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Sautik v Kausiraf [2004] FJHC 23; HBC0358R.2004S (22 September 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0358R.2004S

BETWEEN:

GAGAJ SAUTIK, GAGAJ TAIPO, TARTERANI
RIGAMOTO & VISANTI MAKRAVA
PLAINTIFF

AND:

GAGAJ KAUSIRAF
1ST DEFENDANT

AND:

SAKEO VAREA
2ND DEFENDANT

Counsel for the Plaintiff: S. Inoke: G.P. Lala & Associates
Counsel for the Defendants: G. Leung )

: Ms S. Cevalawa ) Howards

Date of Ruling: 2.45 p.m.
Time of Ruling: 22 September, 2004

EX TEMPORE RULING

This is an Order 18 r.18 (1) (a) application on behalf of the Defendants. The first Defendant is the Chief of Oinafa, the second, his brother. The sole ground for striking out under the provisions relied upon by the Defendant is that the Plaintiffs action discloses no reasonable cause of action.

The law on striking out on the ground that there is no reasonable cause of action is well settled. The law and the applicable principles are clearly set out in The Supreme Court Practice (White Book) 1985 Ed, para 18/19/7 as follows:

“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 WLR; [1970] 1 All ER 1094, CA.). But the practice is clear. So long as the Statement of Claim or the particulars (Davey v. Bentinck [1892] UKLawRpKQB 216; [1893] 1 QB 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 out (Moore v. Lawson (1915) 31 TLR 418, CA; Wenlock v. Moloney [1965] 1 WLR 1238; [1965] 2 All ER 87, CA)”

(emphasis added)

The Court at this stage is only required to satisfy itself that the evidence in the pleading so far before it, raises some questions to be argued and decided by the Court. The thrust of the Plaintiff’s argument as contained in their Statement of Claim is that there has been a failure on the part of the 1st Defendant to observe the law governing the appointment of the Chiefs under the Rotuman Act. The failure amounts to a breach of duty. The purported breaches are detailed in their Statement of Claim.

The Defendants deny any action in contravention of the Act. They equally deny that the claim by the Plaintiff’s are acting on behalf of the majority of the District of Oinafa. But while they may question who the Plaintiffs purport to represent, the fact that at least 3 of them are eligible for the election to be the Chief of Oinafa, is sufficient to establish their locus to bring the action.

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. As Danckwerts LJ said in Wenlock v. Moloney [1965] 1 WLR 1238, at 1244:

“But this summary jurisdiction of the Court was never intended to 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.”

I am satisfied that the Plaintiffs in this instance have met the threshold required for the action to proceed further, in that their statement of claim raise some question fit to be decided by this Court.

The Defendants’ Summons to Strike Out is dismissed. Costs to be in the cause.

The matter is to take its normal course.

F. Jitoko
JUDGE

At Suva
22 September 2004