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Vatukoula Gold Mines Ltd v Anand [2010] FJHC 46; HBC218.2008 (16 February 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No.: HBC 218 of 2008

BETWEEN:

VATUKOULA GOLD MINES LIMITED
a duly incorporated having its registered office at Vatukoula.
Plaintiff

AND:

DEV ANAND
of Company Quarters No. E56, Korowere, Vatukoula.
Defendant

Before: Master Anare Tuilevuka

Counsels: A.K Lawyers - for the Plaintiff
Kohli & Singh - for the Defendant

Date of Hearing: 25th January, 2010
Date of Ruling: 16th February, 2010

RULING

INTRODUCTION

(1) Before me is a Summons dated 22nd October 2009 filed by the Plaintiff ("VGML") under Order 14 Rule 1 of the High Court Rules and the inherent jurisdiction of this Court seeking the following Orders:

(i) that the defendant does give up immediate possession to the plaintiff of all the property which the defendant is unlawfully occupying being all the land described in Certificate of Title No. 23518 being Lot 1 on Deposited Plan No. 5870 situated in the District of Tavua including a concrete/wooden house referred to as E56 and all improvements thereon of which the plaintiff is the registered proprietor.

(ii) that the defendant pays costs of this action on a solicitor/client full indemnity basis.

(2) The Affidavit of Elisabeth Anne Laufenboeck sworn on 16th October 2009 and file on 22nd October 2009 is filed herein support of the summons. She is the Administration Manager of Vatukoula Gold Mines Limited (VGML) and Company Secretary for Koula Mining Company Limited (KMCL). She has been personally involved with the affairs of both companies for quite a number of years.

(3) Other Affidavits filed by Laufenboeck were also used by the Plaintiff.

(4) The Defendant relies on the Affidavit of Premila Swamy sworn on 01st December 2008 and filed herein on 02nd December 2008. Swamy is a Law Clerk in the employment of the defendants’ Solicitors. She explains that she has had to depose the affidavit because the defendant could not travel to Suva to swear it in Suva. She says the defendant had instructed her anyway but no such instruction is attached to her affidavit.

(5) The practice of solicitor’s clerks swearing an affidavit on behalf of clients has often been criticized by the Courts in Fiji.

(6) I reiterate here the comments of Mr. Justice Jiten Singh in Deo v Singh [2005] FJHC 23; HBC0423.2004 (10 February 2005):

"The swearing of affidavits by solicitor’s clerks in contested proceedings appears with alarming regularity before the courts. Arun Kumar says he was duly authorized by defendants to dispose the contents. There is no authority annexed to the affidavit. Order 41 Rule 1 sub-rule 4 requires affidavit to be expressed in "first person". The affidavit put before the court is more like a statement defence in its wording rather than being expressed in first person. Swearing of affidavits by solicitor’s clerk on contested matters should be a rare exception and the reason why the party is unable to depose ought to be explained".

(7) Master Robinson in Chand v Hussein [2009] FJHC 286; Civil Action 17.2007 (14 October 2009) warned of the inherent danger in such practice:

"I do not wish to delve into the possible implications of solicitor’s clerks swearing affidavits on behalf of clients except as to say that personal knowledge of the facts by the deponent is a necessary ingredient".

(8) Swamy’s affidavit does not raise any contentious issue of fact. It is more like a legal submission and whatever little fact it deposes is merely to provide background – none of which is in dispute.

(9) I am told by both counsels that there are other pending proceedings by VGML against former employees similar to this one. The facts might be summarized as follows.

AGREED FACTS

(10) Anand used to be employed by VGML as a mineworker in Vatukoula. In November 2005, when Anand commenced employment for VGML, VGML provided Anand a cottage (or what we normally refer to in Fiji as "staff living quarters") to live in with his family. The provision of cottages is a facility that VGML extends to all its mineworkers. Clause 4(c) of the standard employment agreement that VGML signs with its mineworkers reads:

"The landlord (VGML) is letting the said cottage to the tenant (Anand) in consequence of the tenant being in the employment of the landlord or in the employment of any of its subsidiary companies as a ......and for the sole purpose of the tenant being more conveniently situated in the employ of the landlord or employ of any of the landlord’s subsidiary company on termination of such employment this tenancy shall be terminated forthwith."(my emphasis).

(11) On 7th December 2006, VGML issued a notice of redundancy ("Notice") to various workers. Anand also received such a Notice. It is not necessary at this time to go into the background as to why the workers were made redundant. Suffice it to say that the Notice that Anand received included a three month notice to vacate the premises by 28th January 2007.

(12) Following that Notice, VGML then paid its workers including Anand, all accrued annual leave and other benefits. All the while, VGML was trying to negotiate with the Vatukoula Mine Workers Association regarding the redundancy package. When their talks reached a deadlock, the matter was referred to the Permanent Arbitrator pursuant to section 5(A) of the Trade Disputes Act to settle the quantum of the redundancy package. In due course, the Tribunal made an Award. But VGML was not happy with the Award. It then applied to the High Court to judicially review the proceedings before the Permanent Arbitrator. That application was dismissed by Singh J. VGML still was not happy. It then appealed Singh J’s ruling to the Fiji Court of Appeal where it is now pending.

(13) The only issue now pending before the Fiji Court of Appeal is the amount to be paid on the redundancy package. This in fact has been the only point of contention between VGML and the Vatukoula Mineworkers Association. The Association has never taken issue about the worker’s right to remain in occupation of the cottages or about the termination of their contract.

(14) Meanwhile, undeterred by the pendency of the Fiji Court of Appeal matter, VGML began to take out summary vacant possession proceedings against the workers concerned who were still occupying cottages. The proceedings were brought under section 169 of the Land Transfer Act. The proceedings against Anand was filed on 15th October 2008.

(15) Anand’s case was called for mention several times between 07the November 2008 to 04th December 2008. It was then was adjourned for hearing to 05th March 2009. However, on the date of hearing, only the solicitors then acting for VGML (i.e. Munro Leys Solicitors) appeared in Court by their Lautoka agent, Mr. Faiz Khan. There was no appearance by Anand or his lawyers. Mr. Khan is on record to have made an application for an order that the matter be treated as if commenced by writ of summons. Mr. Justice Jiten Singh obliged. His Orders were:

(i) that the proceedings shall be treated as pleadings begun by way of Writ of Summons pursuant to Order 28 Rule 9(1).

(ii) the matter to take its normal cause.

(16) At some point thereafter, Munro Leys ceased acting for the Plaintiff and AK Lawyers took over. The latter immediately filed the current Order 14 application which is now before me.

THE COTTAGE

(17) The cottage in question is a concrete/wooden house (referred to as E56 and all improvements thereon. It is situated on Certificate of Title No. 23518 being Lot 1 on the Deposited Plan No. 5870. CT 23518 contains three hundred and fifty two hectares. VGML owns eight tenths undivided shares of CT 23518. The remaining two tenths undivided shares is owned by Koula Mining Company Limited (KMCL).

(18) KMCL is not part of the current proceedings. Laufenboeck however deposes in her affidavit sworn on In 15th September 2009 that KMCL supports VGML’s application for eviction.

(19) Swamy deposes for Anand that the reason he could not vacate the premises is because VGML has failed to pay the amount ordered by the Permanent Arbitrator and he needs the money in order to relocate.

(20) Laufenboeck on the other hand that VGML has not paid the redundancy package because the quantum is yet to be determined by the Fiji Court of Appeal.

PRELIMINARY POINT RAISED AT HEARING

(21) Mr. Singh raised a preliminary point at the hearing of this matter. He submitted that since the original proceedings were filed under the summary provisions of section 169 of the Land Transfer Act (Cap 131), the Orders (see paragraph 15 above) meant that Singh J had formed the view that there were triable issues involved in this case deserving of a full trial. Hence, for VGML to now seek a summary judgment under Order 14 is "a second bite at the cherry under the camouflage of an Order 14 application". In other words, VGML is now trying to re-open vide Order 14 a door that Singh J had closed when he converted the section 169 application to one "as if begun by writ".

(22) He submits that what should have proceeded Singh J’s Orders was the filing of a proper Statement of Claim followed by a defence with the matter thereafter takes the course of a normal Writ process.

(23) Mr. Sudhakar argued that by those Orders, all that Singh J did was to convert his client’s affidavit into a statement of claim and the defendant's affidavit to a defence. He refuted the submission that Singh J had looked into the merits of the original section 169 application.

(24) After hearing counsels’ submissions, I retired briefly to chambers to review the relevant file record (after dismissing a submission from Mr. Singh that the Court can only accept at face value the sealed order and should not have to go to the judges minutes to explore the reason why he made the Orders).

FILE RECORDS

(25) The file records show that the case was actually marked for hearing before Singh J on 05th March 2009 (see paragraph 15 above). The relevant records are as follows:

"change in position by Plaintiff due to Supreme Court decision in Central Rentals Limited v Patton & Stock Limited – CBV 4/2008".

(26) I then accessed from paclii and read the Fiji Supreme Court judgment of Central Rentals Limited v Patton & Storck Limited [2008] FJSC 30; CBV 004.2008 (17 October 2008).

(27) That judgment settles once and for all the law in Fiji (as per Honorable Justices Mason, Handley and Weinberg) that section 169 is only available to enforce a forfeiture for non-payment of rent:

"12. The section [i.e. section 169] is only available to enforce a forfeiture for non-payment of rent. A lease for a fixed term cannot be determined by a notice to quit. Proceedings to enforce a forfeiture for breach of any other covenant cannot be bought under this section, and the dictum of the Court of Appeal in its 1996 decision cannot prevail against the clear words of the section. As Williams J said of a similar section in Town v Stevens (1899) 17 NZLR 828, 831:"an action for ejectment would be equivalent to re-entry; but no action of ejectment ... can be brought under this section". The Court of Appeal in 2008 followed this decision in holding, correctly in our view, that an action for ejectment could not be brought under s 169 except for non-payment of rent.

13. The summons under s 169 claimed possession without identifying any basis for that claim, but the affidavit of Jameela Sherani in support of the summons sworn 15 April 1994 referred to service of the notice to quit and the fact that the tenant was still in possession. Much later, in 2005, the landlord filed a statement of claim pursuant to leave granted under O 28 r 9. This continued the original proceedings, in terms of r 9(1), as if the cause or matter had been commenced by writ. The statement of claim pleaded breaches of covenant by the tenant, termination of the lease by service of the notice to quit, and the tenant’s failure to vacate. It claimed an order for possession, mesne profits, and damages for breach of the lease. It did not claim that a forfeiture was effected by service of the summons". [my emphasis]

(28) From my reading of Central Rentals Limited v Patton, and from what I picked up from Singh J’s notes, it was clear to me that the reason why Munro Leys had sought to convert their section 169 originating summons to one "as if begun by writ" was to avoid being caught under Central Rentals v Patton as VGML obviously was not enforcing a forfeiture for non-payment of rent.

(29) It was also clear from the records that Singh J was aware of the authority of Central Rentals Limited v Patton. Most importantly, it was clear that Singh J had made the converting Orders because of the technical point raised by Munro Leys. It was also clear that Singh J had, at that stage, not delved into the merits or demerits of the case. He had no reason to do so at that stage because the hearing was then adjourned on the request of Munro Leys (and in the absence of Anand).

(30) Having noted all that, I then ruled that – technically – VGML is not stopped from pursuing a Summary Judgment under Order 14 now.

PRINCIPLES FOR SUMMARY JUDGMENT

(31) Order 14 Rule 1(1) states as follows:

1.-(1) Where in an action to which this rule applies a statement of claim has been served on a defendant and that defendant has given notice of intention to defend the action, the plaintiff may, on the ground that the defendant has no defence to a claim included in the writ, or to a particular part of such a claim, or has no defence to such a claim or part except as to the amount of any damages claimed, apply to the Court for judgement against that defendant.

(32) The Order 14 summary judgment procedure is available to any Plaintiff who desires a quick judgment on his or her claim where there is no defence to a claim. It is also available where any defence raised is either not a bona fide defence or discloses no triable issues so as to merely delay a judgement in favour of the Plaintiff.

(33) The Court’s task is to determine whether there ought to be a trial.

(34) In Carpenters Fiji Ltd v Joes Farm Produce Ltd Civil Appeal Number ABU 0019/2006, the Court of Appeal at pages 9 and 10 of the judgment stated the relevant principles as follows:-

"Here it is timely to state some of the well established principles relating to the entry of summary judgment:

(a) The purpose of 0.14 is to enable a plaintiff to obtain summary judgment without trial if he can prove his claim clearly and if the defendant is unable to set up, a bona fide defence or raise an issue against the claim which ought to be tried.

(b) The defendant may show cause against a plaintiffs claim on the merits e.g. that he has a good defence to the claim on the merits or there is a dispute as to the facts which ought to be tried or there is a difficult point of law involved.

(c) It is generally incumbent on a defendant resisting summary judgment, to file an affidavit which deals specifically with the plaintiffs claim and affidavit and states clearly and precisely what the defence is and what facts are relied on to support it.

(d) Set off, which is a monetary cross claim for a debt due from plaintiff, is a defence. A defendant is entitled to unconditional leave to defend up to the amount of the set of claimed. If there is a set off at all, each claim goes against the other and either extinguishes or reduces it Hanak v. Green (1958) 2 QB 9 at page 29 per Sellers LJ.

(e) Likewise where a defendant sets up a bona fide counterclaim arising out of the same subject matter of the action, and connect with the grounds of defence, the order should not be for judgment on the claim subject to a stay of execution pending the trial of the counter claim but should be fore unconditional leave to defend, even if the defendant admits whole or part of the claim; Morgan and Son Ltd v. S. Martin Johnson Co (1949) 1 KB 107(CA).

(35) The onus is on the Plaintiff to prove each claim clearly. He bears the burden of satisfying the Court that the Defendant has no defence which has any realistic prospect of success.

(36) Once the Plaintiff achieves that, the evidential and persuasive burden shifts to the Defendant (see Thomas J in Hibiscus Shopping Town Pty Ltd v Woolworths Ltd [1993] FLR 106 at 109). He or she must adduce affidavit evidence dealing specifically with the plaintiffs claim and affidavit and also state clearly and precisely what the defence is and what facts he relies on to resist the entry of summary judgment: Magan Lal Brothers Ltd. v L. B. Masters & Company Civil Appeal No: 31/84.

(37) If the Defendant has not filed an affidavit but a defence, the Court must then direct its mind on the issues raised in the defence to see whether it has merits and is not just a sham defence to delay judgment or avoid the necessity of showing cause by Affidavit (see the Fiji Court of Appeal in Magan Lal Brothers Ltd v L.B. Masters (supra); see also Halsbury’s Laws of England (4th Edition) volume 37 para 413 – 415, notes 4).

ISSUES

(38) Again, the Affidavits filed have not raised any issues of fact. They only raise an issue of law.

(39) That issue of law may be defined shortly as: whether the pendency before the Fiji Court of Appeal of the matter concerning the quantum to be paid on the redundancy package extends Anand’s right of occupation of the cottage? Indeed – ought there be a trial to determine any issue raised – assuming Anand has raised a triable issue?

HAS THE PLAINTIFF PROVEN EACH CLAIM CLEARLY?

(40) The short answer to that must be a resounding "yes".

(41) I need not go into this as I am of the view that the real issue in this case is whether or not the Defendant has raised a defence to the claim.

DOES THE DEFENDANT HAVE A DEFENCE TO ANY CLAIM IN THE WRIT?

(42) Obviously, the Defendant’s right to occupy the quarters runs parallel to his employment with VGML. That is clear from Clause 4(c) of the employment contract. Building on that basic premise, Mr. Singh submits that the contract of employment is not yet fully terminated. He argues that the issue of the quantum for the redundancy package is not yet settled. It is still pending at the Fiji Court of Appeal. The contract only becomes fully terminated once the redundancy issue is determined once and for all. Unless and until all issues arising out of termination are determined, VGML cannot unilaterally say that the employment contract has been determined. He submits that until all matters are resolved finally, then only is VGML entitled to vacant possession.

(43) Mr. Singh has not supplied me with any case law authority to support that proposition. I suspect that neither the contract of employment nor the relevant Collective Agreement will contain any provision to fortify that legal submission – judging by the lack of any reference to any of those documents.

(44) Mr. Sudhakar submits the award did not deal with the Defendant’s right to occupy. It only concerns the quantum of the redundancy package. Neither was the right to occupy raised as a ground for relief in the Judicial Review proceedings. In fact, there was no challenge in any of those proceedings against the termination of the contract.

(45) For the record, Mr. Singh, at the outset of presenting his submissions, had sought leave for an adjournment to amend paragraph 13 of Swamy’s Affidavit. That paragraph reads:

"THAT the Defendant denies that he is in authorized occupation of the Plaintiffs premises".

(46) Mr. Singh sought an adjournment to alter the word "authorized" as it appears in paragraph 13 to read "unauthorized". I refused. While I acknowledge a Solicitor’s duty to the Court to put right anything false in an affidavit (see Myers v Elma [1940] AC 282), and the option under Order 41 Rule 7 for the deponent to simply initial an alteration, altering the word would do absolutely nothing to add strength to Mr. Singh’s case.

(47) Had Mr. Singh sought an adjournment in order to properly adduce some document or to call some witness to support his contention that his client has some right of extended occupation - that would be a different story.

(48) Mr. Singh then raises an issue about locus. He submits that the land in which the premises in question sits is owned in part by VGML and in part by KCML.

(49) Mr. Singh submits that it is critical in ejectment proceedings that all registered proprietors must bring the action against the Defendant. He cites a case namely McKenzie v Copa (1936) GLR 134. I have searched for this case but cannot locate it. Mr. Singh did promise to provide a copy to Court but none has been provided to date.

(50) Laufenboeck deposes in paragraph 6 of her Affidavit sworn on 15th September 2009 that VGML owns eight tenths undivided shares and KCML owns two tenths undivided shares. She explains in paragraph 2 how VGML came to own eight tenth share in the land (it was originally known as Emperor Gold Mining Company Ltd [which Company is memorialized on the Certificate of Title as the owner of eight tenths share] which then changed its name to VGML). She also explains that KCML had ceased operations in Fiji on or about July 2006 and no longer trades in Fiji. Its operation was transferred to EGM from 1st July 2006 (now VGML). KCML however still holds property and is in the process of transferring its interest in the land to the plaintiff. She annexes a letter from KPMG to the Registrar of Companies dated 06th August 2009 which brings to the attention of the latter a NOTICE OF DEFUNCT STATUS OF A COMPANY UNDER SECTION 340(3) of the Companies Act. Notably, that Notice is signed by a Director and by Laufenboeck in her capacity as Secretary of KCML.

(51) I accept Laufenboeck’s explanation that she was Administration Manager of KCML and that she has the authority of KCML to swear the affidavit and to pursue this eviction proceeding against Anand.

CONCLUSION

(52) The Plaintiff has proven its claim to my satisfaction.

(53) The Defendant has not convinced me that there is a triable issue involved in this case to justify adjourning this matter to a full trial. The issue involved is simply one of law.

(54) The defendants continued occupation is causing great inconvenience to the Plaintiff and its employees who are being denied accommodation as a result of the Defendant’s extended occupation.

ORDERS

(i) I enter summary judgment in favour of the Plaintiff.

(ii) The Defendant is to vacate Cottage E56 situated on Certificate of Title No. 23518 being Lot 1 on the Deposited Plan No. 5870 within three weeks from the date of this judgment.

(iii) Costs follow the event but in the circumstances of this case, I award moderate costs of $350 – 00 (three hundred and fifty dollars only) to be paid within three weeks from the date of this judgment.

Tuilevuka
Master

16th February, 2010