IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0303 OF 2002

BETWEEN:

RATU OSEA ROQICA TUINAKELO
PLAINTIFF

AND:

DIRECTOR OF LANDS
NATIVE LAND TRUST BOARD
CONSERVATOR OF FORESTS
THE ATTORNEY GENERAL OF FIJI
FIJI HARDWOOD CORPORATION LIMITED
DEFENDANTS

Mr. I. Fa - Counsel for Plaintiff
Mr. T. Bukarau - Counsel for 2nd Defendant
Mr. G. Leung - Counsel for 5th Defendant

RULING

This is a motion filed on behalf of the fifth defendant to have the Statement of Claim struck out against it as it discloses no reasonable cause of action against it. I have before me following documents on the basis of which I have to come to a conclusion.

(a)	Statement of Claim
(b)	Statement of defence by the fifth defendant
(c)	Affidavit of Sekope Bula sworn on 23rd September 2002 in favour of the motion.
(d)	Affidavit of Ratu Osea Roqica Tuinakelo dated I believe 14th day of November 2002.

The facts of the case briefly as alleged in the statement of claim are that the plaintiffs are traditional users of certain land. As a result of certain representations made by Senior Government official who also happened to be a High Chief, the plaintiff agreed to the first and second defendants leasing their land for purposes of planting mahogany forests. It was also represented to them that upon maturity of the forests, the plaintiff would have the right to acquire the mahogany forests. In breach of these representations the first and fourth defendants in 1998 transferred or leased the land with mahogany plantations to the fifth defendant which they alleged was related to the first and fourth defendants. What 'related' means is not explained. The plaintiff’s cause of action against the fifth defendant is set out in paragraphs 47-51 of the Statement of Claim wherein the plaintiff alleges that the fifth defendant acquired the lease in respect of the land through unlawful and illegal means, that the fifth defendant is knowingly in receipt of plaintiff’s rights, the fifth defendant is a constructive trustee for the plaintiff, that the fifth defendant is in breach of Fair Trading Act and that the fifth defendant is trying to sell off timber which it has no right to do so.

Both plaintiff and the fifth defendant filed written submissions which ‘are very helpful. The application to strike out is made under Order 18 Rule 18(1)(a) and (b) of the High Court rules and inherent jurisdiction of this Court.

The provisions of Order 18 Rule 18 provides a prompt and summary method of disposing of groundless actions. The power to strike out a claim is discretionary and ought only to be exercised in 'plain and obvious cases' – Hubbuck & Sons Ltd. v. Wilkinson, Heywood & Clarke Ltd. 1899 1QB 86 at 91. The summary procedure of striking out is only appropriate where it is clear that the Statement of Claim as it stands even if it is proved is clearly insufficient to entitle the plaintiff to the prayers sought in the Statement of Claim.

A reasonable cause of action mean a cause of action with some chance of success when only allegations in the pleadings are considered. If once allegations are examined it is found that the alleged action is bound to fail, the Statement of Claim should be struck out.

If the Statement of Claim discloses some cause of action or some question fit to be tried, the mere fact that the plaintiff’s case is weak and is unlikely to succeed at trial is not a ground for striking out on the basis it discloses no reasonable cause of action – WENLOCK v. MOLONEY 1965 2 All E.R. 871.

The fifth defendant submits that the pleadings fail to show any duty in law owed by the fifth defendant to the plaintiff and there is no nexus between relief sought and any duty owed. The plaintiff on the other hand submits that the pleadings disclose controversial and compelling issues and this is not an obvious case for striking out.

I have looked at the pleadings and affidavits very closely. While not expressing any conclusive view on the matter, the cause of action against the fifth defendant may appear weak in certain aspects but there are certain issues which can only be clarified by testimony of witnesses. The plaintiff is alleging that the fifth defendant is 'knowingly in the receipt of plaintiff’s rights and that the fifth defendant is a constructive trustee'. These are not matters which the court ought to reach a conclusion on an interlocutory application.

To shut out a litigant or a person from having his action heard is a drastic course of action to take and ought only to be exercised in very clear and obvious situations. I do not consider that this is one of those situations where I ought to exercise my discretion on grounds that pleadings show no reasonable cause of action.

The fifth defendant also raised the objection that the pleadings are frivolous and vexatious and an abuse of process of court and therefore should be struck out. The purpose of this provision is to compel parties to conform to rules of pleading and to prevent undue harassment. The court has an 'inherent jurisdiction to strike out pleadings and other documents which are shown to be frivolous vexatious or scandalous: and to stay or dismiss an action or strike out a defence which is an abuse of process …. The power to strike out, stay or dismiss under the court’s inherent jurisdiction is discretionary. It is a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed; it ought to be exercised sparingly and only in exceptional cases' – Halsbury Volume 37 4th Edition paragraph 435.

It appears to me from the pleadings that there is a matter before me fit to be investigated so I will decline the application.

For these reasons, I consider that the fifth defendant has failed to make out a case for striking out. The application is therefore dismissed with costs in the cause.

Before I conclude, I must say that the plaintiff’s affidavit dated 14th day of 2002 has to a significant extent gone beyond outlining facts and has expressed opinions and statements of law. Affidavits must state facts only to comply with Order 41 Rule 5 of the High Court Rules.

[ Jiten Singh ]
JUDGE

At Suva
 January 2003