IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0348 OF 2004

BETWEEN:

MAHENDRA PAL CHAUDHARY
First Plaintiff

DR GANESH CHAND
Second Plaintiff

AND:

FIJI MILITARY FORCES
First Defendant

FIJI POLICE FORCE
Second Defendant

TIMOCI SILATOLU & GEORGE SPEIGHT
Third Defendant

ATTORNEY-GENERAL OF FIJI
Fourth Defendant

Counsel: Mr. R. Prakash – for Plaintiff
Mr. Raiyawa – for 1st Defendant
Mr. T. Banuve – for 2nd and 4th Defendant
Mr. George Speight – In Person
Mr. S. Inoke – for Timoci Silatolu

Date of Hearing: 3rd March, 2005
Date of Judgment: 10th March, 2005

JUDGMENT

The Application

The third defendant Timoci Silatolu applies for an order that the plaintiffs amended writ of summons and statement of claim be struck out as against both the third defendants. 

The grounds for the application are:

1.	That the amended writ and statement of claim is out of time by virtue of Section 4(1)(a) of the Limitation Act, Cap. 35 and/or

2.	The amended written statement of claim should be struck out by virtue of the rule in Weldon v Neal [1887] 14 QBD 394. A “rule” against adding out of time fresh causes of action into amended claims.

3.	Alternatively, there was an argument raised that the amended written statement of claim should be struck out because leave was not or could not have been granted under Order 20 Rule 5(1) and (5) of the High Court Rules 1988(4). 

4.	Alternatively that any constitutional claim contained in the amended statement of claim was statute barred and the Court should exercise its discretion under Section 41(4) of the Constitution to refuse relief.

Background Facts

The first and second plaintiffs were duly elected to the Fijian Parliament following the 1999 National Elections.

It is a matter of historical record that on May 19th in the year 2000 soldiers from the Fijian Military Forces stormed Parliament. Hostages were taken and held captive for 56 days.

The third defendants were part of the group that stormed Parliament. The first and second plaintiffs were held hostage.

Preliminary Issue 

At the outset of the application counsel for the respondent plaintiffs raised the preliminary issue that the strike out application as filed was only against the amended statement of claim. Counsel submitted a large portion of the pre-exchanged submissions from the defendant applicant related to criticism of my earlier leave granted for the amendment of the claim. That application for leave to amend was not appealed and accordingly counsel submitted that the applicant should be restricted to argument regarding a strike out of the amended claim only.

The application as framed is a challenge to the amended statement of claim. No appeal has been filed against the leave I granted on the 29th of September reserving a right to the plaintiff to amend its pleading. For those reasons I directed that the application proceed as filed against the amended statement of claim only.

Strike Out Applications

The Fiji Court of Appeal in its decision of National NBF Finance Fiji Limited v Nemani Buli (Civil Appeal No. ABU0057 of 1998) clearly determined the principles for striking out. At page 2 of the judgment their Lordships said:

“The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be provided. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention….”

The rule of law requires the existence of courts for the determination of disputes and that litigants have a right to use the court for this purpose. Courts must also, however, be alert to their processes being used in a way that results in an oppression or injustice that would bring the administration of justice into disrepute. This is because “The courts authority possessed of neither the purse nor the sword ultimately rests on some sustained public confidence in its moral sanction” (Justice Felix Frankferter in Baker v Carr, 369 US 186267 [1962]).
 
The courts then, will guard against the frivolous and vexatious litigant using the courts resources only as a means of vexation and oppression. Similarly the court will prevent an abuse of its process to avoid unfairness and injustice. In exercising that jurisdiction the court is protecting its ability to function as a court of law in the future as much as in the case before it (cf Reed v New Zealand Trotting Conference [1984] 1 NZLR 8 at page 9 per Richardson J.)

However, there is a caution to be exercised by the court when considering applications of this type. In Kumar v Kumar & Others, 2003 Civil Action No. 23 of 2003, my brother Justice Pathik in applying Attorney-General v Halka, (1972) 18 FLR 210 at 215 observed:

“I think it is definitely established the jurisdiction to strike out proceedings under Order 18 should be very sparingly exercised and only in exceptional cases. It should not be exercised where legal questions of importance and difficulty are raised.”

I agree.

It is only in plain and obvious cases that resort should be had to this summary procedure.

The Application

The applicant submitted that none of the pleadings make a proper claim against the third defendants. The amended statement of claim, he said, can be characterized as a “catch all claim” principally directed towards the vicarious liability of various government institutions for what happened at Parliament in May of 2000.

Counsel criticized the pleadings as failing to properly engage the third defendants in any meaningful way. He submitted that while the pleadings seek to fix liability on various instruments of Government for the actions of the third defendants they do not sheet home liability to the third defendants personally for any of their actions. Counsel reasoned that this was particularly so in the original proceedings. He then argued that while the original proceedings were filed within the limitation period specified in the Limitation Act the amendments made, after leave was granted, added poorly drafted but specific causes of action in false imprisonment that the applicant claimed was by then statute barred by the Limitation Act. Counsel submitted that while the Court under Order 20(5)(2) could grant leave to amend and add a new cause of action outside the time limitation period in just circumstances that discretion was still circumscribed by the Weldon and Neal principles.

In the alternate counsel sought to argue that it was unjust that such an extension of the claim should have been granted. However, bearing in mind my earlier preliminary direction, I do not put much weight on this argument except to say that in these particular circumstances counsel was unable to demonstrate any direct prejudice to the third defendants by virtue of the amendment beyond the specification of the cause of action itself.

As regards constitutional damages counsel argued, but not strongly, that the only way there could be a separate cause of action for breach of constitutional rights was under the enforcement section of the Part 4 provisions. It was argued that a constitutional redress of such rights was circumscribed by section 41. Counsel submitted as the plaintiffs had other rights of redress the constitutional cause of action should not survive.

Reply

In reply counsel for the respondent plaintiffs submitted that the false imprisonment and constitutional claims were first clearly advised to the third defendants by the original statement of claim well within any limitation period prescribed by the Limitation Act, Cap. 35.

He submitted that there was no new cause of action against the third defendants grafted on to the proceedings by the amended claim. He submitted that the plaintiffs were granted general leave to amend the claim and were entitled to amend because any such cause of action arose directly from the matters in issue. In support of that submission counsel referred to Order 20 Rules 5-8 and the commentary in the white book that says at page 341:

“In the case of a claim involving a new cause of action, if the new cause of action arises out of the same facts or substantially the same facts as are already in issue on any claim previously made in the original action.”……. the amendment is permissible.

Counsel submitted that in those circumstances bearing in mind the test to be applied to strike out applications the application should be dismissed.

Regarding the constitutional claim counsel submitted that it was not the subject of any limitation period except perhaps that related to abuse of process by delay but that argument was unavailable in this instance. 

He submitted that there was an arguable case on whether or not a private citizen could be liable in damages for a breach of a plaintiff’s constitutional rights and that accordingly I must take the pleadings as capable of some proof at trial. He said the matter had to go to trial for determination of that interesting issue.

Decision

I find as a fact that although the amended statement of claim is poorly drafted it does clarify a cause of action that was obliquely pleaded in the original claim and in any event arises out of the same facts already pleaded. I reject the applicant’s argument on the Limitation Act accordingly. The amended cause of action is not statute barred.

In my view the rule developed in Weldon and Neal in the latter part of the 19th century has been watered down by changes made in the High Court Rules particularly Order 20. It remains a general principle of pleading that a time limited new cause of action should not be set up by an amended statement of claim. However, this principle has been criticized and the High Court Rules varied to now allow amendment of pleadings right up to the point of judgment. The guiding principle on amendment is now the interests of justice in seeing that the essential issues between parties are properly resolved in their trial. In my view for Weldon & Neal to have any applicability the applicant must demonstrate some real prejudice flowing from a completely unexpected and new cause of action in an amended claim. Something to quote the vernacular coming right out of “left field” in the new pleadings that the defendant cannot properly defend. That is not the case here.

The original claim made it clear that damages were sought for hostage taking and cruel and inhumane treatment. The nub of that claim against the third defendants remains in the amended writ. Despite my invitation counsel for the applicant was unable to point to any specific prejudice against the defendants by virtue of such an amendment. In any event as I have earlier found the amendments that were made at least in part clarify a cause of action arising out of the same set of facts.

As far as the constitutional claims are concerned the amended Statement of Claim makes it clear that each plaintiff alleges that the defendant was liable in damages because they breached the plaintiffs constitutional rights in some regard. In strike out applications I am obliged to assume that the factual basis for the pleadings will be provided at trial. It is only in exceptional and very rare cases that a court might take judicial notice of a completely false or untenable legal or factual contention.

The plaintiffs have pleaded that Parliament was stormed, taken over and they were held hostage. While in captivity they claim they were subjected to cruelty, torture, humiliating and degrading treatment, threats and obscenities. The third defendants are sued in their personal capacities. The plaintiffs say the third defendants committed these acts as pleaded. There is nothing frivolous or vexatious, completely false or untenable in those pleadings. I am obliged to assume that those allegations contained in the pleadings will be supported by some factual basis at trial.

The plaintiffs constitutional rights to freedom from cruel and degrading treatment are non-derogable. They plead the third defendants and/or others breached their rights. Whether or not a breach of the Republic’s Constitution might lead to an award of damages independent of any liability in tort or the need to resort to constitutional redress for remedy, and, whether or not a citizen can sue another citizen for causing a breach of his constitutional rights and rely on that cause of action alone to obtain a remedy are issues only capable of determination after the hearing of evidence.

In conclusion I echo the words of my brother Justice Pathik from Kumar (supra). The jurisdiction to strike out proceedings under Order 18 should only be used sparingly when exceptional circumstances demand that clearly untenable actions should be summarily struck out. Where legal questions of importance and difficulty are raised, a full trial is the proper course. This is exactly such a case.

Conclusion

For these reasons with thanks to counsel for the applicant for an interesting profound and well researched argument. I dismiss the application.

The arguments he raised could fairly be sustained primarily because of the poor pleadings. For that reason while dismissing the application there will be no costs against the third defendants.

The plaintiffs are directed to file a further amended statement of claim particularizing the existing personal claims against the third defendants. That amendment is to be filed and served by the 11th April. This case will be recalled for another pre-trial conference at 9.30am on the 26th April. I order production of Mr. Speight and Mr. Silatolu.

Gerard Winter
JUDGE

At Suva
10th March, 2005