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Driu v Naerecoko [2005] FJHC 656; HBC0193.2004L (9 May 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0193 OF 2004L

BETWEEN:

VATERESIOI SAVENACA DRIU
1st Plaintiff

AND:

VILIAME TUIBUA BOLOBOLO
2nd Plaintiff

AND:

ALIPATE NAERECOKO
1st Defendant

AND:

SHIYAM BARAN
f/n Bechu
2nd Defendant

AND:

NATIVE LAND TRUST BOARD
3rd Defendant

Counsel for the Plaintiffs/Respondents: Mr. S. Nacolawa
Counsel for the Defendants/Applicants: Mr. K. Qoro

Date of Hearing/Date of Ruling: 9 May 2005

EXTEMPORE RULING

Before the court is a Summons filed on behalf of the 3^rd defendant to these proceedings wherein in the 3^rd defendant seeks that the plaintiffs action be struck out pursuant to Order 18 Rule 18 (1) (a) in that disclosures no reasonable cause of action.

The application is opposed.

I have had the benefit of oral submissions on behalf of the applicant, 3^rd defendant, and I have had written and oral submissions of the respondent, 1^st plaintiff.

It appears from the pleadings that the 3^rd defendant granted a lease of land to the 1^st defendant and that in the course of the consideration of the granting of that lease it received from the 1^st defendant what purported to be a form of consent from the relevant Mataqali.

The statement of claim pleads that the 1^st defendant was not the Turaga-ni-Mataqali was not the Turaga-ni-Yavusa Nasoa but that he held himself up to so be.

The allegation pleaded against the 3^rd defendant is one of fraud which as I read it, is that it fraudulently issued the lease to the 2^nd defendant on the basis of the apparent consent on behalf of the Mataqali. It is submitted on behalf of the 3^rd defendant, the consent of the Mataqali is not as a matter of law required to enable the 3^rd defendant to deal with land but it is also submitted on behalf of the respondent/plaintiff that as a matter of practicality, the 3^rd defendant in fact obtains the consent of the Mataqali before dealing with land in this way.

It is clear that there are issues relating to the granting of the lease that will only be resolved in the course of the trial.

Counsel for the Applicant/3^rd Defendant referred the court to Naqura v Native Land Trust Board [1991] FJHC 56, the decision of Fatiaki J. which is relied upon for the issue that the consent of the Mataqali is in fact not required to enable the 3^rd defendant to exercise its powers but as I have said, whilst it might not be required as a matter of legality, it appears as a matter of practicality, it is in fact obtained and acted on.

The New Zealand Court of Appeal in Reid v New Zealand Trotting Conference [1984] 1 NZLR 8 at 9 said:

“The justification for the extreme step of staying a prosecution or striking out a statement of claim is that the Court is obliged to do so in order to prevent the abuse of its processes.”

Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] A.C. 529 characterized the exercise of the power in appropriate cases as a duty rather than as a discretion.

Whilst the words of the Court of Appeal of New Zealand in Reid v New Zealand Trotting Conference are indeed at the court must also consider the words of Lindley MR in Hubbuck v Wilkinson [1898] UKLawRpKQB 176; [1899] 1 Q.B. 86 where he said:

“It is only in plain and obvious cases that a recourse should be had to the summary process under this rule.”

The Master of the Roles was there considering a rule in the English Rules analogues to Order 18 Rule 18 of the High Court Rules of this court.

Further relevant consideration was given by Megarry V.C. in Gleeson v J. Wippell & Co. Ltd [1977] 1 W.L.R 510 at 518 where he said:

“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 are that clear beyond doubt. Second, Zeiss No. 3 [1970] Ch. 506 established that, as had previously been assumed, the jurisdiction under the rules is discretionary.”

Taking account of the authorities to which I have been referred and those to which I have referred, I am of the opinion that there are issues raised in the pleadings that take these pleadings away from being what might be described as plain and obvious cases that are clear beyond doubt.

There are matters that in my opinion will only become clear at trial and accordingly, I am of the opinion that it is inappropriate in the circumstances of this matter to grant the orders sought by the applicant/3^rd defendant and accordingly, the Summons is dismissed. I see no reason why in this instance that costs should not followed event and accordingly, it seems appropriate that the unsuccessful applicant should meet the respondents’ costs of the application, which I assess in the sum of Five Hundred Dollars ($500.00).

JOHN CONNORS
JUDGE

At Lautoka
9 May 2005