Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Rasoki v McLean & General Manager [2013] FJHC 41; Civil Action 348.2003 (8 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No: 348 of 2003.

BETWEEN:

ATUNAISA LACABUKA RASOKI
lot 197, Makosoi Estate, Pacific Harbour – Secretary Nominated and Members of Land & Native Customary Fishing Right Owner with support of three big Chiefs and Members; Secretary Mataqali Vunimli and Case 121/2000; Replacement Act 12/2002 and Registered Officer – National Democratic Party.
PLAINTIFF

AND:

MR. MIKE McLEAN & GENERAL MANAGER or LOCATION MANAGER or ANACONDA II FILM COMPANY of Lagoon Resort Hotel, Pacific Harbour, Tikina of Deuba.
1ST DEFENDANT

AND:

ATTORNEY GENERAL OF FIJI AND MINISTER FOR HOME AFFAIRS, MINISTRY OF FIJIAN AFFARS, FIJI VISUAL FILM COMMISSION of Victoria Parade, Suva.
2ND DEFENDANT

AND:

GENERAL MANAGER & LEGAL COUNSELLOR, NATIVE LAND TRUST BOARD; TRUSTEE OF NATIVE LAND AND FISHERIES COMMISSION ADVISOR of Victoria Parade, Suva.
3RD DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSEL : Plaintiff appearing in person
Mr. Haniff F. Y. for the 1st Defendant
Mr. S. Sharma for the 2nd Defendant

Date of Hearing : 19th October, 2010
Date of Decision : 8th February, 2013

DECISION

1. INTRODUCTION
   

1. Plaintiff has filed an incomprehensible statement of claim and when the first application for strike out was made the statement of claim was amended fully but the amended statement of claim is no better than the earlier and the Defendants state that they cannot understand the causes of action or the claims in order to reply. The statement of claim is incomprehensible and leave granted by the court to amend had not been utilized to correct it, but to make it even worse than what was initially filed and this is an abuse of process and amended statement of claim needs to be struck off.
   

2. FACTS LAW AND ANALYSIS.
   

2. The Plaintiff filed the writ of summons on 18th August 2003, and the first statement of claim was incomprehensible where the purported claims against the 1st Defendant contained 47 paragraphs and again another 11 paragraphs on alleged negligence of the same Defendant and the purported claim against the 2nd Defendant contained 23 paragraphs and again another 8 paragraphs describing the alleged negligence of the 2nd Defendant. An application was made to strike out the statement of claim on the basis that it did not disclose a reasonable cause of action and or abuse of process by the 2nd Defendant on 26th August, 2003, and a similar application under Order 18 rule 18 was filed by the 1st Defendant on 29th August, 2003. Both applications for strike out were made without filing a statement of defence as the statement of claim was unintelligible to answer properly. The court granted the Plaintiff leave to amend the statement of claim.
   
3. A complete overhaul of the initial statement of claim, was done and amended statement of claim was filed on 18th September, 2003 but again the amended statement of claim is no better than the earlier one which cannot be understood and or replied and neither causes of action nor issues can be deduced from the said amended statement of claim and both defendants without filing statements of defence filed applications to strike out the action.
   
4. It is imposible to ascertain who is being sued for which cause of action and which facts are alleged to give rise to alleged cause of action. The statement of claim had ignored basic rules and it cannot be easily replied by a Defendant. "the Defendants may claim ex debitio justitiae to have plaintiff's case presented in an intelligible form, so that he may not be embarrassed in meeting" (per James L.J in Dary v Garrett (1878 Ch. D 473 at p 486 White Book (1988) 18/19/1 p 312.
   
5. The prayers of the amended statement of claim are
   
   1. An interlocutory injunction.
      
   2. To return under Act 12/2002 of case 121/200 for leases to property holders on land and Fishing right areas of applicant
      
   100. Make relief or other reliefs that seem just and equitable in claims of this applicant in this court.
        
   4. Cost of action
      
6. The main relief is contained in the prayer which seeks return of leases may fall under the scope of judicial review application, but in the manner it was pleaded it is very difficult to understand. The prayers sought are not in compliance with the body of the statement of claim.
   
7. Order 18 Rule 18 (1) states as follows
   

'(1) The Court may at any stage of the proceedings order to be struck out or amend 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) It is scandalous, frivolous or vexatious;

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

8. Footnote 18/19/3 of the 1988 Supreme Court Practice where the following is stated in respect of applications such as the present:-
   

"It is only plain and obvious cases that recourse should be had to the summary process under this rule, per Lindley MR. in Hubbuck v. Wilkinson [1898] UKLawRpKQB 176; (1899) 1 Q.B. 86, p91(Mayor, etc., of the City of London v. Homer (1914) 111 L.T. 512, CA). See also Kemsley v. Foot and Qrs. (1951) 2KB. 34; (1951) 1 All ER. 331, CA. affirmed (1952) AC. 345, H.L. The summary procedure under this rule can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable' (Att-Gen. of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] UKLawRpCh 134; (1892) 3 Ch. 274, CA). The summary remedy under this rule is only to be applied in plain and obvious cases when the action is one which cannot succeedor is in some way an abuse of the process or the case unarguable (see per Danckwerts and Salmon L.JJ. in Nagle V. Feliden (1966) 2 Q.B. 633, pp. 648, 651, applied in Drummond Jackson v. British Medical Association (1970) 1 W.L.R. 688 (1970) 1 All ER 1094, CA).

Footnote 18/19/4 of the 1988 Supreme Court Practice, following is stated in relation to striking out applications:-

"On an application to strike out the statement of claim and to dismiss the action, it is not permissible to try the action on affidavits when the facts and issues are in dispute (Wenlock v. Moloney [1965] 1. W.L.R. 1238; [1965] 2 All E.R. 87, CA).

It has been said that the Court will not permit a plaintiff to be 'driven from the judgment seat' except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v. Att.-Gen. [1910] UKLawRpKQB 203; [1911] 1 KB 410 p. 419

9. The Fiji Court of Appeal has applied similar principles in National MBF Finance (Fiji) Ltd v Buli, Fiji Court of Appeal Civil Appeal No. ABU 0057 of 1998S (6 July 2000) at page 2 of 4, second paragraph, where it stated as follows:-
   

"The law with regard to striking out pleadings 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 proved. If a legal issue can be raised on the facts as pleaded then the courts 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. It follows that an application of this kind must be determined on the pleadings as they appear before the court. In this case the Judge's task was made more difficult because a considerable amount of factual material was placed before him. We wish to point out that this is inappropriate and undesirable. The Judge's task was also made more difficult by the wording of both statements of claim and defence which do not raise the questions at issue with clarify."

10. Order 18 rule 6 deals with Facts, not evidence, to be pleaded
    

'6(1) Subject to the provisions of this rule, and rules 9, 10, and 11, every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defences, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.' (emphasis is added)

11. In Supreme Court Practice (1988) at page 269 it was stated under the "Material facts, not evidence" 18/7/3 state as follows
    

'Material facts, not evidence'- Every pleading must contain only a statement of the material facts on which the party pleading relies, and not the evidence by which they are to be proved (per Farwell L. J in N. W. Salt Co Ltd v Electrolytic Alkali C Ltd [1913] 3K.B. 422,425). "The distinction is taken in the very rule itself between the facts on which the party relies, and the evidence to prove those facts (per Brett L.J. in Philipps v Philipps (1878) 4 Q. B. D. 133). All facts which tend to prove the fact in issue will be relevant at the trial, but they are not "material facts" for pleading purposes. "It is an elementary rule in pleading that, when a statement of facts is relied on, it is enough to allege it simply without setting the allegation" (per Lord Denman C.J. in Williams v Wilcox [1838] EngR 305; (1838) 8 A& E 314, p 331; and see Stuart v Gladstone (1879) 10 Ch. D. 644).....' (emphasis is added)

12. In Farrelll v Secretary of Stte (Viscount Dilhorns) [1980] 1 All E.R 166 at 173 Lord Edmund –Davies held
    

'It has become fashionable in these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated. But pleadings continue to play an essential part in civil actions, and although there has been since the Civil Procedure Act 1833 a wide power to permit amendments, circumstances may arise when the grant of permission would work injustice or, at least, necessitate an adjournment which may prove particularly unfortunate in trials with a jury. To shrug off a criticism as 'a mere pleading point' is therefore bad law and bad practice. The purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take step to deal with it.'

13. The facts that can be averred in a statement of claim cannot be strictly defined, but when one examines the pleadings one can see very clearly if it does not conform to the requirements contained in Order 18. The Pleadings are very important aspect of court proceedings,as it is what the other party has to answer and if that is not properly understood it cannot be answered adequately or formulate the defence properly and the process is abused causing unnecessary delay and inconvenience to all parties to aciton as well as to the court in proper administration of justice. The Plaintiff's amended statement of claim does not help any person to understand the alleged claim. It had ignored all the accepted norms of drafting and simply unintelligible.
    
14. In Supreme Court Practice(1999) at page 314 under the heading 'Need for compliance' of Order 18 where it was stated as follows
    

'Need for compliance- These requirements should be strictly observed (per May L. J. in Lipkin Gorman v Karpnale Ltd [1989] 1 W.L.R 1340 at 1352). Pleadings play an essential part in civil actions, and their primary purpose is to define the issues and thereby to inform the parties in advance of the case which they have to meet, enabling them to take steps to deal within 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"(see per Lord Edmund Davis in Farrell v Secretary of state for Defence [1980] 1 W.L.R 172 at 180, [1980]1 All E.R. 166 at 173)'. (emphasis is added)

15. In the Supreme Court Practice (1999) at page 315 under the heading 'Facts must be material' it was stated as follows
    

'Facts must be material- The words "contain only" emphasize that only facts which are material should be stated in a pleading. Accordingly, statement of immaterial and unnecessary facts may be struck out (Davy v Garrett[1878] UKLawRpCh 8; (1878) 7 Ch.D. 473; Rossom v Budge [1893] UKLawRpKQB 56; [1893] 1 Q. B. 571; Murray v Epsom local Board [1896] UKLawRpCh 177; [1897] 1 Ch. 35; and see also r 19). Unless, however, statements are ambiguous or otherwise embarrassing, the Court as a rule will not inquire very closely into their materiality (Knowlers v Roberts [1888] UKLawRpCh 42; (1888) 38 Ch.D. 263 at 271; Tomkinson v S.E. Ry. C (No2)(1887) 57 L.T 358)'

16. In Farrell v Secretary of State (Viscount Dilhorns) [1980] 1 All E.R 166 at 173 Lord Edmund –Davies held
    

'It has become fashionable in these days to attach decreasing importance to pleadings, and it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may on occasion have led to its being defeated. But pleadings continue to play an essential part in civil actions, and although there has been since the Civil Procedure Act 1833 a wide power to permit amendments, circumstances may arise when the grant of permission would work in justice or, at least, necessitate an adjournment which may prove particularly unfortunate in trials with a jury. To shrug off a criticism as 'a mere pleading point' is therefore bad law and bad practice. The purpose is to define the issues and thereby to inform the parties in advance of the case they have to meet and so enable them to take step to deal with it.' (emphasis is added)

100. CONCLUSION
     

17. The perusal of the statement of claim in this case shows that it is ambiguous and embarrassing to the defendants to answer. The statements averred in the amended statement of claim cannot substantiate the prayers. The entire statement of claim is not presented to the court in a comprehensible manner and the court had granted the Plaintiff an earlier opportunity to amend the statement but the plaintiff has not made use of that opportunity but made it even worse through the amendment. In the circumstances I will struck off the statement of claim and dismiss the action as it is ambiguous and embarrassing and has not complied with the requirements contained in Order 18 of the High Court Rules of 1988. The statement of claim contains plethora of immaterial facts, which resulted in any reasonable person not being able to understand it in order to answer to it properly. The conduct of the Plaintiff can be considered as an abuse of process, and the amended statement of claim will prejudice and embarrass the Defendants if they are asked to reply and proceed with action and also delay fair trial of the action.
    

4. FINAL ORDERS
   
   1. The amended Statement of claim is struck off and the action is dismissed.
   2. No costs.
      

Dated at Suva this 8th day of February, 2013.

Master Deepthi Amaratunga
High Court, Suva