On the 18th bruary 1991 the matter was listed for trial before Mr. Just Justice Scott but was then adjourned after Defence counsel
informed the Court that the Defendant wished to have produced certain files relating to the action.
I have set out this history at some length to illustrate the peden pace which has charactericterised the proceedings over the years.
It appears that only after the case had been re-fixed for hearing on the 3rd of July 1991 did the solicitors for the Defendant belatedly
form the opinion that it was desirable to apply to the Court to have the action dismissed.
Having read the file which is at the present over three inches thick I ck I am at a loss to understand why the present application
was not made much earlier.
According to the Statement of Claim the Fourth Plaintiff, whose name is obviously being spelt wrongly throughout the proceedings,
is a duly registered Industrial Association formed to protect and promote the interests of its members who are cocoa growers and
the cocoa industry. The Third Plaintiff is a cocoa producer.
In 1980 the First, Second and Third Plaintiffs commenced Civil Actions in this Court aurt against the Defendant. In about November
1981 the actions were settled, according to the Plaintiffs inter-alia on the terms that $100,000 in the Cocoa Price Stabilization
Fund would be retained by the Defendant to support the cocoa price and that the sum of $230,393.20 was to be distributed to those
farmers who supplied cocoa to the Defendant between 1975 and 1980. The Plaintiffs allege that the Defendant has breached the terms
of settlement of those actions which is denied by the Defendant. Further proceedings were then launched by the Plaintiffs in Action
No. 727 of 1984 although at various times in the pleadings this action is wrongly referred to as No. 724 of 1984 indicating carelessness
on the part of those responsible for the drafting of the pleadings.
The Plaintiffs allege that the Defendant has also breached the terms of settlement (ent (presumably Action No. 727 of 1984) and that
they accepted the Defendant's repudiation of the terms of settlement of the three earlier actions.
They seek a declaration that the terms of settlement of Action Nos. 114, 115 and 116 of 1980 are void because of the Defendant's
refusal to perform the same and "the exaction of pretended performance tainted by economic duress", whatever that expression
may mean.
They also seek a declaration that the tof settlement of Action No. 727 of 1984 are void in that that they are vitiated by the action
of the Defendant in seeking "indemnity from action included by economic duress". I am at a complete loss to comprehend
these last expressions used by the person who drew the Statement of Claim. They appear to me to be words used simply for the sake
of using words.
The amended defence states that the Defendant has complied with the terms of settlement of all earlier proceedings and that on the
12th of February 1982 the parties to this action executed terms of settlement of all outstanding disputes between them. The Defendant
therefore says that the Plaintiffs are estopped from prosecuting this action.
I have received submissions from the parties and they refer to an affidavit by Mr. Kundan Lal who is the Company Secretary of the
Defendant sworn on the 25th of October 1991.
Mr. Lhibits to his affidavit copies of the settlement of the four previous actions and I shall rall refer to these now.
The terms of settlement of Action No. 114 of 1980 which are similar to Nos. 115 and 116 are as follows:
"IN THE SUPREME COURFIJI
NO. 114 OF 1980
BETWEEN: NASAU COCOA GROWERS CO-OPERATIVE SOCIETY LIMITED
a Society duly registender nder the Co-operative Societies Act and having its registered office at Korovou, Tailevu -ntiff
 an>
AND : THE ATTORNEY GENERAL, Government of Fiji,
ROBIN YARROW, Permanent Secretary for Agriculture and Fisheries
AND THE NATIONAL MARKETING AUTHORITY
a body corporate duly constituted under the Marketing
Act, Head Office, Suva - Defendants
THE Defendant NATIONAL MARKETING AUTHORITY having paid to the Plaintiff certain monies, the Leave is hereby granted to the Plaintiff to withdraw this Action subject to the
term that no other action shall be brought by the Plaintiff or any one acting on their behalf on the same subject matter against
the Defendants in this Action.
DATED this 12th day of February, 1982.
STUART REDDY & COMPANY
PER: (Sgd.)
SOLICITORS FOR THE PLAINTIFF&"
Clauses 1, 2nd 8 of the terms of settlement of Action No. 727 of 1984 r984 read as follows:
1. THE Plaintiffs acknowledge that the National Marketing authority haty has paid out to a large number of cocoa growers in two instalments
and applied toward agreed expenses, a total of $213,591.84 (TWO HUNDRED & THIRTEEN THOUSAND FIVE HUNDRED & NINETY ONE DOLLARS
AND EIGHTY FOUR CENTS) out of the moneys agreed to be paid out in terms of Supreme Court Action Nos. 114, 115 and 116 of 1980 and
a sum of $6,201.60 (SIX THOUSAND TWO HUNDRED & ONE DOLLARS AND SIXTY CENTS) is held by National Marketing Authority for them
in respect of the first and second instalments.
2. THE addition to the said sum of $6,201.60 ( SIX THOUSAND TWO HUNDRED & ONE DOLLARS AND SIXTY CENTS) the National Marketing Authority
holds the balance sum of $24,093.44 (TWENTY FOUR THOUSAND & NINETY THREE DOLLARS AND FORTY FOUR CENTS) and it is hereby agreed
that the said sum be paid out to growers or as authorised or directed by any of them, pro-rata to payments previously made to them
by National Marketing Authority.
6. SAVE as is herein provided party releases the other aher and each of them from all claims and demands whatsoever in respect of the said
cocoa moneys or any matter relating thereto, and the Plaintiffs agree that they represent and act for cocoa growers generally in
respect of this matter and accordingly agree to indemnify the National Marketing Authority from any claims made by any cocoa grower
or organisation in respect of the moneys being the subject of these or the 1980 proceedings.
8. THIS agreement represents a complete and total settlement of all outstanding disputes between the parties in relation to cocoa moneys
heretofore held by National Marketing Authority in a fund of account or otherwise known as Cocoa stabilisation fund and no action
shall be brought by either party in respect of the said cocoa monies after execution of this agreement. Provided however either party
shall be at liberty to enforce the terms of this settlement."
The Defendant states that by these terms the Plaintiffs settll proceedings between them themselves and the Defendant and consequently
the current proceedings should be dismissed.
The Plaintiffs claim that the present application is confusing because on the one hand it asks that the action should be struck out
whereas on the other hand it says "except to enforce the settlement or compromise referred to in the affidavit of Kundan Lal".
Therefore, say the Plaintiffs, the Defendant admits that partly there is a reasonable cause of action.
In my opinion there is no merit in this submission. It is to me that the Defendant iant is simply saying in the words quoted that
the only right of action the Plaintiffs have is to enforce the terms of settlement exhibited to Mr. Lal's affidavit. No way do I
take the Defendant to be conceding that the Plaintiffs have at least some cause of action. The submission also makes some strange
allegations including the claim that wrong deductions such as exhorbitant (sic.), legal fees and other costs have been made from
the Cocoa Stabilization Fund by the Defendant. This submission is completely out of place on the present Summons. The Plaintiffs
also complain in their submission that the Defendant's answers to interrogatories were "cagey and incomplete". I fail to
understand the relevance of that submission to the present application but in any event if the Plaintiffs were dissatisfied with
the Defendant's answers they could have applied to the Court for further and better answers and, they have not done so.
Numerous casve been cited to me by the parties but I shall refer to onlo only three of these. In Mohammed Rasul v. Hazra Singh 8th Volume, Fiji Law Reports 140, Hammett P.J. had to consider an application very similar to the present and at page 144 His Lordship
said:
"In my opinion, once the parties to a dispute have joined issue in litigation and have later compromised their action and filed
in Court the terms upon which the action has been settled and the Plaintiff has discontinued the action as was done in this case,
the same issue cannot be made the subject of a fresh action until the compromise in the previous action has been set aside in an
action brought for that express purpose based upon grounds of some considerable merit. To hold otherwise would, in my view, be to
deprive the parties to a compromise of that sense of finality upon which both the parties to any compromise are entitled to rely
and base their future conduct."
I consider this statement is also aable to the present case.
In Yat Tung Co. v. Dao Heng Bank [1975] UKPC 6; (1975) A.C. 581Privy Council approved the the judgment of Wigram V.-C. in Henderson v. Henderson [1843] EngR 917; (1843) 3 Hare 100, 115 where the Judge says:
"... 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 sp cases, not only to points ints 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."
I ve that no where in the pleadings do the Plaintiffs plead any reply to the allegations by t by the Defendant that these proceedings
are barred by the terms of settlement entered into by the parties. It would have been simple for them to have done so and it is no
answer in my judgment for the Plaintiffs to claim that the action should not be struck out if the Statement of Claim could still
be amended. I am of the clear opinion that no amount of amendment, even if this would have been allowed at this very late stage,
would assist the Plaintiffs. In my judgment the Plaintiffs are caught by the terms of settlement into which they entered. These leave
no doubt in my mind that the present Writ should never have been issued by the Plaintiffs and it is nothing to the point to complain
about the lengthy delay in filing the present application. As to this I consider it better late than never.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In my judgment therefore the action by the Plaintiffs is an abuse of the process of this Court and I therefore order that this action
be dismissed and order the Plaintiffs to pay the Defendant's costs to be taxed if not agreed.
JOHN E. BYr> JUDGE
Hbc0615j.86s
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