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Singh v Mohammed [1995] FJHC 164; Hbc0034j.93s (21 November 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 34 OF 1993

Between:

1. RAM SINGH
2. VIJEN SINGH
both sons of Ram Chandar Singh
Plaintiffs

- and -

1. FATEH MOHAMMED
s/o Sher Mohammed
2. FRANZ GEORGE KEIL
as duly appointed attorney of
JOHN MAURICE SWIFTE GRANVILLE SCOTT and
HAROLD EMLEY SNELL
Defendants

Mr. R. Chand for the Plaintiffs
Mr. H. Nagin for the 1st Defendant

JUDGMENT

This is the First Defendant's (D1) Summons to strike out this action against him on the grounds stated in the affidavit of YOGESH NARAYAN a law clerk sworn 21 July 1993.

The main ground being that the matter is res judicata in that the High Court had in a s169 application on affidavit evidence in Civil Action No. 90 of 1991 (wherein D1 was the Plaintiff and the Plaintiffs were the defendants) after hearing Counsel, on 17 July 1991 given judgment granting vacant possession of the property in question namely C.T. 26641 Lot 11 on D.P. 4818 (hereafter referred to as the "said property") to D1. The D1 contends that the same issue should not be allowed to be relitigated as "res judicata and issue estoppel" applies in this case.

The Plaintiffs rely upon the affidavit of RAFIK KHAN a law clerk sworn 12 August 1993 which states that the matters raised in the pleadings in this action, namely, "fraud, conspiracy, estoppel, implied promise and constructive trust have never been adjudicated or tried upon in the s.169 application instituted by the 1st Defendant". The affidavit states further that the Stay Order made on 23 August 1991 is "still intact" and that D1 has made no attempt to set it aside.

The Plaintiffs in this action seek certain declarations and orders against both the defendants. The second defendant has filed a statement of Defence but the first has not and has instead made the present application to strike out the claim against him.

The Plaintiffs allege, inter alia, that there is fraud and conspiracy in the transaction between D1 and D2 in regard to the transfer of the said property to D1. The D1 became the registered proprietor of the said property and thereafter brought the said s.169 application requiring the Plaintiffs to show cause as to why they should not give vacant possession to D1. This was civil action No. 90/91. Mr. Raza appeared for the Plaintiff (D1 in this action) and Mr. R. Chand for the Defendants (the Plaintiffs in this action). The judgment was given on 17 July 1991 on affidavit evidence alone; Mr. Chand did allege fraud and conspiracy on the part of the defendants in that action but JAYARATNE J in his judgment stated:

"There are no triable issues arising on the proprietary title of the land and or in the occupation of it by the Defendants. There are issues but they are not triable ones to shift the case to an open court forum. In the absence of any substantial argument on the part of the counsel for the Defendants to show cause why the Defendants should not give vacant possession to the plaintiff, I enter Judgment for the plaintiff and the application of the plaintiff is allowed with costs taxed if not agreed."

The decision on the Summons before me depends upon whether this is a case of res judicata to prevent the Plaintiffs from proceeding against D1 in this action.

The said civil action No. 90/91 was merely an application for vacant possession under s.169 of the Land Transfer Act. His Lordship was only concerned with whether an order as prayed should be made or not and that depended upon the defendants (the Plaintiffs in this action) showing cause. His Lordship made the Order as stated hereabove only on the narrow issue before him and in his view it did not require him to go into open Court to decide on the alleged fraud and conspiracy between D1 and D2 (who was not in the picture then) arising out of the "proprietary title of the land". There D1 was the registered proprietor and the Plaintiffs could not show cause why an order should not be made. His Lordship did not have an application before him by the Plaintiffs to set aside the transfer of the property to D1 by D2. If the Plaintiffs have an action against D1 and D2, which they say they have by instituting this action, then there is nothing wrong in their proceeding against D1 which they have done for the judgment I find in the said C.A. 90/91 is not in any way res judicata in regard to the issue raised in this action. On the subject of res judicata and in considering the issue before me I have borne in mind the following passage from HALSBURY, 4th Ed. Vol 16 para 1527:

"Where res judicata is pleaded by way of estoppel to an entire cause of action, rather than to a single matter in issue, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier judgment, which may have involved the determination of questions of law as well as findings of fact. To decide what questions of law and fact were determined in the earlier judgment the court is entitled to look at the judge's reasons for his decision and his notes of the evidence, and is not restricted to the record."

In the light of the above passage I had looked at the judge's reasons which is as already stated hereabove and find that this is not a case of res judicata which is pleaded by way of estoppel.

From the following passage, which is the locus classicus on the subject of res judicata, from the judgment of WIGRAM V.-C. in HENDERSON v HENDERSON [1843] EngR 917; (1843) 3 Hare 100, 115 it is clear that this doctrine cannot be appealed to on the facts and in the circumstances of this case to which I have made reference hereabove:

"... 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."

Bearing in mind the principles applicable to the subject of res judicata stated above I find that the essentials of res judicata as stated in HALSBURY (supra) in para 1528 which is as follows have not been fulfilled to enable D1 to succeed in his application:

"In order that a defence of res judicata may succeed it is necessary to show not only that the cause of action was the same but also that the plaintiff has had an opportunity of recovering, and but for his own fault might have recovered in the first action that which he seeks to recover in the second. A plea of res judicata must show either an actual merger, or that the same point has been actually decided between the same parties."

In an application of this nature the Court has a discretionary power to strike out an action. But as HALSBURY 4th Ed. Vol 37 at para 435 states:

"It is a jurisdiction which will be exercised with great circumspection and only where it is perfectly clear that the plea cannot succeed; it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the facts and circumstances of the case, and to this end affidavit evidence is admissible."

For the above reasons I accept Mr. Ram Chand's submission on this application and I do not agree with Mr. Nagin that the issues raised in the said High Court Action No. 90 of 1991 were substantially the same as the issues raised in the present case.

As far as the Stay Order of 23.8.91 is concerned, it was a temporary stay; once the Appeal was withdrawn the stay order lapsed with it. Hence the Plaintiff's assertion in the affidavit that the stay order is "intact" is not correct. In fact it has died a natural death upon withdrawal of Appeal.

In the outcome the first defendant's application to strike out the action against him is dismissed with costs which is to be taxed if not agreed.

D. Pathik
Judge

At Suva
21 November, 1995

HBC0034J.93S