IN THE HIGH COURT OF FIJI
AT LABASA
CIVIL JURISDICTION

Civil Action No: HBC 31 of 2014

BETWEEN:

SAMUELA NATA TUBUI 
the Turaga na Tui Loa, Head of the Mataqali Loa, instituting these proceedings on behalf of the Mataqali Loa of Lea Village, Cakaudrove, Vanua Levu.
1ST PLAINTIFF

RATU JOPE TUITOGA 
the Turaga na Tui Navadra of the Mataqali Rukuna instituting these proceedings on behalf of the Mataqali Rukuna of the Yavusa Navadra in the village of Lea in Savusavu, Vanua Levu.
2ND PLAINTIFF

AND:

URAIA RAINIMA 
of PA Cakaudrove Office, Savusavu, Civil Servant.
1ST DEFENDANT

AND:

CHINA RAILWAY FIRST GROUP (FIJI) COMPANY LIMITED 
a limited liability company having its principal place of business at 16 Crompton Place, Votua Road, Samabula, Suva.
2ND DEFENDANT

Appearances: Mr. Sen of Maqbool & Co for the Defendant/Applicant
Mr. Chand & Ms Ali for the Proposed Third Party.

RULING

INTRODUCTION

1.	In this action the plaintiff sues the defendants for trespass, extraction of resources and damages to their land situated at Navatu in Natewa 	Bay. The 1st Defendant is the Provincial Administrator in the Cakaudrove Provincial Office in Savusavu and is being sued for authorising the said trespass, extraction and subsequent damages to the said land. The 2nd defendant as the contractor in the upgrade of the road at Natewa Bay is sued for the said trespass, extraction and damages to the land.

THE APPLICATION

2.	Before the Master is an application by summons pursuant to Order 77 rule 7 by the 2nd Defendant for an order that leave be given for it to issue third party notice against the Attorney General of Fiji upon the following grounds:-

1.	The third party is sued pursuant to Crown Proceedings Act as the 1st defendant at all material times was a servant and agent and 	employee of the third party holding public office and performing his functions under the Minister concerned.

2.	The 2nd defendant was approached by the 1st defendant acting in his capacity as the Provincial Administrator performing his functions under the Government of Fiji to upgrade Vunilagi and Lea road on the condition that the 2nd defendant's independent contractors would be entitled to remove and dispose rotten rocks.

3.	The 1st defendant assured and undertook that all statutory requirements and necessary consents were obtained and gave permission to the 2nd defendant's independent contractors to undertake certain road works for upgrading of the said Vunilagi and Lea roads.

4.	On the assurance, undertakings and agreement with the 1st 	defendant and not otherwise, the 2nd defendant's independent contractors undertook the necessary works and completed the road works.

5.	The 2nd defendant had specifically represented that all necessary consents and statutory requirements were complied with and approved by the third party before the 2nd defendant's independent contractors undertook the work.

3.	In the above summons the 2nd defendant further provides the particulars of the grounds upon which the application is made. 

4.	The application was supported by an affidavit sworn by one Uday Pratap Law clerk of Wailevu, Labasa who states that he is authorised by the 2nd Defendant to swear the affidavit on its behalf. There was not, however, an authority annexed to the affidavit to state that there was such an authority, neither was the affidavit indorsed as is required under Order 41 rule 9. The application is considered on the summons only. 

5.	The application is opposed by the intended third party. Its affidavit in opposition states that the Provincial Administrator, that is the first defendant did not have any authority to act on behalf of the Government as an executing authority for the contract. It further states that the 1st Defendant has acted of his own volition. That is that the 1st Defendant acted without any authority of the Government and as such the 1st Defendant is not indemnified by the Government for acting without authority.

6.	In reply to the affidavit in opposition, the 2nd defendant in its affidavit sworn by one Jamila Saireen Bano Human Resources Administrator states that the Provincial Administrator at all times was the servant and agent of the Government of Fiji and acted on behalf of the proposed third party. Therefore the proposed third party is liable in the event of any liability being established against the 2nd Defendant. The 2nd Defendant further states that the 1st Defendant as the Provincial administrator is servant and agent of the Government who in his capacity had secured the supply of materials from various Mataqali. This affidavit was indorsed as required under the rules.

7.	At the conclusion of the hearing on the 19 March 2015 the parties were granted time in which to file submission which they did promptly and I am thankful for their contribution.

8.	The summons was also served on the plaintiff who, although did not file an affidavit in opposition, opposed the application in its 	submission.

The Determination

9.	Order 77 rule 7(2) under which the application is made states:-

Third party notices (O.77, r.7)

7.-(1) Notwithstanding anything in Order 16, a third party notice (including a notice issuable by virtue of Order 16, rule 9) for service on the State shall not be issued without the leave of the Court, and the application for the grant of such leave must be made by summons, and the summons must be served on the plaintiff and the State.

(2) Leave to issue such a notice for service on the State shall not be granted unless the Court is satisfied that the State is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the State has arisen and as to the departments and officers of the State concerned.

10.	The purpose of Order 77 is to determine with certainty the procedures regarding any civil proceedings against the State including the circumstances in which the State's liability is said to have arisen as 	well as to the government department and officers of the State. 

11.	One of the ways in which this is achieved is by ensuring that, where a third party notice is required to be served on the State, the Court must first grant leave before such a notice is served. Order 77 rule 7 provides the vehicle by which such a service can be granted. This Order requires that the application is to be made by summons and that the summons to be served on the plaintiff and the State.

12.	The reason such an application is to come in such a way is that the 	Court shall not grant leave unless it is satisfied that the State has all the information as it reasonably requires as to the circumstances in which it is alleged that the liability of the State has arisen and as to the departments and officers of the State. This is what Order 77 rule 7 requires.

13.	The rationale behind such a strict procedural requirement arose from the doctrine of the immunity of the State. This doctrine developed 	from the concept that the King could not be sued in his own Court. The erosion of such an immunity took a few hundred years and as the liability of the Crown became increasingly recognised at common law the general policy was to consent to the proceedings if an arguable case can be made.

14.	Has the State been informed of all the information it requires as to the circumstances in which the alleged liability of the state arose? The 	answer to these questions will therefore determine whether leave will 	be granted.

15.	The 2nd Defendant in its submission states that it is clear that the 1st Defendant was acting in his capacity as the provincial administrator of the province of Cakaudrove. It is also clear from paragraph 7 of the 	statement of claim that:-

"That on or about the 20th October 2012; the 1st defendant entered into Material Supply Agreement with the Contractor for the provision of rotten rocks material from their Vunilagi-Lea Road to be used by the 2nd defendant in the maintenance and improvements of a road project along the Buca Bay road works."

16.	In other words there exists an agreement between the defendants for the provision of rotten rocks material for use by the 2nd Defendant. According to the 2nd defendant the 1st Defendant being a servant of the State makes the State as the proposed Third Party liable for his actions. 

17.	Presumably this relationship can be proved as a fact by the 	production of a contract or a document which purports to be a contract. But the application by the 2nd defendant proposes that the State has in its possession all the information as it reasonably requires as to the circumstances of the States liability.

18.	The legal principles adopted by the 2nd defendant are those expounded by Lord Dennings in the English Court of Appeal in In Re Vandervell's Trusts (1971) A.C. 912. This principle was referred to by Master Udit in Raghubir -v- Abid Hussain & Saukat Ali Labasa High Court Civil Action No. 23 of 2006 as stating that the wording of the rule permits the Court to add a person as a defendant whenever it seems just and convenient to do so. The House of Lords however, took a more restrictive approach. As a result the rules were amended to accommodate the flexible approach taken by Lord Denning.

19.	In fact the 2nd Defendant went so far as to suggest that this approach should be adopted because if it was later found that the party 	intended to be joined was wrongly joined then costs was sufficient remedy for them as was determined in the Raghubir case; (here a cost order of $5000:00 was paid to the State for being wrongly joined)

20.	I am not certain that this is the proper approach and the Court ought not to be so flexible as to take costs into account in its determination of whether a party, or more particularly, the State ought to be joined. What is required to be satisfied is whether "the State is in possession of all such information as it reasonably requires as to the circumstances in which it is alleged that the liability of the State has arisen and as to 	the departments and officers of the State concerned". To take the 	suggested approach is to disregard the rules and rely also on costs as being sufficient for the inconvenience caused to a party to come to Court.

21.	There is a difference between the application made in the Raghubir matter and this matter. Master Udit in that matter said in the very beginning of his ruling that the application, although uncommon, was not irregular. This statement stems from the knowledge that the application ought to have been made under Order 77 and not Order 16. In my view, as a result of the Court trying to accommodate the application of binding the State under Order 16 other considerations came into play. 

22.	One of these was the issue determined in Montgomery -v- Foy 	Morgan & Co (1895) 2QB 321 where Lord Esher MR stated that:

"I can find no case which decides that we cannot construe the rule as enabling the Court under such circumstances to effectuate what was one of the great objects of the Judicature Act, namely, that where there is one subject-matter out of which several disputes arise, all parties may be brought before the Court and all those disputes may be determined at the same time without delay and expense of several actions and trials"

23.	The issue was that if there were possibly other parties to the action 	then it was better that the matter be resolved by bringing all the parties together in one hearing. The plaintiff in that matter rightly brought to the Court's attention the fact that the application ought to have been brought under Order 77 through a summons. This is so because Order 77 rule 7 specifically states that notwithstanding anything in Order 16 a third party notice against the State shall not be issued without leave. In other words an application to bind the State is a specific application and the only considerations are those provided for under Order 77 rule 7. 

24.	The supply of rotten rocks to the 2nd Defendant can be proved by the production of an agreement in writing. As the 2nd Defendant is a party to the contract it must be able to produce into its affidavit evidence this document. The 2nd Defendant did not produce this document but 	prefers rather to say that as the State is a party it and must have this document in its possession. The 1st defendant too has been rather loud by the absence of his statement of defence, he too can produce a copy of the agreement.

25.	The question this Court asks is, what is the 2nd Defendant's difficulty in producing that document if it is a party to the agreement. Would that be a simple straight forward way of establishing the circumstances in which the alleged liability of the State arose and secondly why didn't the plaintiff chose not to add the State as a party from the beginning? One cannot help but think that there are some other reasons for this inadvertence.

26.	In my view, it is only in matters where the circumstances of the alleged liability of the State is uncertain, that the flexible approach of Lord Denning in Re Vandervell's Trusts can be used. Here the circumstances of the relationship between the parties are clear and there is no need to use the flexible approach.

27.	The proposed third party provided a well written and researched submission and its position is simply that the 1st Defendant although a civil servant, was not acting on behalf of the State but in his personal capacity. The State does not have any documents regarding the contract of supply of rotten rocks to the 2nd Defendant simply because it is not privy to it.

28.	The procedures adopted by the State in the procurement of goods or services for or on behalf of the State are laid out by section 12 of the 	Financial Instructions 2010. This provision states that all procurement 	of goods and services must be in accordance with the Procurement 	Regulations 2010. Section 7 (c) of the Procurement Regulations states that Permanent Secretaries shall have the authority to execute and manage all contracts signed on behalf of their Ministry or Department. This is one of five functions given to the Permanent Secretaries under the Procurement Regulations 2010. The 1st Defendant as a provincial administrator certainly does not have the power to enter into an agreement for the procurement of goods or services on behalf of the State.

29.	There are instances where by-passing the Financial Regulation in force at a particular time by public servants is fatal in matters of this nature (see Kabara Development Corporation Ltd -v- Attorney-General Civil Appeal No. 17 of 2007). In this instance the defendant was successful in its argument that the State was not responsible for the action of an officer who acted without adherence to the State's financial instructions. In other words even if the 1st defendant had acted on behalf of the State any claim against the State will be unsuccessful if the 1st defendant did not follow the Financial Instructions. 

30.	In this instance we need not go that far, because the 2nd Defendant who has the onus to provide the Court with all the information regarding the circumstances of the alleged liability of the State took the unusual step of not doing so. This Court cannot be put into a position to guess the circumstances by which the State is alleged to become liable. 

31.	The plaintiff in objecting to the application to join, the State submitted that only the 1st & 2nd defendant entered into a contract for the provision and extraction of soil, stones and rotten rocks material for 	the improvements of road projects undertaken by the 2nd defendant. Further the contract was entered into on the 20 October 2012 in the 1st Defendant's own name Uraia Rainima and not in his capacity as the provincial administrator.

32.	There were five grounds in support of the application for a third party notice to be served on the State. The first is that the State is sued pursuant to the Crown Proceedings Act because the 1st defendant according to the 2nd Defendant was a servant agent and employee of the third party and therefore performed his functions under the Minister concerned.

33.	The second was that the 2nd Defendant was approached by the 1st defendant acting in his capacity as the Provincial Administrator performing his functions under the Government of Fiji to upgrade the Vunilagi Lea Road on the condition that the 2nd defendant's independent contractors would be entitled to remove and dispose rotten rocks.

34.	The third was that the 1st Defendant assured and undertook that all the necessary consents were obtained and gave permission to the 2nd defendant's contractors to undertake certain road works for upgrading the Vunilagi Lea roads.

35.	The fourth was that the 1st defendant gave an assurance and undertakings and agreement the 2nd defendants independent 	contractors undertook the necessary works and completed the road works.

36.	The fifth was that the 2nd defendant had specifically represented that all necessary consents and statutory requirements were complied with and approved by the third party before the 2nd defendant's independent contractors undertook the work.

37.	The above grounds appears to be the circumstances upon which the State is said to be liable, however if one looks at these circumstances in detail the State is found not to be bound by the actions of the 1st defendant. On the first ground the State is not yet sued under the Crown Proceedings Act in that it presupposes that the 1st defendant was acting in his capacity as a servant of the State.

38.	All the grounds are presumptuous of the above fact and the proof of any involvement of the State can be easily found in the agreement reached between the parties. The State could not produce the agreement, the 2nd Defendant who is a party to it does not appear to want to produce it and the 1st defendant is silent as to its existence. How can the State be bound by actions of a third party founded on a presumption when the nexus between the actions of the 1st defendant 	and the State is unclear. 

39.	In other words the 2nd defendant is stating that the 1st defendant by the mere fact that he is a public servant draws the probable consequence that he is acting for the State. This is not necessarily true. The truth of this fact can be by direct testimony of either the 1st defendant or the State. The 1st defendant has yet to file a defence and if he was indeed acting on behalf of the State the State would have been involved by now. 

40.	The second method to which this presumption can be proved is by the 2nd defendant to produce the agreement which categorically shows who the parties are.

41.	The plaintiff, who should have the evidence to litigate, states in its 	submission that the agreement entered into between the 1st defendant and the 2nd defendant to supply rotten rocks was entered into by the 1st defendant in his own name, and not in his capacity as the Provincial Administrator. As is stated earlier the production of the 	agreement is the clear nexus between the actions of the 1st defendant which brings to bear the liability of the State. In my view one cannot presume that the State is bound but the circumstances must be clear for the Court to grant leave to issue a third party notice against the 	State. 

42.	In the circumstances I am of the view that the State ought not be joined as a party to the proceedings as there are no clear 	circumstances before this Court in which the alleged liability of the 	State has arisen.

Costs
43.	The State submits further that as there is no cause of action against it cost should be awarded in its favour on a full solicitor/client indemnity basis or in the alternative that costs be awarded summarily on a higher scale. I am of the view that the State is entitled to costs in this matter but not necessarily on an indemnity basis for the following reasons. In the first instance I am of the view that the proper costs which is to be awarded should be qualified costs against the expense incurred which includes all such costs as are proper and necessary for defending the application.

44.	Secondly I am also of the view that there are no unusual costs or costs incurred unnecessarily in the matter. The State defended its 	right not to be joined and objected to it from the beginning and the matter dealt with on that basis. It is however entitled to costs on a party/party basis in defending what was necessary for it.

45.	Order 62 rule 3 of the High Court Rules provides the authority upon which the Court can award costs, the rule states:-

R(3)(1)"Subject to the following provisions of this order, no party shall be entitled to recover any costs of or incidental to any proceedings from any other party to the proceedings except under an order of the Court."

Rule 3(2):"If the Court in the exercise of its discretion sees fit to make any order as to costs of or incidental to any proceedings, the Court shall, subject to this order, order costs to follow the event, except when it appears to the Court that in the circumstances of the case some other order should be made as to the whole or any part of the costs".

The award of costs is at the discretion of the court, a discretion exercised judiciously. For the Court to exercise its discretion it must do so "on fixed principles that is according to rules of reason and justice not according to private opinion"( Sharpe v. Wakefield (1891) A.C. 173) or even benevolence (Kierson v. Joseph L. Thompson & Sons Ltd., (1913) 1.K.B. 587), or Sympathy (Bevington v. Perks (1925). The exercise of the judicial discretion must be justifiable (Ritter v. Godfrey. (1920) 2 KB 47); for example in the successful enforcement of a legal right without misconducting himself/herself he/she is entitled to costs as of right (Cooper v. Whittingham (1880) 15 Ch.D.501).

46.	The settled practice is that in the absence of special circumstances a successful litigant is entitled to costs and it is therefore necessary, to show some ground for exercising discretion refusing an order for cost. Although an award of costs often follow the event in civil matters, this is not necessarily so.

47.	Given the above I am of the view that the proper costs to be awarded is on a party/party basis summarily assessed at $800:00.

Conclusion

48.	For the reasons stated above the Court is of the view that the 2nd defendant's application made pursuant to Order 77 rule 7 to issue a third party notice to the State is denied. I further agree that the intended third party be awarded costs, which is summarily assessed at $800:00.

Orders 

49.	I therefore make the following Orders:-

1.	2nd Defendant's application to issue third party notice against the State is denied;

2.	That costs is summarily assessed at $800:00 payable to the State within 21 days from the date of this ruling.

H. A. Robinson
MASTER
High Court, Labasa

10 September 2015