Jas v Ram [2016] FJHC 652; HBC18.2015 (19 July 2016)

IN THE HIGH COURT OF FIJI

AT LABASA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 18 OF 2015

BETWEEN : MISHRI PRASAD JAS of Buca, Savusavu, in the Republic of the Fiji Islands

PLAINTIFF

.AND : SANTRAM AND SHIU RAM as Executors and Trustees of the Estate of Ram Baram late of

Savusavu

DEFENDANTS

Appearances: Mr. Sharma of Samusamuvodre & Sharma for the plaintiff

Mr. Ratule for Mitcheil Keil & Associates for the defendants

RULING

Introduction

[1] By a statement of claim dated the 23 July 2015 the plaintiff sought from the Court the following remedies to his claim:-

i) Declaration that the plaintiff is entitled to 1.0117 hectares of

land from CT No. 21230.

ii) General damages

iii) Punitive damages

iv) An injunction restraining the defendants either through their servants, agents or howsoever from transferring, charging or disposing the said Certificate of title No. 21230.

v) Order for specific performance directing the defendants to execute the transfer of 1.0117 hectares of C.T. No. 21230.

iv) Alternatively a declaration that the plaintiff is enlisted to have 1.0117 hectares of land or area contained in lot 6 as per the approved plan compromised in CT No. 21230 and to have a title issued to him by virtue of adverse possession.

Background

[2] Both the parties are beneficiaries in the estate of their late fathers, the late Mr. Ram Jas and the late Mr. Ram Baran. Both these two deceased gentlemen prior to their death bought a piece of land in Savusavu. The land provided with a Certificate of Title No. 21230 is described as Lot 2 on Deposited Plan No. 5321 and known as Nacekoro and containing 2 hectares and two hundred and thirty five square meters.

[3] The parties then entered into an agreement to subdivide the land into two lots in which Lot 1 is to belong to Ram Baran and Lot 2 to Ram Jas. Apart from this agreement there was no legal severance of the title to the land into separate titles or as tenants in common, the land was still held by them as joint tenants. It is the implication of the death of Ram Jas and the attaching of the right to the property to the survivor Ram Baram that is now a concern for the plaintiffs and the writ apart from seeking certain orders revolves around the legal principle of joint tenancy against the right arising from the agreement entered into between the parties.

[4] The matter was determined by this court in action number 34 of 2014 in which it was decided that as the land was held by both parties as joint tenants, that on the death of one of them ( Ram Jas ) the whole proprietorship of the land falls on the surviving tenant Ram Baran. It further determined that the agreement entered into between the parties did not have any effect unless the legal severance of the joint tenancy was registered. There being no legal severance of the joint tenancy the ownership of the land falls on the survivor.

The Application

[5] The application before the Court is an application by the defendant to strike out the action on two grounds, the first is that of res judicata in that the issues in this action was determined and adjudicated upon in civil action HBC No. 34 of 2014 and secondly that the action is frivolous and vexatious and an abuse of process of the Court.

[6] The application is supported by an affidavit of one Mohammed Usman of Laucala Beach Estate, a law clerk of Mitchell Keil, Solicitors for the defendants. He makes the affidavit on the basis that the events deposed are within his knowledge and gained from his perusal of the documents relating to the matter. That he is aware from his perusal of the files that there was a previous file in which the same issues were argued and determined and the Master at Labasa ruled in favour of their client with costs awarded against the defendant. That the awarded costs of $500:00 is yet to be paid.

[7] In its affidavit in opposition sworn by a law clerk from the defendant’s solicitors office in which the following matters were deposed:

1. That I am the Law Clerk of Samusamuvodre Sharma Law, solicitors for the Appellant and have been authorized by the Appellant/Original Applicant to swear this affidavit on his behalf.

2. That I depose to then facts herein as within my own knowledge and that acquired by me in the course of my duties save and except where stated to be on information and belief and where so stated I verily believe to be true to the best of my knowledge, information and belief.

3. That I have read and understood the contents of the Affidavit of Mohammed Usman sworn on 24^th day of August 2015 and filed on 26^th day of August 2015.

4. That paragraph 1, 2 and 3 are admitted.

5. That paragraph 4 is admitted and further I wish to state that our office had been instructed by our client that the proceedings before the Master Honourable Robinson was commenced with originating summons and the issue was only confined to severing of joint tenancy whereas in the present writ of summons the plaintiff is seeking various orders which have not been tried before the master or Judge of the High Court.

6. That paragraph 5 is admitted and further our Mr. Sharma who has the conduct of this matter verily believes that the remedies sought by the plaintiff in this action can be clearly distinguished from the orders made by the Master of the High Court.

7. That I verily believed and informed by Mr. Sharma that there are tangible issues which can only be dealt with the hearing of taking oral evidence by the Honourable Court and the plaintiff is not bared from filing this writ of summons and this is not a case of res judicita.

8. That I verily believe and informed by Mr. Sharma that the writ of summons is distinguished from civil action number 34 of 2015 and it is not an abuse of court process or frivolous and vexatious action as stated by the defendants.

9. That I therefore pray to this Honourable Court that the defendants Summons to strike out writ of summons dated 26^th day of August 2015 to be struck out and dismissed with cost to the plaintiffs.

The Determination

[8] Before we deal with the matter proper it should be noted that there were no objection from either party that I hear the application of res- judicata due to the fact that I was the Master who dealt with the initial issue in Civil Action 34 of 2014. There being no objection I will now proceed to determining the application of res judicata and whether the plaintiff is now estopped from raising the same matter here.

[9] Firstly I think it is only proper that we deal with the implications of the two affidavits sworn by the clerks of the solicitors firms and filed in respect of the application. There has been a lot of criticism from the Court about the ease with which solicitor’s clerks depose affidavits on behalf of clients.

[10] Order 41 rule 5 of the High Court Rules states as follows:-

Contents of affidavit (O.41, r.5)

5.-(1) Subject to Order 14, rules 2(2) and 4(2), to Order 86, rule 2(1), to paragraph (2) of this rule and to any order made under Order 38, rule 3, an affidavit may contain only such facts as the deponent is able of his own knowledge to prove.

(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.

[11] The first part of rule 5 requires that the affidavit may contain such facts as the deponent is able of his own knowledge to prove. That is, that personal knowledge of the facts is necessary.

[12] Order 14 rule 2(2) refers to an affidavit filed in support of an application for summary judgment. The requirement is that the affidavit for the purposes of the application is that “it may contain statements of information or belief with the sources and grounds thereof.” The same requirement for the affidavits is present under Order 86 rule 2(1) in an application for summary judgement from which specific performance is to be obtained. It is clear from Order 41 rule 5(2) that an affidavit used in support of an interlocutory application may contain statement of information or belief with the sources and grounds thereof. As distinct from the requirement under rule (1) where the requirement is that the deponent of a fact must be able of his/her knowledge to prove that fact, rule (2) provides a slight variation. Master Nanayakkara in Ausfurn Fiji Ltd -v- Director of Lands & Ors. CA No. HBC 68/12 refers to it as an exception from the primary rule of evidence expressed in rule 5(1). This slight variation is designed to ensure that a statement made in an affidavit has to be substantiated perhaps with a belief that the statement is true and the sources of that belief.

[13] The affidavit in support of the application in my view could be accepted as the sources of the information deposed are contained in the files held by the firm from which it was obtained. The files referred to by the deponent relate to a similar matter between the same parties that was already dealt with and a perusal of this file would provide the deponent with the necessary information. In other words it would be safe to say that he had personal knowledge of the facts he is deposing. The fact which needs to be deposed is whether or not the issue of severance of the joint tenancy has previously been determined and this is quite clearly evident from the files.

[14] The second affidavit however, refers to matters deposed to which, in my view, the deponent has no knowledge. In the first paragraph he states that he is authorised by the appellant when not only is the matter not an appeal but that no authority was annexed to the affidavit to say that he was so authorised.

[15] Secondly this is a contested matter and personal knowledge of the facts is important. Personal knowledge of the facts is important because the plaintiff’s rights to the property in dispute are now put in question by the application of a legal principle to which he requires guidance from his legal advisor. The guidance or legal advice from the lawyer when put into an affidavit is precisely what Order 41 rule 5(2) invokes. That is, they are statements of information or belief with the sources and grounds thereof. Here the plaintiff is allowed to state that he was informed by his lawyer and he has reason to believe it to be true that a certain fact exists or can be proved to exist or that certain legal principles apply. This is the plaintiff’s evidence it is not the solicitors clerk’s evidence. The solicitors clerk is not a party to the proceedings and ought not in my view put that evidence before the Court through an affidavit. As an example paragraphs 5 & 6 refers to the solicitor’s belief about what ought or should be determined in the present matter. Paragraph 6 in particular states:-

“THAT paragraph 5 is admitted and further our Mr. Sharma who has the conduct of this matter verily believes that the remedies sought by the plaintiff in this action can be clearly distinguished from the orders made by the Master of the High Court”.

[16] Both the counsel and his clerk are not parties to the action therefore what the counsel believes could only be properly adduced as evidence by the plaintiff himself who believes in that advice. This paragraph at best should be written in the first person by the plaintiff in which details of the remedies sought and the advice of his lawyers on what distinguishes this action from the previous action is spelt out in detail. An affidavit written in this way would satisfy the requirement of Order 41 rule 5(2).

[17] Justice Jiten Singh in Deo v Singh [2005] FJHC 23; HBC0423.2004 (10 February 2005):

"The swearing of affidavits by solicitor’s clerks in contested proceedings appears with alarming regularity before the courts. Arun Kumar says he was duly authorized by defendants to dispose the contents. There is no authority annexed to the affidavit. Order 41 Rule 1 sub-rule 4 requires affidavit to be expressed in "first person". The affidavit put before the court is more like a statement defence in its wording rather than being expressed in first person. Swearing of affidavits by solicitor’s clerk on contested matters should be a rare exception and the reason why the party is unable to depose ought to be explained".

[18] I am therefore of the view that the affidavit of Vinal Prasad should not be considered in the determination of the application on the grounds that there was authority annexed to the affidavit to show that he was authorised to swear the affidavit on behalf of the plaintiff. Further that the deponent has no personal knowledge of the facts deposed, that the affidavit was not in the first person and being a contested matter the plaintiff ought to depose the affidavit himself. The affidavit on the whole breached the requirements of Order 41 rule 5 (1) & (2) of the rules.

[19] Although there are numerous decisions which allow defective affidavits to be used and the Courts discretion under Order 41 rule 4 has been flexible enough to allow them, there appears to be no definite positions taken regarding the acceptance and use of affidavits. This is position is reflective of the necessity of or the critical nature of the application before the Courts.

[20] In Satish Chandra -v- Ratu Alipate Tuisawau & Anor (2003) HBC 388 Justice Titoko in a section 169 matter stated that generally there is nothing to stop a person swearing an affidavit in support of a cause notwithstanding that he or she is not a party to the case as long as the contents are material and personally known to the deponent’.

[21] In Ram Shankar Singh -v- Selina Liku & Ors(2009) HBC 312/09 Justice Calanchini accepted a defective affidavit although unsatisfactory was admitted due to the urgency of the hearing application.

[22] Both Justice Byrne and Justice Calanchini in Professional West Realty (Fiji) Ltd -v- The Professional Ltd (2010) ABU 72/08 stated that affidavits breached Order 41 if it contained legal submissions and hearsay material, the source or grounds of which are not stated.

[23] The Supreme Court as per Tikaram, P Baker & Tomkins JJA stated in Rt Jeremaia Natauniyalo -v- Native Lands Commission & Anor (1998) 44 FLR 280 that “Members of the legal profession drafting affidavits which blatantly defy the normal standards should realise that they run the risk of such affidavits being stricken from the file and solicitors being penalised in costs”.

[24] Taking the above positions into consideration I am still of the view that the affidavit in opposition breached Order 41 rule 5 and ought not to be considered in this application. Further the affidavit itself does not shed any light on the issue to be determined, in other words it does not have any probative value as is.

[25] This does not mean, at least in this matter, that defendant’s assertions are the only one to be considered, what needs to be considered is the application of the principle of res judicata.

The application of Res Judicata

[26] The 4^th edition of Stroud’s Judicial Dictionary defines the phrase res judicata as being used ‘to include two separate state of things. One is where a judgement has been pronounced between parties and findings of fact are involved as a basis for that judgement. All the parties affected by the judgement are then precluded from disputing those facts, as facts, in any subsequent litigation between them. The other aspect of the term arises when a party seeks to set up facts which, if they had been set up in the first suit, would or might have affected the decision. This is not strictly raising any issue which has already been adjudicated, but it is convenient to use the phrase res judicata as relating to that position (Robinson v. Robinson (1943) 1 P 43, per Henn- Collins J)

[27] In the 4^th Edition of the Halsbury’s Laws of England (Volume 16) as submitted by the defendant states at paragraph 1528 that:-

“In order that a defence of res judicata may succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff has had an opportunity of recovering, and but for his own fault might have recovered in the first action that which he seeks to recover in the second. A plea of res judicata must show either an actual merger, or that the same point has been actually decided between the same parties.”

[28] In paragraph 1527 the same volume of the Halsbury’s Laws of England it states that:-

“Even though the judgement was pleadable by way of estoppel it is perhaps not strictly correct to regard its determination of legal rights as a question of estoppel. The parties are estopped by a finding of fact involved in the judgement; as respects the determination of questions of law, the true view seems to be that the parties legal rights are such as they have been determined to be by the judgement of a competent court.

[29] This position no doubt applies if the Court in the first instance is a Court of competent jurisdiction. The matter was heard before the Master in Chambers and parties were ordered to submit simultaneous submissions and the ruling given on the 11 March. The Master’s power granted under Order 59 rule 2 are the same as that of a judge sitting in chambers. The current matter is not one of the exceptions.

[30] The defendant who provided the only written submission contends that the plaintiff is estopped from raising the matter. Both of them were parties to the original action. To properly understand the basis of the argument we should refer to the claims originally determined and the current claim.

[31] In the prior action between the same parties the remedies sought by the plaintiffs were:-

(1) A declaration that late Ram Baran and late Ram Jas had held the freehold land comprised in the CT 21230 as tenants in common and not as joint tenants.

(2) A declaration that the Plaintiff is entitled to one – half undivided share in the said CT 21230.

(3) An Order against both defendants to hand over the Title of the said CT 21230 to the Plaintiff within 7 days from the date hereof to enable him to register the transmission by death and the transfer of one – half undivided share in the CT 21230.

(4) In the Alternative an order against both Defendants to execute the necessary documents, sub-divisional plan, Transfer or any other documents required for obtaining of the Titles over various Lots which he is sub-dividing.

(5) And that the costs of and incidental to this application be paid by both defendants.

[32] In the present case the remedies sought are:-

(1) Declaration that the plaintiff is entitled to 1.0117 hectares of land from CT No. 21230.

(2) General Damages.

(3) Punitive Damages.

(4) An injunction restraining the defendants either through their servants, agents or (w)? howsoever from transferring, charging or disposing the said Certificate of Title No. 21230.

(5) Order for specific performance directing the defendants to execute the transfer of 1.0117 hectares of CT No. 21230.

(6) Alternatively a declaration that the plaintiff is enlisted (?) to have 1.0117 hectares of land or area contained in Lot 6 as per the approved plan comprised in CT No. 21230 by virtue of adverse possession.

(7) Interests.

(8) Costs of this action on an indemnity basis.

(9) Such further and/or other relief as this Honourable Court may deem just and expedient.

[33] Except perhaps for the alternative prayer for a declaration of adverse possession the remedies prayed for in this claim, both actions require the severance of the joint tenancy to be affected. The plaintiff has admitted in paragraph 14 of its pleadings that the parcel of land was held as joint tenants by Ram Jas and Ram Baran and that on the death of Ram Jas in the year 2000 the surviving tenant became the lawful owner and registered proprietor of CT 21230. The pleadings further admitted that the parties entered into an agreement to sub- divide the land but the tenancy of the property remained as joint tenants until the death of Ram Jas.

[34] I am of the view that adverse possession could not be obtained as a relief in that the occupation of the land was not inconsistent with the right of the true owner at the time of the occupation. It now only vests itself to the survivor in accordance with the principle of joint tenancy.

[35] It appears clear to the court that the party’s legal rights, that is, the plaintiff’s from its assertions that the agreement is sufficient to sever the joint tenancy and the defendant’s right, that is, its right to the property through survivorship of land held as joint tenants has been determined and could not be determined any further. What is indeed in conflict here is a right considered by the plaintiff to exist in equity to that of the defendant’s right derived from the operation of a legal principle. I need not go any further then to state that the legal principle or the law will suffice where there is a conflict between it and equity.

[36] Of course it would make the matter a lot easier to resolve if both parties honour their father’s or the honourable gentlemen’s wishes and subdivide the land in accordance with their wishes but as a Court of law our decision would only reflect the applicable law at the time.

[37] Justice Pathik in Trevor Robert Gallengher -v- Allan Charles Newham and Anor unreported Civil Action HBC No. 163 of 2004L) applied the statement of Sir James Wigram V.C. in Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100 at 114 w in which it was stated:-

“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

[38] The House of Lords in Johnson v. Gore Wood & Co. [2001] 1 All E.R.

481 held:-

“Although the bringing of a claim or the raising of the defence in later proceedings might, without more, amount to an abuse if the court was satisfied that the claim or defence should have been raised in earlier proceedings, it was wrong to hold that a matter should have been raised in such proceedings merely because it could have been. A conclusion to the contrary would involve the adoption of too dogmatic an approach to what should be a broad merits-based judgment which took account of the public and private interests involved and the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party was misusing or abusing the process of the court by seeking to raise before it an issue which could have been raised

before. It was not possible to formulate any hard and fast rule to determine whether, on given facts, abuse was to be found or not.”

[39] I am therefore of the view that the issue of the severance of the joint tenancy lies at the base of the issues to be determined in both the matters, for without the severance of the joint tenancy, the remedies sought could not be obtained. This issue has already been determined in action No. 34 of 2014. In that case the ruling followed the legal principle that a joint tenancy could not be severed by an agreement entered into between the parties to sub-divide the land without that wish being followed by the registration of the severance of tenancy.

[40] Paragraph 18 of the ruling in action 34 of 2014 states that registration is the key to legal disposition of a right to the property held as joint tenant. Further to successfully dispose of this right it must be done by an instrument registered with the register of titles. This is important because Section 37 of the Land Transfer Act Cap. 131 states that:-

No instrument until registered in accordance with the provisions of this Act shall be effectual to create, vary, extinguish or pass any estate or interest or encumbrance in, on or over any land subject to the provisions of this Act, but upon registration the estate or interest or encumbrance shall be created, varied, extinguished or passed in the manner and subject to the covenants and conditions expressed or implied in the instrument.

[41] The purpose of the agreement entered into between the parties and to which the plaintiff relies in both actions was an attempt to create, vary or pass any estate or interest over the land in CT 21230, and this could only be achieved by the registration of an instrument which shows the intention of the parties to the severance of the joint tenancy. The plaintiff is therefore estopped from raising the same issues again in another action.

[42] The defendant went further in submitting that raising of the same issue in this matter is an abuse of process of the Court and refers to the decision of Somervell L.J. in Greenhalgh -v- Mallard (1947) 2 All ER 255 at 255 where he states that:-

“Issues of facts which are so clearly part of the subject-matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.”

[43] I agree with the submission and am of the view that as the cause of action and the issues in the matters raised are the same as in action 34 of 2014 the court ought not revisit the matter any further and the plaintiff is estopped from litigating the action any further. That is that res judicata applies and that the action is an abuse of process.

Orders

1. That the application to strike out the action is allowed;
   
2. That I allow costs to the defendant which I summarily assess at $1000:00.
   

H Robinson

Master, LABASA

19 July 2016