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Savea v Attorney General of Fiji [2001] FJHC 191; HBC45.2001 (16 May 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. 45 OF 2001

Between:

IANE SAVEA
Plaintiff

And

ATTORNEY GENERAL OF FIJI
Defendant

Mr. T. Fa for the Plaintiff
Mr. Y. Singh for the Defendant

DECISION

By Summons dated 22 March 2001 the defendant has applied for an order that the Plaintiff’s Statement of Claim be struck out and the action dismissed on the grounds that the same is an abuse of the process of the Court pursuant to Order 18 Rule (1)(d) of the High Court Rules 1988. An affidavit in support was filed by the defendant.

In support of his application Mr. Singh argues that the arrest and detention of the plaintiff was lawful and in accordance with the various legislative provisions. Therefore he says that this action is an abuse of the process of the Court.

The learned counsel for the plaintiff says that it is a premature application and without any proper grounds. He says that apart from claim for damages for unlawful arrest and detention a declaration that Molmahau Clan is a lawful organisation is also sought.

Upon considering the submissions made by both counsel and upon reading the affidavits filed in this application, I am of the view that the plaintiff has raised certain issues which merit adducing of evidence in the trial of the action to prove the case. If the defendant refutes the claim then he could produce evidence to that effect in the trial so why not let the action proceed to trial. Mr. Fa enquired as to where was the warrant for arrest; Mr. Singh replied that Police have it in Rotuma and that he had called for it but it has not been sent to him. He said that he has not sighted it. The warrant could be an important document for the purposes of determination of the issues.

In the application of this Order "it is not the practice in the civil administration of our Courts to have a preliminary hearing, as it is in crime" (per Sellers L.J in Wenlock v Moloney [1965] 1 W.L.R. at p.1242). As stated in the Notes to Or.18 r.19 in The Supreme Court Practice 1979 Vol I p312 that: ‘it is only in plain and obvious cases that recourse should be had to the summary process under this Rule’ and that ‘it can only be adopted when it can be clearly seen that a claim or answer is on the fact of it obviously unsustainable’ (A.G. of Duchy of Lancaster v L. & N.W. Ry. Co [1892] UKLawRpCh 134; [1892] 3 Ch 274, C.A.). It cannot be said here that the action is one which cannot succeed or is in some way an abuse of the process.

In the exercise of my discretion I am not satisfied that the defendant has made out a case for the striking out of the claim as an abuse of the process of the Court.

The application is dismissed. It is ordered that Statement of Defence be filed within 21 days and thereafter action to take its normal course. Costs in the cause.

D. Pathik
Judge

At Suva
16 May 2001