BETWEEN:
1. PULIFAU FANIFAU
2. HENRY ENASIO
Plaintiffs
AND:
1. TUPOU TAUKAVE
2. DISTRICT OFFICER
3. COUNCIL OF ROTUMA
4. ATTORNEY GENERAL OF FIJI
Defendants
Mr. S. Mau for the Plaintiffs
Mr. S. Inoke for the First Defendant
Mr. S. Banuve for the 2nde 2nd, 3rd and 4th Defendants
RULING
This is the First Defendant's application by Summons dated 8 July 1997 seeking the following orders:
(a) That the Plaintiffs give security for costs pursuant to Order 23 of the High Court Rules, 1988;
(b) That the Plaintiffs' claim be struck out on the grounds that -
(i) it discloses no reasonable cause of action;
(ii) it is scandalous, frivolous or vexatious;
(iii) it is otherwise an abuse of the process of the Court, pursuant to Order 18 rule 1 and/or the Court's inherent jurisdiction;
(iv) the Plaintiffs have no locus standi; or
(v) it is statute barred or otherwise barred by the doctrine of res judicata.
(c) An injunction against the Plaintiffs, their servants or agents from interfering with the First Defendant's enjoyment of the said
land
(d) Costs of the application and the action.
The Applicant filed an Affidavit in support sworn 7 July 1997; an Affidavit in Reply was filed by the Plaintiffs on 7 August 1997;
and the 2nd, 3rd and 4th defendants filed an Affidavit in Reply on 15 October 1997. The hearing was completed on 20 November 1997
and written submissions were ordered to be filed and served which were complied with. However, the Plaintiffs on the same day, viz.
24 November 1997, as the filing of their submission also filed an Amended Originating Summons herein without an order of the Court to do so. As a result the defendants neither had the opportunity of replying
to it nor could they refer to the amendment in their submissions.
It appears that the Plaintiffs wish to pursue their Amended Originating Summons. If that is so then they should make a formal application
to amend the Summons as the proceedings so far had proceeded on the basis of the original Summons with arguments and written submissions
based on it.
In these circumstances, it will be futile to consider the Summons based on the previous Originating Summons.
Therefore, unless the Plaintiffs make a formal application to amend the originating summons within 21 days from the date of this Ruling,
I shall proceed to decide on the First Defendant's present application on the basis of the originating summons.
The Plaintiffs are ordered to pay costs to the First Defendant in the sum of $200 within 21 days of the Ruling before they are allowed
to take any further step in this action (which includes amendment to the summons, if any).
D. Pathik
Judge
At Suva
16 January 1998
Hbc0177d.97s
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