IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

CIVIL ACTION NO. HBC 99 OF 2023

BETWEEN
HAROON ALI SHAH  of Vuda Point, Lautoka.
PLAINTIFF

AND
THE COMMISSIONER OF POLICE
FIRST DEFENDANT

AND
THE ATTORNEY-GENERAL OF FIJI
SECOND DEFENDANT

Before		:	Master P. Prasad  
Counsels		:	Ms. R. Prasad for Plaintiff 
				Mr. S. Kant for Defendants
 
Date of Hearing	:	14 November 2024
Date of Decision 	:	14 February 2025
						
RULING 
(Strike out)
1.	As a result of the COVID-19 pandemic, there was a public announcement on 19 March 2020 that; (i) any person outside the greater Lautoka area must not leave the greater Lautoka area with effect from 20 March 2020 unless authorised by the Permanent Secretary for Health and Medical Services (PS); and (ii) any person outside the greater Lautoka area must not enter the greater Lautoka area with effect from 20 March 2020 unless authorised by the PS (Orders).  

2.	The above Orders were published in the Gazette on 4 April 2020. 

3.	On 28 March 2020, the Plaintiff was arrested by officers of the Fiji Police Force (FPF) at Vuda Point, Lautoka. 

4.	In brief, the Plaintiff in his Statement of Claim (Claim) filed on 2 May 2023 states:
a.	On 28 March 2020 he was arrested by FPF officers at his mooring station while he was on board his boat. 
b.	That he had permission from the military and Lautoka Police to be on the boat and to go fishing.
c.	That the Plaintiff was unlawfully confined at the Lautoka Police Station. 
d.	The Plaintiff was then charged with “Disobedience of lawful order” contrary to section 202 of the Crimes Act 2009. 
e.	The Plaintiff was produced at the Lautoka Magistrates Court on 30 March 2020 where he pleaded ‘Not guilty’. 
f.	On 17 April 2020 the statement of offence was amended to “Disobedience of lawful order contrary to section 202 of the Crimes Act 2009 and section 69(3) of the Public Health Act 1935”.
g.	On 8 February 2021 the statement of offence was further amended to “Failure to comply with orders contrary to section 63(3) of Public Health Act 1935 and Regulation 2 of Public Health (Infectious Disease) Regulations 2020. 
h.	The trial in the above matter took place on 1 April 2022.
i.	On 12 April 2023 the Plaintiff was acquitted.

5.	The Plaintiff’s claim is one of malicious prosecution and wrongful confinement on the grounds that:

a.	Arrest was without lawful excuse.
b.	Failure to give reasons for arrest.
c.	Ignoring the fact that the Plaintiff had approval from the military and the FPF to go fishing; and 
d.	Amending the Charge to secure a conviction.

6.	The Defendants filed a joint Statement of Defence (Defence) on 2 June 2023 stating the following: 

a.	On 28 March 2020 while on coastal patrol, FPF Officers arrested the Plaintiff and 3 other individuals on a boat which was travelling towards a jetty in Vuda Point, Lautoka. 
b.	The Plaintiff had stated that they were returning from a fishing trip.
c.	They were arrested for breach of the Orders and were informed of the same. 
d.	The Plaintiff was arrested around 11.45 am and taken to the Lautoka Police Station cell block. 
e.	At 10.20am on 29 March 2020 the Plaintiff’s caution interview was concluded, and he was formally charged.
f.	The Plaintiff was not produced in Court on 29 March 2020 as it fell on a Sunday. 
g.	Due to disruptions caused to court sitting during the COVID-19 pandemic, the Plaintiff was detained until 3.00pm on 30 March 2020 before being produced at the Lautoka Magistrates Court, where he was granted bail. 
h.	The Plaintiff’s acquittal in the Magistrates Court was premised on a legal consideration that coastal areas were not part of the greater Lautoka area and therefore the Orders did not apply to movements within the coastal areas. 
i.	The Plaintiff had been charged for the purposes of prosecuting the alleged breach of the Orders and not for any other purpose. 
j.	The Plaintiff’s detainment in Police custody was lawfully justified in view of the allegations and disruption to court services. 

7.	On 6 July 2023 the Plaintiff filed a Summons to strike out the Defendants’ Defence pursuant to Order 18 Rule 18 (1) (a), (b), (c) and (d) of the High Court Rules 1988 (HCR) together with an Affidavit in Support.

8.	The Defendants opposed the said application and filed an Affidavit in Opposition of Mohammed Harif, a Legal Officer with the Fiji Police Force. 

9.	In his Affidavit in Reply, the Plaintiff objected to the Affidavit of Mohammed Harif on the grounds that Mohammed Harif had no knowledge of the Plaintiff’s case as he was not involved in the Plaintiff’s arrest, detainment and prosecution. 

10.	Both parties made oral submissions at the hearing of the Strike Out application and filed written submissions as well. 

11.	During the hearing, the Plaintiff’s counsel agreed that Mohammed Harif was entitled to depose the Affidavit on behalf of the Defendants pursuant to Order 41 Rule 5(2) of the HCR, and that the Plaintiff did not have any further objections to the Court considering the Affidavit of Mohammed Harif. 

12.	In her written submissions filed after the hearing, the Plaintiff’s counsel submitted that despite the Affidavit of Mohammed Harif sworn pursuant to Order 41 Rule 5(2), the deponent was not present at the material time and the facts within the deponent’s knowledge were disclosed to him by other officers. 

13.	The above Rule clearly provides that 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. Therefore, the Affidavit of Mohammed Harif can and will be considered by this Court so long as the information or belief stated therein by the said deponent are referenced with sources and grounds accordingly.

14.	 I will now proceed to consider the grounds on which the current Strike Out Application was filed i.e. Order 18 Rule 18 (1) (a), (b), (c) and (d) of the HCR
Order 18 Rule 18 

15.	Order 18 rule 18 provides:

“18 (1) The Court may at any stage of the proceedings order to be struck out or amended 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 case of action or defence, as the case may be;
(b)	it is scandalous, frivolous or vexatious;
(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.” 

16.	The following excerpts from the 1997 Supreme Court Practice provide the scope of the rule together with guiding factors when dealing with an application for the strike out of a pleading.   

17.	Footnote 18/19/7 of the 1997 Supreme Court Practice reads:

“Exercise of powers under this rule—It is only in plain and obvious cases that recourse 18/19/7 should be had to the summary process under this rule, per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 Q.B. 86, p.91 (Mayor, etc., of the City of London v. Horner (1914) 111 L.T. 512, C.A.). See also Kemsley v. Foot [1951] 2 K.B. 34; [1951] 1 All E.R. 331, C.A., affirmed [1952] A.C. 345, H.L. It cannot be exercised by a minute and protracted examination of the documents and facts of the case, in order to see whether the plaintiff really has a cause of action (Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.). If there is a point of law which requires serious discussion, an objection should be taken on the pleadings, and the point set down for argument under O.33, r.3 (Hubbuck v. Wilkinson [1899] 1 Q.B. 86, p.91). 

Where an application to strike out pleadings involves a prolonged and serious argument, the Court should, as a rule decline to proceed with the argument unless it not only harbours doubts about the soundness of the pleading but, in addition, is satisfied that striking out would obviate the necessity for a trial or substantially reduce the burden of preparing for a trial, and therefore, where the Court is satisfied, even after substantial argument both at first instance and on appeal, that the defence does not disclose a reasonable ground of defence, it will order it to be struck out (Williams & Humbert Ltd v. W. & H. Trade Marks (Jersey) Ltd [1986] A.C. 368; [1986] 1 All E.R. 129 H.L.).”

18.	Footnote 18/19/11 of the 1997 Supreme Court Practice on no reasonable cause of action or defence reads:

“Principles—A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered (per Lord Pearson in Drummond-Jackson v. British Medical Association [1970] 1 W.L.R. 688; [1970] 1 All E.R. 1094, C.A.). So long as the statement of claim or the particulars (Davey v. Bentinck [1893] 1 Q.B. 185) disclose some cause of action, or raise some question 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 (Moore v. Lawson (1915) 31 T.L.R. 418, C.A.; Wenlock v. Moloney [1965] 1 W.L.R. 1238; [1965] 2 All E.R. 871, C.A.);...”

19.	The legal principles regarding striking out pleadings are clear and widely understood. The Court of Appeal in National MBF Finance v Buli [2000] FJCA 28 determined the principles for strike out. In Attorney-General v Shiu Prasad Halka 18 FLR 210 at 214 Justice Gould V.P. in his judgment expressed “that the summary procedure under O.18, r.19 is to be sparingly used and is not appropriate to cases involving difficult and complicated questions of law.”

20.	Justice Winter (as his Lordship then was) in Ah Koy v Native Land Trust Board [2005] FJHC 49 aptly stated:

“The practice in Fiji of preemptively applying to strike out a claim is wrong and must cease. Counsels ability to overlook the purpose of this summary procedure is astounding. The expense to the administration of justice, let alone clients, is a shameful waste of resources....

Apart from truly exceptional cases the remedy should not be granted. The approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be provided at trial. 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 upon a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of such a factual contention....

The rule of law requires the existence of courts for the determination of disputes and that litigants have the right to use the court for that purpose. The courts will be alert to their processes being used in a way that results in an oppression or injustice that would bring the administration of justice into disrepute. However, the court cannot and must not deny proper access to justice by the glib use of a summary procedure to pre-emptorily strike out an action no matter how weak or poorly pleaded the Statement of Claim supporting the case is....

It is not for the court in deciding whether there is a reasonable cause of action to go into the details of the issues that are raised by the parties. This summary jurisdiction of the court was never intended to be exercised by a detailed examination of the facts of the case at a mini hearing to see whether the plaintiff really has a good cause of action merely a sufficient one. This is not the time for an assessment of the strengths of either case. That task is reserved for trial. The simple fact that these parties engaged in argument by opinion over statutory interpretation must bring into existence a mere cause of action raising some questions fit to be decided by a judge.”   

21.	The clear and unambiguous wording of Order 18 Rule 18 indicates that the power to strike out pleadings is discretionary rather than obligatory.

No reasonable cause of defence 

22.	The first ground to consider under Order 18 Rule 18 is (1) (a) – no reasonable cause of defence. For this ground, the Court may only conclude an absence of a reasonable cause on the pleadings itself with no evidence being admissible. His Lordship Chief Justice Mr. A.H.C.T. Gates (as His Lordship then was) held in Razak v Sugar Corporation Ltd [2005] FJHC 720 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: Republic of Peru v Peruvian Guano Company [1887] UKLawRpCh 186; (1887) 36 Ch.D 489 at p.498”.
 
23.	In Ratumaiyale v Native Land Trust Board and Pacific Octopus Ltd [2000] 1 FLR 287, the Court stated that:
“It is clear from the authorities that the court’s jurisdiction to strike out on the ground 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.”

24.	The same reasoning applies to defences as well and Master Azhar (as His Lordship then was) in Wati v Bernadette [2020] FJHC 949 aptly discussed the same at paragraph 15 of the Ruling:
“There are several cases which guide the court to form an opinion of reasonable cause of action for the purpose of Order 18 Rule 18. However, there is not much cases which deals with the other part of first ground that is the reasonable 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 Bulksport Co. Co. v. Saudi Shipping Co. Inc (1986) 2 Lioyd', 221 for thor the ‘defence’ which is "a real prospect of success"carry some degree of conviction". Thus, the court must from a provisional view of the probable outcome of the action. In addition, the court can also consider whether legal questions of importance and difficulty are raised in an impugned defence filed by either party.

25.	While the Plaintiff’s counsel in her submissions referred to the Defendants’ breach of Section 18 of the Criminal Procedure Act 2009 and Section 13(1)(a) (1) of the 2013 Fijian Constitution, the same is not pleaded in the Claim. Counsel also submitted that the Plaintiff was charged with an offence that did not constitute a criminal offence at the time. 

26.	Furthermore, the Plaintiff relied on the acquittal of the Plaintiff on the Charge to be the basis of wrongful confinement and malicious prosecution. 

27.	At this juncture I am not required to decide whether the Defence is likely to succeed. The Defence just has to disclose a reasonable ground of defence to the claim of wrongful confinement/unlawful imprisonment.  

28.	The Defendants in their submissions have referred to the case of Rajendra Singh v The Commissioner of Fiji Police Force and Others Civil Appeal No. ABU 151 of 2018 on the discussion of what are the legal requirements that constitute an action based on false imprisonment. In this case, His Lordship Almeida Guneratne, JA laid down the legal requirements as follows:

“[9] I shall begin by referring to the legal requirements that constitute an action based on false imprisonment and then proceed to see whether they fit into the facts and circumstances of the present case as re-capped above.
[10] False imprisonment is made out of “a person’s freedom of movement (not necessarily in a prison) had been restricted.”

[11] That was a proposition laid down as far back as the year 1845 in the English Case of Bird v. Jones [1845] 7QB 742, which has stood the test of time.

The competing policies and the balancing process

[12] No doubt, there are competing public policies.

[13] On the one hand, there is the freedom of law enforcement officers. On the other is the citizen’s right to free movement.

[14] In that regard, having looked at the judgment of the High Court (vide: pp.7 to 16 of the Vol. 1 of the Copy Record) I could not find a reference to that aspect.

Definition and Elements

[15] On the basis of authoritative judicial precedents and academic literature the definition and legal elements necessary to constitute false imprisonment may be stated as follows:

Definition of False Imprisonment

[16] In my view the most comprehensive definition of false imprisonment is as stated by John Fleming. He says: “It is the wrong of intentionally and without lawful justification subjecting another to a total restraint of movement by either actively causing his confinement or preventing him from exercising his privilege of leaving the place in which he is.” (Fleming on the Law of Torts 9th ed., LBCIS, 1998).

[17] Most other definitions ignore the words “without lawful justification”. (For example, Street on Torts at p.28, 8th ed. Butterworths). To my mind that is the most important and decisive element bearing in mind the fact that we are dealing with a case of false imprisonment involving the Police.

29.	The Plaintiff’s Claim does not provide particulars of how the Plaintiff’s detainment was without lawful justification. 

30.	On the other hand, the Defendants in their Defence plead that the Plaintiff was arrested on the allegations of breach of the Orders and detained in Police custody following the same and that the Plaintiff was acquitted on the legal consideration that coastal areas did not form part of the greater Lautoka area.  

31.	In the criminal proceedings before the Magistrates Court, the Plaintiff had made an application for case stated on the following ground: “does the Magistrates Court have jurisdiction to try/or convict for an offence that is not operative at law during the alleged date of commission of the alleged offence as contained in the particulars of the charge.” In dismissing this application, the Magistrates Court in its ruling of 28 June 2022 in Criminal Case No. 278 of 2020 State v Haroon Ali Shah, Azad Ali, Timoci Raqara and Jone Matayadrau held at paragraph 12 as follows:

“Moving on to the issue of whether this Court has the jurisdiction to try and/or convict for an offence that is not operative at law during the time of the alleged offence. The Charge of Failure to Comply with Order is clear by law. The alleged offence allegedly took place on the 28th of March 2020. While the law was published by way of gazette on the 3rd of April, 2020, the restrictions came into force on the 19th of March, 2020 as clearly stated in the Gazette. Therefore, to state that this Court does not have jurisdiction to hear or try the matter is a frivolous application by the Applicant.” 

32.	In acquitting the Plaintiff, the Magistrates Court in its judgment of 12 April 2023 held as follows:
“10. The issue of contention in this matter is whether there was any law in effect at the time of offending and whether the law incused the coastal area. ...
12. The Public Notice for this gazette was published on the 3rd of April, 2020, that is a fact. However, it does not necessarily mean that when it is gazetted on the 3rd of April 2020 then it becomes a law. It had become a law the moment it was announced as clearly stated in the Notice where it clearly states:
“I hereby give notice of the following orders which were made pursuant to Section 69(3) of the Public Health Act 1935 for the protection of the public health, approved by the Minister for Health and Medical Services and publicly announced on 19 March, 2020.”...
14. In light of the above, Prosecution had proved the element of the order of the Permanent Secretary of Health and Medical Services...but was coastal areas restricted per se in the Gazette?...
17. Defence has submitted in their submissions that the Honourable Prime Minister had allowed fishing but there was no evidence presented before this Court on when specifically, was fishing allowed. The prosecution witness clearly stated in his evidence that the reason he was out on patrol at sea was for the specific reason to police movement in the coastal areas during the lockdown. However, this contradicted the Gazette which failed to specify whether the coastal areas were restricted and how far were the coastal areas restricted. The prosecution witness was unable to tell this Court how the coastal areas were included in the Notice. The prosecution witness was adamant that the Notice itself gave them authority to restrict coastal area movement but he also agreed that the definition of greater Lautoka area was not clear in the Gazette. 
18. As such, from the evidence presented before this Court, I find that there are doubts int eh prosecution evidence and it failed to prove the elements beyond reasonable doubt.”
33.	In light of the above, I find that for the cause of action of unlawful confinement, the Defendant has disclosed a probable defence with some chance of success by pleading lawful justification for the Plaintiff’s detainment. The probable defence raises certain issues which must be dealt with at trial.

34.	For the claim of malicious prosecution, the Plaintiff has pleaded particulars in the Claim which relate to: the prosecution amending the charge against the Plaintiff; the Plaintiff being prosecuted for an offence not known to the law; and prosecution being continued even though the Plaintiff alleged he had permission from relevant authorities to be at sea at the material time. 

35.	The Fiji Court of Appeal in Naisoro v Commissioner of Police [2019] FJCA 82; ABU0018.2017 (7 June 2019) discussed the elements of malicious prosecution as follows:

[28] I consider it appropriate to firstly identify the essential elements that a Plaintiff must prove in order to succeed in an action for malicious prosecution. The Appellants in their written submissions have referred to the case of A v New South Wales, [2007] HCA 10. The High Court of Australia in this case has traced in great detail the history and development of the tort of malicious prosecution. They have re-iterated the oft relied upon four elements a Plaintiff must establish in order to succeed in an action for malicious prosecution. They are;

“(1) that proceedings of the kind to which the tort applies (generally, as in this case, criminal proceedings) were initiated against the Plaintiff by the defendant;

(2) that the proceedings terminated in favour of the plaintiff;

(3) that the defendant, in initiating or maintaining proceedings acted maliciously; and

(4) that the defendant acted without reasonable and probable cause”

[29] Halsburys Laws of England (4th Edn), Vol 45, para 1368, stipulates that the Plaintiff should expressly plead these four essential elements. Therefore, it is prudent to examine if the Appellants have pleaded these four elements in their Statement of Claim and also whether they have proved them at the trial. Significantly, the Appellants have acknowledged this requirement and in paragraph 35 of their written submissions state that “Since malicious prosecution is an action on the case, the Plaintiff has the substantive burden of proof to establish all the elements of the case and must show damage”. ...

[37] The ordinary dictionary meaning of ‘malice’ alone may not be appropriate to define malice in this context. As stated in A v New South Wales (supra), malice would mean “... acting for purposes other than a proper purpose of instituting criminal proceedings. Purposes other than a proper purpose include, but are not limited to, purposes of personal animus of the kind encompassed in ordinary parlance by the word ‘malice’ ”. It would be necessary that ‘the defendant must have had malicious intent in the sense of improper purpose’. Accordingly, ‘malice’ would constitute “... an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law”.

[38] I consider it pertinent to mention another important view expressed in that case. It was stated that - “Two further observations should be made about the element of malice. First, its proof will often be a matter of inference. But it is proof that is required, not conjecture or suspicion. Secondly, the reference to “purposes other than a proper purpose” might be thought to bring into this realm of discourse principles applied in the law of defamation or in judicial review of administrative action. No doubt some parallels could be drawn with principles applied in those areas. But drawing those parallels should not be permitted to obscure the distinctive character of the element of malice in this tort. It is an element that focuses upon the dominant purpose of the prosecutor and requires the identification of a purpose other than the proper invocation of the criminal law” (emphasis added).
[39] The element of ‘absence of reasonable and probable cause’ cannot be adjudged by a single yardstick and has to be determined on the facts and circumstances of each case. I am once again inclined to rely on A v New South Wales (supra), where it was said that an action for malicious prosecution will not lie “where the material before the prosecutor at the time of initiating or maintaining the charge both persuaded the prosecutor that laying a charge was proper, and would have been objectively assessed as warranting the laying of a charge”.

36.	 The Defendants relied on the above case in their submissions as well and submitted that the Plaintiff’s Claim did not meet the elements specified above. The Defence states that the Plaintiff was charged and prosecuted on the allegations of breach of the Orders and not for any other purpose. The Magistrate Courts ruling that the charge against the Plaintiff was clear by law also supports this defence. 

37.	In my view the Defendants have raised a reasonable defence for the claim of malicious prosecution as well which is a triable issue. 

38.	Since the Defence has raised a reasonable defence for both the claims of wrongful confinement/imprisonment and malicious prosecution, the Plaintiff’s application to strike out the Defence on Order 18 Rule 1 (a) fails. 
Order 18 Rule 1 (b), (c) and (d)
39.	The Plaintiff filed an Affidavit in Support of their application to strike out which provides a background of the matter and reiterates the facts pleaded in its Claim. 

40.	However, neither the Affidavit in Support, nor the Plaintiff’s counsel’s submissions (both oral and written) addressed these other grounds of the strike out application. 

41.	The Defendants submitted on these grounds both orally and in their written submissions as follows:

a.	The Defence does not contain any averments which would qualify as ‘degrading’ towards the Plaintiff and is thus not scandalous;
b.	The Defence is meritorious and so cannot be held to be frivolous and/or vexatious;
c.	No evidence in the Plaintiff’s Affidavit in Support on how the Defence prejudices, embarrasses or delays fair trial in this matter;
d.	There is no abuse of court process by the Defendants as the Defence was filed in compliance with the requirements of the HCR;
e.	 and the Affidavit in Support has failed to disclose any ulterior motive of the Defendants in filing their Defence; and 
f.	That the Plaintiff’s application is in itself an abuse of process. 

42.	The Court agrees with the submissions of the Defendant in this regard. 

43.	The crux of the Plaintiffs’ Claim is based on allegations of wrongful confinement and malicious prosecution. The Claim raises two triable issues; (i) whether the Plaintiff’s detainment was lawful; and (ii) whether the Defendants acted maliciously in prosecuting the Plaintiff. 

44.	The Defendants have in their Defence pleaded a reasonable defence to the Claim and has raised triable issues in doing so. 

45.	I therefore find that the Defendants have a reasonable defence and this is not a plain and obvious case warranting a strike out of the Defence. 

46.	Accordingly, I make the following orders:
(a)	The Plaintiff’s Summons to strike out the Defendants Statement of Defence is hereby dismissed; and 

(b)	The Defendants are entitled to costs summarily assessed in the sum of $2,000.00 payable by the Plaintiff within 1 month. 

P. Prasad
Master of the High Court

At Lautoka
14 February 2025