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Khan v Ratu's Affordable Cars Ltd [2004] FJHC 422; HBC0416.2003L (2 June 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0416 OF 2003L

BETWEEN:

MAHMOOD KHAN
s/o Habib Khan
Plaintiff

AND:

RATU’S AFFORDABLE CARS LIMITED
1st Defendant

AND:

RICHARD CLARENCE IHAKA
2nd Defendant

AND:

NARENDRA SINGH
s/o Uday Singh
3rdt Defendant

AND:

CARPENTERS FIJI LIMITED
4th Defendant

AND:

FIJI ISLANDS REVENUE & CUSTOMS AUTHORITY
5th Defendant

Counsel for the Plaintiff: Mr. S. Nandan
No Appearance for 1st, 2nd & 3rd Defendants
Counsel for the 4th Defendant: Mr. S. Maharaj
Counsel for the 5th Defendant: Ms. A. Ali

Date of Hearing & Judgment: 2 June 2004

EXTEMPORE JUDGMENT

This matter comes before the court by way of a Summons filed on behalf of the 4^th defendant which Summons seeks that an injunction granted by the court on the 27^th of November 2003 be dissolved, stayed or suspended until the hearing of the matter. Further that the plaintiff’s claim against the 4^th defendant be dismissed and struck out on the grounds that it doesn’t disclose any reasonable cause of action being an application under Order 18 of the High Court Rules.

The Motion further seeks costs.

The Motion is supported by an affidavit of Sudesh Raju sworn on 4 December 2003.

The application is opposed by the plaintiff who relies upon the affidavit filed in support of the original Notice of Motion wherein the orders were made restraining the 4^th defendant.

The 4^th defendant is the shipping agent for the shippers who transported to Fiji, a motor vehicle, on behalf of the 1^st defendant. The 2^nd defendant being the principal of the 1^st defendant.

The plaintiff apparently had entered into an agreement that the 1^st defendant to purchase initially a motor vehicle different from the one the subject of these interlocutory proceedings and subsequently entered into an agreement to purchase from the 1^st defendant the vehicle, the subject of these proceedings.

The motor vehicle is described in a Bill of Lading where the shipper is Royal International Co. Limited and the consignee is Ratu Kini’s Affordable Cars Limited. The Bill of Lading is issued on the 7^th of August 2003 at Nagoya, Japan.

There is apparently a subsequent correction advice issued to Carpenters Shipping by Kyowa Shipping Co. Ltd, Tokyo which describes the shipper as Royal International, the consignee as Ratu Kini’s Affordable Cars Ltd and the corrected assignee is Ratu’s Affordable Cars Ltd.

It is apparent from the affidavits filed that the motor vehicle being a Toyota Surf, Chasis No. LN 130 7009613 arrived in Fiji and has since its arrival remained in Bond Store due to the failure of the relevant charges to be paid by the consignee. The plaintiff apparently paid some part of the purchase price to the 1^st defendant and then sought to pay the balance of the purchase price being charges owing to the 4^th and 5^th defendants, to the 4^th defendant to facilitate release of the vehicle to the plaintiff.

The 4^th defendant submits that it is unable to release the vehicle to anybody other than the consignee described in the Bill of Lading. In making this submission, the 4^th defendant, relies upon the Hague-Visby Rules and the Hague Rules which it says have been adopted or more correctly to which Fiji is a party.

The 4^th defendant also submits that British Shipping Laws - Carver’s Carriage by Sea Volume 2 at page 1594 supports its contention that delivery is to be given only to the consignee named in the Bill of Lading. Again, the 4^th defendant further relies on “Bill of Lading” by Michael D. Bools at page 170 as further support for this proposition.

The 4^th defendant says that the Bill of Lading is a document of title and it is for that reason that the goods can only be produced to the person who produces that document of title. This proposition is supported by Yorston, Fortescue and Turner, Australian Mercantile Law 7^th edition at page 618.

The plaintiff submits that Fiji is not a party to or bound by the Hague-Visby Rules and therefore, as I understand the submission, the Bill of Lading does not have the same significance as the 4^th defendant contends or perhaps most relevantly, the plaintiff submits that it requires the injunction to remain in place to protect or preserve the motor vehicle pending a determination of the plaintiff’s entitlement as against the 1^st, 2^nd and 3^rd defendants.

The plaintiff says that applying the principles as expressed by Lord Diplock in American Cyanamid Co. v Ethicon Ltd [1975] UKHL 1; [1975] A.C. 396, the injunction should remain in force. It is necessary therefore the look at the principles that come from American Cyanamid.

These principles as expressed by Lord Diplock might be summarized as being: -

1. Is there a serious issue to be tried;
2. Are damages an adequate remedy;
3. If so, where does the balance of convenience lie.
   

In applying these principles to this matter, there can be no doubt that there is indeed a serious issue to be tried.

The question then arises are damages an adequate remedy.

It would appear from the pleadings, the plaintiff seeks to be recompensed for that which he has lost, that is, the monies he has paid to the first and or 2^nd defendant and in fact the prayers at page 5 of the statement of claim apart from seeking protective measures in prayers (a), (b),(c) and (d) then seeks damages and interest. In the circumstances I have difficulty in forming any view other than that damages would indeed be an adequate remedy to the plaintiff in this matter.

As I indicated, the 4^th defendant’s Summons also seeks orders pursuant to Order 18 of the High Court Rules, that is, that the statement of claim be struck out as against the 4^th defendant disclosing no reasonable cause of action.

Counsel for the 4^th defendant drew to the court’s attention, the particular pleadings that related to the 4^th defendant. They are paragraph 5, which says: -

“That the 4^th defendant is a shipping agent with a bonded warehouse at Lautoka.”

Paragraph 16, which says: -

“That the plaintiff accepted the said offer and inspected the said vehicle which was at the 4^th defendant’s bonded warehouse.”

And paragraph 18, which says: -

“That the plaintiff undertook to pay all duty freight and other charges direct to the 4^th and 5^th defendants to facilitate the release of the Toyota Hilux Surf LN 130 – 700 9613 but the 1^st and 2^nd defendants demanded that the monies be paid directly to them.”

The only other reference to the 4^th defendant in the statement of claim is in prayer (c) which seeks an order restraining the 3^rd defendant from selling or disposing of the vehicle to anybody other than the plaintiff upon payment of the outstanding due to fees as charged.

The provisions of Order 18 Rule 18 have been considered by the court on prior occasions and Mr. Justice Byrne in Akariva Vula Rokotuitavuki v Methodist
Church in Fiji and Attorney General – Action No. HBC0018 of 1996 referred to the relevant authorities at page 4 of his judgment and said and I quote: -

“The law governing applications such as this is well settled. Lindley M.R. in Hubbuck v Wilkinson [1889] 1 Q.B. 86 at page 91 said that is only in plain and obvious cases that recourse should be had to the summary process under Order 18 Rule 18(1) of the Rules of the Court. This was affirmed in Kemsley v Foot & Ors [1952] A.C. 345. In Attorney General of Duchy of Lancaster v L.N.W. Ry Co. [1892] UKLawRpCh 134; [1892] 3 Ch 274 said that Rule 18 can only be invoked when the claim is on the face of it “obviously unsustainable”.”

The caution that should be exercised when considering application of this type was highlighted by Mr. Justice Pathik in Hemant Kumar v Suresh Kumar & Ors [2003] Civil Action HBC0033 of 2003 where His Lordship in applying Attorney General v Shiu Prasad Halka [1972] 18 FLR 210 at 215 said and I quote: -

“I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 19 should be very sparingly exercised, and only in exceptional cases. It should not be exercised where legal questions of importance and difficulty are raised.”

It is with these authorities in mind that I cautiously approach the application and I take into consideration the plaintiff’s submission that the pleadings might be amended and that the 4^th and similarly the 5^th defendants are there as nominal defendants due to their role as possessors of the vehicle albeit in different capacities.

But when one looks at the pleadings and the paragraphs that I have set out above and the relief sought, notwithstanding the cautious approach that the court is required to take, I am satisfied that the pleading against the 4^th defendant, in fact discloses no reasonable cause of action and accordingly I am of the opinion that the plaintiff’s statement of claim should be struck out as against the 4^th defendant.

The Orders of the Court therefore will be: -

1. That the injunction granted by the court on 27 November 2003 be dissolved forthwith.
   

2. The plaintiff’s claim against the 4^th defendant be dismissed.

3. The plaintiff to pay the 4^th defendant’s costs which I assess in the sum of One Thousand, Seven Hundred Dollars ($1,700.00).
   

JOHN CONNORS

JUDGE

AT LAUTOKA

2 JUNE 2004