IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0456R OF 2005S

BETWEEN:

CHANDU K. UMARIA
PLAINTIFF

AND:

PENI VULA VOLAVOLA
1ST DEFENDANT

SUVA CITY COUNCIL
2ND DEFENDANT

FIJI DAILY POST COMPANY LTD.
3RD DEFENDANT

MITHLESHNI GURDAYAL
4TH DEFENDANT

Counsel for the Plaintiff: Diven Prasad: Diven Prasad Esq.
Counsel for the 1st Defendant: J. Raikadroka: Raikadroka Law
Counsel for the 3RD Defendant: Ms Tanya M. Waqanika: Legal Division, Suva City Council

Date of Ruling: 2 February, 2006
Time of Ruling: 10.00 a.m.

RULING

This is the 1st Defendant’s summons to strike out the Plaintiff’s statement of claim under O.18 r.18.

In or around August 2004, the 1st Defendant, in his election campaign and a lead up to then Suva Mayoral election, was a guest of Radio Fiji talk-back programme. During the interview the 1st Defendant criticised the Plaintiff, an ex-mayor and also candidate for the post, of financial mismanagement of a loan of $6.5 million obtained from FNPF in the period 2000 to 2003. The Plaintiff sought, in a letter of 30 August 2005, an explanation from the 1st Defendant as to the allegations he made on the talk-back show. According to the Plaintiff, the 1st Defendant, refused to apologise. There were also articles in the media and specifically in the 3rd Defendant’s publication, alleging abuse or mismanagement of funds by the Plaintiff. These latter matters are not directly involved in this present proceedings.

The Plaintiff subsequently sued the 1st Defendant and including the other Defendants, claiming that the allegations were proven to be unfounded. They nevertheless have resulted in him suffering damages to his name and reputation. He seeks general damages from the Defendants.

The principles on setting aside and the exercise of the Court’s powers pursuant to them, are clearly spelt out under O.18 r.18. It has also been the subject of many previous Court decisions, some of which are cited in Counsel’s submissions.

In summary, the following propositions are followed by the Court.

1.	The application or argument to strike can only be allowed when it can clearly be seen that on the face of the claim it is “obviously unsustainable”, (see: Attorney-General of Duchy of Lancaster –v- L. & N.W. Ry. Co. [1892] 3 Ch. 274).

2.	It can only be exercised if there is no reasonable cause of action or that the proceedings are frivolous or vexatious (see: Hubbuck –v- Wilkinson [1899] 1 QB 86).

3.	In exercising its discretionary powers, the Court may not rely and try the action on affidavits evidence alone when facts and issues are in dispute (see: Wenlock –v- Moloney [1965] 1 WLR 1238).

4.	Neither can the Court exercise it by “minute and protracted examination of the documents and facts of the case in order to see whether the Plaintiff has a cause of action.” (see: Wenlock (supra)).

The 1st Defendant’s main and only ground is based on section 18 of the Local Government Act. (Cap 125), which he argues, protects him from any action, including personal liability for matters he performed or did under it. Section 18 states:

“Members of Council not personally liable

18.	No matter or thing done and no contract entered into by any councillor and no matter or thing done by any councillor or officer or servant of such council shall, if the matter or thing were done or the contract were entered into bona fide for the purposes of executing provisions of this Act, subject them or any of them personally to any action, liability, claim or payment whatsoever and any expenses incurred by any such council, officer or servant shall be borne and repaid out of the funds at the disposal of the council.” (emphasis added).

With respect, I do not believe that section 18 of the Local Government Act, is intended to provide immunity to city or town councillors and /or their officials from being sued for all and every matter or thing done ostensibly in the course of their work, unless they can prove that they were done or entered into “bona fide for the purpose of executing provisions of this Act.”

It could very well be true that the 1st Defendant was appearing on the talk-back show in his capacity as councillor and Lord Mayor of Suva. This does not mean that everything he did and said during the show, however extraordinary, will always be protected under the cover of section 18. He must prove to the court that this is so.

In any case, the Plaintiff argues that section 18 does not protect the 1st Defendant from making defamatory statements against him. There is a genuine dispute on the legal interpretation to be accorded to S.18. In my view, the Plaintiff’s statement of claim raises a reasonable cause of action which is neither frivolous nor vexatious. It is not for this Court to proceed and delve into the merits or otherwise of the claim or the defence. It is sufficient for the time being to rule that the Plaintiff has disclosed some cause of action fit to go to a hearing.

The 1st Defendant’s summons is dismissed. The matter to take its normal course.

Costs in the course.

F. Jitoko
JUDGE

At Suva
2nd February 2006