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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 139 of 2012
BETWEEN :
UTTRA KUMARI aka Uttra Devi & AKRAM KHAN of Tuvu,
Rabulu, Tavua.
PLAINTIFFS
AND :
CHANDRA PRASAD of Rabulu, Tavua
1ST DEFENDANT
AND :
ITAUKEI LAND TRUST BOARD formerly known as Native Land
Trust Board, a body corporate duly constituted under the Native Land Act Cap. 134 and having its registered office at 431 Victoria
Parade, Suva.
2nd DEFENDANT
Mr. Niko Nawaikula for the Plaintiffs
Mr. Niven Ram Padarath for the First Defendant
No appearance for or on behalf of the Second Defendant.
Date of Hearing: - 28th September 2015
Date of Ruling : - 04th February 2016
RULING
(A) INTRODUCTION
(1) The matter before me stems from the Summons filed by the Plaintiffs pursuant to Order 25, Rule 6 (3) (b) and Order 18, Rule 18 (1) (a) of the High Court Rules, 1988 seeking the grant of the following Orders;
- (A) The First Defendants defence is to be struck out
- (B) Costs be in the cause
(2) The Summons is supported by an Affidavit sworn by the first named Plaintiff on 09th July 2015.
(3) The Summons is strongly resisted by the first Defendant.
(4) The Plaintiffs and the first Defendant were heard on the 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 averments/assertions of the pleadings.
(3) The Plaintiffs in their Statement of Claim plead inter alia;
Para 1 THAT the Plaintiffs are the current registered title holders of
Native Lease NL 974 known as Tuvu in the district of Tavua comprising 151 acres.
2. THAT the 1st Defendant is occupying part of the Plaintiffs lease NL 974 under the interest of his father the late Mr. Bhagwan Din whose agricultural tenancy was extended for 20 years from 1st January 1992 to thereby terminate on 1st January 2012.
3. THAT the 2nd Defendant is a statutory body established under the I Taukei Land Trust Act Cap 134 to administer native land held under its control for the benefit for its native owners.
4. THAT the subject matter of this action is the status of the 1st Defendant on the expiration of his late father's tenancy on the 1st of January 2012 and the actions of the 2nd Defendant in purporting to issue a lease to the 1st Defendant over the same piece of land.
5. THAT by this action the Plaintiffs are claiming that the 1st Defendant has no more right to be on the Plaintiffs lease after the expiration of his late father's tenancy on 1st January 2012 and that the 2nd Defendant has no power to issue a lease over it given that the Plaintiff's lease NL 974 is still pending.
6. THAT the 1st Defendants late father Mr. Bhagwan Din was an agricultural tenant of the Plaintiffs for a term of 21 years from 1972 which tenancy ended on the 1st day of January 1992.
7. THAT in 1998 pursuant to an order of the agricultural tribunal, WD Ref no 54 of 1995, dated 26 June 1998 the tenancy granted to the 1st Defendant's late father in 1972 for 21 years was extended for a further term of 20 years from 1st January 1992 and to thereby terminate on the 1st of January 2012.
8. THAT the 1st Defendant's late father's tenancy has expired on the 1st of January 2012 and the 1st Defendant has no more color of right to be on the Plaintiff's land.
9. THAT on the 20th day of March 2012 the Plaintiffs had issued a notice for vacant procession against the 1st Defendant on the basis that the 1st Defendants father's lease had expired and the Plaintiffs have no desire to extend it.
10. THAT on the 7th of April 2012, the Plaintiffs again demanded the 1st Defendant to quit and vacate the land because his father's interest has expired and the plaintiffs do not wish to consent to a grace period.
11. THAT the Plaintiff says that the 1st Defendant has no more color of right to be on the land and his continuing occupation is unlawful.
12. THAT the 1st Defendant has never paid any money at all to the Plaintiffs in lieu of his occupation.
13. THAT the Plaintiffs repeat paragraphs 1-12 herein.
14. THAT in 2011 as the 1st Defendants father's lease was about to expire, the 2nd Defendant invited the 1st Defendant to come forward and lodge an application to itself with a promise that it will give to the 1st Defendant a lease.
15. THAT the Plaintiff upon being aware cautioned the 2nd Defendant not to receive any application because it will be unlawful to grant any lease over the Plaintiffs land given that the lease is still existing.
16. THAT the 2nd Defendant has ignored and refused the Plaintiff's plea.
17. THAT on 18th April 2012, the 2nd Defendant gave an offer to the 1st Defendant to lease 6.0705 hectares of land within the Plaintiffs existing lease hold subject to the payment of $5,393.31 in consideration, procession fee and etc.
18. THAT on the 20th of April 2012, the 2nd Defendant received from the 1st Defendant the sum of $1,150.00 in fees towards the offer.
19. THAT the Plaintiffs say that the offer made by the 2nd Defendant to lease 6.0705 hectares of land comprised in the Plaintiffs lease to the 1st Defendant is null and void as the Plaintiffs lease NL 974 is still current and subsisting.
(4) The Plaintiffs claim the following;
- A DECLARATION that the 1st Defendants occupation of the Plaintiffs lease NL 974 is unlawful.
- AN ORDER that the 1st Defendant vacates the Plaintiffs land forthwith.
- AN ORDER that the 1st Defendant pay to the Plaintiffs money to be assessed in lieu of the 1st Defendants occupation of the Plaintiffs land.
- A DECLARATION that the purported offer by the 2nd Defendant to lease to the 1st Defendant 6.0705 hectares of the Plaintiffs lease is null and void.
- AN ORDER restraining the 2nd Defendant from issuing any lease on the Plaintiffs existing lease.
- COSTS against the 2nd Defendant on indemnity basis.
(5) The first Defendant in his Statement of Defence pleads inter alia;
Para 1. That the 1st Defendant denies paragraph 1 of the Statement of
Claim and puts the Plaintiffs to strict proof thereof. There are seven other occupants in the said land whose parents had been there since 1930. The seven occupants have been offered lease by the 2nd Defendant of which the premium and other cost has already been made and the subject areas already pegged.
2. That the 1st Defendant admits paragraph 2, 3 and 4 of the Statement of Claim.
3. That the 1st Defendant denies paragraph 5 of the statement of defence and puts the Plaintiffs to strict proof thereof.
4. That the 1st Defendant denies paragraphs 6, 7, 8, 9, 10 and 11 of the Statement of Defence and says that he has an equitable interest to be in the said property. The said property was cultivated and maintained by his parents and thereafter by himself.
5. That the 1st Defendant denies paragraph 12 of the Statement of Defence and puts the Plaintiffs to strict proof thereof. The rent was duly paid to the Plaintiffs and the 1st Defendant has proof of the same which will be tendered during the trial.
6. That the 1st Defendant denies paragraph 14 of the Statement of Defence and says that his application for lease to cultivate the said land with the 2nd Defendant was approved and an offer letter was given to him and terms of the same was agreed between the parties and accepted.
7. That the 2nd Defendant denies paragraph 15, 16, 17, 18 and 19 of the Statement of Claim and say that the 2nd Defendant as head lessee exercise its power to approve lease for the seven tenants who are cultivating and maintaining the said property.
(6) The Plaintiffs in their Reply to Defence plead inter alia;
Para 1. THAT as for paragraph 1 they join issue with the 1st
Defendants and say that they maintain they are the last registered title holders of Native Lease NL 974 comprising of 151 acres and that the offer by the 2nd Defendants, ITLTB to the seven occupants to lease part of the Plaintiff's existing lease are null and void and of no effect.
2. THAT the Plaintiffs join issue on para 2 of the first defendant's defence.
3. THAT the Plaintiffs join issue on para 3 of the first defendants defence and say that the first defendant has no right to be on the Plaintiff's lease after the expiration of the first defendant late father's tenancy on first January 2012 and that the 2nd defendant has no power to issue a lease over it when the plaintiffs lease NL 974 is still current and pending.
4. THAT as to para 4 of the first defendant's statement of defence the plaintiffs deny the first defendant has an equitable interest in the said property.
5. THAT as for para 5 the Plaintiffs maintain that the defendant has not paid to them any rent.
6. THAT as for para 6 the plaintiff say that the offer letter given to the first defendant by the second defendant if any, to lease part of plaintiffs lease when the said lease is still current and pending is null and void and of no effect.
7. THAT as for para 7 the plaintiffs say the second defendant has neither right nor power to grant any lease to a third party over the Plaintiffs lease that is still current.
(C) THE STATUS OF THE SUBSTANTIVE MATTER
(1) The action was instituted by the Plaintiffs on 27th June 2012 by way of Writ of Summons and Statement of Claim.
(2) The matter is now at the Pre-trial Conference stage.
(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.
(2) Rather than refer in detail to the various authorities, I propose to set out hereunder, the 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(1) of the High Court Rules. Order 18, rule 18(1) 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. Ry Co (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. 96/005 summarised the applicable principles as follows:-
- 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.
- 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...
- 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.
- 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.
- 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.
- 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:
(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 summarised 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 Plaintiffs application to strike out the Statement of Defence of the first Defendant, let me record that the Counsel for the Plaintiffs and the first Defendant in their written submissions has 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 for both parties as well as to the written submissions and the judicial authorities referred to therein.
(2) Before I pass to consideration of the submissions, let me make this preliminary comment.
At the oral hearing of the matter, the Counsel for the Plaintiffs abandoned their application made pursuant to Order 25, Rule 6(3)(b) of the High Court Rules. As such, the application to strike out the Statement of Defence is based on Order 18, Rule 18 (1) (a) of the High Court Rules.
At the oral hearing before the Court, the Counsel for the Plaintiffs sought to read and rely on the Affidavit in support sworn by the first named Plaintiff.
A preliminary legal issue was raised by the Counsel for the first Defendant.
The Counsel for the first Defendant's preliminary objection runs essentially as follows; [Counsel in his submissions writes .....]
Para 4. The Defendant took issue with the Affidavit of Uttra Kumari on
the grounds that since the Plaintiff counsel is relying on Order 18 Rule 18 (1) (a) of the High Court Rules to strike out the defence of the Defendant, no evidence is admissible. Order 18 Rule 18 (2) very clearly provides for this in the following words:-
"no evidence shall be admissible on an application under paragraph (1) (a)."
5. It is abundantly clear from the above provision that any form of evidence is not admissible when citing that a party does not have a cause of action or defense.
6. As such, the Defendant submits that the Affidavit of Uttra Kumari sworn on 9th July 2014 must be struck out or disregarded.
7. In addition, the Defendant also raised the issue of compliance with Order 41 Rule 5 of the High Court Rules as the Plaintiff has made statement which are not supported by grounds or the source upon which such statements are based.
8. Order 41 rule 5 (2) reads as follows:-
"an affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information of belief with the sources and grounds thereof".
9. The Plaintiff at paragraph 13 of her Affidavit in Support sworn on 9th July 2015 states that the Second Defendant has purported to withdrawn the offer made an annexed a letter which is addressed to the First Defendant. It is important to note that there is no mention of the Plaintiff in the said letter and further no mention of how or on what grounds the Plaintiff came into possession of the said letter.
10. This is a clear violation of Order 41 Rule 5 and the evidence deposed at this stage of the proceedings is unreliable and cannot be accepted by this court to establish any fact.
11. Thus based on the above grounds the Defendant submits that the Affidavit of Uttra Kumari sworn on 9th July 2015 cannot be read into evidence for the purposes of determining whether the Defendant does have a reasonable defence.
I was asked to rule on this preliminary legal issue.
Let me proceed to examine the preliminary legal issue now.
Let me have a close look at Order 18, rule 18 (1) of the High Court Rules, 1988.
I should quote Order 18, rule 18 (1) which provides;
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.
As I said earlier, the Plaintiffs application to strike out the Statement of Defence is made pursuant to Order 18, Rule 18 (1) (a) of the High Court Rules on the ground that there is no reasonable defence. Order 18, Rule 18 (2) very clearly provides;
"(2) No evidence shall be admissible on an application under paragraph (1) (a)."
On a careful consideration of Order 18, rule 18(2) of the High Court Rules, it is manifestly clear that an application of this kind must be determined on the pleadings as they appear before the court. The Court is bound to assume that the factual basis on which the allegation contained in the pleadings is raised will be proved.
In the circumstances, I uphold the preliminary objection raised by the Counsel for the first Defendant.
I completely disregard the Affidavit in support sworn by the first named Plaintiff. I give it no weight whatsoever.
(3) Let me now proceed to examine the substance of the Plaintiffs application to strike out the Statement of Defence on the ground that it discloses no reasonable defence, bearing all those legal principles mentioned in paragraph "D" uppermost in my mind.
(4) As I understand the evidence, let me summaries my understanding of the salient facts as follows;
❖ The Plaintiffs are the current registered title holders of
Native Lease NL 974 known as Tuvu in the district of Tavua comprising 151 acres.
❖ The 1st Defendant is occupying part of the Plaintiffs lease NL 974 under the interest of his father the late Mr. Bhagwan Din whose agricultural tenancy was extended for 20 years from 1st January 1992 to thereby terminate on 1st January 2012.
❖ By this action the Plaintiffs are claiming that the 1st Defendant has no more right to be on the Plaintiffs lease after the expiration of his late father's tenancy on 1st January 2012 and that the 2nd Defendant has no power to issue a lease over it given that the Plaintiff's lease NL 974 is still pending.
❖ The 1st Defendant's late father Mr. Bhagwan Din was an agricultural tenant of the Plaintiffs for a term of 21 years from 1972 which tenancy ended on the 1st day of January 1992.
❖ In 1998 pursuant to an order of the agricultural tribunal, WD Ref no 54 of 1995, dated 26 June 1998 the tenancy granted to the 1st Defendant's late father in 1972 for 21 years was extended for a further term of 20 years from 1st January 1992 and to thereby terminate on the 1st of January 2012.
❖ The 1st Defendant's late father's tenancy has expired on the 1st of January 2012.
❖ On the 20th day of March 2012 the Plaintiffs had issued a notice for vacant procession against the 1st Defendant on the basis that the 1st Defendants father's lease had expired and the Plaintiffs have no desire to extend it.
❖ On the 7th of April 2012, the Plaintiffs again demanded the 1st Defendant to quit and vacate the land because his father's interest has expired and the plaintiffs do not wish to consent to a grace period.
❖ On 18th April 2012, the 2nd Defendant gave an offer to the 1st Defendant to lease 6.0705 hectares of land within the Plaintiffs existing lease hold subject to the payment of $5,393.31 in consideration, procession fee and etc.
❖ On the 20th of April 2012, the 2nd Defendant received from the 1st Defendant the sum of $1,150.00 in fees towards the offer.
❖ The offer was withdrawn by the second Defendant on 12th March 2015 on the grounds of mistake and fraudulent misrepresentation.
(5) Having considered the overall circumstances of the case, It seems to me perfectly plain that the question whether the first Defendant is entitled to possession of the subject land, raise the following legal questions of importance and difficult.
❖ What is the legal basis for the offer to lease 6.0705 hectares of land within the Plaintiffs existing lease hold?
❖ Whether the Second Defendant is legally entitled to withdraw the offer by reason of mistake of fact?
I should add that the first and the fourth relief sought in the Statement of claim are declaratory reliefs. Because a declaration is a final Order of the Court, such orders are made after the Court has fully heard the parties and the Court is able to make conclusive Orders.
Let me see what authority there is on this point?
(6) For the reasons which I have endeavored to explain I have no hesitation in reaching the conclusion that the Statement of Defence raises debatable questions of law and facts. As earlier mentioned in paragraph five (05), the case involves very difficult questions. These are to be determined. The rights of the parties depend on the questions raised in paragraph five (05). Therefore, it is not competent for this Court to dismiss the Statement of Defence on the basis that it discloses no reasonable Defence against the Plaintiffs.
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 venture to say beyond per-adventure that this is not case for the exercise of any summary power.
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.
In the context of the present case, I have no hesitation in leaning in favour of the more liberal judicial thinking reflected in the dictum of O'Conner J in Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 C.L.R. 76. Hon Judge said;
"Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of this case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexations will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."
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 an abuse 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."
In National NBF Finance (Fiji) Limited v Nemani Buli Civil Appeal No. ABU 0057 of 1998 wherein the Court of Appeal held the following;
"the law with regard to striking out pleading is not in dispute. Apart from truly exceptional cases the approach to such application is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on 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. If follow that an application of this kind must be determined on the pleadings as they appear before the court ..."
In Hemant Kumar v Suresh Kumar & Ors [2003] Civil Action No 33 of 2003 where his lordship applied Attorney General v Shiu Prasad Halka [1973] 18 FLR 210 at 215 said;
"I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 18 should be very sparingly exercised and only in exceptional cases it should not be exercised where legal questions of importance and difficulty are raised."
(F) CONCLUSION
Having had the benefit of written submissions for which I am most grateful and after having perused the pleadings, doing the best that I can on the material that is available to me, I venture to say beyond a per-adventure that the Statement of Defence discloses a reasonable defence and constitutes tribal issues.
Accordingly, there is no alternate but to dismiss the Summons.
I cannot see any other just way to finish the matter than to follow the law.
(G) FINAL ORDERS
❖ The Plaintiff's Summons dated 10th July 2015 is dismissed.
❖ The Plaintiffs are ordered to pay costs of $500.00 (summarily assessed) to the first Defendant which is to be paid within 14 days from the date hereof.
I do so order.
.......................................
Jude Nanayakkara
Master of the High Court
At Lautoka
04th February 2016
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