IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

[CIVIL JURISDICTION]

Civil Action No. HBC 100 of 2012

BETWEEN:	KENTO (FIJI) LIMITED, a limited liability company having its registered office at P O Box 124, Nadi.
Plaintiff
AND:	NAOBEKA INVESTMENT LIMITED, a limited liability company having its registered office at P O Box 1719, Nadi.

1st Defendant

AND:			iTAUKEI LAND TRUST BOARD formerly known as NATIVE LAND 			TRUST BOARD, a statutory body registered under the provisions of 			the Native Land Trust Act having its head office at Suva, Fiji.

2nd Defendant

Before	:		Acting Master U.L. Mohamed Azhar
Counsels:		Mr. Sosefa S Inoke for the Plaintiff
Ms. Patricia Mataika and Mr. I. Tikoca for the 1st Defendant

Date of Ruling:	 12th September 2017

RULING
(On res judicata, striking out under O 18, r 18 and illegality of contract)

Introduction
01.	This is the summons filed by the 1st defendant on 13.06.2017 to strike out the plaintiff’ claim against the 1st defendant. The summons is made pursuant Order 18 rule 18 of the High Court Rules and the inherent power of the Court. At the outset I must say that this summons is notable for the inadvertence of the solicitors and the supporting affidavit too is not complete in its endorsement. The second paragraph states that, the affidavit of one Anjali Devi filed therewith is relied upon (a) the purported lease is an illegal contract and (b) the plaintiff’s action is frivolous and vexatious. However, the supporting affidavit was sworn by one Asiveni Lutumailagi – the manager of the 1st defendant company. There should not be any relevance to the said affidavit of Anjali Devi. The other fact or action of being inadvertent is that, the last paragraph states that, “The 2nd Defendant relies on the Affidavit of Asiveni Lutumailagi deposed on 11th day of January 2017. In fact the summons was filed by the 1st defendant and not by the 2nd defendant that is ITAUKEI LAND TRUST BORD. The supporting affidavit too is not in compliance with Order 41 rule 9 of the High Court Rules which requires the indorsement. The indorsement part in the said affidavit is blank. However considering Chandrika Prasad v. Republic of Fiji & Attorney General [2001] HBC 0217/00L 17 January 2001, I allow the said affidavit of Asiveni Lutumailagi.

02.	This summons was vigorously opposed by the plaintiff on the ground that, the arguments on the illegality of the lease and the investment certificate, were dismissed by this court by the ruling of previous Master, when the 1st defendant filed the summons under the same Order 18 rule 18 and thereby the principle of Res Judicata will apply to this summons filed by the 1st defendant for the second time. 

03.	To avoid the reproduction of the pleadings of the parties and to put the background of the case briefly, the plaintiff is a registered company in Fiji and the registered proprietor of land lease known as Malamala Island in the Tikina of Nadi, Province of Ba. The 1st defendant is the sub lessee of the plaintiff. The first defendant, issued notices on the plaintiff to rescind or cancel the sublease citing multiple reasons in those notices. The main reasons are; (a) that the plaintiff has failed to carry out the survey under clause 5 (a) of the third schedule to the sublease within six months of the sublease, (b) the sublease was signed by one director under common seal of the plaintiff is no longer acceptable to the first defendant and (c) the plaintiff do not have proper approval by the Foreign Trade and Investment board and now known as Investment Fiji.  The statement of claim of the plaintiff contains four separate alternative causes of actions and seeks, among other reliefs, for a declaration that any purported cancellation of the sublease is illegal, invalid and void. The plaintiff also sought the compensation from the 1st defendant in sum of $ 1,268,000.00. 

04.	On the other hand the 1st defendant took up three defences, namely; (a) that the said sublease was not properly executed by the plaintiff and the first defendant subsequently withdrew its offer, (b) that the said lease had ceased to exist due to the plaintiff’s failure to carry out the survey pursuant to clause 5(a) of the third schedule to the sublease and (c) that, the lease had been properly rescinded by the 1st defendant. The first defendant also had alternative four counter claims. Wherefore the first defendant denied the claim of the plaintiff and sought the dismissal of the same with indemnity cost. Meantime, the second defendant categorically denied the proprietorship of the plaintiff and claimed that the plaintiff has no legal capacity to enter into any lease for the purpose of operating a day cruise business. The plaintiff has no proper approval to operate a day cruise business by the Investment Fiji. In view of this lack of legal standing of the plaintiff, the second defendant denied the averments in the statement of claim and sought to dismiss the claim of the plaintiff in whole. 

Submissions of the parties
05.	Filling this summons to strike out plaintiff’s action, the first defendant argued that two directors of the plaintiff company, namely Michael Clowes and his wife are Australian citizens and they obtained Foreign Investment Certificate which is annexed as “AL 1” with the affidavit of Asiveni Lutumailagi. The first defendant further argues that, the plaintiff company was granted permission as per the said “AL 1” only to lease a vessel to Sun Sail Pty Limited. However, the plaintiff company, contrary to the said Investment Certificate has subleased the land and thereby engaged in illegal activity. To substantiate this argument, the first defendant annexed a letter marked “AL 2” with the affidavit of Asiveni Lutumailagi. The said “AL 2” is the letter dated 02.08.2012 written by the Manager of Investment Registration, Facilitation and Monitoring of Investment Fiji and addressed to the Legal Officer of the Second Defendant. According to the said letter, the plaintiff company is registered with the Investment Fiji to lease a vessel to Sun Sail Pty Limited and it is illegal for a foreign company to engage in any other business activities not specified in the certificate. If such company wishes to engage any other business, it should request for extension of business activity. In a nutshell, the first defendant argues that, the business activity, for which the Investment Certificate was issued for the plaintiff company, is leasing a vessel to Sun Sail Pty Limited and the lease it entered with the first defendant is, therefore, illegal as the plaintiff company exceeded the permission granted. As such the action based on the said illegal lease is frivolous and vexatious.

06.	Conversely, the plaintiff company by the affidavit filed by its one of the directors stated that, the company initially had proposal to lease a vessel to the said Sunsail Proprietary Limited and later changed the plan and wanted to do the whole operation without leasing to the said company. The plaintiff company then spoke to the chairman and met with the officers of the Investment Fiji to get the extension of business activity and they agreed to make requisite amendments to the certificate. In any event, the plaintiff submitted that, the illegality of the lease and the lack of permission in the certificate of investment were dealt with in the ruling delivered on 16th October 2012 by the then Master, Justice Rajasinghe on the summons filed the first defendant under the same Order 18 rule 18. The plaintiff further stated that there was a second decision by the other Master, Justice Ajmeer on 25.02.2014 refusing the leave sought by the first defendant to amend the summons that was dealt with the previous Master Justice Rajasinghe. Therefore, the plaintiff argues that, the doctrine of Res Judicata applies and forbids the first defendant from raising the same point. It would be appropriate at this point to examine the doctrine of Res Judicata and consider the its applicability to the summons filed by the first defendant before venturing into the examination of law on striking out of an action under Order 18 rule 18.

Res Judicata

07.	The term Res Judicata is Latin term which means “a matter adjudged”; “a thing judicially acted upon or decided”; “a matter or thing settled by judgment” etc. The full Latin maxim reads as “Res judicata pro veritate accipitur” which means ‘a thing adjudged must be taken for truth’ and over a period of time it shrunk to mere “Res Judicata”. This doctrine is based on two Latin maxims. The first one is “Nemo bebet big vexam pro una et eadem causa” and it means that “No one ought to be twice vexed for one and the same cause”. The second one is “Interest rei publicae ut sit finis litium,” and it means that “it is for common good that there be an end to litigation”. The effect of this doctrine is that, it estopps a party from later controverting any issue or question that had already been decided by a court and also prevents a party from obtaining same relief for the second time from the same party.  A passage considered to be the best known or most authoritative on this doctrine is found in the judgment of Sir James Wigram VC in Hendersen v. Hendersen (1843) Hare 100. It was held at page 115 as follows;

“In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

08.	The above authority sets a general rule that, the courts require the litigants to bring forward the entire case for adjudication. This requirement is not limited to issues or the points upon which the courts may form their opinion and pronounce the judgement, but it extends to each and every point which properly belonged to the subject of the litigation and which the litigants exercising reasonable diligence and care might have brought forward at the time of adjudication. It is expected from a litigant to bring all the issues that a litigant exercising reasonable diligence and care might have brought. Thus it involves the application of an objective test in which the conduct of the litigant is compared to that of a reasonable person under similar circumstances. The rationale is that all the aspects of a matter will be finally decided by a court of law and in that sense it is based on the public policy that litigation should not drag on forever and the defendant should be protected from the successive oppressions by the multiple suits. This proposition was upheld by the English Court of Appeal in Barrow v. Bankside Agency Ltd.[1996] 1 All ER 981. Lord Justice Sir Thomas Bingham MR with whom Peter Gibson and Saville L JJ agreeing held at page 983 that;  
“The rule in Hendersen v Hendersen (1843) 3 Hare 100, [1843-60] All ER Rep 378 is very well known. It requires the parties, when a matter becomes the subject of litigation between them in a court of competent jurisdiction, to bring their whole case before the court so that all aspects of it may be finally decided (subject, of course, to any appeal) once and for all. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise. The rule is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest as well as that of the parties themselves, that litigation should not drag on forever and that a defendant should not be oppressed by successive suits when one would do. That is the abuse at which the rule is directed.
09.	The examination of the successive decisions after Hendersen v Hendersen (supra) reveals that, the courts have gone to the extent to declare any such new issues, which the litigants could have put forward for decision on the first occasion but failed to raise, being brought, as an abuse of the process of the court. There is plethora of cases which is evident to that proposition and of which below are some which reflect the trend of the English court after the rule in Hendersen v Hendersen (supra). 
10.	Somervell LJ in Greenhalgh v Mallard [1947] 2 ALL ER 255 at 257)  held that; 
‘issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them’
11.	In Yat Tung Investment Co Ltd v. Dao Heng Bank Ltd a claimant who had unsuccessfully sued a bank on one ground brought a further action against the same bank and another party on a different ground shortly thereafter. Giving the advice of the Judicial Committee of the Privy Council, Lord Kilbrandon said (See [1975] AC 581 at 589 – 590, [1975] 2 WLR 690 at 696.):
“The second question depends on the application of a doctrine of estoppel, namely res judicata. Their Lordships agree with the view expressed by McMulin J, that the true doctrine in its narrower sense cannot be discerned in the present series of action, since there has not been, in the decision in no. 969, any formal repudiation of the pleas raised by the appellant in no. 534. Nor was Choi Kee, a party to no. 534, a party to no. 969. But there is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings.” (emphasis added)
12.	However, the recent cases on this area have shown that the English courts have diverged from the earlier view of abuse of process and turned to distinguish between the Res Judicata and abuse of process not qualifying a Res Judicata. Reference need not be made to all of them except citing the following case Bradford & Bingley Building Society v Seddon (Hancock and ors, t/a Hancocks (a firm), third parties) [1999] 4 ALL ER 217, [1999] 1 WLR 1482 which was decided by the Court of Appeal. Auld LJ with whom Nourse and Ward LJJ agreeing, said:
‘In my judgment, it is important to distinguish clearly between res judicata and abuse of process not qualifying as res judicata, a distinction delayed by the blurring of the two in the court’s subsequent application of the above dictum. The former, in its cause of action estoppel form, is an absolute bar to relitigation, and in its issue estoppel form also, save in “special cases” or special circumstances’. See Thoday v Thoday [1964] 1 ALL ER 341 at 352, [1964] P 181 at 197 – 198 per Diplock LJ and Arnold v National Westminster Bank plc[1991] 3 ALL ER 41, [1991] 2 AC 93. The latter, which may arise where there is no cause of action or issue estoppel, is not subject to the same test, the task of the court being to draw the balance between the competing claims of one party to put his case before the court and of the other not to be unjustly hounded given the earlier history of the matter. Thus, abuse of process may arise where there has been no earlier decision capable of amounting to res judicata (either or both because of the parties or the issue are different) for example where liability between new parties and/or determination of new issues should have been resolved in the earlier proceedings. It may also arise where there is such an inconsistency between the two that it would be unjust to permit the later one to continue”. (See [1999] 4 ALL ER 217 at 225, [1999] 1 WLR 1482 at 149.)  
Auld LJ continued:
“In my judgment, mere “re’litigation, in circumstances not giving rise to cause of action or issue estoppel, does not necessarily give rise to abuse of process. Equally, the maintenance of a second claim, which could have been part of an earlier one, or which conflicts with an earlier one, should not, per se, be regarded as an abuse of process. Rules of such rigidity would be to deny its very concept and purpose. As Kerr LJ and Sir David Cairns emphasized in Bragg’s case [1982] 2 Lloyd’s Rep 132 at 137 and 138 – 139 respectively, the court should not attempt to define or categorize fully what may amount to an abuse of process; see also per Stuart Smith LJ in Ashmore v British Coal Corp [1990] 2 ALL ER 981 at 988, [1990] 2 QB 338 at 352. Bingham MR underlined this in Barrow v Bankside Members Agency Ltd [1996] 1 ALL ER 981 at 986, [1996] 1 WLR 257 at 263, stating that the doctrine should not be “circumscribed by unnecessary restrictive rules” since its purpose was the prevention of abuse and it should not endanger the maintenance of genuine claims; see also [1996] 1 ALL ER 981 at 989, [1966] 1 WLR 257 at 266 per Saville LJ. Some additional element is required, such as a collateral attack on a previous decision (see eg Hunter v Chief of Constable of West Midlands [1981] 3 ALL ER 727, [1982] AC 529,  Bragg’s case [1982] 2 Lloyd’s Rep 132 at 137 and 139 per Kerr LJ and Sir David Cairns respectively and Ashmore v British Coal Corp) some dishonesty (see eg Bragg’s case at 139 per Stephenson LJ and Morris v Wentworth Stanley [1999] 2 WLR 470 at 480 and 481 per Potter LJ) or successive actions amounting to unjust harassment (see e.g. Manson v Vooght [1999] BPIR 376”) (See [1999] 4 ALL ER 217 at 227 – 228, [1999] 1 WLR 1482 at 1492.)

13.	Having extensively considered the path on which the rule in Henderson v Henderson (supra) passed through over period of time, the House of Lords had an opportunity in Johnson v. Gore Wood & Co (a firm) [2001] 1 All ER 481  to discuss a plethora of cases on the subject matter. In that case the House of Lords re-stated the rule in Henderson v Henderson  and held that:
“what is now taken to be the rule in Henderson v Henderson has diverged from the ruling which Wigram V C made, which was addressed to res judicata. But Henderson v Henderson abuse of process, as now understood, although separate and distinct from cause of action estoppel and issue estoppel, has much in common with them. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis or efficiency and economy in the conduct of litigation, in the interest of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary, before abuse may be found, to identify any additional element such as collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceedings involves what the court regards as unjust harassment of a party. It is however, wrong to hold that because a matter could have been raised in early proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether , on given facts, abuse is to be found or not. Thus while I would accept that lack of funds, would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice”.

14.	It seems that, the House of Lord has encouraged a very balanced view for the courts to adopt when applying the doctrine of Res Judicata set out in Henderson. Thus, bringing of a claim or the raising of a defence in later proceedings may amount to abuse if the court is satisfied that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. However, it is necessary to identify any additional element such as collateral attack on a previous decision or some dishonesty, before abuse may be found, but where those elements are present the later proceedings will be much more obviously abusive. Moreover, there will rarely be a finding of abuse unless the later proceedings involve what the court regards as unjust harassment of a party. It always better for the court to ask whether, in all circumstances of the case, the conduct of a party is an abuse and if it is so, then to ask whether such abuse is excused or justified by special circumstances or not. The overriding factor, however, should be the interest of justice. The Court of Appeal in Barrow v. Bankside Members Agency and another [1996] 1 All ER 981 held at page 989 that:

“The object of the rule of res judicata was said by Lord Blackburn in Lockyer v Ferryman (1872) 2 App Cas  519 at 530 to be put on two grounds – the one public policy, that it is in the interest of the state that there should be an end to litigation, and the other, the hardship on the individual that he should be vexed twice for the same cause. Thus, as Somervell LJ stated in Greenhalgh v Mallard [1947] 2 ALL ER  255 AT 257, the principle covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them. In Brisbane  City Council v A-g for Queensland [1978] ALL ER 30 at 36, [1979] AC 411 at 425 Lord Wilberforce described ‘abuse of process’ as the true basis of the doctrine, a description approved by Lord Keith in the House of Lords in Arnold Westminster Bank plc [1991] 3 ALL ER 41 at 48, [1991] 2 AC 93 at 107. What this and other cases have emphasized, of course, is that the rule does not apply to all circumstances. As Lord Keith observed in Arnold [1991] 3 ALL ER 41 at 50, [1991] 2 AC 93 at 109, one of the purposes of estoppel being to work justice between the parties, it is open to the courts to recognize that in special circumstances inflexible application of it may have the opposite result. The existence of special circumstances excluding the application of the rule was, of course, recognized by Wigram V-C himself in the passage I have quoted”.  

15.	Later in 2003, Lord Justice Clarke in Dexter Ltd v. Vieland Boddy [2003] EWCA Civ 14 having examined the authorities from Henderson to Johnson v Gore Wood & Co  summarized in a very simple and classic way the principles that derived from those authorities. This manifestly demonstrates that, the rule in Henderson since its express adoption till Johnson v Gore Wood & Co has been developed to what is now referred to as an ‘Extended Doctrine of Res Judicata’ by the broad merit based approach of the English court, which intended the protection of interest of justice. Lord Justice Clarke said in para 49 and 50 that:
“The principles to be derived from the authorities, of which by far the most important is Johnson v Gore Wood & Co [2002] 2 AC 1, can be summarized as follows:

i)	Where A has brought an action against B, a later action against B or C may be struck out where the second action is an abuse of process.

ii)	A later action against B is much more likely to be held to be an abuse of process than a later action against C.

iii)	The burden of establishing abuse of process is on B or C or as the case may be 

iv)	It is wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive

v)	The question in every case is whether, applying a broad merits based approach, A’s conduct is in all the circumstances an abuse of process

vi)	The court will rarely find that the later action is an abuse of process unless the later action involves unjust harassment or oppression of B or C

Proposition ii) above seems to me to be of importance because it is one thing to say that A should bring all his claims against B in one action, whereas it is quite another thing to say that he should bring all his claims against B and C (let alone against B,C , D, E, F and G) in one action. There may be many entirely legitimate reasons for a claimant deciding to bring an action against B first and, only later (and if necessary) against others”. 

16.	Port of Melbourne Authority –v- Anshun Proprietary Limited [1981] HCA 45; [1981] 147 CLR 589 is the most celebrated case decided by the High Court of Australia, which analyzed the rule in Henderson. Whilst affirming the rule in Henderson, the High Court of Australia has extended it to the ‘reasonableness’. Since pronounce of this judgment by the High Court, this doctrine is now known in Australia as “Anshun Estoppel”. It was held in that case that:
“In this situation we would prefer to say that there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding. In this respect, we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings e.g. expense, importance of the particular issue, motives extraneous to the actual litigation to mention but a few. See the illustrations given in Cromwell v County of Sac. (1876) 94 US (24 Law Ed, at p 199) (at p603)
It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment. In this respect the discussion in Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1 is illuminating. (at p603)”.
17.	This modern extended doctrine was briefly explained by Spencer, Bower, Turner and Handley in ‘The Doctrine of Res judicata, (3rd edition) 1996, after analyzing all the cases  from Hendersen -v- Hendersen (per, Wigram VC), Greenhalgh -v- Mallard [1974] 2 ALLER 255 (per Somervelle), to Port of Melbourne Authority -v- Anshu Proprietary Limited (per Gibbs CJ, Mason and Aickin JJ). It reads that:
“In 1843 Wigram VC referred in Henderson to “points which properly belonged to the subject matter of litigation in earlier proceedings”. Somervell LJ (‘part of the subject matter of the litigation”) and the Full Court of Hong Kong (“necessary and proper”) echoed this approach in slightly different language. The test of reasonableness in Anshun attempted to work out the underlying principle. It can be seen to be derived from the requirement in Henderson that the point should “properly belong” to the earlier litigation coupled with the concept of vexatious and unreasonable conduct central to the exercise of the court’s powers to prevent abuse of its process.

It is therefore suggested that the extended doctrine does not prevent a party bringing forward in later litigation a cause of action not previously adjudicated upon, provided it is not substantially the same as one that has been, unless success in the new proceedings would result in inconsistent judgments”. 
18.	The question may, now, arise as to whether this extended doctrine is applicable in Fiji jurisdiction. The was simply answered by the Fiji Court of Appeal in Reserve Bank of Fiji –v- Gallagher Civil Appeal No. ABU 0030, ABU 0031, ABU 0032/2005 (14th July, 2006). Their Lordships Ward P and Baker JA and Henry JA said as follows at paragraph 70 when the counsel referred to many manifestations of applications of the rule in Henderson :
“Counsel referred us to many manifestations of applications of the Henderson rule. We find it unhelpful to review them all since we are attracted by the non-dogmatic approach in Johnson v. Gore Woods and the reasonableness approach in Anshun”.
19.	In the instant case, as mentioned above, the first defendant filed the Summons dated 27.06.2012 moving the court to exercise its discretionary power to strike out the claim of the plaintiff under Oder 18 rule 18. The said summons had some other and alternative prayers in addition to the prayer to striking out.  Inevitably, I re-produce main part the said summons for the clarity and better understanding of the prayers it contains as it matters for the analysis later. It is as follows;

THAT the Plaintiff’s action and claim against the Defendants be struck out and dismissed on the following grounds that:-

a)	It discloses no reasonable cause of action;

b)	It is scandalous, frivolous or vexatious;

c)	It is an abuse of the process of this Honourable Court.

Alternatively,

a)	That there be a trial of a preliminary point that the sublease alleged by the Plaintiff was not executed buy it and 1st defendant had rescinded its offer, but if executed by it, the alleged sublease ceased to have effect by virtue of clause 5(a) of the Third Schedule of the alleged sublease and the Plaintiff is not entitled to any reliefs;

b)	That the determination of the preliminary point be dealt with on the affidavit material filed by the Plaintiff in his application for injunction orders and so much of the evidence in the affidavits filed by the Defendants filed in opposition which have not been disputed by the Plaintiff

c)	Alternatively, this Honourable Court give directions for the reception of further evidence confined to the issue of the execution and the ceasing to take effect of the alleged sublease.

This application is made under Order 18 r 18, Order 33 Rules 3, 4(2), 5 and 7 and Order 3 Rule 4 of the High Court Rules 1988 and the inherent jurisdiction of the Honorable Court on the grounds that it would be expeditious and cost saving to try two preliminary point on whether the alleged sublease in the Plaintiff’s claim was executed by Plaintiff and if properly executed whether it has ceased to take effect.

20.	The then Master, Justice Rajasinghe in his ruling dated 16.10.2013 said in para 2 that, the parties to the action agreed at the hearing to confine the hearing of the above summons only to striking out under Order 18 rule 18 (1) (a) of the High Court Rules. The basis of the argument of the first defendant according to the affidavit filed supporting this summons was the illegality of the lease between the parties, as the plaintiff failed, as required by the law, to obtain the consent of iTLTB before entering into the lease with the first defendant. Having extensively considered the law and the facts of the case, the Master delivered his ruling dismissing the summons of the first defendant. It was evident from the said ruling that, the consent of iTLTB was obtained pending the said summons. The first defendant did not wish to appeal against this ruling, though it was against it. However, astonishingly, the first defendant filed another summons on 18 October 2013 seeking leave to amend its  previous summons dated 27 June 2013 which was dealt with by the then Master Justice Rajasinghe. The said summons was supported by an affidavit of Joeli Vatunitu sworn on 17 October 2013 was made pursuant to O. 20, r.7 of the High Court Rules 1988 and the inherent jurisdiction of the court. The second summons sought the following issues to be included in the previous summons;
a.	Whether the first defendants offer of a sublease was executed by the plaintiff (in accordance with the plaintiff's Articles of Association and\or the Companies Act Cap 247). And if not executed, whether the first defendant has rescinded its offer whereby there is no sublease between the first defendant and the plaintiff;

b.	Whether the non-registration of the sublease alleged by the plaintiff renders the said alleged sublease unenforceable and/or void;

c.	Whether the non-compliance of the Foreign Investments Act 1999 by the plaintiff renders the sublease alleged by the plaintiff unenforceable and\or void;

d.	Whether the subsequent written consent of the Itaukei Land Trust Board to the sublease alleged by the plaintiff renders the said alleged sublease null and void by virtue of the iTaukei Land Trust Act CAP 134;

e.	Whether the sublease alleged by the plaintiff ceased to have effect by virtue of clause 5(a) of the Third Schedule of the said alleged sublease (See paragraph 2 of Joeli Vatunitu's affidavit) [my emphasis].

21.	In the second summons, the first defendant specifically included the issue of late consent by iTLTB and the non-compliance of Investment Certificate which is the main point of argument in the instant summons before me. The then Master, Justice Ajmeer dismissed the said second summons too citing the ruling of previous Master. It is evident from para 17 of the ruling of the then Master Rajasinghe that, though the first defendant did not specifically took up the issue of non-compliance of Investment Certificate in the affidavit filed for the support of the motion, the same issue was urged by the counsel when the original summons was argued. The same issued was raised in the subsequent summons which too was dismissed by the successive Master and now the same issue has been advanced by the first defendant for the third time in the instant summons. Thus it proves some dishonesty on part of the first defendant in defending this case as he does not want to allow this case for proper trial, but intends to get it summarily dismissed on demurrer. It becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings (see: Yat Tung Investment Co Ltd v. Dao Heng Bank Ltd [1975] AC 581 at 589 – 590, [1975] 2 WLR 690 at 696 per Lord Kilbrandon). If raising an issue in subsequent proceedings, which could and therefore should have been litigated in earlier proceedings, becomes abuse of the process, raising the same issue for three times is triple abuse which the court should unconditionally condemn.

22.	Applying broad merits based approach; the conduct of the first defendant is, in all the circumstances of this case, an abuse of process. The counsel at the hearing stated that, this issue has never been raised in the previous summons. This cannot be accepted because, the para 17 of the ruling of previous Master dated 16.10.2013 and the prayers in the second summons filed first defendant are the proof for this. Even we suppose this issue never been raised in the earlier proceedings, as claimed by the first defendant, I am of the view that this should have been raised in the earlier summons for two reasons. Firstly, the first defendant was aware of the alleged non-compliance at that time, as it was admitted by the counsel at the hearing the instant summons before me. Secondly, this issue too relates to the question of reasonable cause of action and therefore properly belongs to the first summons filed by the first defendant. The rule on Res Judicata articulated by Sir James Wigram VC in Hendersen v. Hendersen (supra) requires that the party to bring every point which properly belongs to the subject matter. “The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”(see: Hendersen v. Hendersen (supra). I do not see any special circumstance which can justify the first defendant bringing this issue for the third time. In the absence of special circumstances, the parties cannot return to the court to advance arguments, claims or defences which they could have put forward for decision on the first occasion but failed to raise (see: Barrow v. Bankside Agency Ltd.[1996] 1 All ER 981 at p 983 per Lord Justice Sir Thomas Bingham MR).

23.	The summons before me seeks order to strike out plaintiff’s claim on the basis of frivolous and vexatious due to the non-compliance of Investment Certificate. This argument finally ends up on the proposition that, the plaintiff’s action of entering into lease was illegal which cannot be enforced by the court and therefore there is no cause of action. If this argument is upheld, the court should decide that there is no reasonable caution action and in return it will conflict with the earlier ruling of former Master, Justice Rajasinghe, which had already decided that, the plaintiff has a reasonable cause action. It has generally been accepted that a party will be estopped from bringing an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment (see: Brewer v Brewer [1953] HCA 19; (1953) 88 CLR 1).  It is important to note here that, the instant summons was filed when the matter was before a judge waiting a trial date. This further supports the bad motive of the first defendant of preventing the trial proper in the main case. Even we apply the extended doctrine of res judicata, which is more favourable to the defendant, the interest of justice requires dismissal of the instant summons as this court is, in all circumstances of this case, satisfied that, the conduct of the first defendant is not only an abuse, but also a real harassment and oppression of the plaintiff. Successive actions amount to unjust harassment (see e.g. Manson v Vooght [1999] BPIR 376”) (See [1999] 4 ALL ER 217 at 227 – 228, [1999] 1 WLR 1482 at 1492.). For the above reason I hold that, the doctrine of Res Judicata applies to instant summons and the first defendant is estopped from bring this summons on the same ground. On this ground itself, without examining the striking out principle under the Order 18 rule 18, the instant summons ought to be dismissed with the substantial amount of cost given the conducts of the first defendant. However, for completeness I now turn to discuss the principles of striking out under Order 18 rule 18 of the High Court Rules.

Principles of striking out

24.	The Order 18 rule 18 of the High Court Rule gives the discretionary power to strike out the proceedings for the reasons mentioned therein. The said rule read:

18 (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; or

(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;

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 (emphasis added)

25.	At a glance, this rule gives two basic messages and both are salutary for the interest of justice and encourage the access to justice which should not be denied by the glib use of summery procedure of pre-emptory striking out. Firstly, the power given under this rule is permissive which is indicated in the word “may” used at the beginning of this rule as opposed to mandatory. It is a “may do” provision contrary to “must do” provision. Secondly, even though the court is satisfied on any of those grounds mentioned in that rule, the proceedings should not necessarily be struck out as the court can, still, order for amendment. In Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 3) [1970] Ch. 506. It was held that the power given to strike out any pleading or any part of a pleading under this rule is not mandatory but permissive, and confers a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances relating to the offending plea. MARSACK J.A. giving concurring judgment of the Court of Appeal in Attorney General v Halka [1972] FJLawRp 35; [1972] 18 FLR 210 (3 November 1972) held that:

“Following the decisions cited in the judgments of the Vice President and of the Judge of the Court below I think it is definitely established that the jurisdiction to strike out proceedings under Order 18 Rule 19 should be very sparingly exercised, and only in exceptional cases. It should not be so exercised where legal questions of importance and difficulty are raised”.

26.	The first ground of the said rule is the absence of reasonable cause of action or defence as the case may be and no evidence is admissible for this ground for the obvious reason that, the court can come to a conclusion of absence of a reasonable cause of action or defence merely on the pleadings itself, without any extraneous evidence. His Lordship the Chief Justice A.H.C.T. GATES in Razak v Fiji Sugar Corporation Ltd [2005] FJHC 720; HBC208.1998L (23 February 2005) held that:
“To establish that the pleadings disclose no reasonable cause of action, regard cannot be had to any affidavit material [Order 18 r.18(2)]. It is the allegations in the pleadings alone that are to be examined: Republic of Peru v Peruvian Guano Company (1887) 36 Ch.D 489 at p.498”.
27.	Citing several authorities, Halsbury’s Laws of England (4th Edition) in volume 37 at para 18 and page 24, defines the reasonable cause of action as follows:

“A reasonable cause of action means a cause of action with some chance of success, when only the allegations in the statement of case are considered” Drummond-Jackson v British Medical Association [1970] 1 ALL ER 1094 at 1101, [1970] 1 WLR 688 at 696, CA, per Lord Pearson. See also Republic of Peru v Peruvian Guano Co. (1887) 36 ChD 489 at 495 per Chitty J;  Hubbuck & Sons Ltd v Wilkinson, Heywood and Clark Ltd [1899] 1 QB 86 at 90,91, CA, per Lindley MR; Hanratty v Lord Butler of Saffron Walden (1971) 115 Sol Jo 386, CA.
 
28.	Given the discretionary power the court possesses to strike out under this rule, it cannot strike out an action for the reasons it is weak or the plaintiff is unlikely to succeed, rather it should obviously be unsustainable. His Lordship the Chief Justice A.H.C.T. GATES in Razak v Fiji Sugar Corporation Ltd (supra) held that:

“The power to strike out is a summary power “which should be exercised only in plain and obvious cases”, where the cause of action was “plainly unsustainable”; Drummond-Jackson at p.1101b; A-G of the Duchy of Lancaster v London and NW Railway Company [1892] 3 Ch. 274 at p.277.”

29.	It was held in Ratumaiyale  v Native Land Trust Board [2000] FJLawRp 66; [2000] 1 FLR 284 (17 November 2000) 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] 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 128f; Dyson v Attorney-General [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) 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] HCA 1;(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) 53 ALJR 403; (1992) 30 NSWLR 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) 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) 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”.

30.	There is no much cases which deals with the other part of first ground that, the absence of the defence as the said sub rule states ‘It discloses no reasonable cause of action or defence, as the case may be’. The reasons being that, if there is no defence, generally the plaintiff will seek to enter the summary judgement under Oder 14, rather than seeking relief under Oder 18 rule 18 to strike out the defence. In any event, if there is any such application to strike out any pleading for not disclosing a defence, the courts can adopt the meaning given by Sir Roger Ormond in Alpine Bulk Transport Co. Saudi Shipping Co. Inc (1986) 2 Lioyd's Rep, 221for the ‘defence’ which is "a real prospect of success" and " carry some degree of conviction" Thus, the court must from a provisional view of the probable outcome of the action.
31.	The rule also empowers the court to exercise its discretion to strike out any pleadings or claim if the same is scandalous, frivolous or vexatious. If the pleadings contain the degrading charges which are totally irrelevant or if there are unnecessary details included in the pleading in relation to the charge which is otherwise relevant to the claim,  then such pleadings and claim are scandalous. The White Book Volume 1 (1987 Edition) at para 18/19/14 states that:
“Allegations of dishonesty and outrageous conduct, etc., are not scandalous, if relevant to the issue (Everett v Prythergch (1841) 12 Sim. 363; Rubery v Grant (1872) L. R. 13 Eq. 443). "The mere fact that these paragraphs state a scandalous fact does not make them scandalous" (per Brett L.J. in Millington v Loring (1881) 6 Q.B.D 190, p. 196). But if degrading charges be made which are irrelevant, or if, though the charge be relevant, unnecessary details are given, the pleading becomes scandalous (Blake v Albion Assurance Society (1876) 45 L.J.C.P. 663)”.
32.	On the other hand if the action is filed without serious purpose and having no use, but intended to annoy or harass the other party, it is frivolous and vexatious. Roden J in Attorney General v Wentworth (1988) 14 NSWLR 481, said at 491 that:

“1. 	Proceedings are vexatious if they instituted with the intention of annoying or embarrassing the person against whom they are brought.

2.	They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.

3. 	They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.”

33.	The fair trial is fundamental to the rule of law and to democracy itself. The right to fair trial applies to both criminal and civil cases and it is absolute and cannot be limited. It requires a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  Thus the courts are vested with the power to strike out any such proceeding or claim which is detrimental to or delays the fair trial. Likewise, the rule of law and the natural justice require that, every person has access to the justice and has fundamental right to have their disputes determined by an independent and impartial court or tribunal. However, this access should be used with the good faith and the motive untainted with the malice. If any action is prosecuted with the ulterior purposes or the machinery of the court is used as a mean of vexatious or oppression, it is abuse of process. Likewise the subsequent action after dismissal of previous action to is abuse of process. The courts have inherent power to combat any form of such abuse. 

34.	Halsbury's Laws of England (4th Ed) Vol. 37 explains the abuse of process in para 434 which reads:

"An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."

35.	His Lordship the Chief Justice A.H.C.T. GATES in Razak v Fiji Sugar Corporation Ltd (supra) held that:
“It would be an abuse of process for the plaintiff to bring a second action for the same cause of action after disobedience of peremptory orders had resulted in the dismissal of the first action: Janov v Morris [1981] 3 All ER 780. It is said the process is misused thereby. Re-litigating a question, even though the matter is not strictly res judicata has been held to be an abuse of process: Stephenson v Garnett [1898] 1 QB 677 CA. In that case the suitor was the same person and he sought to re-open a matter already decided against him”.
36.	In the case of Goldsmith v Sperrings Ltd [1977] 2 All ER 566, Lord Denning said as follows at 574:

“In a civilized society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abuse when it is diverted from its true course so as to serve extortion or oppression; or to exert pressure so as to achieve an improper end. When it is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, if they can, before any harm is done. If they cannot stop it in time, and harm is done, they will give damages against the wrongdoer”.

37.	As discussed above, the rule provides for the permissive discretion to the courts to strike out the claim or proceedings for the above grounds as opposed to the mandatory power. It should be very sparingly exercised, and only in exceptional cases. It should not be so exercised where legal questions of importance and difficulty are raised. It would always be preferable to allow the amendment instead of striking out, unless the interest of justice requires the striking out.

38.	In the instant case, the issue raised by the first defendant, as described above, is that the plaintiff entered into the lease without the authority from the Investment Fiji and contrary to the Investment Certificate issued on the plaintiff. Thus, the said lease on which the claim of the plaintiff was based, illegal which cannot be enforced by the court. Basically this argument goes back to the proposition that the plaintiff has no reasonable cause of action. This is further supported by the prayers sought in the instant summons and the submission made by the counsel for the first defendant at the hearing. However, the first defendant is estopped, as discussed above, from taking up that issue now as, if it succeeds, will result in a ruling which conflicts with an earlier ruling by the then Master Rajasinghe that the plaintiff has reasonable cause of action. This argument should have been brought by the defendant at the time the first summons was filed as the litigant exercising reasonable diligence and care might have brought this together. Apart from that, I still consider whether such action of entering into a lease without the proper Investment Certificate should, now, be decided by this court as illegal which make said lease unenforceable. It would be prudent to touch little on the illegality of contract and its effect.

Illegality of contract
39.	A person is free to enter into an agreement or contract with another person. However, a contract or an agreement will not be enforced by the court if is illegal. A contract becomes illegal if it is against the public policy under the common law or against any statute. The unenforceability of an illegal contract is based on the Latin maxim "Ex turpi causa non oritur actio", meaning "no cause of action arises from a wrong". Thus no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. This will apply equally on the plaintiff and the defendant. This doctrine was explained by Lord Mansfield CJ in Holman v Johnson (1775) 1 Cowp 341, 343. His Lordship held that;

“The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. The principle of public policy is this; ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own standing or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both were equally in fault”.
40.	It is the trite law that, no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal or an act illegal contract. This is not for sake of the other party, but founded on the principles of policy. In the meantime, if any action is based on the misrepresentation and not on the illegal contract itself, then it will be allowed to go. There is plethora of English cases which deals this area. The Doyle v Olby [1969] 2 QB 158; [1969] 2 WLR 673; [1969] EWCA Civ 2, Amar Singh v Kulubya [1964] AC 142, Tinsley v Milligan [1994] 1 AC 340 and Smith New Court Securities v. Scrimgeour Vickers [1996] UKHL 3; [1997] AC 254; [1996] 4 All ER 769; [1996] 3 WLR 1051 (21st November, 1996) to name a few. 

41.	Certainly, plaintiff’s action is based on the alleged lease and not on any misrepresentation.  However, it should be kept in mind that, the alleged issue of ‘illegality’ arises due to the absence of the authority from the Investment Fiji. Merely entering into a lease is not, per se, illegal, but it is made illegal until complied with the statutory requirement. Once that requirement is fulfilled, the lease which hitherto considered illegal would be in compliance with the statute and no question on illegality will arise. Therefore, the cases generally decided, on the illegal activities per se such as smuggling or other immoral activities, that the court will not court will lend its aid to enforce the same, should not be applied here to declare the alleged lease as illegal in this case. The plaintiff initially got the investment certificate for leasing a vessel and later, according to the business plan, applied back in 2012 for permission of Investment Fiji to extend the business. The letter, annexed with the affidavit in opposition filed by the plaintiff, marked “A” is the proof for the same. Therefore, it would be an immature attempt to declare any such illegality at this moment without fully hearing the respective stakeholders in this case. Moreover, the court cannot simply rely on the affidavit of the defendant only and decide that alleged lease is illegal due to the absence of the proper investment certificate, because it is the defence in this case which needs to be decided based on the evidence. Thus, mere allegation of illegality and assertion on non-compliance in an affidavit will do nothing or less in the absence of any complaint to the respective regulator and any sanction by it. The court is in dark as to what happened for the application of the plaintiff for the extension and officials of Investment Fiji, as the regulators, might have more to say on this during the trial proper and of course the court is in need of that evidence, given the legal questions of importance to be decided by the court in this case. Therefore, it would be improper to summarily come to a conclusion on the alleged illegality based on the assertion of an affidavit without following the due process of the law. 

Conclusion

42.	Hence, I am of considered view that, even the first defendant is allowed to take up the issue of illegality now, despite the operation of Res Judicata as discussed above; the court is still unable to strike out plaintiff’s claim since the legal questions of importance to be decided by a judge in a proper trial. For these reasons this summons ought to be dismissed with cost, as it is taken up for the third time and when the case was before a judge for a trial. For that, I order the first defendant to pay a sum of $ 1,000.00, which I summarily assess, to the plaintiff within a month from today.

43.	Accordingly, the final orders are;

a.	The summons dated 13.01.2017 filed by the first defendant is dismissed,
b.	The Deputy Registrar is directed to refer this matter before a judge for trial and
c.	The first defendant to pay a summarily assessed cost of $ 1,000.00 to the plaintiff within a month from today.

U.L Mohamed Azhar
Acting Master
At Lautoka
12/09/17