IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 164 OF 1991

BETWEEN:

CHHOTABHAI PATEL HOLDINGS LIMITED and
C.P. PATEL AND COMPANY LIMITED,
limited liability companies having their
registered office at Suva
Plaintiffs

AND

BA TOWN COUNCIL and KUTTAPPAN NAIR
trading as NAIR'S SUPERMARKET (a firm)
Defendants

G.P. Shankar: For the Plaintiffs
V. Mishra: For the First-named Defendant

Dates of Hearing: 26th October, 3rd November 1993
and 17th March 1994
Date of Judgment: 19th May 1994

JUDGMENT

In two related judgments delivered on the 12th and 17th of April 1991 I dissolved an interim injunction which I had earlier granted to the Plaintiffs against the First-named Defendant on the 12th of March 1991.

Subsequently the Plaintiffs appealed to the Court of Appeal but on the 29th of May 1992 the appeal was withdrawn and dismissed and the Plaintiffs were ordered to pay the Defendants' costs to be taxed if not agreed.

The Plaintiffs took no further steps in the action but on the 6th of August 1993 the First-named Defendant issued a Summons which is presently before me seeking an order that the Plaintiffs' Statement of Claim be struck out on the following grounds:

(a)	That the Plaintiffs' claim does not disclose any reasonable cause of action;

(b)	That the Plaintiffs' claim is frivolous or vexatious; and

(c)	That the Plaintiffs' claim is an abuse of the process of this Court.

Although the Statement of Claim contains twenty-nine paragraphs and has been extensively amended, mainly at my suggestion when the matter first came before me on the 12th of March 1991, the basis of the Plaintiffs' claim so far as it appears from the Statement of Claim is that the Plaintiffs claim to have been using a right of access to commercial premises in Ba of which the Plaintiffs are lessees of the First Defendant in the case of the First-named Plaintiff and sub-tenant in the case of the Second-named Plaintiff. The First-named Plaintiff occupies a substantial concrete building owned by the First-named Defendant in which it has been carrying on a business of supermarket for over twenty years.

The Second-named Plaintiff is a sub-tenant of that building. The Plaintiffs claim that they have been using a right of way to their premises without interference from the First-named Defendant for over forty years. They complain that because of construction work carried out by the Second-named Defendant with the authority of the First-named Defendant the Plaintiffs' business has been seriously and unreasonably affected thus causing them financial loss.

The Plaintiffs also claim that as a result of this construction work they and their servants, patrons or invitees have been deprived of free and perpetual use of a right of access which previously existed to the shops conducted by the Plaintiffs; that contrary to its previous practice the First-named Defendant authorised the Second-named Defendant to commence the additional work on its shops without calling for public tenders and instead privately agreeing that the Second-named Defendant should extend its premises without the calling of such tenders.

It is alleged that as a result the First-named Defendant has given preferential treatment to the Second-named Defendant and thus disadvantaged the Plaintiffs. There is also a claim that the structural work being carried out by the Second-named Defendant has obstructed the Plaintiffs' free and perpetual flow of light and air.

It has been said that the Court will not permit a plaintiff to be "driven from the judgment seat" except where the cause of action is obviously bad and almost incontestably bad (per Fletcher Moulton L.J. in Dyson v. Att.-Gen. [1911] 1 K.B. 410, p.419). On the other hand, a stay or even dismissal of proceedings may "often be required by the very essence of justice to be done" (per Lord Blackburn in Metropolitan Bank v. Pooley (1885) 10 App. Cas. 210, p.22) so as to prevent parties being harassed and put to expense by frivolous, vexatious or hopeless litigation (cited with approval by Lawton L.J. in Riches v. Director of Public Prosecutions [1973] 1 W.L.R. 1019, p.1027; [1973] 2 All E.R. 935, p.942).

Thus the Court has a discretionary jurisdiction to be exercised having regard to the quality and all the circumstances known relating to the offending plea: Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 3) [1970] Ch. 506. 

In my two previous judgments I commented adversely on the evidence offered by the Plaintiffs and found that they had failed to disclose a number of material facts in their application for the injunction. I referred to these on pages 5 to 8 of my first judgment of the 12th of April 1991 and will not repeat them here.

On page 9 I mentioned the decision of Chastey v. Ackland (1895) 2 Ch. 389 where the Court held that there cannot be an easement for the passage of air other than through a defined channel. Thus in my view the Plaintiffs' claim in paragraph 18 of the Statement of Claim to be entitled to free and natural air and light to their shops cannot be sustained.

Likewise the claim in paragraph 24 (d) and (e) that the structural work interfered with the Plaintiffs free and perpetual flow of light and air thus attracting customers to other shops to the detriment of the Plaintiffs cannot be supported in law.

On page 8 of my judgment of the 12th of April 1991 I said that the photographs tendered on behalf of the Defendants as annexures to an affidavit by Premendra Pande the Town Clerk of Ba, which have not been challenged in anyway by the Plaintiffs, show that the area in the vicinity of the Plaintiffs' premises is a car park and not a right of way.

I said then that I was satisfied that the Plaintiffs' allegations could not be supported and that this was another example of the failure of the Plaintiffs to be frank with the Court.

As to the third major allegation by the Plaintiffs that the First-named Defendant has allowed the Second-named Defendant to build on its land thus allegedly denying the Plaintiffs and the public at large the use of an easement claimed by the Plaintiffs, first it must be noted that the land in question belongs to the Council.

Secondly the Plaintiffs can only succeed in the action if they can establish in law the right to light or air and a denial of access which the Plaintiffs claim as a right.

For the reasons given above and those in my earlier judgments I satisfied that in law the Plaintiffs do not have the rights which they claim.

Reviewing the material before me, including the fact that it is now nearly two years since the Plaintiffs withdrew their appeal to the Court of Appeal against my judgment and my assessment that as a matter of law the Plaintiffs are not likely to be able to produce any other evidence which would entitle them to succeed in their action, I am of the opinion that it is time the proceedings were brought to an end.

Counsel for the Plaintiffs referred me to the decision of Lonrho plc v. Tebbit and Another reported in The Times Law Reports of 24th September 1991. The report does not seem to be authority for the proposition stated at page 3 of the Plaintiffs' written submissions on the 3rd of November 1993. However the Vice-Chancellor held that although it was possible to determine a difficult point of law on a striking-out application, it was not appropriate to do so where the point of law was of such a new and developing kind that it could not properly be determined on the bare facts pleaded and would be better determined at the trial in the light of the actual facts of the case.

In my judgment no such factors apply to the present case. I have expressed my serious reservations about the strength of the Plaintiffs' case in my earlier judgments. In my opinion the Plaintiffs' Statement of Claim fails to disclose any breach by the Defendants of duties owed by them to the Plaintiffs. Put another way, I hold the Plaintiffs' claim as pleaded does not disclose any reasonable cause of action against the Defendants. In my judgment therefore it is desirable to strike the Statement of Claim out on that ground alone.

Accordingly there is no need for me to rule on the second and third grounds in the Defendants' Summons of the 6th of August 1993.

The order of the Court is that the Plaintiffs' claim is to be struck out and the Plaintiffs are to pay the Defendants the costs of their present Summons.

John E. Byrne
J U D G E
HBC0164J.91S