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Nabure v Chand [2006] FJHC 73; HBC0084.2001L (15 September 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL APPEAL NO. HBC 0084 OF 2001L

NO. 188 OF 2006

BETWEEN

VILIAME NABURE & ANOTHER
Plaintiff

AND

JAGDISH CHAND & OTHERS
Defendants

Appearances: Samuel K. Ram for plaintiff
A K Lawyers for defendants

Hearing: 25 July 2006
Decision: 15 September 2006

JUDGMENT
[Strike Out]

[1] The summons which is before me asks for the following orders on behalf of the defendants:

(i) that the plaintiffs action and claim against the defendants be struck out and dismissed on the grounds:-

a) that it discloses no reasonable cause of action

b) it may prejudice, embarrass or delay the fair trial of the action

c) it is an abuse of process of the court

AND/OR

(ii) that the action be struck out and dismissed on the grounds of failure or delay to prosecute the claim after the death of the plaintiff with any real interest in bringing this matter properly to trial and have abused the process of the court and/or thereby have caused prejudice to the defendants and the substantial risk of not obtaining a fair trial

ALTERNATIVELY

(iii) that the plaintiff be directed to file an application to substitute the named plaintiff within 7 days to be heard at least two weeks prior to the allocated hearing dates of 25 and 26 July 2006 and failing such the plaintiffs action be struck out.

[2] The application is made under Order 18 rule 18 or Order 25 rule 9 of the High Court Rules. There appears to be an error in respect of the purported reliance on O. 25 r. 9 which doesn’t exist. The rule governing applications for prayers (ii) and (iii) is Order 15 rule 10.

Order 15 rule 10

[3] O. 15 r. 10 (1) provides that where the plaintiff has died the court shall not make an order under this rule unless satisfied that due notice of the application has been given to the personal representatives (if any) of the deceased plaintiff and to any other interested persons who, in the opinion of the court, should be notified.

[4] Learned counsel for the defendants, Ms. Watkins submitted that service of the application on the deceased plaintiffs counsel on record, Mr. Ram, suffices the requisite notification. I disagree.

[5] The submission is in direct contradiction to the stand taken by Ms. Watkins when the application was heard. She strongly objected to Mr. Ram being heard. In the interests of justice I gave leave to Mr. Ram to appear as friend of the court to assist the deceased plaintiff’s widow and daughter who were in court. It was obvious to me that they were likely to be extremely prejudiced if they were not heard and submissions were not made on their behalf to safeguard their interests.

[6] Mr. Ram had earlier advised the defendants’ solicitors that he was having difficulty obtaining instructions after the plaintiff died. That should have alerted the defendants solicitors that he did not hold instructions on behalf of the deceased’s Estate. Notwithstanding, the application was served at his office. There is no evidence before me showing that the defendants made any attempt to locate and serve persons who ought to have been served. The defendants had knowledge of who the interested persons are. Their names are pleaded in paragraph 8 of the statement of claim. They reside in Nasolo village. The application should have been served on the plaintiff’s widow and daughter. Mr. Ram had not been instructed to act for them when the application was served on his office and he had put the defendants solicitors on notice of his difficulties obtaining further instructions. The defendants solicitors cannot on the one hand say – Mr. Ram shouldn’t be heard because he is not on record as representing the Estate of the deceased plaintiff and on the other rely on service of the application on him contending that he was solicitor for the purposes of O. 15 r. 10 and service on his office provided due notification. I have declined to make any orders under Order 15 because I am not satisfied that due notice of the application was given as required by the rule.

Order 18 r. 18

[7] A useful and succinct analysis of the principles I am required to consider are contained in the Extempore judgment of Connors J in Krishna & Another –v- Automart Limited & Others (Civil Action No. HBC0388 of 2000L) at page 2 where he said:

The provisions of Order 18 Rule 18 have been considered by the court on numerous occasions and the authorities which those considerations consistently rely on have not changed in recent times. It is perhaps convenient to look at the decision of Mr. Justice Byrne in Action No. 0018 of 1986, His Lordship there referred to the relevant authorities on page 4 of his judgment where he said and I quote:-

"The law governing an application such as this is well settled. Lindley MR in Hubbuck v Wilkinson [1889] 1 Q.B. 86 page 91 said that it 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 High 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."

And again, the caution that should be exercised when considering applications of this type was highlighted by Mr. Justice Pathik in Hemant Kumar v Suresh Kumar & Ors [2003] Civil Action No. 33 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 18 should be very sparingly exercised, and only in exceptional cases. It should not be exercised where legal questions of importance and difficulty are raised."

[8] The Fiji Court of Appeal in National NBF Finance (Fiji) Limited –v- Nemani Buli Civil Appeal No. ABU0057 OF 1998 expressed the principles as follows:

"The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be provided. If a legal issue can be raised on the facts as pleaded then the Court will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention ...."

[9] The notes of the Supreme Court Practice 1995 at 18/19/11, quotes a statement of principle reinforcing the doctrine that the discretion be sparingly exercised and only in exceptional cases:

"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.C.R 418, C.A; Wenlock –v- Moloney [1965] 1 W.L.R. 1238; [1965] 2 AllER 871, CA)." (emphasis added)

[10] It is with these principles in mind that I go on to consider the defendant’s application.

[11] Clearly in this case, the claim is not a clear and obvious case warranting the exercise of discretion to strike it out. The statement of claim discloses a cause of action. Legal and factual issues are raised in the pleadings. These are set out in the pre-trial conference minutes.

[12] In respect the other grounds raised, I have concluded that the material before me does not establish that there has been intentional or contumelious default on the part of the plaintiff or his solicitor. Aside Mr. Narayan’s statement of prejudice, there is no evidence of prejudice to the defendants if the action is allowed to proceed to trial. Mr. Ram concedes that there has been delay but I am not satisfied that such delay gives rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or have caused serious prejudice to the defendants.

[13] On the ground of abuse of process, all that need be said is that there is no basis supporting the contention that the plaintiff has improperly used the machinery of the court.

Order

(i) Summons dated 6 July 2006 dismissed

(ii) Costs in the cause

(iii) Case adjourned to 13 October for mention to review whether Letters of Administration have been granted.

Gwen Phillips
JUDGE

At Lautoka
15 September 2006