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Nadan v Fiji Sugar Corporation Ltd [2012] FJHC 1271; HBC330.2006 (9 August 2012)

RULING

INTRODUCTION

[1]. The4th defendant applies to strike out the plaintiffs' statement of claim under Order 18 Rule 18 (1)(a) of the High Court Rules 1988 on the ground that it discloses no reasonable cause of action. The plaintiffs oppose the application. From paragraphs 1 to 6 of the plaintiffs' amended statement of claim filed on 23 November 2006, I gather the following:

• (ii) the 1st plaintiff is the General Manager of Farmers Harvester Company ("FHC"). FHC is "owned by" one Liakat Ali. The 2nd plaintiff is the gang sardar in charge of Lovu Sector No. 1. The 3rd plaintiff is the operations manager of FHC.
  
• (iii) FSC, the 1st defendant, is responsible for "payment of cane monies and cane cutter's wages". An account at Westpac Banking Corporation Limited (2nd defendant) is where cane cutter's wages for the Lovu sector gang 1 is kept. Hassan Dean (3rd defendant) is alleged to be an employee of the same Liakat Ali and in charge of "withdrawal if wages for payment to cane cutters and labourers in "Drasa Gang No. 88".
  
• (iv) all three plaintiffs are alleged to be "responsible for day to day harvesting of cane by the harvester machine".
  
• (v) the plaintiffs are suing the defendants for (I quote):
  

"Damages for loss, pain and suffering by the poor cane cutters, lorry drivers, sardar, labourers and other creditors due to non-payment of wages and money owing"

[2]. Paragraphs 7 to 19 of the statement of claim plead as follows:

7. ...on 31 day of October, 2006 when the 1st named plaintiff enquired from my bankers A.N.Z Banking Group Limited he was advised that they have not received any monies or wages in the bank for Johnson Gang.

8. ....upon enquiries from one Mr. Taniela at the 1st defendant's office the 1st plaintiff was advised that monies for wages payment of cane cutters for Lovu and Drasa has been paid to the bank but monies for wages payments for Johnson gang has been stopped by the 1stdefendantafter receiving a letter from Liakat Ali's solicitor Messrs M K. Sahu Khan.

9. ....the first plaintiff's solicitors wrote to the General Manager of the 1st defendant and after producing the letter to the 1st defendant's General Manager the 1st named plaintiff was told that no monies will be released.

10. ....on the 1st day of November, 2006 when the gang sardar responsible for Lovu and Drasa Sector went to their bank namely Westpac Banking Corporation, Lautoka they were advised by the bank that due to the dispute with Liakat Ali the bank will not release any monies. The Gang Sardar for Drasa Gang No. 86 approached the 3rd Defendant for wages payment but the 3rdDefendant refused to withdraw the monies and said that his instructions from Liakat Ali the owner of the harvester machine is not to release any monies for wages payment.

11. ....as for Bank of Baroda, Ba which holds wages payment for cane cutters in Drasa Sector, the sardar in charge was advised by the 3rd defendant who is a signatory to Drasa sector's cheque that he will not sign the cheque for cane cutters wages payment on instruction from Liakat Ali.

12. ....all monies held by the Fiji Sugar Corporationand the banks are cane cutters wages and this has nothing to do with any payments to the defendants of Liakat Ali.

13. ....there are approximately thirty (30) manual Fijian cutters both males and females ad also lorry drivers,Sardars, labourers who all rely on wages every three weeks are awaiting payment of their wages.

14. ....all the cane cutters, lorry drivers, sardars, labourers and other creditors are waiting at 1st plaintiff's house and Drasa ad Lovu sectors sardar's residence to collect their wages and they have brought with them gallons, baskets and bags to enable them to do their shopping as soon as they get their wages today.

15. ....since the 1st, 2nd and 3rd Plaintiffs are in charge of day to day operations of cane harvester machines they also authorized by the owner of the harvester machine who resides in Australia to purchase parts fuel, diesel and arrange for mechanics for repairs of the harvester machines in case of damages and breakdown.

16. ....if the wages monies are not paid to the cane cutters, lorry drivers, sardar, labourers and other creditors they will not have any monies to purchase groceries and other necessities specially their children should have decent food at the time of school examinations.

17. ....due to the refusal of the 3rd defendant to release wages monies for the cane cutters, labourers, sardar and lorry drivers they are facing great difficulties in meeting expenses for daily needs.

18. ....the defendants are in breach of rules of natural justice and by stopping the poor cane cutters, lorry driver, sardar, labourers and other creditors wages and payments the defendants caused great hardship and damages to the poor cane cutters.

19. ....due to the actions of the defendants the cane cutters, labourers, lorry drivers and their families are suffering great hardship.

[3]. From the pleadings, it is clear that the plaintiffs are seeking damages for losses suffered by the "poor cane cutters, lorry driver, sardar, labourers and other creditors". None of the damages and/or losses they are suing for relate to them personally or in any other way.

[4]. In my view, there is no cause of action accruing to the plaintiffs for two reasons.

• (i) firstly, no private right of theirs has been interfered with so the plaintiffs have no cause against any of the defendants.
  
• (ii) secondly, the cane cutters, labourers, lorry drivers and their families are not persons under a disability within the contemplation of Order 80 of the High Court Rules 1988 who require any representation by the plaintiffs nor do the plaintiffs have any authority to institute the action for and on behalf of the "poor cane cutters and others".
  

[5]. My concerns in this case are similar to those of Mr. Justice Inoke in Imtiaz v Land Transport Authority [2010] FJHC 102; HBC6.2010L (1 April 2010). That case was one where the driver of a mini van that was alleged to be illegally involved in plying for and carrying fare paying passengers, had sued the Land Transport Authority of Fiji seeking various relief for losses claimed as a result of the latter's action in impounding the mini van, but which mini van belonged to someone else who was not involved in the proceedings:

29. This Court is of the opinion that this is one of those exceptional cases that was referred to in Buli (supra). The whole claim is based on ownership. Unlike Buli, the vehicle in this action is registered in someone else's name other than the Plaintiff's and that is not disputed. The registered owner is not a party to these proceedings and the Plaintiff is not suing as his agent or someone otherwise authorised by him. There is no allegation that the owner is under any legal disability and there is no explanation as to why these proceedings were not brought in his name. Also, the inclusion of other carriers in the Statement of Claim and in the Plaintiff's affidavit seems to suggest that this was a "class" action or "test" case, as I have said, but apart from that the claim and this application have been pleaded and argued as a personal action by the Plaintiff driver.

(my emphasis)

[6]. Earlier in his ruling, Inoke J had commented as follows:

13. The first hurdle faced by the Plaintiff was the fact that he is not the registered owner of the vehicle. He was the driver. That being the case, he has no locus standii to bring this action. His claim under the Writ and in this application is predicated on him being the owner. He is not the owner and therefore has no rights to protect. Also, as driver, the Plaintiff has no rights or claim against the Defendant as pleaded and sworn in his affidavit. I do not think that an amendment pursuant to O 15 of the High Court Rules to join the registered owner as a plaintiff or to amend the pleading can cure these defects.

(my emphasis)

[7]. In BA Provincial Holdings Company Ltd v BA Provincial Council [2006] FJHC 71; HBC237.2006 (8 September 2006), Madam Justice Phillips said as follows:

In regard the submission that the action has been instituted without proper authority, I adopt the principle applied in Danish Mercantile Co. Ltd & Others –v- Beaumont and Another [1951] 1 All ER 925 at 930 where Jenkins L. J. expressed the principle to the applied as follows:

"I think the true position is simply that a solicitor who starts proceedings in the name of a company without verifying whether he has proper authority to do so, or under an erroneous assumption as to the authority, does so at his own peril, and, so long as the matter rests there, the action is not properly constituted. In that sense it is a nullity and can be stayed at any time, providing the aggrieved defendant does not unduly delay his application, but it is open at any time to any purported plaintiff to ratify the act of the solicitor who started the action, to adopt the proceedings, and to say: "I approve of all that has been done in the past and I instruct you to continue the action." When that has been done, then, in accordance with the ordinary law of principal and agent and the ordinary doctrine of ratification the defect in the proceedings as originally constituted is cured, and it is no longer open to the defendant to object on the ground that the proceedings thus ratified and adopted were in the first instance brought without proper authority."

ANALYSIS

[8] The jurisdiction to strike out proceedings on the ground that it discloses no reasonable cause of action is only exercised in exceptional cases where, on the pleaded facts, the plaintiff could not succeed as a matter of law or where the cause of action is so clearly untenable that it cannot possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney -v- Prince Gardner [1998] 1 NZLR 262 at 267. His Lordship Justice Kirby in Len Lindon -v- The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-

1. it is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided.
   
2. to secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ....or is advancing a claim that is clearly frivolous or vexatious...
   
3. an opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination......Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
   
4. summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer....... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
   
5. if, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading ......A question has arisen as to whether O 26 r 18 applies to part only of a pleading
   
6. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
   

[9] The Courts will also strike out a pleading on the ground that it is scandalous, frivolous and vexatious where the claim or defence, even if known in law, is factually weak, worthless or futile.

In Brooking v Maudslay (1886) LT 343, the plaintiff made allegations of dishonest conduct against the defendant but further pleaded that he sought no relief on that ground. The allegations were struck out as being scandalous and embarrassing.

The Courts will also strike out a claim for abuse of process where its process is being used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes or where its process is being misused.Courts will rarely find that there is an abuse of process unless it concludes that the later proceedings amount to "unjust harassment" Johnson v Gore Wood and Company – [2000] UKHL 65; 2001 ALL ER 481 at 499.

CONCLUSION

[10] I adopt the approach of Inoke J in Imtiaz v Land Transport Authority (supra) and for the reasons stated herein above in paragraphs [4] to [7], I find that the plaintiffs have no reasonable cause of action against all the defendants in this case. I also concur with the reasoning of Inoke J as set out in the above quoted passage in paragraph [6] that I do not think that an amendment pursuant to Order 15 of the High Court Rules to join the cane cutters, labourers, lorry drivers and their families as plaintiffs or to amend the pleading can cure these defects. I find further support in this view in the White Book at para 15/6/1 where, after describing the scope of Order 15 Rule 6 as:

[preventing] an action being defeated by the misjoinder or non joinder of parties and it provides for any necessary amendment in respect of the parties to an action being made at any stage of the proceedings.....

the learned authors went on to say that:

This rule, however, has not altered the legal principles with regard to parties to actions, and, in no way qualifies the necessity for having before the Court the proper parties necessary for determining the point at issue....

[11] Accordingly, I strike out the claim against all the defendants and order costs against the plaintiffs in the sum of $1,500 in favour of the 4th Defendant. The other defendants have not participated in these proceedings but may apply for their costs.

Anare Tuilevuka
Master

At Lautoka
09 August 2012