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Dean v Shah [2012] FJHC 1344; Civil Action 26.2012 (27 September 2012)

IN THE HIGH COURT of FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: 26/12

BETWEEN:

SAIFUD DEAN aka SAIFUD DIN of Nasea
Labasa, Businessman.
PLAINTIFF

AND:

NAZIM SHAH of Batinikama, Labasa,
Businessman.
1st DEFENDANT

AND:

KHATOON BI of Batinikama, Labasa,
Businesswoman.
2nd DEFENDANT

AND:

BASRAT DIN aka BASRATH DIN of Nasea
Labasa, Businessman.
INTERESTED PARTY.

Appearances: Counsels: No appearance for Nawaikula Esq. Solicitor for the Plaintiff
Mr. A Kohli of Kohli & Singh Solicitors for the Defendant

RULING.

INTRODUCTION

This is an application by the Defendant for an order that the action be struck out as it discloses no cause of action and for the Plaintiff to pay the costs of this application on an indemnity basis. The application is made pursuant to Order 18 rule 18(1) (a) of the High Court Rules 1988. The Court's power under Order 18 rule 18 is a discretionary power in that it also gives the Court the power to amend any pleading or indorsement of any writ.

Order 18 rule 18(1) (a) states:

18.-(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the 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)...

(c) ...

(d) ...;

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

(2) No evidence shall be admissible on an application under paragraph (1)(a).

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.

The Plaintiff opposes the application.

The Claim

The Plaintiff's claim against the Defendants is, to put it mildly, unusual in that it refers to facts about a conveyance to which the Plaintiff had no interest. He does, however, have a power of attorney of one of the parties to the conveyance. For clarity the statement of claim is reproduced in full below.

STATEMENT OF CLAIM

1. The Plaintiff is a businessman and the son of Basrat Din also known as Basrath Dean (the Interested Party in this action hereto).
   
2. That the 1st and 2nd Defendants are husband and wife and located at Vulovi, Labasa on Lot 1 on SO 5079 (part of Labasa formerly Lot 7 SO 3645) LD Ref. 4/9/4231 that formerly belonged to the Plaintiff's father (the Interested Party)
   
3. That sometimes before, and prior to, February or March, 2012, the 1st and 2nd Defendants had several discussions and arrangement with the Plaintiff's father (the Interested Party) to sell and/or convey to them the said land at issue for a consideration of $80,000.00 [Eighty thousand dollars].
   
4. That the 1st and 2nd Defendants, in particular 1st Defendant, paid $80,000.00 [Eighty thousand dollars] but they also impressed upon the Interested Party (who is the "vendor" in the said transaction) that they (1st and 2nd Defendant) preferred that the document for the lease and title to the 2nd Defendant was to have only on it that the consideration given to the Interested Party was $20,000.00 [Twenty thousand dollars].
   
5. That the Interested Party/Vendor, being over 70 years old and fragile, went ahead with the transaction to the 1st and 2nd Defendants without the full understanding and implication of the "consideration" of $20,000.00 would mean or effect.
   
6. That what in fact has transpired in the said transaction at issue was that the $60,000.00 [Sixty thousand dollars] cash or "black money" was not entered into transfer document/title/lease which means that the Fiji Inland Revenue and Customs Authority [FIRCA] has been denied taxation from the $60,000.00 that was not put into the transfer document as inclusive of the $20,000.00 consideration.
   
7. That unbeknowm to the Interested Party/Vendor, the 1st and 2nd Defendants had other ideas. That is, a transfer of lease purported to be effected on 12th March, 2012, early this year, articulates that the "Vendor" "in consideration of the sum of $20,000.00 [twenty thousand dollars] (when in fact it should be $80,000.00-Eighty thousand dollars) agreed to be paid to the transferor by Khatoon Bi...(the transferee)... all the rights, powers, titles, estate and interest......in the said land".
   
8. That the said transaction at paragraph 6 above, registered at the Registrar of Titles office on 14th March, 2012, infers that the final transaction is $20,000.00 and not the actual $80,000.00 paid. That is fraud on the part of the Defendants.
   
9. That the Plaintiff, on subsequently learning about the said transaction and also having in possession the Power of Attorney from his father (Interested Party/Vendor), made investigations and found out the irregularity and fraud carried out by the 1st and 2nd Defendants.
   
10. That, as a result of that fraud, the 2nd Defendant who is now the registered titleholder to the lease, had mortgaged (with the 1st Defendant) to the 3rd Defendant (Home Finance Company) to her benefit the said property for $731,202.00 [Seven hundred thirty one thousand two hundred and two dollars].
    
11. That because of the mortgage to the 3rd Defendant by the 1st and 2nd Defendants, the Plaintiff finds it very peculiar and strange, indeed, that the transfer of the title to the Defendants and the mortgage to the 3rd Defendant all happened in one day, that is, 14th March, 2012.
    
12. That the Plaintiff, as holder of his father's Power of Attorney, is aggrieved for the great injustice fraudulently committed by the 1st and 2nd Defendants.
    
13. That the Plaintiff avers that the 1st and 2nd Defendants have "unclean" hands in their dealing with the Plaintiff's father [Interested Party/Vendor].
    

The Analysis

It is unclear from the statement of claim what remedy if any is sought by the plaintiff. In my view the statement of claim do not refer to any remedy available to the plaintiff simply because there are no wrongs stated in the claim which can give rise to an enforceable right accrued to him. If there was a right, that right would accrue by virtue of the power of attorney given him by his father. The statement of claim should reflect that relationship. Unfortunately the statement of claim is not fashioned that way and the fact that his father is noted as an "interested party" raises some questions on the plaintiff's right to the action. An interested party in respect of an action is a party who has a right, titles, advantages, duties, liabilities connected with the action. In this matter the interested party is in fact the only party whose interest can give rise to the plaintiff's right to institute the proceedings in a cause of action.

A cause of action is said to be a set of facts that gives rise to an enforceable claim by a plaintiff. In Read –v- Brown [1888] UKLawRpKQB 186; 22 QBD 128 Esher M. R. states that a cause of action comprises every fact which if traversed the plaintiff must prove in order to obtain judgment. Lord Diplock in Letang –v –Cooper [1964] EWCA Civ 5; (1965) 1 QB 232 at 242-243 states that a cause of action:

"...is simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person"

What remedy is available to the plaintiff from the set of facts outlined in the statement of claim? The plaintiff alleges that the defendants fraudulently substituted the wrong figure in the consideration noted in the transfer documents before it was presented for registration. If indeed there was any fraud then his father (the interested party) as the vendor was a party to the fraud. In any event I could not see how the plaintiff could be aggrieved by that transaction. There were no particulars of fraud in the writ which says specifically that he was or the interested party was defrauded in any way.

The plaintiff's statement in paragraph 11 that he "finds it very peculiar and strange indeed" that the transfer and mortgage occurred at the same time is not a statement of fact useful in determining the matter and says nothing about his cause of action. Neither does paragraph 12 which says that as a holder of a power of attorney he is aggrieved by the actions of the defendants. The mere fact that he holds a power of attorney does not give rise to the plaintiff having a cause of action. The cause of action, if any, accrues to the donor of the power of attorney, that is, his father who for some strange reason is noted as an interested party. The action by the plaintiff seems to assume that as a holder of a power of attorney he can act on his own authority and that the giver of that power is only an interested party to the proceedings. The plaintiff as holder of a power of attorney derives his power from that given him under the power of attorney he has no other right otherwise and in this regard the writ is misconceived. In my view even if the "interested person" became the plaintiff by allowing the current plaintiff to sue on his behalf under the power of attorney on the same set of facts there will still be no cause of action.

This is not a case in which the facts are weak such that it is unlikely to succeed, this is a case in which the facts itself does not give rise to a cause of action and therefore even an amendment could not cure the defect.

Prakash J in Napolioni Kurucake Ratumaiyale –v- Native Land Trust Board & Pacific Octopus Limited (2000) 1 FLR 284 in an application for striking out outlined the principles to be taken into account and stated that:-

It is clear from the authorities that the Court's jurisdiction to strike out on the grounds of no reasonable cause of action is to be used sparingly and only where a cause of action is obviously unsustainable. It was not enough to argue that a case is weak and unlikely to succeed, it must be shown that no cause of action exists (A-G v Shiu Prasad Halka ( 1972) 18 FLR 210, Bavadra v Attorney-General (1987) 3 PLR 95. The principles applicable were succinctly dealt by Justice Kirby in London v Commonwealth [No 2] [1996] HCA 14; 70 ALJR 541 at 544 - 545. These are worth repeating in full:

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 (General Street Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128; Dyson v Attorney-General [1910] UKLawRpKQB 203; (1911) 1 KB 410 at 418.

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 (Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171f, per Dawson J.) or is advancing a claim that is clearly frivolous or vexatious; (Dey v. Victorian Railways Commissioners (1949) 78 CLR 62 at 91..

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. (Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; (1992) 30 NSW LR 1 at 5-7. Even a weak case is entitled to the time of a court. Experience reaches 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. (Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 409). 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 pleadings. (Church of Scientology v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 79. A question has arisen as to whether O 26 r 18 applies only part of a pleading. (Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 8). However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr. Lindon's statement of claim; and

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.

It is true that every litigant has a right to have matters of law and of fact to be decided according to the ordinary rules of procedure which gives them the time and opportunity to present his case as stated by O'Connor J in Burton v Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76 at p 92. But this comment presumes that the claim is tenable at first instance. Hence where as in the present case the case is so obviously untenable that it cannot possibly succeed there is no alternative but to strike out the action.

The Conclusion

For the above reasons this court in the exercise of its discretion concludes that the claim should be struck out as it discloses no cause of action and that there are no remedies available to the plaintiff from the set of facts stated in the statement of claim nor can an amendment cure the defect in the claim.

I make no order as to costs.

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H A Robinson
Master High Court, LABASA
27 September 2012.