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Singh v Maharaj Chandra & Associates [2011] FJHC 458; HBC47.2008 (19 August 2011)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CIVIL JURISDICTION

Civil Action No: HBC 47 of 2008

BETWEEN:

PRAKASH SINGH
Plaintiff

AND:

MAHARAJ CHANDRA & ASSOCIATES
Defendants

Counsel: Plaintiff in person
Mr. N. Bans for the Defendants.

Date of Judgment: 19th August, 2011

JUDGMENT

1. This is the defendant's summons for an order that the amended statement of claim against him by the plaintiff be struck out under Order 18 Rule 18 (1) of the High Court Rules on the following grounds:

a. It discloses no reasonable cause of action against the defendants;

b. It is frivolous and /or vexatious and /or scandalous as far as it concerns the defendant; and

c. It may prejudice, embarrass or delay the fair trial of the action; or

d. It is otherwise an abuse of process of this court.

2. In support of the 1st defendant's summons, an affidavit was filed by Suresh Chandra, a legal practitioner of the 1st defendant.

Chronology of the events:

3. On 18.02.2008, the plaintiff filed writ of summons against the defendants with a document read as "particulars of claim" attached to the writ of summons. The "particulars of claim" when perused indicated that there was a land transaction between the plaintiff and one Anand Prasad.

4. On 17.04.2008, a Notice of Motion was called before the Master. Having perused the writ, the Master made an order on his own motion under Order 20 rule 7 of the High Court Rules that the plaintiff should file an amended statement of claim on or before 15.05.2008.

5. On 14.03.2008, the plaintiff filed an amended statement of claim.

6. On 27.03.2008 the defendants filed summons to strike out the plaintiff's claim.

7. On 24.07.2008, when the summons came up before the Master for hearing, the plaintiff was given another opportunity to rectify his pleadings, and was ordered to file an amended statement of claim.

8. On 14.08.2008, when the matter came before the High Court Judge, the plaintiff was ordered to serve the documents on the defendants. The defendants were served with the 'particulars of claim' on 04.09.2008.

9. The 1st defendant on 23.09.2008, filed summons to strike out amended statement of claim and to dismiss action.

Relevant legal principles:

10. Striking out pleadings and indorsements are provided in Orde18 Rule 18 as follows:

18 (1). The Court may at any stage of the proceedings order to be struck out or amended any pleading or indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that-

(a) It discloses no reasonable cause of action or defence, as the case may be; or

(b) It is scandalous, frivolous or vexatious; or

(c) It may prejudice, embarrass or delay the fair trial of the action; or

(d) It is otherwise an abuse of the process of the court;

and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

11. The caution that should be exercised when, considering applications of this nature was highlighted in following authorities.

'Only in plain and obvious cases that recourse should be had to the summary process under O. 18 R.18(1)' Hubbuck v. Wilkinson [1889]1 QB 86.

This rule can only be invoked when the claim is on the face of it 'obviously unsustainable.' Attorney General of Duchy of Lancaster v. L.N.W.Ry Co [1892] UKLawRpCh 134; [1892] 3 Ch 274.

12. The Fiji Court of Appeal in National NBF Finance (Fiji) Ltd v. Nemani Buli- Civil Appeal No 57 0f 1998 expressed the principles relating to the strike out applications as follows:

'The law with regard to striking out pleading 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...'

13. The jurisdiction to strike out proceedings under Order 18 should be very cautiously exercised. Following authorities would also throw light as to how the court should approach in exercising its jurisdiction, under the aforesaid provision.

14. In Kampta Prasad v. Home Finance Company Ltd & Rajendra Singh [2003] HBC 116D/02S Jitoko J stated as follows;

'Where court finds strictly on the pleadings there is no reasonable cause of action, it does not deem it necessary to proceed to consider the merits or otherwise of whether the action is scandalous, frivolous or vexatious, or whether it is otherwise an abuse of the process of the court.'

15. Care Zeiss Stoffung v Rayner & Keder Ltd (No 3) [1970] Ch. 506.

The power given to Court to strike out any pleading or any part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea.

16. Steamship Mutual Association Ltd v. Trollope and Colls (city) Ltd (1986) 33 Build. L.R.77 C.A

"The issue of a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it an abuse of process of the court and will be struck out.

17. In support of the defendant's summons, an affidavit was filed by the principal of the 1st defendant. The facts of the 1st defendant's affidavit can be summarized as follows;

18. It is deposed that although the plaintiff instituted this action as if he were the sole legal and beneficial owner of the land described in certificate No. 6491, he was not the sole legal and beneficial owner of the land, but the co-executor and trustee of the estate of Dharam Singh.

19. It was further stated that the 1st defendant never acted for the plaintiff nor accepted any retainer or payment from him or from the estate of Dharam Singh.

20. It is further deposed that the 1st defendant prepared a sale and purchase agreement in respect of the land as solicitors for Mr. Anand Prasad on terms negotiated between Anand Prasad and the plaintiff, which was signed on 23.08. 2006 by Mr. Prasad and the plaintiff.

21. Furthermore, it is stated that the 1st defendant was not a party to that sale and purchase agreement and also had no knowledge of the subsequent negotiations and agreement that took place between the plaintiff and Anand Prasad in terms of payment of the purchase price for the land.

22. It is further stated that the 1st defendant never acted for the plaintiff nor accepted any payment from him or from the estate of Dharam Sing; acted exclusively for Anand Prasad, the purchaser of the land and constantly advised the plaintiff to seek independent legal advice on behalf of the estate of Dharam Singh.

23. In that affidavit, it is further deposed that the 1st defendant prepared a sale and purchase agreement in respect of the land as solicitors for Anand Prasad on terms negotiated between Anand and the plaintiff but had no knowledge of the subsequent negotiations and agreement that took between the plaintiff and Anand Prasad regarding the terms of the payment of the purchase price of the land and also, had no knowledge of any arrangement for the payment by the purchaser of $ 1000000.00 into the 1st defendant's trust account for the transfer of the land.

24. The document SC 3 annexed to the affidavit shows that the plaintiff had made his own arrangement with Mr. Prasad for payment of the monies owed for the transfer, wanted the transfer document be registered with the Registrar of Titles, acknowledged that the 1st defendant was not his firm of solicitors and acknowledged that he had made his own arrangement with Anand as to the payment.

25. It must be noted that the plaintiff filed number of actions over the land. This was confirmed by the document SC 4 annexed to the 1st defendant's affidavit. Further, there was a terms of settlement entered by the plaintiff, Gurmej Kuar and Anand Prasad. Subsequent to the settlement, the action No 144 of 2007 was discontinued. On 22.01.2008, the plaintiff for himself and as attorney of his co-trustee signed amended terms of settlement.

26. In reply to the defendant's affidavit, the plaintiff filed an affidavit sworn on 06.11.2008. The plaintiff deposes that there was a secret proposal to transfer CT 35726. Further, he states that it can be seen in the document SC3.

27. But, SC3 is an affidavit sworn by the plaintiff himself. The plaintiff failed to explain as to why he had made such an affidavit.

28. More importantly, SC 3 does not disclose any secret proposal to transfer CT 35726 as alleged by the plaintiff. SC 3 clearly shows that the plaintiff had not sought any legal advice from the 1st defendant. Further, it shows that the plaintiff did not rely on any payment arrangement proposed by the 1st defendant and in particular, had requested the 1st defendant to register the transfer.

29. Further, it must be noted that there was no provision in the sale and purchase agreement to deposit $ 1000000.00 in the 1st defendant's trust account. The plaintiff in his statement of claim seeks to transfer the property back to him but he has not made the purchaser a party to this action.

30. It could be observed in the plaintiff's amended statement of claim, that he alleges the 1st and 2nd defendant has breached their duty of care. The plaintiff has given particulars of breach of duty as follows:

1. Failed to properly advise the client of signing the sale and purchase agreement and transfer.

2. Unduly influencing plaintiff to execute undue transfer documents without consideration being paid.

3. That the conduct of the 1st defendant and second defendant was deceptive fraudulent and misleading.

4. That as a result of wrongful advice given by the first and second defendant the plaintiff has suffered loss of his land CT 6491 DP 1071 or value in the sum of $ 1.8 million.

5. That as to sale and purchase agreement the 6 acres that was to be retained by the vendor was also transferred. Valued at $ 850000.00 with five dwelling houses.

31. Although, the plaintiff alleged so in the amended statement of claim, SC 3 clearly confirms that the plaintiff had never sought legal advice from the 1st defendant. Therefore, what the plaintiff alleges in the amended statement of claim is totally contrary to what he stated in SC 3.

32. Further, the plaintiff cannot have a cause of action against the defendants for the return of the land because the land is not in the ownership of the defendants. If the plaintiff intends to get the land returned he must make the purchaser of the land a party to the action.

33. It is apparent on the amended statement of claim that the plaintiff attempts to impute the loss he suffered to the 1st defendant without any factual or legal basis.

34. Further, the plaintiff has failed to present material allegations against the defendants and therefore, the defendants are not in a position to know the exact nature of the cause of action against them. Therefore, it is my considered view that the plaintiff's action against the defendants will fail.

35. Further, it is to be observed that the plaintiff's statement of claim does not even satisfy the requirements stipulated in Order 18 Rule 11 and Order 18 Rule 14.

36. Order 18 Rule 11 of the High Court Rules stipulates the requirements of pleadings. For convenience, I reproduce the relevant part of the Order 18 Rule 11.of the High Court Rules, which reads thus:

Order 18 Rule11 (1).

Subject to paragraph (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the forgoing words-

(a) Particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and

(b) Where a party alleges any condition of the mind of any person, whether any disorder or disability of mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.

(2) Where it is necessary to give particulars of debt, expenses or damages and those particulars exceed 3 folios, they must be set out in a separate document referred to in the pleading and the pleading must state whether the document has already been served and, if so, when, or is to be served with the pleading.

Order 18 rule 14 reads:

(1) A statement of claim must state specifically the relief or remedy which the plaintiff claims; but costs need not be specifically claimed.

(2) A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which the same as, or include or form part of, facts giving rise to a cause of action so mentioned; but subject to that, a plaintiff may in his statement of claim alter, modify or extend any claim made by him in the indorsement of the writ without amending the indorsement.

(3) Every statement of claim must bear on its face a statement of the date on which the writ in the action is issued.

37. Order 18 rule 11 requires that the pleading must contain the necessary particulars of any claim.

38. Following authorities highlight the importance of presenting clear and precise pleadings.

Esso Petrolium Company Ltd. v Southport Corporation [1956] AC 218 at 238

'A system of pleadings is the primary if not the basic, method for stating and resolving disputes, questions of facts or of mixed law and fact between parties to any claim.' To define and clarify with precision the issues and questions which are in dispute between the parties and fall for determination by the court. Fair and proper notice of the case an opponent is required to meet must be properly stated in the pleadings so that opposing parties can bring evidence on the issues disclosed.

Perestrello Companhia Limitada v. United Paint Co. Ltd [1969] 1 W.L.R. 570

Where the plaintiff claims that he has suffered damage, i.e. injury, of a kind which is not necessary and immediate consequence of the wrongful act, it is his duty to plead full particulars to show the nature and extent of the damages, i.e. the amount which he claims to be recoverable, irrespective of whether they are general or special damages, so fairly to inform the defendant of the case he has to meet and to assist him in computing a payment into Court, and the mere statement or prayer that he claims damages will not support a claim for such damages.

Goodway Rubber Company Pty Ltd v. Gurbachan Singh Tyre Centre and Others [2007] HBC 425/04B

"Pleadings play a significant role. Pleadings drafted without clarity tends to obscure the real issues for trial, while obscure and prolix pleading unnecessarily obliges the opposing party to comprehend the cause of action and plead to irrelevant matters. "The pleadings set the parameters of a party's case. There is no substitution for coherent, lucid and succinct pleadings."

39. In light of the above authorities, it is clear that the plaintiff has failed to comply with the requirement stipulated in Order 18 rule 11 and rule 14.

40. This action concerns a loss allegedly suffered by the plaintiff as a result of the sale and purchase of a piece of land. The plaintiff's claim appears to be against the purchaser of the land for non-payment of the purchased sum. Although the plaintiff instituted this action as the sole owner of the land, the documents show that the plaintiff is a co-executor and a co-trustee. The other co-trustee of the land is one Gurmej Kuar but he was not made a party to this action.

41. The annexure SC 3 clearly shows that the defendants never acted as solicitors for the plaintiff. The plaintiff also never pleaded that he had ever engaged the defendants as his solicitors.

42. The most significant fact is that the land in question is in the ownership of a third party but the plaintiff has failed to make that person a defendant to this action, which further demonstrates that this action cannot be maintained against the defendant for the return of the land.

43. In any event, a firm of solicitors cannot be asked to return the land transferred to his clients. Also, non-payment of the agreed sum by the purchaser does not impose liability on his solicitors.

44. A statement of claim is the written declaration by the plaintiff in an action containing the facts that are to be relied upon to support a claim against the defendant, and the relief claimed.

45. Therefore, the primary objective of the statement of claim is to define the issues and thereby to inform the parties in advance of the case they have to meet, and enable them to take necessary steps to deal with it. Hence, the statement of claim must contain the necessary details about the cause of action and also the events which give rise to the cause of action clearly and precisely. Further, it must present the details in such a way that it can be comprehended by the defendant.

46. Therefore, it is incumbent on the plaintiff to present the statement of claim in such a manner, that it would provide all the necessary information of the claim sought against the defendant.

47. A mere written statement devoid of clear and precise details as to how the cause of action arose against a particular defendant, the nature of the relief sought, and a particular person against whom the relief is sought, cannot be accepted as a statement of claim.

48. In the present case, the plaintiff's statement of claim does not satisfy aforementioned requirements and in particular has failed to include correct parties to the action.

49. As Lord Edmund Davis stated in Farrell v. State for Defence [1980] 1 W.L.R 178

Pleadings plays an essential part in civil actions, and their primary purpose is to define the issue and thereby to inform the parties in advance of the case which they have to meet, enabling them to take steps to deal with it; and such primary purpose remains and can still prove of vital importance, and therefore it is bad law and bad practice to shrug off a criticism as a "mere pleading point".

50. In Lipkin Gorman v. Karpnale Ltd. [1989] 1 W.L.R 1340 at 1351, 1352 May L.J stated as follows:

Thus, first fraud or dishonesty is material this must be clearly pleaded, if not explicitly, then in such terms that the reader of the pleading can be left in no reasonable doubt that this is being alleged.

Secondly, where an element in the alleged fraud or dishonesty relied on is the other party's knowledge of a given fact or state of affairs, this must be explicitly pleaded. It is ambiguous and thus demurrable, if fraud is relied on, to use the common "rolled up plea" that a defendant knew or ought to have known a given fact. If it is desired to allege and plead fraud and, in the alternative, negligence based on similar contentions, that the former must be pleaded first and clearly and the relevant part of the plea confined to the fraud. The allegation in negligence can then be pleaded separately and as a true alternative contention.

51. It could be noted in the "particulars of claim" filed by the plaintiff that there is no definite cause of action disclosed against the defendants. Further, it has failed to describe the relief sought against the defendant and also the basis on which the plaintiff has sought relief against the defendants.

52. Therefore, it is my considered view that the plaintiff's claim against the defendant is groundless and unfounded and also is unsustainable. Further, the plaintiff has not used the process of the court bona fide and properly.

53. In other words the plaintiff's action against the defendants is an abuse of process.

54. In Steamship Mutual Association Ltd v. Trollope and Colls (city) Ltd (1986) 33 Build.L.R. 77,C.A. it was held;

'The issue of a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it is an abuse of process of the Court and will be struck out.'

55. Further, the amended statement of claim does not state when the sale and purchase agreement was entered. Despite giving several opportunities, the plaintiff has failed to rectify defects in pleadings.

56. I therefore, find that the plaintiff's statement of claim against the 1st and the 2nd defendants is not only frivolous and vexatious but also defective, confusing and erroneous. It also lacks clarity. For these reasons, I conclude that the plaintiff's action is unsustainable.

57. On the above premise, I strike out the plaintiff's action.

58. Cost is summarily assessed in the sum of $500.00.

Pradeep Hettiarachchi
JUDGE

19.08.2011