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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
CIVIL ACTION NO. HBC 148 of 2014
BETWEEN:
ALIPATE TUIDRAKI as the authorised representative of the iTokatokaVunakuluraurau of the Mataqali Naduruniu of the YavusaNavatulevu, Nadi.
PLAINTIFF
AND:
PENI TUVU SEASEAa.k.a. VENI TUVU, JOSEFA QORO VATUNITU, SEMISI QORO and VASEVA TUVU all of Lotoiqere Island (part of), Vunavutu, Nadi.
DEFENDANTS
(Ms.) Seini Tokasa Tinaikoro for the Plaintiff.
Mr. Kitione Vuataki for the Defendants.
Date of Hearing: - 24th August 2015.
Date of Ruling : - 04th December 2015 .
RULING
(A) INTRODUCTION
(1) The matter before me stems from the Plaintiff’s Originating Summons dated 28th August 2014 seeking the grant of the following
Orders;
1. The Plaintiff and or its appointed representative be entitled possession of the land known as “Vunavutu” on part of the island Lotoiqere, Nadi (“hereinafter referred to as “the Land”), which the Defendants occupy, and appoint its surveyor to survey the Land.
2. the Defendants to vacate the land; and
3. costs of this action.
(2) The Originating Summons is supported by an Affidavit sworn by the Plaintiff on 28th August 2014.
(3) The Originating Summons is strongly resisted by the Defendants.
(4) The Defendants filed an Affidavit in Opposition opposing the Originating Summons followed by an Affidavit in reply thereto.
(5) The Plaintiff and the Defendants were heard on the Originating Summons. They made oral submissions to Court. In addition to oral submissions, they filed a careful and comprehensive written submission for which I am most grateful.
(B) THE FACTUAL 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 main averments/assertions of the pleadings/affidavits.
(3) The Plaintiff in his Affidavit in Support deposes inter alia;
Para 1. THAT I am a member of the iTokatoka Vunakulurauru of the Mataqali Naduruniu of the Yavusa Navatalevu, Nadi (hereinafter referred to as “the iTokatoka Vunakuluraurau”) and its duly authorized representative in this action and authorized by it to make this affidavit.
2. THAT to the best of my knowledge and belief the iTokatoka Vunakuluraurau is the registered allottee of the land known as “Vunavutu” aka “Vunavuto” (hereinafter referred to as “Vunavutu”), which is located on part of the island of Lotiqere, in the District of Nadi.
3. THAT to the best of my knowledge and belief iTokatoka Vunakuluraurau was allotted Vunavutu in 1913 by the land owning units known as Tukani, NoiNaiqoro and Botiluvuka.
4. THAT to the best of my knowledge and belief and as advised by the native Lands Commission, Vunavutu was given to the iTokatoka Vunakuluraurau under Reserve Claim No. 10 and was given as the dowry of a woman who was given in marriage to a member of the iTokatoka Vunakuluraurau. Annexed and marked “A” is a copy of a letter issued to me by the iTaukei Land and Fisheries Commission, part of the Ministry of iTaukei Affairs.
5. THAT to the best of my knowledge and belief the Reserves Commission of the iTaukei Land Trust Board (“hereinafter referred to as the ILTB”) also confirmed to the Manager South West of the ILTB that Vunavutu is reserved to the iTokatoka Vunakuluraurau. Annexed hereto and marked “B” is a copy of an Internal Memorandum issued by the Reserves Commission to the Manager South West of the ILTB.
6. THAT since being allotted to iTokatoka Vunakuluraurau, Vunavutu has not been surveyed and so its boundaries and acreage is currently unknown.
7. THAT to the best of my knowledge and belief the Native Lands Commission and the iTokatoka Vunakuluraurau attempted to survey Vunavutu in 2011 but this was made difficult by one of the Defendants, namely, Mr. Peni Tuvu Seasea a.k.a. Veni Tuvu.
8. THAT the Defendants currently occupy Vunavutu without the consent of the iTokatoka Vunakuluraurau and to the best of my knowledge and belief the Defendants have been illegally occupying Vunavutu under the impression that Vunavutu was allotted to the said Mr. Peni Tuvu Seasea a.k.a. Veni Tuvu.
9. THAT I am not aware of any other individual residing on Vunavutu apart from the Defendants.
10. THAT I verily believe that the iTokatoka Vunakuluraurau gave an opportunity to one of the Defendants, namely, Peni Tuvu Seasea a.k.a. Veni Tuvu to vacate Vunavutu on two occasions, however, he has not vacated Vunavutu. Annexed and marked “C” are sworn Affidavit of Services of notices issued by Cromptons, Solicitors to the said Peni Tuvu Seasea a.k.a. Veni Tuvu to vacate Vunavutu.
11. THAT I am also advised and verily believe that the iTokatoka Vunakuluraurau has an indefeasible interest to Vunavutu and the Defendant does not have any defence in this action.
(4) The Defendants for their part seeking to show cause against the Originating Summons, filed an Affidavit in Opposition, in which they deposed inter alia (so far as relevant);
Para 2. THAT paragraph 2 of the Affidavit is denied as;
3. THAT paragraph 3 of the Affidavit is denied as Plaintiff Tokatoka was allotted part of Lotoiqere Island and I repeat paragraph 2 (a) to (f) above.
4. THAT paragraph 4 is denied. The letter from iTaukei Land and Fisheries Commission marked “A” by the Plaintiff does not mention Vunavutu. They only state a portion of land on Lotoiqere with the boundaries from Nakase to Nadromai. The word “Vunavutu” is not mentioned.
5. THAT paragraph 5 of the affidavit is denied as the Reserved Commissioner from iTaukei Land Trust Board only say that the island Lotoiqere is reserved to Plaintiff Tokatoka. It does not state the name “Vunavutu”. The Plaintiff Tokatoka is from the village of Narewa and they do not know the named and boundaries of our lands from the villages of Namotomoto and Navoci.
6. THAT as to paragraph 6 of the Affidavit is denied as NLC Lot 39 has been surveyed and the island of Lotoiqere is part of Lot 39. Only the island of Lotoloto beside the island of Lotoiqere has not been surveyed. Vunavutu is part of the mainland portion of Lot 39.
7. THAT as to paragraph 7 of the affidavit no one from iTaukei Land and Fisheries Commission came to Vunavutu where I reside in 2011. Only the deponent Alipate Tuidraki, Iromi Dawai and a Policeman and a surveyor came in a car to survey Vunavutu and i refused them entry and they left. I went to Police Station reported them and the Officer in Charge asked them who from iTaukei Lands and Fisheries Commission had come there and Alipate Tuidraki and his group could not answer that question. I left after that.
8. THAT except as to admit our occupation of Vunavutu paragraph 8 of the Affidavit is denied as we do not need the consent of Plaintiff iTokatoka. We are on the land as members of YavusaBotiluvuka which is part of the three Yavusas owning the land Vunavutu and such land has not been allotted to Plaintiff iTokatoka.
9. THAT as to paragraph 9 of the affidavit I reside on Vunavutu with five of my children, one son in law and two of my grandchildren. Joseva Qoro Vatunitu and his family is also on the land Vunavutu as my sister’s son. Semisi Qori is my cousin and is also on the land Vunavutu with his family and sister.
(5) The Plaintiff filed an Affidavit in Rebuttal deposing inter alia (so far as relevant);
Para 2 In reply to paragraphs 2. a) to c) of the said Affidavit for which I seek leave to refer to attachment marked “PTS 2” in the said Affidavit, Reserve Claim No. 10 was allotted to the iTokatoka Vunakuluraurau and not to Tokatoka Nakuluraurau.
The boundaries described in Reserve Claim Number 10 as contained in “PTS 2”have not been surveyed and it cannot be determined until a survey is conducted.
3. In reply to paragraphs 2 d) to f) of the said Affidavit, it is not denied that NLC Lot 39 has been surveyed, however, to the best of my knowledge and belief Reserve Claim Number 10 is within NLC Lot 39 and it boundaries and acreage are unknown until a survey is conducted.
4. In reply to paragraphs 2. G) to k) of the said Affidavit I do not have any knowledge of these matters and cannot admit to their contents, however, to the best of my knowledge and belief my uncle, Alipate Driu, held a NLTB lease for land at Vunavutu in or around early 1980’s which was later terminated by NLTB and his rights relating to the land at Vunavutu reverted to that of a land owner. Annexed and marked “A” is a copy of a letter dated 26th October, 1987 addressed to Alipate Driu.
5. In reply to paragraphs 3. to 6. Of the said Affidavit I repeat paragraphs 2 and 3 herein, that the boundaries relating to Reserve Claim Number 10 have never been surveyed and its boundaries and acreage cannot be determined, however, I verily believe that the Defendants occupy part of the land allotted to the iTokatoka Vunakuluraurau known as Vunavutu.
6. Paragraph 7, of the said Affidavit is denied, I had personally visited the land I believe to be that claimed by the i-Tokatoka Vunakuluraurau with an officer from the Native Lands Commission in December 2011 to place the first survey marker peg. The said Peni Tuvu was not at home on this occasion and the boundary peg was placed near the house of the said Peni Tuvu without any interference.
(C) THE LAW
(1) The Originating Summons dated 28th August 2014 does not make reference to the High Court Rule or statutory basis, under which the application is being made. Nevertheless, the Summons dated 19th January 2015, does make reference to the statutory basis, which is pursuant to Order 113 of the High Court Rules.
(2) Against the factual background, it is necessary to turn to the applicable law and the judicial thinking in relation to the principles governing the exercise of the discretion to make the Order the Plaintiff now seeks.
(3) Rather than refer in detail to the various authorities, I propose to set out, with only limited citations, what I take to be the principles of the play.
Order 113 of the High Court Rules provides a summary procedure for possession of Land.
Order 113 provides;
“Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.”
(4) Justice Pathik in “Baiju v Kumar (1999) FJHC 20; HBC 298 J.98, succinctly stated the scope of the order as follows;
“The question for (the) Courts determination is whether the plaintiff is entitled to possession under this Order. To decide this Court has to consider the scope of the Order. This aspect is covered in detail in the Supreme Court Practice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard:
“This Order does not provide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers.”
As to the application of this Order it is further stated thus:
“The application of this order is narrowly confined to the particular circumstances described in r.1 i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee hold over after the determination of the licence(Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593.”
This Order is narrowly confined to the particular remedy stated in r.1. It is also to be noted, as the White Book says at p.1603:
“this Order would normally apply only in virtually uncontested casesor in clear cases where there is no issue or question to try i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto.”
I have carefully considered all the affidavits evidence adduced in this case and the written and oral legal submissions from both counsel.
...
The facts do not reveal that the defendant is a trespasser on the land. He continued living there as a licensee ...
On the facts of this case, the cases to which I refer to hereafter do not make the defendant a trespasser or a squatter.
Order 113 is effectively applied with regard to eviction of squatters or trespassers. In Department of Environment v James and others [1972] 3 All E.R. 629 squatters and trespassers are defined as:
“he is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can .....”
Goulding J. said that:
“.....where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession .....”
Another definition of “trespasser” is as set out in Clerk & Lindsell on Torts (15th Ed. 1982) page 631:
“A trespasser is a person who has neither right nor permission to enter on premises”.
Also as was said by Lord Morris of-Borth-Y-Gest in British Railways Board v. Herrington [1972] UKHL 1; [1972] A.C. 877 at 904:
“The term ‘trespasser’ is a comprehensive word; it covers the wicked and the innocent; the burglar, the arrogant invader of another’s land, the walker blindly unaware that he is stepping where he has no right to walk, or the wandering child – all may be dubbed as trespassers”.
I agree with [Counsel for the defendant] that the defendant’s father and his children gained possession of the land only after the plaintiff had given his consent in or about 1970 and for that matter, the physical fact of the defendant’s occupation is that of acquiescence on the land. I refer to Sir Frederick Pollock’s statement in the case of Browne v. Dawson [1840] EngR 898; (1840) 12 Ad. & El 624 where he said:
“..... A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner.....”
(D) ANALYSIS
(1) Before passing to the substance of the application, let me record that the Counsel for the Plaintiff and the Defendants in their written submissionshas done a fairly exhaustive study of the applicable law.
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.
(2) At the oral hearing of the matter, the Defendants raised a preliminary legal issue.
The Defendant’s argument runs essentially as follows; [Counsel in his submission writes...]
Para 2. Order 7 rule 3 (1) requires an Originating Summons to state sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims the relief or remedy. The Order states as follows:
“3(1) Every Originating Summons must include a statement of the questions on which the Plaintiff seeks the determination or direction of the High Court or, as the case may be, a concise Statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims that relief or remedy.”
3. No cause of action being stated in the Summons we submit that the Summons should be dismissed for lack of cause of action.
As against this preliminary legal point, I heard no word said on behalf of the Plaintiff.
I note that the Defendants have failed to file any application to set aside the Plaintiff’s Originating Summons for “irregularity” under Order 2, rule (2) of the High Court Rules and have 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 Defendants chose to offer response to the Plaintiff’s Originating Summons if there is any defect or irregularity in the Originating Summons.
If the Defendants have considered that the Plaintiff’s Originating Summons is irregular and defective, they could have moved under Order 02, rule (2) of the High Court Rules. The Defendants 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. If the Defendants had considered that the Originating summons seeking vacant possession was in an irregularity, they could have moved under Order 2, rule (2)before they took another step. If any proceedings are to be set aside on the ground 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 Defendants on their own volition chose not to follow the High Court Rules. I am curious to know as to why the Defendants chose not to follow the High Court Rules. It seems to me perfectly plain that the Defendants slept on the matter and did not wake up at all from their 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)
On the strength of the authority in the above case, I hold that the Defendant’s preliminary point must fail because of the delay involved.
(3) In these circumstances, it will be at best a matter of academic interest only or at worst an exercise in futility to discuss the merits of the Defendant’s argument relating to the regularity of Plaintiff’s Originating Summons seeking vacant possession.
(4) Now let me proceed to examine the substance of the Plaintiff’s application.
As I apprehend, the land in question is known as “Vunavutu” aka “Vunavuto” .
The Plaintiff alleges that the Defendants are in unlawful possession and occupation of the land in question, Vunavutu aka Vunavuto. The Defendants admit that they are in possession and occupation of “Vunavutu” aka “Vunavuto”. But the Defendants forcefully submit that “Vunavutu” aka Vunavuto, the land in question is part of the mainland and not part of the Plaintiff’s land.
The crux of the submission of the Defendants is that they have been inlawful possession and occupation of the subject land namely, “Vunavutu” aka “Vunavuto” since 1960 and it is part of the mainland and not part of the Plaintiff’s land. Put another way, the Defendants say that they do not reside on the Plaintiff’s land and their land is located outside the boundaries of the Plaintiff’s land.
In paragraph six (06) of the Affidavit in Support of the Originating Summons, the plaintiff deposed that the land in question, “Vunavutu” aka “Vunavuto” has not been surveyed and so its boundaries and acreage is currently unknown.
Reference is made to paragraph (02) of the Affidavit in Opposition filed by the Defendants.
Para 2. THAT paragraph 2 of the Affidavit is denied as;
In adverso, the Plaintiff submits; [Counsel in her submissions writes....]
Para 4.1 The Plaintiff seeks to have the boundaries of the Land determined which will reveal that the Defendants reside on the Land.
4.2 The Plaintiff further seeks to eject Defendants from the Land upon the boundaries of the Land being surveyed.
4.3 The Plaintiff exercises its right as the registered allotee of the Land to seek Orders to define the boundaries of the Land and for ejectment of the Defendants.
Therefore, it is manifest that there is conflicting affidavit evidence with regard to the location and the boundaries of the land in question. Thus, I am unable to resolve the issue unless oral evidence is given.
I interpose the view that the procedure under order 113 is a summary process (akin to Section 169 of Land Transfer Act) and it is only clearestof cases should it be used.
Now let me consider what authority there is on this point.
In “Jamaludin v Kamru Din” Civil Action No:- 37 of 2014, (unreported) the court held;
“Section 172 allows the Judge to make other orders and impose any terms but this can only be done if cause is shown by the defendant. For example the Judge can dismiss the summons and order that the application be instituted by a writ action where evidence is required to be adduced. In the past the High Court has held that if the proceedings involve complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature but will dismiss the summons without prejudice to the plaintiff’s right to institute proceedings in another manner or by writ action (see Caldwell v Mongston (1907) 3 F.L.R. 58 and Pirrier Watson v Venkat Swami(Civil Action 9 of 1967 – unreported).”
The following statements from the Court of Appeal case of Ambika Prasad f/n Ram Piyare v. Santa Wati f/n Kali Charan, BissunDeo f/n Jag Deo (Civ. App. No. 38/95s – FCA Reps 98/130) is apt and I adopt it here;
“Whether or not the appellant had an equitable interest and whetheror not there was fraud by the respondent in the manner alleged arematters which are disputed by the respondent in their affidavits.These are clearly issues which cannot be resolved by affidavit evidence and ought to go to trial.”
In “Vallabh Das Premji v. VinodLal and Others, F.C.A Civil Appeal No. 70 of 1974 (unreported)” the Court said:
“In the past, on earlier but similar legislation, the Supreme Court has held that if the proceedings involve consideration of complicated facts or serious issues of law, it will not
decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to the plaintiff’s right
to institute proceedings by Writ of Summons. Instances quoted by counsel are Caldwell v. Mongston (1907) 3 F.L.R. 58 and Ferrier Watson v. Venkat Swami (Civil Action 29 of 1967 – unreported). The power of the court to adopt this approach has not been challenged so it is not
material to consider whether it arises under section 172 of the Act or from inherent power to reject as unsuitable procedure where
another, comprehensive and better suited to the determination of controversial matters, is available.”
(Emphasis Added)
The Supreme Court practice, 1993 Vol.01, O.113/1-8/1 at Page 1602reads;
“this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto.”
(Emphasis Added)
I echo the words of “Gould” V. P. in “Ram Narayan v. Moti Ram” Civil Appeal No. 16 of 1983.
“The summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”
(Emphasis Added)
(5) On the strength of the authority in the above cases, I venture to say beyond a per adventure that the Plaintiff’s application for vacant possession pursuant to Order 113, which is summary in nature fails as there is conflicting affidavit evidence with regard to the location and the boundaries of the land in question. The issue can properly be resolved by a trial, at which the parties and all relevant witnesses give evidence and the facility exists for that evidence to be tested.
(6) The Defendants seek indemnity costs.
What is the basis upon which the Defendants seek indemnity costs? [Counsel in his submissions writes ....]
“In this particular case the Plaintiff’s conduct has been reprehensible in
(a) Filing a summons without stating a cause of action
(b) Relying on evidence that does not support their claim
(c) Not withdrawing their case when the Defendant has filed documentation that proves that Vunavutu where the Defendants reside is part of main land rather than part of an island that is Lotoiqere (see Annexure PT53)
(7) In adverso, the Counsel for the Plaintiff submitted;
[Counsel in her submission writes....]
Para 5.1 The Plaintiff had made representations to the Defendants, namely Peni Tuvu, before filing the Summons dated 28th August 2014, however, the Defendants did not cooperate with the Plaintiff’s request to have the boundaries of the Land defined Annexure “C” of the 1st Affidavit of Alipate Tuidraki refers.
5.2 The Plaintiff had also made representations to the TLTB, annexure “PTS 2” of the Peni Tuvu’s Affidavit refers seeking assistance to clarify the boundaries of the Land.
5.3 The Plaintiff also sought the assistance of the TFLC for which a survey of the Land was arranged, however, the survey of the Land was made difficult by Peni Tuvu. Paragraphs 5 to 8 of the 2nd Affidavit of Alipate Tuidraki refers.
5.4 If the Defendants had allowed the Plaintiff to conduct the survey these proceedings would have been avoided.
5.5 The Defendants claims indemnity costs of $10,000.00 as legal fees and have deposited with their Solicitors $3,000.00, however, has not supported this with invoices or relevant documents to support or justify this amount Seman v Westpac Banking Corporation [2011] FJHC (page 7).
(8) Against this factual background, it is necessary to turn to the applicable law and the judicial thinking in relation to the principles governing “indemnity costs”.
(9) Order 62; rule 37 of the High Court Rules empower courts to award indemnity costs at its discretion.
For the sake of completeness, Order 62, rule 37 is reproduced below.
Amount of Indemnity costs (O.62, r.37)
37.- (1) The amount of costs to be allowed shall (subject to rule 18 and to any order of the Court) be in the discretion of the taxing officer.
(10) G.E. Dal Pont, in “Law of Costs”, Third Edition, writes at Page 533 and 534;
‘Indemnity’ Basis
“Other than in the High Court, Tasmania and Western Australia, statute or court rules make specific provision for taxation on an indemnity basis. Other than in the Family Law and Queensland rules – which define the ‘indemnity basis’ in terms akin to the traditional ‘solicitor and client basis’ – the ‘indemnity basis’ is defined in largely common terms to cover all costs incurred by the person in whose favour costs are ordered except to the extent that they are of general law concept of ‘indemnity costs’. The power to make such an order in the High Court and Tasmania stems from the general costs discretion vested in superior courts, and in Western Australia can arguably moreover be sourced from a specific statutory provision.
Although all costs ordered as between party and party are, pursuant to the ‘costs indemnity rule’, indemnity costs in one sense, an order for ‘indemnity costs’, or that costs be taxed on an ‘indemnity basis’, is intended to go further. Yet the object in ordering indemnity costs remains compensatory and not penal. References in judgments to a ‘punitive’ costs order in this context must be seen against the backdrop of the reprehensible conduct that often justifies an award of indemnity costs rather than impinging upon the compensatory aim. Accordingly, such an order does not enable a claimant to recover more costs than he or she has incurred.”
(11) Now let me consider what authority there is on this point.
The principles by which Courts are guided when considering whether or not to award indemnity costs are discussed by Hon. Madam Justice Scutt in “Prasad v Divisional Engineer Northern (No. 02)” (2008) FJHC 234.
As to the “General Principles”, Hon. Madam Justice Scutt said this;
Defining ‘Improper’, ‘Unreasonable’ or ‘Negligent’ Conduct in Legal Proceedings as Guide to Indemnity Costs Awards: Cases where ‘wasted costs’ rules or ‘useless costs’ principles have been applied against solicitors where their conduct in proceedings has led to delay and/or abuse of process can provide some assistance in determining whether conduct in proceedings generally may be such as to warrant the award of indemnity costs. These cases specifically relate to solicitors’ conduct rather than directly touching upon the indemnity costs question; nonetheless the analysis or findings as to what constitutes conduct warranting an award of costs can be helpful. See for example:
Some of the matters referred to include:
Specific Circumstances of Grant/Denial Indemnity Costs: Specific instances supporting or denying the award of indemnity costs include:
(12) Let me now proceed to examine the first ground adduced by the Defendants seeking indemnity costs. I traversed the Originating Summons. The Originating Summons dated 28th August 2014, does not include the statutory basis under which the application is made. This is not disputed by the Plaintiff.
As against the first ground, I have not heard a single word said on behalf of the Plaintiff.
(13) The issue before this Court is whether the Plaintiff had prima faciemisused the process of the Court byissuing Originating Summons seeking vacant possession without stating the statutory basis.
Order 7, rule 3 (1) requires an Originating Summons to state sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims the relief or remedy. The Order states as follows:
"3(1) Every Originating Summons must include a statement of the questions on which the Plaintiff seeks the determination or direction of the High Court or, as the case may be, a concise Statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims that relief or remedy."
It is obvious that the Plaintiff on its own volition chose not to follow the High Court Rules. The Plaintiff by its conduct has clearly demonstrated that he has no regard to the primary policy of the High Court Rules.
I am satisfied that there is reprehensible conduct by the Plaintiff, the penalty for which, in my view, should be an Order for costs on indemnity basis.
(14) Next, I propose to examine the third ground adduced by the Defendants seeking indemnity costs. The issue before this Court is whether the Plaintiff had prima facieabused the process of the Court by not taking steps to withdraw the Originating Summons when the Defendant filed documents to prove that the Defendant's land is located outside the boundaries of the Plaintiff's land (There is conflicting Affidavit evidence).
(15) Before I proceed to examine the substance of the Defendant's third ground for indemnity costs let me proceed to consider what is meant by the phrase "abuse of process"...
In Halsbury's Laws of England Vol 37 page 322thephrase "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."
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."
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"
Let me now turn back to the present case. The Plaintiff alleges that the Defendants are in unlawful possession and occupation of the land in question, "Vunavutu aka Vunavuto". The Defendants admit that they are in possession and occupation of "Vunavutu" aka "Vunavuto". But the Defendants forcefully submit that "Vunavutu" aka Vunavuto, the land in question is part of the mainland and not part of the Plaintiff's land.
The crux of the submission of the Defendants is that they have been in lawful possession and occupation of the subject land namely, "Vunavutu" aka "Vunavuto" since 1960 and it is part of the mainland and not part of the Plaintiff's land. Put another way, the Defendants say that they do not reside on the Plaintiff's land and their land is located outside the boundaries of the Plaintiff's land.
In paragraph six (06) of the Affidavit in Support of the Originating Summons, the Plaintiff deposed that the land in question, "Vunavutu" aka "Vunavuto" has not been surveyed and so its boundaries and acreage is currently unknown.
Without determining the boundaries of the land in question, the Plaintiff issued Originating Summons against the Defendant seeking vacant possession of the subject land. This is clearly unwarranted.
It was unreasonable for the Plaintiff and his Practitioner to institute Summary proceedings seeking vacant possession when there are complicated issues of fact in relation to the location and the boundaries of the subject land. Order 113 of the High Court Rules is a summary process (akin to Section 169 of the Land Transfer Act) and it is only clearest of cases should it be used.
To be more precise, Section 169 of the Land Transfer Act and Order 113 of the High Court Rules would normally apply only in clear cases where there is no issue or question to try. That is not the case here.
Any practitioner in the field should have known the clear state of the law on Summary proceedings for eviction. The Plaintiff and its practitioner must have known that they had no possibility of success against the Defendants.
To make matters worse, the Plaintiff continued proceedings despite conflicting Affidavit evidence in relation to the location and the boundaries of the subject land. The Plaintiff should have discontinued the proceedings since there is a serious question to be tried. I need only say that on the conflicting affidavit evidence before the Court, It seems quite plain that there is a bona fide dispute as to whether the Defendant's resides on the Plaintiff's land, and that dispute is not trivial or unsubstantial but is based on solid grounds. It clearly shows the indefatigable initiative and endless effort on the part of the Plaintiff who is so insistent in bringing litigation with no regard to any merits whatsoever.
In the circumstances, I get the distinct impression that the Plaintiff commenced and continued Summary proceedings for eviction for the purpose of causing trouble or annoyance to the Defendants. There has been reprehensible conduct by the Plaintiff.
It is quite evident in the material before me, that this attempt to evict the Defendants from the subject land is a clear abuse of the Summary proceedings for eviction. If the Plaintiff wishes to pursue his claim to recover possession, he should institute a High Court Writ of Summons as it is seriously and evidentially contentious.
As I mentioned earlier, there are certain principles governing Summary proceedings for eviction. In the context of the present case, I cannot help but recall the rule of law enunciated in the following judicial decisions.
In "Jamaludin v Kamru Din" Civil Action No:- 37 of 2014, (unreported) the court held;
"Section 172 allows the Judge to make other orders and impose any terms but this can only be done if cause is shown by the defendant. For example the Judge can dismiss the summons and order that the application be instituted by a writ action where evidence is required to be adduced. In the past the High Court has held that if the proceedings involve complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature but will dismiss the summons without prejudice to the plaintiff's right to institute proceedings in another manner or by writ action (see Caldwell v Mongston (1907) 3 F.L.R. 58 and Pirrier Watson v VenkatSwami(Civil Action 9 of 1967 – unreported)."
The following statements from the Court of Appeal case of Ambika Prasad f/n Ram Piyare v. Santa Wati f/n Kali Charan, BissunDeo f/n Jag Deo (Civ. App. No. 38/95s – FCA Reps 98/130) is apt and I adopt it here;
"Whether or not the appellant had an equitable interest and whetheror not there was fraud by the respondent in the manner alleged arematters which are disputed by the respondent in their affidavits.These are clearly issues which cannot be resolved by affidavit evidence and ought to go to trial.
In "Vallabh Das Premji v. VinodLal and Others, F.C.A Civil Appeal No. 70 of 1974 (unreported)" the Court said:
"In the past, on earlier but similar legislation, the Supreme Court has held that if the proceedings involve consideration of complicated facts or serious issues of law, it will not
decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to the plaintiff's right to institute
proceedings by Writ of Summons. Instances quoted by counsel are Caldwell v. Mongston (1907) 3 F.L.R. 58 and Ferrier Watson v. Venkat Swami (Civil Action 29 of 1967 – unreported). The power of the court to adopt this approach has not been challenged so it is not
material to consider whether it arises under section 172 of the Act or from inherent power to reject as unsuitable procedure where
another, comprehensive and better suited to the determination of controversial matters, is available."
(Emphasis Added)
The Supreme Court practice, 1993 Vol.01, O.113/1-8/1 at Page 1602reads;
"this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto."
(Emphasis Added)
I echo the words of "Gould" V. P. in "Ram Narayan v. Moti Ram" Civil Appeal No. 16 of 1983.
"The summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."
(Emphasis Added)
Returning back to the instant case, I wish to emphasise that the Plaintiff's resort to Summary proceedings against the Defendants where the location of the land and its boundaries are undetermined, is a high risk strategy, the penalty for which, in my view should be an Order for costs on indemnity basis.
In my judgment, the factual background is clear and unambiguous. It clearly shows the indefatigable initiative and endless effort on the part of the Plaintiff who is so insistent in bringing litigation with no regard to any merits whatsoever.
It seems to me perfectly plain that the action has been commenced and continued in the circumstances where the Plaintiff and his Counsel should have known that they have no chance of success. Therefore, the action must be presumed to have been commenced and continued for some ulterior motive or because of some willful disregard of the known facts or the clearly established law.
The inherent jurisdiction of the Court to regulate its procedures by preventing abuse of its process is well recognized.
While the Court is generally reluctant except in exceptional cases, to award costs on an indemnity basis, a clear abuse might well justify an award of full indemnity costs.
In all the circumstances, I am satisfied that the Plaintiff's conduct on this matter is vexatious, oppressive and reprehensible.
In light of the above, I have no hesitation in holding that an award of indemnity costs is warranted.
In the result, I certainly agree with the sentiments which are expressed inferentially in the Defendant's submissions in relation to first and third grounds, seeking indemnity costs.
I must confess that I am not in the least impressed by the objections raised by the Plaintiff. I disallow the objections.
In view of the approach I have adopted, I do not think it is necessary for me to express my views on the second ground adduced by the Defendant seeking indemnity costs. It will be at best, a matter of academic interest only or at worst an exercise in futility to discuss the merits of the second ground seeking indemnity costs.
(E) CONCLUDING REMARKS
(1) After considering the facts of this case and the submissions made to court, I conclude that there is conflicting affidavit evidence and as a result the application for vacant possession under Order 113, which is summary in nature, fails.
(2) Having had the benefit of written and oral submissions for which I am most grateful and after having perused the Affidavits and the pleadings, doing the best that I can on the material that is available to me, I have no doubt personally and I am clearly of the opinion that the justice of the case requires for me to depart from the normal rule and make my discretion to award indemnity costs. The Plaintiff is guilty of conduct deserving of condemnation as disgraceful and as an abuse of the process of the Court and ought to be penalised by having to pay indemnity costs.
(3) I venture to say beyond a peradventure that this is an appropriate case for the Court to reflect, in its Orders for costs, its disapproval of attempts made to abuse the process of the Court by the Plaintiff.
(4) I could see nothing to change my opinion even on the basis of exhaustive work contained in "Law of Costs", G.E. Dal Pont, Third Edition and "Company Law", Palmers.
(5) I cannot see any other just way to finish the mater than to follow the law.
(F) FINAL ORDERS
Jude Nanayakkara
Acting Master of the High Court
At Lautoka
04th December 2015
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