Ali v Nasinu Land Purchase & Housing Co-operative Society Ltd [2021] FJHC 418; HBC218.2015 (1 February 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC 218 of 2015

BETWEEN : AKBAR ALI
PLAINTIFF

AND : NASINU LAND PURCHASE & HOUSING CO–

OPERATIVE SOCIETY LIMITED
DEFENDANT

APPEARANCES/REPRESENTATION
PLAINTIFF : Ms Lutu [Shelvin Singh Lawyers]

DEFENDANT : Mr Nadan [Neel Shivam Lawyers]

RULING BY : Acting Master Ms Vandhana Lal

DELIVERED ON : 01 February 2021

INTERLOCUTORY RULING
[Striking Out of Claim – Order 18 rule 18(1)(a), (b) and (d)]

Application

1. This is the Defendant’s application summons dated 09^th July 2019 seeking orders that the Plaintiff’s claim against it be struck out on following grounds:
   • (i) It disclosures no reasonable cause of action;
   • (ii) It is scandalous, frivolous or vexatious;
   • (iii) It is otherwise an abuse of the process of the court.
     
2. The said application is made pursuant to Order 18 Rule 18(1)(a), (b) and (d) of the High Court Rules and is supported by an affidavit sworn by one Satya Narayan.
   

Plaintiff’s Claim

3. The Plaintiffs when the application was initially filed were – Mohammed Shamsher Ali in his personal capacity and Mohammed Shamsher Ali as Administrator and Trustee of Estate of Nabihan.
   

As per order of 29 June 2016 Mohammed Shamsher Ali has been removed as a Plaintiff. The Plaintiff now is Akbar Ali as Administrator lite of the Estate of Nabihan.

The Defendant is Nasinu Land Purchase and Housing Co-operative Society Limited.

The Plaintiff in his capacity as the Administrator and Trustee of Estate of Nabihan was and still the purchaser and transferee for CT 42252 being Lot 7 on DP Number 10581.

The Defendant is said to be the registered proprietor of the property.

It is alleged that by an agreement reached between the Estate of Nabihan and the Defendant on or about 23 June 2011, the Defendant agreed to transfer to the Plaintiff the said property in addition to transfer of Lot 3, 4 and 8 on same property.

The Plaintiff relies on two letters - dated 27 May 2011 from the Plaintiff to the Defendant and 23 June 2011 from the Defendant to the Plaintiff.

According to the Plaintiff, Defendant has refused to transfer the property.

Plaintiff has a Caveat placed on Lot 7.

Hence the Plaintiff claims following relief:

1. Specific performance of the agreement reached between the Plaintiff and the Defendant for transfer of the property comprised in Certificate of Title Nos. 42252 being Lot 7 on Deposited Plan No. 10581;
2. Further or alternatively, an injunction restraining the Defendant whether by his servants, agents or howsoever from dealing with the property comprised and described in Certificate of Title Nos. 42252 Lot 7 Deposited Plan No. 10581 until further orders in Court;
   
3. Further or alternatively, damages for breach of contract;
   
4. General damages for breach of and/or contravention of the Commerce Commission Decree 2010.
   

Order 18 Rule 18(1)(a), (b) and (d)

4. Order 18 rule 18 (1) (a), (b) and (d) of the High Court Rules reads;
   • (1) The court may at any stage of proceeding order to be struck out or amended any pleadings 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;
     • (b) It is scandalous, frivolous or vexations;
     • (c) ................................................................
     • (d) It is otherwise an abuse of 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.”
       
5. Sub rule 2 states that “no evidence shall be admissible on an application under paragraph (1) (a)”.
   
6. In Lindon v Commonwealth of Australia (No. 2) [1996] HCA 14; 70 ALJR 541; 136 ALR 251 Kirby J outlined applicable principles for summary relief of striking out and these are:

1. It is a serious matter to deprive a person of access to the
courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1967) 112 CLR 125 at 128f; Dyson v Attorney-General [1910] UKLawRpKQB 203; (1911) 1 KB 410 at 418);

2. To secure such relief, the party seeking it must show that it
is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171f) or is advancing a claim that is clearly frivolous or vexatious (Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91);

3. An 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] HCA 68; (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR 1 at 5-7). Even a weak case is entitled to the time of a court. Experience teaches 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 pleading (Church of Scientology v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 79). A question has arisen as to whether O 26 r 18 applies to part only of a pleading (Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 8)......................................................; and

6. The guiding principle is, as stated in O26 r18(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.

No Reasonable Cause of Action

7. In Bidesi v. Howard a Suva High Court Civil case number 513 of 1992 Jesuratnam J. held that:

“It is not enough for the defendant to show at this stage that the Plaintiff has a weak case. He should go further and show the Plaintiff has no case at all”.

8. The Supreme Court Practice Volume 1, 1993 Part 1 at paragraph 18/19/7 outlines principle as follows:

“A reasonable cause of action means a cause of action with some chance of success when only the allegation in the pleadings are considered (per Lord Pearson in Drummond – Jackson v. British Medical Association [1970]1W.L.R.688”.

It further goes on to state that;

“so long as the Statement of Claim or the particulars (Darey v. Bentinck [1892] UKLawRpKQB 216; [1893] 1 QB. 185) disclose some cause of action, or raise some question to fit to be decided by a Judge or a Jury the mere fact that the case is weak, and not likely to succeed is no ground for striking it out (Moure v. Lawson (1915) 31 T.L.R. 418, C.A.; Wenlock v. Moloney [1965] 1 W.L.R. 1238).

Frivolous; Vexatious and Scandalous

9. Paragraph 18/19/15 of The Supreme Court Practice Volume 1, 1993 Part 1 states:

“By these words are meant case which are obviously frivolous or vexatious or obviously unsustainable, per Lindley L.J. in Alt – Gen of Dunchy of Lancaster v. L. & N.W. Ry. [1892] 3ch. 274 p. 277]”.

Abuse of Process of the Court

10. Pathik J, in Goldstein v. Narayan a Suva High Court Civil Action No. HBC 0413 of 2001 considered following passage from Halsbury’s Laws of England 4^th Edition Volume 37 at paragraph 434 to be pertinent when considering an application for striking out claim on grounds of abuse of process:

“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 indorsement 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 indorsement 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.”

11. Paragraph 18/19/17 in The Supreme Court Practice Volume 1, 1993 Part 1 reads:

“This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation”.

12. In his submission, the Plaintiff’s Counsel states that the current action is a duplication of Civil Action HBC 88 of 2016. He further submits that the within action is now untenable as the given property has already being transferred to a Third Party.
    
13. The current action is for specific performed of an agreement between the Plaintiff and the Defendant is respect of Certificate of Title No. 4225. This action was filed on 29^th June 2015.
    
14. However later on or about 2015 a caveat lodged by the Plaintiff on the title was removed and the said property was transferred to a Thirds Party resulting in Plaintiff instituting action number HBC 88 of 2016 where Plaintiff is seeking declaratory orders regarding the transfer done to the Third Party and reinstatement of the caveat so removed.
    
15. I have in an earlier ruling held the Plaintiff can only successfully proceed with this action if it succeeds in action HBC 88 of 2016 which action if awaiting trial.
    
16. Accordingly I find that there is a cause of action, and that the claim is neither scandalous, frivolous nor vexation, neither it is an abuse of the court process.
17. The Defendant’s application dated 9^th July 2019 fails and is dismissed. The Defendant is further ordered to pay cost which is summarily assessed at $800 and is to be paid in 14 days from date of delivery of the ruling.
    
18. Orders of 25^th June 2019, is further extended by 07 days.
    

......................................
Vandhana Lal [Ms]
Acting Master
At Suva.

01 February 2021

TO:

1. Suva High Court Civil File Action No. HBC 218 of 2015;
2. Shelvin Singh Lawyers, Solicitors for the Plaintiff;
3. Neel Shivam Lawyers, Solicitors for the Defendant.