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Khan v Shah [2012] FJHC 1358; HBC200.2011 (5 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 200 of 2011

BETWEEN:

MOHAMMED TALIB KHAN
of 7 Epeli Street, Suva, Unemployed.
PLAINTIFF

AND:

MEHRAB SHAH
of Wailevu, Labasa, President of Macuata Muslim League Fiji.
1ST DEFENDANT

AND:

MOHAMMED JANIF
of Siberia, Labasa, Secretary of Macuata Muslim League Fiji.
2ND DEFENDANT

AND:

AZIZ BEGG
of Labasa Town, Trustee of Macuata Muslim League Fiji.
3RD DEFENDANT

AND:

JAGJEET SINGH
of 1 Kaua Street, Suva, Businessman.
4TH DEFENDANT

BEFORE : Master Deepthi Amaratunga
COUNSELS : Mr. J. M. Rabuku for the Plaintiff
Mr. W. S. Pillay for the Defendants

Date of Hearing : 4th October, 2012
Date of Ruling : 5th October, 2012

RULING

1. INTRODUCTION
   

1. The Plaintiff has filed this action for defamation. The alleged defamation is based on a letter written by Defendants addressed to the police commissioner in Suva. In the statement of defence the Defendants are alternatively pleading the defence of fair comment. The Defendants are seeking to transfer the action to a High Court situated at Labasa, on the basis that the cause of action has arisen in the Jurisdiction of Labasa High Court. The letter addressed to Police Commissioner, Suva was intended to be communicated to the person addressed at Suva and now the alleged authors of the letter cannot take up an objection to the jurisdiction.
   

2. ANALYSIS
   

2. The Plaintiff who is a police officer filed this action for defamation against four defendants. The defamation is based on a complaint regarding a religious body where the Plaintiff plaid active role. Three out of four defendants reside in Labasa and the religious body is also located at Labasa.
   
3. The Defendants seek a transfer of this action to High Court situated at Labasa.
   
4. Order 4 (1) of the High Court Rules of 1988 state as follows
   

'1(1) Proceedings must ordinarily be commenced in the High Court registry located in the Division in which the cause of action arises.'

5. The Plaintiff's claim for defamation is based on alleged publication of letter written to the Police Commissioner who is based in Suva. In the statement of Defence at paragraph 12 as an alternate defence the Defendants are pleading fair comment, and state as follows
   

'12. A first Alternative Defence, the defendants that in so far as the alleged words as complained of in paragraph 8 of the statement of claim, they are true in substance and in fact in so far as they expression of opinion they are fair comment mad in good faith and without malice upon the said facts, which are matters of public interest particulars of which are appearing in the statement of claim.'

6. The Defendants further plead section 16 of the Defamation Act in their statement of defence.
   
7. In the circumstances the allegation is that a written complaint was addressed to the Police Commissioner who is having his office at Suva and irrespective of where the said letter got published the parties who intended to address to a person in Suva, obviously knew and submitted to the jurisdiction of the location where it was meant to be published.
   
8. The publication is meant to be at the place addressed in the said letter and cause of action will arise in the said location irrespective of where ever it got published. Order 4 (1) states that ordinarily, an action should be instituted in the place where the cause of action has arisen and in the circumstance the Plaintiff has selected the correct jurisdiction.
   
9. The application for transfer is opposed by the Plaintiff, and in the circumstances I will dismiss this application for transfer and also grant a cost of $400 assessed summarily to be paid within 21 days.
   

100. FINAL ORDERS
     

1. The summons to transfer the action is struck off.
2. The Plaintiff is granted a cost of $400 assessed summarily to be paid by the Defendants with in 21 days.
   

Dated at Suva this 5th day of October, 2012.

.................................................
Master Deepthi Amaratunga
High Court, Suva