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Narawa v Native Land Trust Board [2003] FJHC 302; HBC0232d.1995s (11 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0232 OF 1995

Between:

1. MESULAME NARAWA
2. RAITUBE MATANABUA
Plaintiffs/Respondents

and

NATIVE LAND TRUST BOARD
THE CONSERVATOR OF FORESTS
THE MINISTRY OF AGRICULTURE, FISHERIES AND FORESTS
TIMBERS FIJI LIMITED
THE ATTORNEY-GENERAL OF FIJI
Defendants/Applicants

Mr. I. Fa for the Plaintiffs
Mr. T. Bukarau for the 1st Defendant
Ms. N. Karan for 2nd, 3rd and 5th Defendants
Mr. D. Prasad for 4th Defendant

DECISION

This is an application by summons dated 9 September 2002 by the second, third and fifth defendants seeking orders as follows:

1. The 2^nd, 3^rd and 5^th parties to the proceedings have been improperly joined as parties and therefore shall cease to be named as parties and therefore shall cease to be named as a party to this proceedings,
   
2. The Plaintiffs’/Respondents’ statement of claim be struck out and the action dismissed on the grounds that is discloses
   
   • (a) no reasonable cause of action and,
     
   • (b) that it is scandalous, frivolous or vexatious and,
     
   • (c) it may prejudice, embarrass or delay the fair trial of the action.
     

The application is made pursuant to Or. 15 r. 6(2)(a) and Or.18 r.18(1)(a), (b) and (c) of The High Court Rules 1988. An affidavit in support by Sairusi Bulai, the Deputy Conservator of Forests, has been filed followed by the Affidavit in Response on 11^th October 2002 by Ulamila Fa-Tuituku, a solicitor with Fa & Company. The hearing of the summons was on plaintiffs’ counsel’s application vacated and the matter was heard 18 February 2003.

The applicants’ contention

The role and the duties of the second and third defendants are spelt out in the Deputy Conservator of Forests’ said affidavit.

In short he says that although the second defendant is a party to ‘concession agreements’ his involvement is only limited to ensuring that the technical requirements of the agreement are complied with by the fourth defendant. He also ensures that the legal requirements under the Forest Decree 1992 relating to the application of best practices of forest-harvesting are applied in the concession area to minimise environmental damage.

The deponent further says that he is not specifically empowered by the agreement to unilaterally suspend any harvesting operation or to terminate the agreement for any breaches by the fourth defendant except demand that the breaches be made good by physically repairing any damage done on the ground.

He says that it is the N.L.T.B which has the responsibility to terminate the agreement or to demand payment for compensation for any breach of the agreement.

The second defendant submits that for the reasons stated in his said affidavit the claim against the second defendant is unjustified and should be struck out.

The plaintiffs’ response

A very lengthy response and submission has been made by Ms. Fa the learned counsel for the plaintiffs in her affidavit sworn 11 October 2002.

The deponent says that there is ‘absolutely no evidence in the strike out pleadings’ in support of the orders being sought by the applicants. The claim in the Statement of Claim about the defendant as ‘parties’ is uncontested and irrefutable for the reasons given in the said affidavit.

She sets out in the said affidavit the cause of action that the plaintiffs have against the second, third and fifth defendants and I need not set them out in this decision.

The deponent submits that the Forest Decree 1992 is unlawful and ultra vires that be and is a fraud on the 1970, 1990 and 1998 Constitutions. The Decree in any case does not apply.

Consideration of the issue

Upon considering the affidavits filed herein and the submissions made by both counsel, I am of the view that the parties in question have been properly joined. Also, the plaintiffs had raised certain issues which merit adducing of evidence in the trial of the action to prove the case. The second defendant has stated what its role is in the whole affair, but it does not appear that he can get out of the picture altogether without answering to the claim laid against him. As to his liability it is for the Court to decide and for this there has to be a trial of the action with the 2^nd, 3^rd and 5^th defendants as parties to the action.

In the application of Order 18 “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.

On the affidavit evidence before me it has not been made out at all that there is ‘no reasonable cause of action’, that ‘it is scandalous, frivolous or, vexatious’ and that it ‘may prejudice, embarrass or delay the fair trial of the action’.

It cannot be said on the facts and circumstances of this case that it is in the least plain obvious or clear beyond doubt that the action cannot succeed, or an abuse of the process of the court. The plaintiff definitely had the right to bring this action.

In the context of this case I find the following statement of Megarry V.C. in Gleeson v J. Wippell & Co. [1971] 1 W.L.R. 510 at 518 apt:

“First, there is the well-settled requirement that the jurisdiction to strike out an endorsement or pleading, whether under the rules or under the inherent jurisdiction, should be exercised with great caution, and only in plain and obvious cases that are clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary; even if the matter is or may be res judicata, it may be better not to strike out the pleadings but to leave the matter to be resolved at the trial”.

In considering this application I have also borne in mind the following passage from Halsbury’s Laws of England 4^th Ed Vol. 37 para. 434 on ‘abuse of process’ which I consider pertinent:

“An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or indorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or indorsement or any offending part of it . Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court.”

In the outcome, for these reasons the application fails and is dismissed with costs in the sum of $250.00 to be paid within 7 days. The application for Summons for Directions should now be heard on 16 July 2003 at 11.00 a.m. by the Deputy Registrar (Legal) and thereafter the action to take its normal course complying strictly with the High Court Rules so that the trial can take place without further undue delay. I give this direction, bearing in mind the Court of Appeal’s concern about the way the case has been handled hitherto.

D. Pathik
Judge

At Suva
11 July 2003