IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 146 of 2019

BETWEEN:	
BIJEND PRASAD RAM a Medical Doctor and Company Director of 361 Waimanu Road, Suva.
1st Plaintiff

JOJI MALANI a Medical Doctor and Company Director of 361 Waimanu Road, Suva.
2nd Plaintiff

TROPICAL HEALTH INCORPORATED LIMITED a Limited Liability Company of 361 Waimanu Road, Suva (Now in Liquidation).
3rd Plaintiff

AND:	
FNPF INVESTMENTS LIMITED of 33 Ellery Street, Suva.
1st Defendant

BANK OF BARODA a Government of India undertaking, incorporated in India and carrying on its business in Fiji.
2nd Defendant

FIJI NATIONAL UNIVERSITY a corporate body established under the Fiji National University Act of Fiji.
3rd Defendant

Appearances:
1st, 2nd & 3rd Plaintiff: Mr Fa Jnr (Fa & Co).
1st Defendant: Mr. Suguturaga (FNPF Legal Services Department).
2nd Defendant: Mr. R. Singh (Parshotam Lawyers).
3rd Defendant: Mr R. Prasad (FNU).
Official Receiver: Ms. Daunimatua. 

Date of Hearing: 16th May 2025. 

Ruling

[1]	The 2nd Defendant filed summons seeking clarification of judgment dated 18th October 2024. 

[2]	The 3rd Defendant had filed summons to strike out and on 18th October 2024 the Plaintiff’s writ of summons and statement of claim were struck out. 

[3]	The 2nd Defendant is basically seeking to know the effect of the strike out of the claim on its counter claim. 

[4]	In this matter the Plaintiff’s writ of summons and the statement of claim was struck out. The 2nd Defendant on 19th July 2019 had filed a statement of defence and counterclaim against the 1st and 2nd Plaintiff. The 2nd Defendant’s are concerned that their counter claim was struck out, when the writ and the claim were struck out. The Plaintiff’s lawyers argue the same point and are steadfast that the claim and the counterclaim are struck out.
[5]	The Supreme Court Practice 1998, Vol 1 (Part 1), Para 15/2/4 (pg. 168) (The White Book 1988) provides guidance about a counterclaim and the extent of it as an independent action. It states that:

“...A counterclaim is substantially a cross-action, not merely a defence to the plaintiff's claim. It must be of such a nature that the Court would have jurisdiction to entertain it as a separate action (Bow MacLachlan & The Camosun [1909] A.C. 597; Williams v. Agius [1914] A.C. 522). A counter-claim is to be treated, for all purposes for which justice requires it to be so treated, as an independent action” (per Bowen L.J., in Amon v. Bobbett 22 QBD 543, p. 548). If after the defendant has pleaded a counterclaim, the action of the plaintiff is for any reason stayed, discontinued, or dismissed, the counterclaim may nevertheless be proceeded with (para. (3)). Thus, where the plaintiff’s claim was held to be frivolous, the Court still granted the defendant the relief prayed for by his counterclaim (Adams v. Adams (1892) 45 Ch. D. 426; [1892 1 Ch. 369).  In short, for all purposes except those of execution, a claim and a counterclaim are two independent actions (per Lord Esher M.R., in Stumore v. Campbell & Co. ([1892] 1 QB 314, p.317)....” 

[6]	Order 15 Rule 2 of the High Court Rules 1988 provides for counterclaim against plaintiff. Order 15 Rule 2 (3) provides that “a counterclaim may proceed with notwithstanding that judgment is given for the plaintiff in the action or that the action is stayed, discontinued or dismissed.” 

[7]	This Court has power under the Rules to grant a Defendant in respect of any right claimed by him/her all such relief against the Plaintiff as such Defendant might have properly claimed  if he/she had brought an action against the Plaintiff for that purpose. A counterclaim is promoted to the position of a statement of claim indorsed on a writ of summons. It is also noted that under the Rules, the Defendant may apply for summary judgment on a counterclaim. (Order 14 Rule 5 of the High Court Rules 1988)

[8]	It is clear from the White Book 1988 (referred to above, which deals with analogous provisions of our High Court Rules) and Order 15 Rule 2 (3) of the High Court Rules 1988 that a counterclaim is an independent action. A counterclaim is independent of a writ and statement of claim. The writ and the statement of claim being struck out in this matter does not have a bearing on the counterclaim. It is an independent action. It is pleaded that way for convenience and multiplicity of suits. The counterclaim has not been dealt with. It remains undisposed. 

Chaitanya S.C.A. Lakshman
Puisne Judge
23rd May 2025