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Valebasoga Quarries Ltd v Yam [2003] FJHC 235; HBC0004d.2002b (12 September 2003)

IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0004 OF 2002

Between:

VALEBASOGA QUARRIES LIMITED
Plaintiff

and

CHIRK YAM and ILAITIA BOILA
as Receivers and Managers of
VALEBASOGA TROPIKBOARDS LIMITED
1st Defendants

and

FIJI DEVELOPMENT BANK
2nd Defendant

Mr. W. Archibald for the Plaintiff
Mr. J. Apted for the 1st Defendants
Mr. D. Sharma for the 2nd Defendant

DECISION

The Court has before it the following motions:

(a) The first defendants seek an order that they be struck out as a party to this action and that the action against them be dismissed.

(b) The second and third defendants seek an order that they be struck out as a party to this action and that the action against them be dismissed.

(c) The third defendants pray for an order that the plaintiff’s action against them be struck out.

(d) The first defendants seek an order that the Affidavit in Reply of Bahadur Ali sworn 8 April 2002 and filed on 24 April 2002, be wholly struck out as having been filed contrary to section 52 of the Legal Practitioners Act, 1997 (Act No. 19/97) and alternatively they want certain paragraphs and annexures contained in the abovementioned affidavit be struck out on the grounds that they are scandolous, irrelevant or otherwise oppresive.

On 15 October 2002 an order by consent was made striking out the third defendants, namely Isoa Kaloumaira & Others as a party to this action and hence their names do not appear in the intitule to this action.

The parties have filed affidavits in support of their motions. Also, as ordered, counsel appearing for the respective parties have lodged written submissions for Court’s consideration.

Consideration of the applications

As ordered, I have before me for my consideration submissions of the first defendants, second defendant, submissions of plaintiff in response to first defendants’ application and that of first defendants in reply.

Second Defendant’s application

As for the second defendant’s application, after perusing the pleadings so far filed and upon reading and considering the various affidavits filed herein, I uphold the submissions made by Mr. D. Sharma (counsel for the second defendant).

The second defendant is therefore struck out as a party and the action against it is dismissed. I award costs against the plaintiff in the sum of $400.00 to be paid within 28 days.

Third defendants’ application

As for the 3rd defendant's application, they have already been by consent struck out as a party to the action.

First defendants’ application

As far as 1st defendants’ (D1) are concerned they say that they are Receivers and Managers of Valebaosoga Tropikboards Limited, a related company to Valebasoga Quarries Limited. They were appointed by the Fiji Development Bank Limited (FDB) the second defendant herein pursuant to a debenture given to it by Tropikboards to receive and manage Tropikboard's assets.

The D1 say that the claim of plaintiff is that ‘in essence 15 representatives of all the defendants illegally entered into the premises, seized equipment and machinery belonging to it and closed its business down. They also allege that damage to some equipment occurred as a result of negligence during the seizure. As a result of both these allegations, Quarries alleges, that it lost $20 million worth of contracts (and $6 million net return).’

The D1 submit that they as Receivers did not enter the plaintiff’s premises nor did they authorize anyone to do so. They say that Mr. Yam’s evidence is that on 1 May 2001 some staff of Price Waterhouse Coopers did enter into Quarries’ premises but they did so as agents of Merchant Bank of Fiji which was a major creditor of Quarries.

On their second application to strike out Bahadur Ali’s affidavit filed on behalf of Quarries on 25 April 2002 the grounds are firstly, that the affidavit was filed when there was no one at Tevita Fa & Associates who held a current practising certificate which is contrary to section 52 of the Legal Practitioners Act. Secondly, they complain that ‘various specified paragraphs of Ali’s affidavit are irrelevant, scandalous, vexatious and oppressive, and are not based on personal knowledge’ and that ‘none of the facts relied upon by Quarries and referred to by Mr. Ali in his affidavit are true.’

As for the allegation regarding breach of provisions of s52 of the Legal Practitioners Act, I find there is no merit in that argument. For counsel to submit by saying ‘respectfully submitted that to allow the affidavit to stay on the record would be tantamount to allowing the Court to participate in a criminal offence’ is a most disrespectful way of stating his case. Why not let the Court decide on the argument rather than worrying about the Court by making an unwarranted statement.

Conclusion

On the first defendants’ application to strike out I have borne in mind the following Notes to Or.18 r.19 of the Supreme Court Practice (U.K.) 1979 Vol 1 Or.18/19/11:

“........ A reasonable cause of action means a cause with some chance of success when only the allegations in the pleadings are considered (per Lord Pearson in Drummond Jackson v British Medical Association [1970] 1 WLR, 688; [1970] 1 All E.R. 1094 C.A.). So long as the statement of claim or the particulars (Davey v Bentinck) [1892] UKLawRpKQB 216; [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.)....”

Similarly, Lindley M.R. in Hubbuck & Sons, Ltd v Wilkinson, Heywood & Clark Limited [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86 at page 91 said:

“... summary procedure is only appropriate to cases which are plain and obvious, so that any master or judge can say at once that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks. The use of the expression “reasonable cause of action” in rule 4 shews that the summary procedure there introduced is only intended to be had recourse to in plain and obvious cases”.

As for the application to strike out the first defendants as a party because they have been improperly joined, I find that without the trial of the action it will not be possible to decide the issue. Because of the doubts expressed in the affidavit of Bahadur Ali particularly when he was not at the site, I strike his affidavit out.

It goes without saying that it is for the plaintiff to prove its case against the first defendants.

For these reasons it is ordered as follows:

(1) The first defendants’ application to strike them out as a party is dismissed with costs against them in the sum of $400.00 to be paid within 28 days.

(2) The second defendant is struck out as a party and the plaintiff is to pay sum of $400.00 costs to second defendant’s solicitor within 28 days.

(3) The third defendants have already been struck out as a party by consent.

(4) The affidavit of Bahadur Ali sworn 8 April 2002 and filed herein is struck out.

D. Pathik
Judge

At Suva
12 September 2003