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High Court of Fiji |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA FIJI
BETWEEN:
JALE OSISAYA BABA, ALIPATE BARAVILALA and ALOESI JOHNS
as Trustees of LAUTOKA SPORTS AND SOCIAL CLUB
PLAINTIFFS.
AND
LAUTOKA CITY COUNCIL
a statutory body created under the Local Government Act.
DEFENDANT.
AND
IFTHIKAR IQBAL AHMED KHAN
(fathers name Ajmad Khan) of Lautoka, Barristers & Solicitors Practicing as "IQBAL KHAN & ASSOCIATES"
THIRD PARTY.
Appearances;
1. For Plaintiffs; Dr. Sahu Khan
2. For Defendant; Mr. Vipul Mishra
3. For Third Party; Mr. Haroon Ali Shah
ORDER ON PRELIMINARY ISSUES:
This case had been heard once before Judge Philips, however as no judgment had been delivered, parties appear to have agreed to proceed de novo on the 14th August 2009 before Judge Inoke, and judge Inoke has referred this matter to this Court for the hearing.
When this matter came before this Court for hearing for the first time on the 14th April 2010, parties moved to take up the Summons "for determination of preliminary issues". This court did not find a copy of such a summons on the record, as such some documents available with the counsel were submitted to the court record, and in the ensuing investigation found that a substantial part of the case record was missing.
In fact what was before court was a file 1inch thick whereas the Court noted the counsels brief consisted a file over 5 inches thick. As such the matter was adjourned to be mentioned on 20th May 2010, with directions to the Deputy registrar to reconstitute the file by at least obtaining copies from the counsels.
The Deputy Registrar was successful in locating another file about 4 inches thick which included most of the missing documents, by the 20th May 2010, on which day both counsel agreed that court may proceed to determine the Summonses "for determination of preliminary issues" by way of written submissions.
Back ground and facts, as pleaded, briefly;
The Defendant, a local Municipal Authority, is alleged to have sold the Plaintiffs property to recover arrears of rates due to the Defendant. The Plaintiffs state that the said property was sold pursuant to a Court order alleged to have been obtained irregularly, and/or by means of false and/or fraudulent misrepresentation by the Defendant.
The Plaintiff disputes the quantum of rates and interest due on the Property. Assuming the Defendant had the power to sell the property the Plaintiffs further seeks a full account on the sale of the said property, and for the balance remaining after deduction of the rates.
The Defendants in their statement of defence denied the allegations but subsequently by its Amended statement of defence disclosed the tender amount to be $261,000.00 and that the sale was conducted by their former Solicitors Iqbal Khan & Associates and that the said Solicitors have informed that the Plaintiffs have been paid the balance.
Iftikhar Iqbal Ahmed Khan practicing as IQBAL KHAN ASSOCIATES was made a third party. Interim relief's were sought, obtained and varied against the Defendant to deposit monies in Court. The third party claims the balance of the sale proceeds were paid to a particular person on behalf of the Plaintiffs, which the Plaintiffs deny.
On the opening oral submissions made by parties on 14/4/2010 and the written submissions previously filed and already on record, I proceed to determine the Summonses "for determination of preliminary issues" thus;
There are two Summonses, one for "for determination of preliminary issues" which is dated "28th August 2006" (however issued bearing a date stamp altered to read as "22 August 2006") to be supported on 1st September 2006 (herein after referred to as the 1st Summons), and the other is a Summons dated 7th September 2006 issued bearing the same date to be supported on 22nd September 2006 (herein after referred to as the 2nd Summons).
Though the 1st Summons is not supported by any particular affidavit filed with the said summons, and the altered date of issue is previous to its date, still this Court will set out the preliminary issues set out therein and determine them.
The 1st Summons set out the following issues;
The 2nd Summons sought the following orders;
The 1st order sought by the 2nd Summons is flowing from the 3rd issue set out in the 1st Summons.
I shall now consider the 1st issue in the 1st Summons;
It is not common ground on the pleadings that the Defendant has "obtained a final judgment in the High Court Action No.200 of 2000L and obtained a court Order for sale in High Court Action No. 159 of 2001". All that the Plaintiff states is that "Under a certain purported Court order the Defendant sold the building sometimes in November 2001." (paragraph 5 of the statement of claim).
The plaintiff does not state or refer any where in its Writ of Summons and the statement of claim to the two court proceedings mentioned in the said issue. As such the said Court orders need to be led in evidence before the said issue could be decided.
For an issue to be considered as a preliminary issue first it should not require any evidence and it should substantially dispose of the action or render the trial of the cause or matter unnecessary under Order 33 Rule 7 of the High Court Rules.
Paragraph 12 and 13 of the statement of claim sets out a claim that after the sale of the property the Defendant has not accounted to the Plaintiffs for the balance "after deducting the amount payable to the Defendant in respect of the amount for which the High Court order was secured for the sale of the said property". Therefore that claim would survive even if the said High Court orders are not challenged.
Therefore there appears to be a cause of action surviving even if the said High Court orders have not been set aside and even though they may be final judgments as set out in the "preliminary" issue 1 of the 1st summons. As such the said issue will not substantially dispose of the action or render the trial of the cause or matter unnecessary under Order 33 Rule 7 of the High Court Rules.
In the premises aforesaid the 1st issue in the 1st Summons is hereby held not to be a preliminary issue and is left to be determined at the end of the trial.
The 2nd issue in the 1st Summons;
As set out above, at paragraph 12 and 13 of the Statement of Claim there is a claim of the Plaintiff that is subsequent to the sale and survives even if the sale is valid. Therefore this issue too does not substantially dispose of the action or render the trial of the cause or matter unnecessary as envisaged by Order 33 Rule 7 of the High Court Rules.
This court is mindful of the fact that affidavits had been referred to as having been filed in support of the said 1st Summons, and if any evidence is required to support "preliminary issues" then they are not preliminary issues. This is not a matter commenced by Originating Summons, but by Writ of Summons and this court cannot proceed on affidavit evidence alone, when there is still a trial to be had.
As such the 2nd issue in the 1st Summons too is hereby held not to be a preliminary issue and is left to be determined at the end of the trial.
The 3rd issue in the 1st Summons;
As pointed out earlier the 1st orders sought in the 2nd Summons is flowing from this third issue, and as such I shall consider it along with the orders sought in the 2nd Summons as follows;
The 1st order sought in the 2nd Summons;
1. "An order and/or declaration that the Plaintiffs have failed to obtain leave of this Honourable Court under Order 15 Rules 14 and15 before instituting this action on behalf of the members of the Lautoka Sports and Social Club against the Defendant and are therefore not entitled to proceed with this action against the Defendant."
It is rather ironic that the Defendant should take the "preliminary" issue as to representation in issue 3 of the 1st Summons and seek this order in the 2nd Summons, in that even in High Court action 159 of 2001, the Defendants in this action as Plaintiffs in that action, has sued the 1st and 2nd named Plaintiffs (in this action)in the same capacity as they have as Plaintiffs in this action sued the Defendant in this action to wit as "Trustees of Lautoka Sports and Social Club".
If the Plaintiffs are not representative as Trustees in this action of the Lautoka Sports and Social Club then they could equally be so non- representative in action No. 159 of 2001, the very case on which the Defendants appear to rely on, for their authority to sell the property.
However the saving grace for both parties, though they have not referred to it in their written submissions, is Order 15 Rule 16, whereby representation of beneficiaries, are permitted by Trustees.
Order 15 Rule 16(1);
"Any proceedings, including proceedings to enforce a security by foreclosure or otherwise, may be brought by or against trustees, executors or administrators in their capacity as such without joining any of the persons having a beneficial interest in the trust or estate; and any judgment or order given or made in those proceedings shall be binding on those persons unless the Court in the
same or other proceedings otherwise orders on the ground that the trustees, executors or administrators could not or did not in fact
represent the interests of those persons in the first –mentioned proceedings."
Order 15 Rule 16(2);
"Paragraph (1) is without prejudice to the power of the Court to order any person having such an interest as aforesaid to be made a party to the proceedings or to make an order under rule 15."
Though the Statement of Defence at paragraph 1 denies the Plaintiffs are Trustees as pleaded in paragraph 1 of the Statement of Claim, in the subsequent Amended Statement of Defence at paragraph 1 the Defendant admits that the "first two named Plaintiffs are registered Properties (sic) for Crown Lease No.84768 as Trustees of the Lautoka Sports and Social Club".
As such even though "no order for representation has been either applied for or made", as set out in issue 3 of the 1st Summons, still the action is sustainable in view of Order 15 Rule 16 and the said admission by the Defendant.
In the premises I hold that the said "preliminary issue" 3 of the 1st Summons does not substantially dispose of the action or render the trial of the cause or matter unnecessary, and as such not a preliminary issue.
Consequently and for the reasons set out above the 1st order sought in the 2nd Summons is refused.
The 2nd order sought in the 2nd Summons;
2. "An order and/or declaration that "no Plaintiffs are not" (sic)entitled to proceed with this action against the Defendant on this ground that Lautoka Sports and Social Club was struck off the Register of Clubs pursuant to Order dated the 5th day of December 2000 by the then Resident Magistrate Mr. Ajmal G Khan."
As seen earlier this action is instituted by the Trustees. Further more the Defendant relies on the order in case no.159 of 2001 for its authority to sell the property. And as the said action has been instituted after the said Club had been allegedly struck off the Register of Clubs in 2000, the Defendant would have the same objection against it, to contend with.
In other words if the Plaintiff cannot maintain this action on the basis that it had been struck of the Register of clubs in the year 2000, then for the same reason the Defendant Could not have instituted case no. 159 of 2001 or maintained it against the same Plaintiff.
However as this action has been instituted qua Trustees, as much as a executor could represent the interest of the heirs of a deceased testator, so could a Trustee represent the interest of the beneficiaries.
No provision in law was brought to the notice of this Court that would prevent the Trustees of Lautoka Sports and Social Club from instituting an action as trustees, on the said Club being struck off the Register.
Section 7 of the Registration of Clubs Act under which the said Club is said to have been struck out of the Register provides a Club to be so struck out of the Register for a specified period of time not exceeding 6 months. As such there is no permanent disability prescribed by the said provisions though the Learned Magistrates order does not appear to specify the period. As such it is only at the end of a trial after evidence, and after the proceedings before the Learned Magistrate is considered, that this Court can consider whether to make such an order.
For the aforesaid reasons I refuse the 2nd order sought in the 2nd Summons.
The 3rd order sought in the 2nd Summons;
3."An order that the Plaintiffs claim against the Defendant be dismissed with costs."
In view of this Court refusing the 1st and 2nd orders sought in the 2nd Summons, as well as in not entertaining issues set out in the 1st Summons as preliminary issues, there is no cause for this Court to dismiss the Plaintiffs action at this stage, and as such the said 3rd order sought in the 2nd Summons too is refused.
In RE UNISOFT GROUP LTD (NO.2) 1993 BCLC (Butterworth's) 532, Chancery Division(Companies Court), 13th & 14th October 1992. (Sir
Donald Nicholls);
At page 537 Sir Donald so aptly states thus; "This would be yet another example of an ill which all too frequently bedevils the interlocutory stages of too many actions; one or
the other or both parties spend time and money sniping at each other which would be much better spent on pressing ahead speedily
and directly to the trial at which alone their substantive dispute can be effectually decided".
This is an action instituted in 2002, and still the parties have not yet fully complied with the orders on Summons for Directions issued in 2003, and for reasons best known to parties no attempt had been made to convene a Pre Trial Conference or agree on a bundle of documents 7 years thereafter.
ORDERS;
1. As such the two Summonses bearing issuing dates 22ND August 2006 and 7th September 2006 are dismissed for the reasons aforesaid.
2. Costs in $500/= to be paid by the Defendant to the Plaintiffs before the next trial date.
Y. I. FERNANDO
JUDGE
At Lautoka,
Fiji,
16 November 2010.
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