| Fiji Islands - Silimaibau Sunset Express (Fiji) Ltd v F & J Co Ltd - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
ACTION NO. HBC0141 OF 1997
BETWEEN:
1. SILIMAIBAU SUNSET EXPRESS (FIJI) LIMITED
a duly incorporated Company
having its registered office at Suva
2. JALE PESI SILIMAIBAU
of Suva, Company Director
Plaintiffs
AND:
1. F & J CO. LIMITED
a company having its principal place of business in Fiji at Suva
2. TAKASHI UNI
of Laucala Beach Estate
3. DR. YUTAKA UNI
of 600-7-Inatori Higshiizu Kamogum Shizouka, Japan
Defendants
M. Raza for the Plaintiffs
S. Maharaj for the Defendants
ass=MsoNormal>Dates of Hearing and Submissions: 12th - 25th November 1997
Date of Judgment: 6th April 1998
JUDGMENT
By Summons dated the 18th of June 1997 the Defendants apply to strike out the Statement of Claim herein on four grounds:
(a) It discloses no reasonable cause of action;
(b) It is scandalous, frivolous or vexatious;
(c) It may prejudice, embarrass or delay the fair trial of this action;
(d) It is otherwise an abuse of the process of the Court.
The application is made under Order 18 Rule 18 of the High Court Rules, 1988 and pursuant to the inherent jurisdiction of the Court.
The Writ was issued on the 18th of April 1997 and on the 23rd of April the Acting Chief Registrar gave leave to the Plaintiff to serve
the Writ out of the jurisdiction on the Third-named Defendant and by substituted service by post on that Defendant.
The Summons is supported by an affidavit of Mohammed Kutty Ahmed the Chief Clerk employed by the solicitors for the Defendants. I
will refer to that affidavit and to an Affidavit in Reply sworn by the Second-named Plaintiff later but first I will deal with certain
preliminary objections taken by the Defendants based on Order 6 Rule 6(1) to the effect that leave of the Court was not obtained
before the Writ was issued. Rule 6(1) reads:
"No writ which is to be served out of the jurisdiction shall be issued without the leave of the Court:
Provided that if every claim made by a writ is one which by virtue of an enactment of High Court has power to hear and determine,
notwithstanding that the person against whom the claim is made is not within the jurisdiction of the Court or that the wrongful act,
neglect or default giving rise to the claim did not take place within its jurisdiction, the foregoing provision shall not apply to
the writ.
The Defendants' submission obviously overlooks the proviso to Rule 6 and as this is a claim which the High Court has power to hear
and determine no leave of the Court to issue the Writ was required. I therefore reject the preliminary objection.
Next the Defendants rely on Order 15 Rule 1 and submit that the Statement of Claim alleges at least three causes of action by the
Plaintiffs individually and jointly against the Defendants individually and jointly. The Statement of Claim contains 27 paragraphs
and broadly speaking alleges first breach of an Agreement between the Plaintiffs and the Second Defendant for the Second Defendant
to take up an equity in the First Plaintiff which is a Company engaged in the business of passenger transporters. It is alleged that
the Second Defendant agreed to contribute $300,000.00 for a 35% share in the First Plaintiff's business.
Secondly the Statement of Claim alleges the failure of the Defendants to supply suitable vehicles to the First Plaintiff as part of
the Second Defendant's agreed equity contribution to the First Plaintiff; thirdly it fraudulently caused certain letters to be written
falsely claiming that the Plaintiffs had bought certain vehicles from the Defendants which the Plaintiffs never did and further forging
the Second Plaintiff's signature to one of those documents.
No Defence has yet been delivered because in support of their application to strike out the Statement of Claim the Defendants rely
on a Winding-up Petition dated 2nd April 1996 by F & J Co. Ltd, the First Defendant to wind-up the Plaintiff in this action.
The petition was opposed and heard by Pathik J. who on the 6th of March 1997 gave leave to the Petitioner to wind-up the Company.
The Plaintiff appealed to the Court of Appeal against the judgment of Pathik J. and on the 19th of November 1997 the Court formally
dismissed the appeal on the ground of the absence of any proper explanation as to why the Appellant (Plaintiff) had not complied
with Rule 17 of the Court of Appeal Rules.
I shall refer briefly later to the record of the Court of Appeal because in my judgment it bears usefully on the Summons now before
me.
Most of the matters were rejected by Pathik J. in his Judgment of 6th of March; specifically paragraphs 5, 6, 7, 8, 9, 10 and 11 of
the Statement of Claim which allege agreement by the Second Defendant to contribute $300,000.00 equity are referred to in paragraph
3 of the affidavit of the Second-named Plaintiff in opposition to the Winding-up Petition. The reply of the Defendants to these allegations
is contained in paragraphs 2(a), (b), (c), (d), (e), (f), (g), (h), (i), (j) and (k) of the affidavit of Takashi Uni sworn on 19th
of July 1996.
The matters pleaded in paragraph 12 of the Statement of Claim alleging that the Defendants in lieu of the $300,000.00 shipped to the
Plaintiff two motor vehicles which the Plaintiffs say were unsuitable and never agreed to take were raised in paragraph 3(j) and
(l) in the affidavit in opposition to the petition. The Defendants' reply to these allegations is contained in paragraph 2(a) and
(c) of Takashi Uni's Affidavit in Reply.
The matters pleaded in paragraphs 13, 14, 15 and 16 of the Statement of Claim alleging the unsuitability of the two passenger vehicles
sent by the Defendants were raised by the Plaintiffs in the winding-up proceedings in paragraph 3(j), (l), (m), (n) and (o) of the
affidavit of the Second-named Plaintiff and were replied to by First-named Defendant (Petitioner) in paragraph 2(b), (c), (e) and
(g) of the affidavit of Takashi Uni filed in the winding-up proceedings.
The matters pleaded in paragraph 17 in the Statement of Claim alleging a request to the Plaintiff by the Second-named Defendant to
pay $9,000.00 a month to the Third Defendant to pay for the passenger vehicles were raised by the Respondent in the winding-up proceedings
in paragraph 3(m) of the affidavit of the Second-named Plaintiff and replied to by the Defendants in paragraph 2(b), (c), (e) and
(g) of the affidavit by Takashi Uni.
That matters pleaded in paragraphs 18 to 21 of the Statement of Claim concerning a complaint from the Fiji Immigration authorities
regarding the Second Defendant's involvement with another company and failure to pay the Plaintiffs $40,000.00 costs for purchasing
tyres for the vehicles were replied to in paragraph 2(i) and (j) of the affidavit of Takashi Uni.
The matters pleaded in paragraphs 22 and 23 of the Statement of Claim concerning a demand by the First and Third Defendants for payment
by the First Plaintiff of $101,944.15 as payment for the passenger vehicles were admitted by the Petitioner (First-named Defendant)
in the winding-up proceedings.
The only matter alleged in the Statement of Claim not mentioned in the affidavit in opposition to the petition was the allegation
of fraud and forgery of signatures made against the First and Third-named Defendants. These allegations were made by the Second-named
Plaintiff in an affidavit sworn on the 5th of August 1997 which was never served on the Respondent in the appeal to the Court of
Appeal. Why this was not done is unexplained but I venture to think that if these allegations were made in the Second-named Plaintiff's
affidavit in the winding-up proceedings Pathik J. would have held that they raised an issue of fact and I surmise would not have
made the winding-up order. It is interesting to note that no application for leave to file the affidavit was ever made to the Court
of Appeal the record of which shows that Mr. T. Fa who appeared on behalf of Mr. M. Raza for the Appellant could not explain why
the Respondent was not served with the affidavit and further stated that he had not read the affidavit. Mr. Fa is then quoted as
saying, "Mr. Raza instructed me to say so. I rely on the affidavit."
In my view a reasonable inference from the above statements of Mr. Fa in the Court of Appeal is that the Appellant (Plaintiff) either
itself or through its solicitors was not interested in attempting to have the Court of Appeal consider the affidavit. Furthermore
in my view it is a reasonable inference that if the Appellant were interested in pursuing its appeal the first thing it would have
done was to comply with Rule 17 covering security for payment of costs.
Paragraph 25 of the Statement of Claim alleges that as a result of the failure of the Second and Third Defendants to pay $300,000.00
equity the Plaintiffs suffered damage. These allegations were first made in paragraph 3(d) of the affidavit of the Second Plaintiff
in the winding-up proceedings and denied by the Defendants in paragraph 2(c) of the affidavit of Takashi Uni in the winding-up proceedings.
The Defendants allege, and I accept, that all these matters with the exception of fraud and forgery were considered and rejected by
Pathik J. The further additional fact is that the First-named Plaintiff was wound-up by order of Pathik J. on the 16th of January
1998 and sealed on the 19th of January.
What I have said leads me to conclude without any hesitation that because of the history of this litigation both in the High Court
and in the Court of Appeal the Plaintiffs' Statement of Claim discloses no reasonable cause of action and amounts to abuse of the
process of the Court. In Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] UKPC 6; (1975) A.C. 581 the Privy Council held that it is an abuse of the process of the Court to raise in subsequent proceedings matters which could and
should have been litigated in earlier proceedings. The only issue not tried and decided in the instant case in my judgment was the
issue of fraud but the Plaintiffs had ample opportunity to allege this before Pathik J. and, if they were interested, by seeking
leave of the Court of Appeal to raise it. They simply did not and in my judgment should not be allowed to plead such allegations
now.
Finally in my judgment the Statement of Claim as it stands pleads several causes and action and in accordance with Order 15 Rule 1
I hold that leave of the Court should first have been obtained so to plead and it was not.
For these reasons I grant the orders sought in the Defendants' Summons and order the Plaintiffs to pay the Defendants their costs.
JOHN E. BYRNE
JUDGE
Legislation and case referred to in judgment:
High Court Rules 1988 Orders 6, 15 and 18.
Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd [1975] UKPC 6; (1975) A.C. 581.
Legislation and cases referred to in argument:
Companies Act Cap. 247.
Air Pacific Employees Association and Air Pacific Senior Staff Association v. Air Pacific Limited Civil Action No. 130 of 1990 - unreported judgment of Byrne J. dated 7th January 1991.
Attorney-General v. Shiu Prasad Halka 18 FLR 210.
House of Spring Gardens Ltd. v. Waite (1990) 3 WRL 347.
Ram Kumar Datt Sharma and Others v. Vishnu Datt Sharma Civil Action No. HBC0240 of 1996L - unreported judgment of Lyons J. dated 15th August 1997.
Timoci U. Bavadra v. Attorney-General Civil Action No. 487 of 1987 - unreported judgment of Rooney J.
Supreme Court Practice (White Book) 1995.
Stephenson v. Garnett [1898] UKLawRpKQB 22; (1898) 1 Q.B. 677.
Spring Grove Services Ltd v. Deane (1972) 116 S.J. 894.
Palmer's Company Precedents 7th Edition Part II page 28.
Imperial Guardian Life Assurance Society (1870) L.R. 9 Eq. 477.
Samuela Matawalu v. Fiji Times Limited Civil Action No. 335 of 1989 - unreported judgment of Jayaratne J.
Hbc041j.97s
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