IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0423 OF 2001

Between:

MARINE RESOURCES DEVELOPMENT (FIJI) LIMITED
ATLAS OCEAN PRODUCTS LIMITED
Plaintiffs

and

REL FISHERIES LIMITED
ESAROMA LEDUA
Defendants

Mr. P. McDonell for the Plaintiffs
Mr. T. Fa for the Defendants

DECISION

This is the plaintiffs’ summons under Order 14 of The High Court Rules 1988 seeking ‘final judgment in this action against the defendants for the amount claimed in the Statement of Claim with interest and costs’. An affidavit in support was filed. Mr. Fa for the defendants filed an affidavit in reply. The matter was adjourned for a while for settlement. As no settlement was reached an order to file written submissions was made on 18 September 2002. The last of the submission was filed on 4 October 2002.

The submissions

In support of the application, Kim Anderson swore an affidavit, inter alia, that there was ‘an agreement’ between the parties and pursuant thereto the plaintiffs supplied the ‘equipment’ in question to the defendants in Lakeba on or about 22 November 2000. The defendant did not pay any money to the plaintiffs and despite a demand the equipment has not been returned to them.

Commenting on the affidavit filed by the second defendant in response, plaintiffs’ counsel submits that the said affidavit ‘amounts to little more than a denial of the Plaintiffs’ claim’.

The defendants’ counsel submits that the alleged agreement is ‘undated’ and ‘unsigned’ leading to the conclusion that ‘there was no agreement’; he goes on to say that ‘even if there was an agreement, which the defendants deny, the Agreement would be invalid and not legally enforced as there must be sufficient certainty of terms’.

The defendants further submit that ‘if there was an agreement, it was only between the plaintiff companies and the Lakeba Villagers, and as such they are not proper parties to this action as defendants’.

The defendants’ Counsel submits that there are triable issues in this case.

Consideration of the issue

The Amended Writ of Summons was filed on 23 January 2002 and Statement of Defence was filed on 13 February 2002.

I have considered the Affidavit in Support of the application and also the affidavit in response. Both counsel also made written submissions as ordered.

On the affidavit evidence before me and on the pleadings, I find that the facts are in dispute. Triable issues have been raised. It would be difficult to grant the order sought.

The counsel for the plaintiffs has himself stated that there are certain issues for Court’s determination. He said:

(a)	Did the Plaintiffs and the Defendants enter into some sort of Agreement that provided, inter alia, that the equipment was to be sold to the Defendants by the Plaintiffs?

(b)	Did the Plaintiffs supply the equipment to the Defendants?

(c)	Did the Defendants pay any money to the Plaintiffs for the equipment or, alternatively, did the Plaintiffs retain any money rightly belonging to the Defendants and, if so, was sufficient money retained to meet the costs of the equipment as claimed by the Plaintiffs?

(d)	Did the Plaintiffs deliver the said equipment to the Defendants?

(e)	Did the Defendants retain all or any of the equipment or has any or all of it been returned to the Plaintiffs? 

How can the plaintiffs in these circumstances ask for summary judgment? They cannot I would say. 

On the facts and circumstances of the case I bear in mind the purpose behind the power to give summary judgment, namely, that it is:

“……….intended only to apply to cases where there is no reasonable doubt that a plaintiff is entitled to judgment and where therefore it is inexpedient to allow a defendant to defend for mere purposes of delay”. (Jones v Stone [1894] A.C. 122).

It has been held that:

“As a general principle, where a defendant shows that he has a fair case for defence, or reasonable grounds for setting up a defence, or even a fair probability that he has a bona fide defence, he ought to have leave to defend” [Saw v Hakim (1889) 5 T.L.R. 72].

On the authorities it is quite clear that:

‘leave to defend must be given unless it is clear that there is no real substantial question to be tried’ (Codd v Delap (1905) 92 L.T. 510 H.L.) that there is no dispute as to facts or law which raises a reasonable doubt that the plaintiff is entitled to judgment (Jones v Stone (1894) A.C. 122). 

In this case the defendants have filed a Statement of Defence and on merits they cannot be shut out from laying their Defence before the Court.

As I said there are triable issues and therefore judgment cannot be entered against the defendants.

In this context the following passages from the judgment in Powszechny Bank Ziwakowy W. Polsce v Paros (1932) 2 K.B. 353 are worth noting:

Greer L.J. at p.359 said:

“It has long been the rule that in proceedings under Order XIV, what the Court, whether this Court or the King’s Bench division, has to ascertain is whether there is a triable issue. If there is, no matter how strongly the Court may anticipate that it will be decided in the plaintiff’s favour, it must order a trial.”

He goes on to say that:

“All the defendant need say is that he requires the plaintiff to prove his case, and the law puts upon the plaintiff the onus of proving it. When the defendant says he does not admit the claim he need not carry the case any further than to say: ‘There is a triable issue and I want to have it tried’.”

In the light of the above I am of the view that the defendants meet the threshold requirements as enunciated by Greer L.J. and hence there ought to be a trial of the issues.

It is an important principle of the summary judgment procedure that the onus remains on the plaintiffs throughout to establish that the defendants have no defence. The Court is not satisfied on this point. In the light of the evidence it could not be shown that there is no defence and therefore a full hearing is required. The defendants do not have to prove their case on a summary judgment application.

In the outcome, for the above reasons and on the principles applicable to summary judgment procedure, the summons is dismissed with costs to the defendants’ solicitor in the sum of $250.00 to be paid within 14 days of this decision.

D. Pathik
Judge

At Suva
9 July 2003