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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA
[CIVIL JURISDICTION]
Civil Action No. HBC 124 of 2016
BETWEEN: AISAKE RAVUTUBANANITU, for and on behalf ofelfmself and on behalf of the majority members of the Mataqali Navusabalavu of Tagitaginatua, Tavua, Self-employed.
Plaintiff
AND: OVINI BOKINI, of Tavualevu, Tavr>1st Defendant
AND: ANJALI DEVI PRAKASH, of 28 Kavika Street, Tavua.
2nd Defendant
AND: iTAUKEI LAND TRUST BOARD, a statutory bstablished undd under the ii Land Trust Act of Victorictoria Parade, Suva.
3rd Defendant
Registration Act.
4th Defendant
Before : Acting Master U.L. Mohamed Azhar
Counsels: Mwaikula Esquire for the Plae Plaintiff
Ms. Patricia Mataika with Mr. Tikoca for the 1st Defendant
Date of Ruling: 06th December 2017
RULING
(Trustee’s claim over trust property and striking out under Or.18, r.18)
01. The plaintiff filed this action against all the above named defendants on the alleged unlawful attempt by the 1st defendant to transfer the property, which he has been occupying and cultivating, to the 2nd defendant. The plaintiff claims in his statement of claim that, he is the member of Mataqali Navusabalavu and has been in occupation and cultivation of a property being a Native Lease No. 4/4/183. IT No. 6409 which belongs to the Trustees of Navusabalavu Housing Scheme and comprising of the extent of 17 Acres and 1 Roods known as Saunakavika. The 1st defendant who is also a member of the said Mataqali together with Manasa Naiceru and Setareki Tinalevu attempted to transfer the same property to the 2nd defendant. The plaintiff, therefore, prayed for the following reliefs from the court;
- A declaration that the 1st defendant has no power, authority or mandate to transfer the subject land and his purported action is null and void and of no effect,
- A declaration that, the 1st defendant knew he had no power, authority or mandate to deal with the subject land but continued to do so in a manner that was clearly criminal and fraudulent,
- An order directing the 1st defendant to reinstate the plaintiff’s interest in the Native Lease No. 4/4/183. IT No. 6409 comprising 17 Acres and 1 Roods and known as Saunakavika,
- Such further order and other relief as the court may deem equitable and
- Costs.
02. The defendants did not file their statement of defence. The 1st and 2nd defendants filed the acknowledgment and filed the summons under Order 18 rule 18 (1) (a), (b), (c) and (d) of the High Court Rules and the inherent jurisdiction of this court. However, summons filed by the 2nd defendant was struck out. The 1st defendant’s summons is supported by his affidavit and moved the court to strike out plaintiff’s action against the 1st defendant on the grounds that, (a) the plaintiff claims on a transferred instrument of Tenancy when in fact such was surrendered by the Trustees and 3rd defendant issued new instrument of Tenancy to the 2nd defendant, (b) the 1st defendant is sued personally and has no authority to reinstate the surrendered instrument of Tenancy, (c) the plaintiff therefore has no reasonable cause of action and vexes the defendant after losing an application to Agricultural Tribunal and (d) the plaintiff does not have majority support of Mataqali members who had dismissed him from his position of Trustee.
03. The law on striking out the pleadings is well settled. The Order 18 rule 18 of the High Court Rule gives the discretionary power to strike out the proceedings for the reasons mentioned therein. The said rule reads:
18 (1) The Court may at any stage of the proceedings order to be struck out or amend any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, 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.
(2) No evidence shall be admissible on an application under paragraph (1)(a).
(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading (emphasis added)
04. At a glance, this rule gives two basic messages and both are salutary for the interest of justice and encourage the access to justice which should not be denied by the glib use of summery procedure of pre-emptory striking out. Firstly, the power given under this rule is permissive which is indicated in the word “may” used at the beginning of this rule as opposed to mandatory. It is a “may do” provision contrary to “must do” provision. Secondly, even though the court is satisfied on any of those grounds mentioned in that rule, the proceedings should not necessarily be struck out as the court can, still, order for amendment. In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch. 506, it was held that the power given to strike out any pleading or any part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea. MARSACK J.A. giving concurring judgment of the Court of Appeal in Attorney General v Halka [1972] FJLawRp 35; [1972] 18 FLR 210 (3 November 1972) held that:
“Following the decisions cited in the judgments of the Vice President and of the Judge of the Court below I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 19 should be very sparingly exercised, and only in exceptional cases. It should not be so exercised where legal questions of importance and difficulty are raised”.
05. The first ground of the said rule is the absence of reasonable cause of action or defence as the case may be. No evidence is admissible for this ground for the obvious reason that, the court can come to a conclusion of absence of a reasonable cause of action or defence merely on the pleadings itself, without any extraneous evidence. His Lordship the Chief Justice A.H.C.T. GATES (as His Lordship then was) in Razak v Fiji Sugar Corporation Ltd [2005] FJHC 720; HBC208.1998L (23 February 2005) held that:
“To establish that the pleadings disclose no reasonable cause of action, regard cannot be had to any affidavit material [Order 18 r.18(2)]. It is the allegations in the pleadings alone that are to be examined: RepubliPeru v Peruvian Guan Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch.D 489 at p.498”.
06. Citing several authorities, Halsbury’s Laws of England (4th Edition) in volume 37 at para 18 and page 24, defines the reasonable cause of action as follows:
“A reasonable cause of action means a cause of action with some chance of success, when only the allegations in the statement of case are considered” Drummond-Jackson v British Medical Association [1970] 1 ALL ER 1094 at 1101, [1970] 1 WLR 688 at 696, CA, per Lord Pearson. See also Republic of Peru v Peruvian Guano Co. [1887] UKLawRpCh 186; (1887) 36 ChD 489 at 495 per Chitty J; Hubbuck & Sons Ltd v Wilkinson, Heywood and Clark Ltd [1898] UKLawRpKQB 176; [1899] 1 QB 86 at 90,91, CA, per Lindley MR; Hanratty v Lord Butler of Saffron Walden (1971) 115 Sol Jo 386, CA.
07. Given the discretionary power the court possesses to strike out under this rule, it cannot strike out an action for the reasons it is weak or the plaintiff is unlikely to succeed, rather it should obviously be unsustainable. His Lordship the Chief Justice A.H.C.T. GATES in Razak v Fiji Sugar Corporation Ltd (supra) held that:
“The power to strike out is a summary power “which should be exercised only in plain and obvious cases”, where the cause of action was “plainly unsustainable”; Drummond-Jackson at p.1101b; A-Ghe Duchy of Lancaster v er v London and NW Railway Company [1892h. 274 at p.277.”#8221;
08. It was held in Ratumaiyale v Native Land Trust Board [2000] FJLawRp 66; [2000] 1 FLR 284 (17 November 2000) that:
“It is clear from the authorities that the Court's jurisdiction to strike out on the grounds of no reasonable cause of action
is to be used sparingly and only where a cause of action is obviously unsustainable. It was not enough to argue that a case is weak
and unlikely to succeed, it must be shown that no cause of action exists (A-G v Shiu Prasad Halka [1972] 18 FLR 210;
1. It is a serious mato deprive a person of access to the courts of law for it is there that the rule of law is u 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 (General Street Industries Inc v Commissioner for Railways (NSW) 2. To seco secure relief, the party seeking iing it must show that it is clear, on the face of the opponent's documents, that the
opponent lacks a rease cause of action (Munnings v Australian Government Soli Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at per per Dawson J.) or is advancing a claim that is clearly frivolous or vexatious; (Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 at 91). opin opinion of the Court that a case appears weak and such that it is unlikely to succeed is not alone, sufficient to warrant summary
termination. (Coe v The Commonwealth (1979) 53 AL3; (130 NS at 5-7). Even a weak casents entitletitled to the time of a court. Experience ence reaches that the concentration of attention, elaborated
evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment. 4. Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding
by way of demurrer. (Coe v The Commonwealth[1979] HCA 68; (1979) 53 ALJR 403 at 409). 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 so in circumstances more conducive
to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts. 5. If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed
to put in proper form, a court will ordinarily allow that party to reframe its pleadings. (Church of Scientology v Woodward 6.guiding principle is, as stas 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”. “Allegations of dishonesty and outrageous conduct, etc., are not scandalous, if relevant to the issue (Everett v Prythergch
(1841) 12 Sim. 363; Rubery v Grant (1872) L. R. [1872] UKLawRpEq 22; 13 Eq. 443). "The mere fact that these paragraphs state a scandalous fact does not make them scandalous" (per Brett L.J. in Millington v Loring
(1881) 6 Q.B.D 190, p. 196). But if degrading charges be made which are irrelevant, or if, though the charge be relevant, unnecessary details are given,
the pleading becomes scandalous (Blake v Albion Assurance Society (1876) 45 L.J.C.P. 663)”. “1. Proceedings are vexatious if they instituted with the intention of annoying or embarrassing the person against whom they are brought. “It would be an abuse of process for the plaintiff to bring a second action for the same cause of action after disobedience
of peremptory orders had resulted in the dismissal of the first action: Janov v Morris [198All ER 7 ER 780. It is said the process
is misused thereby. Re-litigating a question, even though the matter is not strictly res judicata has been held to be ane of process:
Stephenson v Garne60;[1898] UKLawRpKQB 22; [1898] 1 QB 677 CA. In that case titor was was the same person and he sought to re-open a matter already decided against him”. “In a civilized society, legal process is the machinery for keepider aing justice. It c It can be used properly or it can be
abused. It is used properly when it n it is invoked for the vindication of men's rights or the enforcement of just claims. It is
abuse when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper
end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the
legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against
the wrongdoer”. 14.(1) Where numerous persons have the same interest in any proces, not being such proceedings as are mentioned in rule 15, 15, the
proceedings may be begun, and, unless the Court otherwise orders, continued, by or against any one or more of them as representing
all or as representing all except one or more of them. To bring a rentatction under R.S.CR.S.C., Ord. 16, r. 9, it must be shown: fwn: first, that all the members of the class had a common
interest; secondly, that they all had a common grievance; and thirdly, that the relief was in its nature beneficial to them all. “I must consider this as a trust for the infant; for I very well see, if a trustee, on the refusal to renew, might have a lease
to himself, few trust-estates would be renewed to cestui que use; though I do not say there is a fraud in this case, yet he should rather have let it run out, than to have had the lease to himself. This may seem hard, that the trustee is the only person of all mankind who might not have the lease; but it is very proper that
rule should be strictly pursued, and not in the least relaxed; for it is very obvious what would be the consequence of letting trustees
have the lease, on refusal to renew to cestui que use. So decreed, that the lease should be assigned to the infant, and that the
trustee should be indemnified from any covenants comprised in the lease, and an account of the profits made since the renewal” (Emphasis added). “If a trustee or other person entrusted with such a power were to exercise it in such a fashion, the Courts would not hesitate
to treat such a bargain as an abuse of the power- what is called a “fraud on the power”. An executor having power to
dispose of a church preferment cannot bargain for an advantage to himself (Richardson v Chapman)(1); a municipal corporation trustee
for a school cannot grant a lease containing a covenant that the lessee shall grind his corn at the corporation mill (Attorney General
v Stamford (2)); trustees for a school cannot lease to one of the trustees (Attorney General v Dixie (3); governors of a school cannot
lease to one of the governors (Attorney General v Earl of Clarendon (4) ); a parent with a power to appoint among children cannot
bargain with a child for purchase of a share appointed (Cuninghame v Anstruther (5); a parent with such a power cannot appoint money
to a daughter to meet his burial expenses (Hay v Watkins (6) ); a tenant for life having statutory power to lease cannot lease to
a trustee for himself (Boyce v Edbrooke (7) ). The same principle applies to all discretionary powers, such as consents. As Farwell
puts it (Farwell on Powers, 3rd ed., p. 463): “Trustees must exercise any discretionary power they may have (e.g to consent) bona fide for the benefit of the
persons for whom they are trustees” (Eland v Baker (8)); and see Strange v Smith (9); Clarke v Parker (1); Mesgrett v Mesgrett
(2) ). Most of these cases related to trustees; but the principle is not confined to trusts”. “The accepted fiduciary relationships are sometimes referred to as relationships of trust and confidence or confidential relations
(cf. Phipps v Boardman(25)), viz, trustee and beneficiary, agent and principal, solicitor and client, employee and employer, director
and company, and partners. The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on
behalf of or in the interests of another person in the exercise of a power of discretion which will affect the interest of that other
person in a legal or practical sense. The relationship between the parties is therefore one which gives the fiduciary a special opportunity
to exercise the power or discretion to the detriment of that other person who is accordingly vulnerable to abuse by the fiduciary
of his position”. 11. Not to deal with the trust property for his own benefit, or otherwise to profit by the trust. [1732] A trustee must not abuse his position by making it a means of profit or benefit to himself or any third party 194. This rule – the rule in Keech v Sandford 195 – is of very wide application, and is illustrated by numerous cases on the subject. In Molyneux v Fletcher 196 trustees had a power of advancement in favour of the testator’s children and, after the share of a married daughter had vested,
they advanced a sum to her, knowing that the advance would be used to pay a debt which her husband owed to one of the trustees. It
was held that the trustees in making the advance had committed a breach of trust. Peyton v Robinson 197 was a somewhat similar case in which the trustees had to repay to the trust estate moneys advanced by way of loan to beneficiary to
enable the beneficiary to pay off a debt due to one of the trustees. A trustee cannot hold for his own benefit a lease of premises obtained by his on the expiration of a lease held by him on behalf
of the trust. 198A trustee cannot take up on his own behalf new shares issued as a result of holding trust shares. 199 Nor can a trustee of lands held on conditional purchase under the Crown Lands Consolidation Act 1913, of New South Wales take up
an additional holding for his own benefit where the latter land only became available to him as trustee of the original holding.
_____________ 194 – Stuart v Kingston [1924] ArgusLawRp 52; (1924) 34 CLR 394, at 401; Commonwealth v Colonial Combing Co [1922] HCA 62; (1922) 31 CLR 421, at 470 195 – [1726] EWHC J76; (1726) 2 Eq Cas Abr 741, 25 ER 223 196- [1898] UKLawRpKQB 25; (1898) 1 QB 648 197 -(1823) 1 LJ ch (OS) 191; see however, Chillingworth v Chambers, [1896] UKLawRpCh 27; [1896] 1 Ch 685 (CA) 198- Re Biss, [1903] UKLawRpCh 56; [1903] 2 Ch 40; [1900 – 3] ALL ER Rep 406, where, however, it was held that an employee of a trustee could so renew 199- Re Bromley (1886), 55 LT 145 "Any person who has, directly or indirectly,ctly, an interest whether vested or contin in aust property, and, and who is aggrieved
by any act, omission or decision of a trustee in thin the exercise of any power conferred by this Act, ... may apply to the Court
to review the act, omission or decision; and the Court may require the trustee to appear before it and to substantiate and uphold
the grounds of the act, omission or decision that is being reviewed, and may make such order in the premises as the circumstances
of the case may require." U.L Mohamed Azhar At Lautoka 06/12/2017
PacLII:
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Feedback 09. There is no much cases which deals with the other part of first ground that is the absence of the defence, as the said sub rule states
‘It discloses no reasonable cause of action or defence, as the case may be’. The reasons being that, if there is no defence, generally the plaintiffs will seek to enter the summary judgement under Oder 14, rather
than seeking relief under Oder 18 rule 18 to strike out the defence. In any event, if there is any such application to strike out
any pleading for not disclosing a defence, the courts can adopt the meaning given by Sir Roger Ormond in <Alpine Bulk Transport Cort Co. Saudi Shipping Co. Inc (1986) 2 Lioyd's Rep, 22>fo/i>for the ‘defence’ which is "a real prospect of success" " carry some degree of e of conviction". Thus, the court must from a provisional view of the probable outcome of the action.
"An abuse of the 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 that 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 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."
Acting Master
URL: http://www.paclii.org/fj/cases/FJHC/2017/925.html