration that Plaintiff is entitled to one and half acres of land comprised in certificate of Title Number 6835.

2. That the Defendants be restrained or refrained from selling, disposing, transferring, assigning the property contained in Certificate of Title Number 6835 until any Order of this Honorable Court.

3. That the 2nd Defendant be removed as a trustee.

4. General damages.

5. Punitive damages.

6. Any other expedient this Honorable Court deems fit.

(C) THE STATUS OF THE SUBSTANTIVE MATTER

(1) The action was instituted by the Plaintiff on 11th April 2014 by way of Writ of Summons and Statement of Claim.

(2) The Defendants filed the acknowledgement of Service on 09th May 2014.

(3) On 28th April, 2015, the Defendants filed the current Summons to strike out the Plaintiff's Claim.

(D) THE LAW

(1) Against this factual background, it is necessary to turn to the applicable law and the judicial thinking in relation to the principles governing the striking out an action.

(2) Rather than refer in detail to the various authorities, I propose to set out important citations, which I take to be the principles of the play.

(3) Provisions relating to striking out are contained in Order 18, rule 18 of the High Court Rules. Order 18, rule 18 of the High Court Rule reads;

18. – (1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement of any writ in the action, or anything in any pleading or in the endorsement, on the ground that –

(a) it discloses no reasonable cause of action or defence, as the case may be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the court;

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

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

Footnote 18/19/3 of the 1988 Supreme Court Practice reads;

"It is only plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley MR. in Hubbuck v Wilkinson[1898] UKLawRpKQB 176; (1899) 1 Q.B. 86, p91 Mayor, etc., of the City of London v Homer (1914) 111 L.T, 512, CA). See also Kemsley v Foot and Qrs (1952) 2KB. 34; (1951) 1 ALL ER, 331, CA. affirmed (195), AC. 345, H.L .The summary procedure under this rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable " (Att – Gen of Duchy of Lancaster v L. & N.W. RyCo (1892)3 Ch 274, CA). The summary remedy under this rule is only to be applied in plain and obvious cases when the action is one which cannot succeed or is in some way an abuse of the process or the case unarguable (see per Danckwerts and Salmon L.JJ in Nagle v Feliden (1966) 2. Q.B 633, pp 648, 651, applied in Drummond Jackson v British Medical Association(1970)1 WLR 688 (1970) 1 ALL ER 1094, (CA) .

Footnote 18/19/4 of the 1988 Supreme Court Practice reads;

"On an application to strike out the statement of claim and to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute (Wenlock v Moloney) [1965] 1. WLR 1238; [1965] 2 ALL ER 87, CA).

It has been said that the Court will not permit a plaintiff to be "driven from the judgment seat" except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v Att. – Gen [1910] UKLawRpKQB 203; [1911] 1 KB 410
p. 419)."

(5) In the case of Electricity Corporation Ltd v Geotherm Energy Ltd [1992] 2 NZLR 641, it was held;

"The jurisdiction to strike out a pleading for failure to disclose a cause of action is to be sparingly exercised and only in a clear case where the Court is satisfied that it has all the requisite material to reach a definite and certain conclusion; the Plaintiff's case must be so clearly untenable that it could not possibly success and the Court would approach the application, assuming that all the allegations in the statement of claim were factually correct"

(6) In the case of National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 JULY 2000), it was held;

"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."

(7) In Tawake v Barton Ltd [2010] FJHC 14; HBC 231 of 2008 (28 January 2010), Master Tuilevuka (as he was then) summarised the law in this area as follows;

"The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must be so clearly untenable that they cannot possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney –v- Prince Gardner [1998] 1 NZLR 262 at 267."

(8) His Lordship Mr Justice Kirby in Len Lindon –v- The Commonwealth of Australia(No. 2) S. 96/005summarised 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 O 26 r 18 or in the 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...
   

100. An opinion of the Court that a case appears weak and such that 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 arguments 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 O.26 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 in circumstances more conducive to deciding a real case involving actual litigants 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 has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleading.
   
6. The guiding principle 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.
   

(9) In Paulo Malo Radrodro vs Sione Hatu Tiakia & Others, HBS 204 of 2005, the Court stated that:

"The principles applicable to applications of this type have been considered by the Court on many occasions. Those principles include:

1. A reasonable cause of action means a cause of action with some chance of success when only the allegations and pleadings are considered – Lord Pearson in Drummond Jackson v British Medical Association [1970] WLR 688.
   
2. Frivolous and vexation is said to mean cases which are obviously frivolous or vexations or obviously unsustainable – Lindley Li in Attorney General of Duchy of Lancaster v L.N.W Ry[1892] UKLawRpCh 134; [1892] 3 Ch 274 at 277.
   

100. It is only in plain and obvious cases that recourse would be had to the summary process under this rule – Lindley MR in Hubbuck v Wilkinson [1898] UKLawRpKQB 176; [1899] Q.B 86.
     

4. The purpose of the Courts jurisdiction to strike out pleading is twofold. Firstly is to protect its own processes and scarce resources from being abused by hopeless cases. Second and equally importantly, it is to ensure that it is a matter of justice; defendants are permitted to defend the claim fairly and not subjected to the expense inconvenience in defending an unclear or hopeless case.
   
5. "The first object of pleadings is to define and clarify with position the issues and questions which are in dispute between the parties and for determination by the Court. Fair and proper notice of the case an opponent is required to meet must be properly stated in the pleadings so that the opposing parties can bring evidence on the issues disclosed – ESSO Petroleum Company Limited v Southport Corporation [1956] A.C at 238" – James M Ah Koy v Native Land Trust Board & Others – Civil Action No. HBC 0546 of 2004.
   
6. A dismissal of proceedings "often be required by the very essence of justice to be done"....... – Lord Blackburn in Metropolitan – Pooley [1885] 10 OPP Case 210 at 221- so as to prevent parties being harassed and put to expense by frivolous, vexations or hopeless allegation – Lorton LJ in Riches v Director of Public Prosecutions (1973) 1 WLR 1019 at 1027"
   

(10) In Halsbury's Laws of England Vol 37 page 322 the phrase "abuse of process" is described as follows:

"An abuse of process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."

(11) The phrase "abuse of process" is summarized in Walton v Gardiner (1993) 177 CLR 378 as follows:

"Abuse of process includes instituting or maintaining proceedings that will clearly fail proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness"

(12) In Stephenson –v- Garret[1898] UKLawRpKQB 22; [1898] 1 Q.B. 677 it was held:

"It is an abuse of process of law for a suitor to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata.

Domer –v- Gulg Oil (Great Britain) (1975) 119 S.J 392

"Where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure, they may be dismissed as being an abuse of the process of the court"

Steamship Mutual Association Ltd –v- Trollope and Colls (city) Ltd (1986) 33 Build L.R 77, C.A

"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 process of the Court and will be struck out"

(E) ANALYSIS
(1) Before passing to the substance of the application, let me record that the Plaintiff and the Defendant in their written submissions have done a fairly exhaustive study of the judicial decisions and other authorities which they considered to be applicable.

I interpose to mention that I have given my mind to the oral submissions made by the Counsel as well as to the written submissions and the judicial authorities referred to there in.

(2) At the oral hearing of the matter, the Defendants sought to read and rely on the Affidavit in Support sworn by the Second Defendant on 30th May 2014.

The Plaintiff objected to the Affidavit on the following grounds;(counsel in his submission writes.......)

Para 9.4 It is humbly submitted that the affidavit filed in support of the summons is defective as the one served on our office does not have a jurat and in the affidavit the Second Defendant has failed to proof this case beyond reasonable doubt that the Plaintiff's claim is bound to be unsuccessful and without merits.

9.5 We refer to Order 41 Rule 1 (8) of the High Court Rules 1988 which reads as follows:-

"(8) Every affidavit must be signed by the deponent and the jurat must be completed and signed by the person whom it is sworn."

9.6 The Second Defendant has deposed facts and/or grounds which is not supported with material evidence that the Court can rely upon and strike out the Writ of Summons and we refer to Order 41 Rule 5 (2) of the high Court Rules it is stated as follows:-

"(2) An affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information or belief with the sources and grounds thereof."

9.10 It is submitted that the affidavit filed in this application is defective on the grounds that it has not been properly executed (the one which has been served on our office) and based on the evidence that the Defendant has relied upon in his affidavit the application to strike out is bound to fail.

As against this, I have not heard a single word said on behalf of the Defendants.

Leave that aside for a moment.

I note that the Plaintiff has failed to file any application to set aside the Defendant's Affidavit in support for "irregularity" under Order 2, rule (2) of the High Court Rules and has taken further steps in the proceedings without raising the issue of irregularity by filing an Affidavit in Opposition.

I am at a substantial loss to understand why the Plaintiff chose to offer response to the Defendant's Affidavit in support if there is any defect or irregularity in the Affidavit.

If the Plaintiff has considered that the Defendant's Affidavit in support is irregular and defective, he could have moved under Order 02, rule (2) of the High Court Rules. The Plaintiff did not do so.

For the sake of completeness, Order 2, rule (2) of the High Court Rules, is reproduced below in full.

Application to set aside for irregularity (O.2, r.2)

2.(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any documents, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

(2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion.
(Emphasis Added)

Reading those words in their natural and ordinary sense, it seems to me reasonably plain that, Order 2, rule (2) provides that an application to set aside any proceedings for irregularity shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. The requirements are cumulative. Since the application in the case before me is not made within a reasonable time, the application will not be allowed.If the Plaintiff had considered that the affidavit in support of the Summons for striking out the claimwas in an irregularity, he could have moved under Order 2, rule (2)before he took another step. If any proceedings are to be set aside on the grounds of an irregularity, Order 2, rule (2) is applicable. An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion. The Plaintiff on his own volition chose not to follow the High Court Rules. I am curious to know as to why the Plaintiff chose not to follow the High Court Rules. It seems to me perfectly plain that the Plaintiff slept on the matter and did not wake up at all from his slumber. It is now too late to raise such an argument even if it had any validity.

Now let me consider what authority there is on this point.

In "Ashwin Prasad v Carpenters (Fiji) Limited", Fiji Court of Appeal decision No; ABU 0004 of 2004S, "Penlington, J A said as follows;

"The affidavit was in substantial compliance with O.41 rr.4 and 5. The Appellant did not raise any objection to the affidavit in his affidavit of 24 December 2003. If he had considered that the affidavit was in an irregularity he could have moved under Order 2 r.2 before he took another step. Instead he did not do so. On 31 December 2003 he filed the statement of defence and the two affidavits referred to previously. It is now too late to raise such an argument even if it had any validity which we think it did not have."

(Emphasis added)

Therefore the Plaintiff's preliminary point must fail because of the delay involved.

In all the circumstances, I am driven to the conclusion that the Plaintiff's preliminary issues were formulated and perhaps conceived as the proceedings for 'striking out' developed.

(4) Now let me turn to the substance of the Defendant's application. The Defendants say that the pleadings against them disclose no reasonable cause of action, which initself leads to the pleadings being scandalous, frivolous and vexatious.

What is the basis upon which the Defendants make an application to strike out the claim?

The Defendants make an application to strike out the claim on the following grounds; [Counsel in her submission writes at paragraph 4 )

Para 4 (i) The Plaintiff is wrong in stating in paragraph 8 that my brother, Davend Chetty and I are not entitled to any shares of the Estate property when by virtue of clause 4 of the said Will, his Estate devolves upon my brother and I absolutely upon the death of my mother, Lachmi.

(ii) I understand that my mother only has a "life interest" in the said Estate property and she is also the appointed joint executrix of my father's said Estate.

(iii) As per the Will of my father and the grant of probate, my mother and I are entitled to administer and distribute the said Estate property.

(iv) The Estate property which is certificate of title no. 6835 are jointly owned by my father and his brother Narsaiya Chetty in half share.

(v) My uncle (Narsaiya Chetty) intends to survey and subdivide the land to enable separate titles to be issued to each 5 acre lot.

(iv) In this manner my uncle will have a separate title to his 5 acre lot and the remaining 5 acre lot will be vested in the Estate of Chinna Chetty.

(v) As my mother has a 'life interest' in the said property, distribution of my father's Estate property will take effect upon expiry of her legal interest.

(vi) The Plaintiff is also wrongly claiming that he is entitled to one and half acres of land when the Will does not in any manner or form specify the area which he is entitled to, hence the Plaintiff is only entitled to reside and own the house in which he has been residing.

(vii) The Plaintiff in a bid to acquire a greater portion of the said Estate land has without the consent of the Executors/trustees extended his dwelling.

(viii) The Defendants as joint trustees and executors of the Estate property are entitled by law and the grant of probate to have the land surveyed and subdivided to enable separate titles to be issued to Narsaiya Chetty and Estate of Chinna Chetty. They do not require the consent of the Plaintiff to discharge their lawful duties.

(ix) Once separate titles are issued, both the Estates will separate titles which will pave the way for future distribution of the 5 acres land belonging to Estate of Chinna Chetty.

(5) In 'adverso', the Counsel for the Plaintiff submitted; [Counsel in his submission writes.....]

Para 7.3 The Plaintiff has only pleaded material facts that are relevant to his claim. He has based his claim on his share in the Estate of Chinna Chetty. The Writ of Summons filed herein does not plead any dishonesty, bad faith, misconduct or outrageous conduct on the part of the Defendant. Therefore it cannot be said that pleading of the Plaintiff Writ of Summons is scandalous, frivolous or vexatious.

7.4 We respectfully that the Defendant has failed to satisfy the issue of scandalous, frivolous or vexatious and the application is bound to fail.

8.3 We respectfully submit under this header that in this case the Defendant has failed to show that the Plaintiff's pleading to be frivolous, vexatious or scandalous. Therefore the Writ of Summons filed by the Plaintiff cannot be struck out even exercising the court's inherent jurisdiction.

9.3 That in the affidavit filed in support of summons to strike out the Plaintiff's claim certain issues have been raised which should be tried in Court and/or the merits of the same are to be discussed and/or decided in Court and the Defendants are not in a position to gauge and/or evaluate the claim that has been filed by the Plaintiff in this action.

(6) An application of this type does not require evidence in support. It requires the Court to make its determination based upon a perusal of the pleading itself.

(7) Le me now proceed to examine the substance of the Defendant's applications to strike out the Plaintiff's action.

The real issue and the only issue which this Court has to consider at the outset is whether the Plaintiff's Statement of Claim discloses a reasonable cause of action against the Defendants?

Let me summaries my understanding as to the salient fact as follows;

The Plaintiff's action relates to a property that belonged to "ChinnaChetty" who died on 26th June 1994. He died testate and left behind his last Will and Testament dated 11th December 1980 by which he appointed "Latchmi", the first Defendant and "Parsu Ram", the Second Defendant as joint executors and Trustees of his estate.

A probate was granted to the Defendants on 22nd August 1994.

As per the Will and the grant of Probate, the Defendants are entitled to administer and distribute the estate property.

The estate property is comprised in Certificate of Title No: 6835. It is jointly owned by the late Chinna Chetty and his brother "Narsaiya Chetty" in half share.

As per the last Will, the first Defendant has only a life interest in the said estate and upon her death; the estate devolves upon the second Defendant and his brother "Daven Chetty" (Not a party to the action). The last will specifically state that the Plaintiff is entitled to "house and premises" which has been already given to him by the deceased testator.

In the prayer of the Statement of Claim, the Plaintiff primarily seeks an order/declaration that the Plaintiff is entitled to one and half acres of the estate property.

The fatal flaw in the claim is this. The last Will does not in any manner or form specify the area which the Plaintiff is entitled to.

The Court cannot interpret a Will and Testament other than what is precisely stated and is being bequeathed.

Moreover, any Court Order in relation to the Will may affect the beneficial interest of "Daven Chetty" who is not a party to the action.
"Daven Chetty" should have been made a party to the action before this Court.

In paragraph 15 of the Statement Claim, the Plaintiff asserts that as per Clause 3 (c) of the Will, that he is entitled to 12 acres of the estate property. I do not agree at all. I traversed the last Will. According to Clause 3 (c) of the Will, the Plaintiff is entitled only to house and premises which has already been given to him.

In paragraph 1.9 of the Statement of Claim the Plaintiff asserts that the Defendants had engaged the Surveyors and were in process of subdividing the land without the consent of the Plaintiff.

I wish to emphasise that the Defendants as joint trustees and executors of the estate property are entitled by law and the grant of probate to have the land surveyed and subdivided to enable separate titles to be issued to "Narayan Chetty" and estate of late "Chinna Chetty". The Defendants do not require the consent of the Plaintiff to discharge their lawful duties.

For the reasons which I have endeavored to explain, I venture to say beyond a per adventure that the Plaintiff's Statement of Claim does not raise debatable questions of law and facts. The Plaintiff's case is clearly untenable. Therefore, it is competent for the Court to dismiss the action on the ground that it discloses no reasonable cause of action against the Defendant.

Fundamentally, courts are required to determine cases on merits rather than dismissing them summarily on procedural grounds.

It is a fundamental principle of any civilized legal system that all parties in a case are entitled to the opportunity to have their case dealt with at a hearing at which they or their representative are present and heard.

At this juncture, I bear in mind the "caution approach" that the court is required to exercise when considering an application of this type.

I remind myself of the principles stated clearly in the following decisions.

In Dev. v. Victorian Railways Commissioners[1949] HCA 1; (1949) 78CLR 62, 91 Dixon J said:

"A case must be very clear indeed to justify the summary intervention of the court ... once it appears that there is areal question to be determined whether of fact or of law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and anabuse of process."

In Agar v. Hyde [2001] HCA 41; (2000) 201 CLR 552 at 575 the High Court of Australia observed that:

"It is of course well accepted that a court ... should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way and after taking advantage of the usual interlocutory processes."

I am of course mindful that a case must be very clear indeed to justify summary intervention of the Court. It is a jurisdiction which ought to be very sparingly exercised and only in very exceptional circumstances.

I have no doubt personally and I am clearly of the opinion that this is a case for the summary intervention of the Court. This action must be dismissed.

In the circumstances, I certainly agree with the sentiments which are expressed inferentially in the Defendant's submissions. I must confess that I am not in the least impressed by the proposition advanced by the Plaintiff.

(8) To sum up, in view of the foregoing analysis, I venture to say beyond a per adventure that the Plaintiff has failed to disclose a reasonable cause of action against the Defendants and in the result the Plaintiff's case is clearly untenable.

I could see nothing to change my opinion even on the basis of exhaustive work contained in "Commentary on Litigation" by "Cokes", and "A practical approach to Civil Procedure", by "Stuart Sime", Thirteenth Edition.

Accordingly, there is no alternate but to dismiss the Plaintiff's action and the Statement of Claim to protect the Defendants 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 merits.

I cannot see any other just way to finish the matter than to follow the law.

(F) CONCLUSION

After considering the facts of this case, the submissions made to Court and in light of the authorities, notwithstanding the "caution approach" that the Court is required to take, I am satisfied that the pleading against the Defendants discloses no reasonable cause of action, which in itself leads to the pleading being scandalous, frivolous and vexatious.

(G) FINAL ORDERS

(1) The Plaintiff's Writ of Summons and the Statement of Claim against the Defendants is struck out.

(2) The Plaintiff is ordered to pay costs of $1000.00 (summarily assessed) to the Defendants which is to be paid within 14 days from the date hereof.

Jude Nanayakkara
Acting Master of the High Court

At Lautoka
27th November 2015