Singh v Punja & Sons Limited [1979] FJSC 68; Action 82 of 1977 (7 February 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
CIVIL JURISDICTION

Action No. 82 of 1977

BETWEEN

SANT RAM SINGH
s/o Jinnu Singh
Plaintiff

AND

PUNJA & SONS LIMITED
Defendant

Mr. S.R. Shankar, Counsel for the Plaintiff
Messrs J. Punja and J.R. Singh, Counsel for the Defendant.

RULING

Although this case was set down for hearing for 2 days, both parties have raised preliminary points which are really of such a nature that it made hearing at this stage impossible. It is most unfortunate that the case should have been set down for hearing and two days set aside for it when it was clearly not ready for hearing. There is much to be said for a system of pre-trial conferences when preliminary points like these can be sorted out and the issues on which the court will be asked to pronounce worked out. In Canada for instance (although this would not be possible for Fiji) there are pre-trial conferences with the assistance of a judge - not the judge who is ultimately going to hear the case of course.

On the side of the plaintiff counsel complained that the defence was in the alternative and argued that the defendant should be required to elect which defence he was relying on. He did not or could not refer me to any authority for his argument, and I am not aware of any reason why the defendant cannot say "I didn't say that but even if the court says I did, I then say it was on a privileged occasion, it was a justified comment and was in fact true." It merely means that the issues are wide open.

Counsel for the defendant also raised as a preliminary point the fact that in the Reply to the Defence the Plaintiff has pleaded that the words complained of were uttered with malice without specifying the malice in accordance with the requirements Order 82 Rule (3). Presumably the allegation of malice is to counter the plea of qualified privilege and again presumably shows acceptance that the occasion was privileged. On this preliminary point Counsel for the plaintiff argues that where the malice is "malice in law" it is unnecessary to specify any further. But surely the pleadings should indicate that the plaintiff will rely on "malice in law" i.e. malice presumed by law and then in such a case the plaintiff will not be entitled to rely on any other malice.

As I have said the raising of these preliminary points has precluded hearing the case on the days set aside for it, and new hearing dates will have to be allocated. In the meantime it seems to me that the pleadings should be cleared up and any further preliminary points. A proper use of applications for further particulars and interrogatories would have been advisable here. For instance the statement of claim is open to several objections. It seems to include two causes of action, wrongful suspension and slander. With regard to wrongful suspension there are no indications given of why the suspension was wrongful. In any case it is odd that the word "suspension" is used and the word "dismissed"; the defendant in fact says that the plaintiff's services were terminated. With regard to the slander neither the actual words complained of are given, nor words of substantially the same meaning, which are necessary requirements to found any action for defamation. If the words complained of are not actionable per se of course, the innuendo must also be pleaded.

The Plaintiff claims special damages and general damages, but there is no indication whether these are for wrongful suspension, for slander, or for both. Clauses 7 and 8 of the Statement of Claim do not seem to tie up with the claim for special damages.

I can only suggest that before this case is set down for hearing again, the defects in the pleadings are rectified. I note also that the defendant is bringing or intends to bring an action against the plaintiff for recovery of certain moneys. Since these two actions are closely related perhaps it would be advisable to look for ways to combine them.

Since both parties are really to blame for the adjournment of the hearing I will direct that each party bear its own wasted costs in respect of this hearing.

(SGD.) G.O.L. Dyke
JUDGE

LAUTOKA,
7TH FEBRUARY, 1979.