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Buanasolo v Khan [2008] FJHC 272; HBC355.2001 (25 January 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 355 OF 2001

BETWEEN

LIVIA BUANASOLO
1st Plaintiff

PRAKASH
2nd Plaintiff

AND

ALI HASSAN KHAN
Defendant

Appearances: Messrs. Sahu Khan & Sahu Khan for the Plaintiff
Mr Samuel K. Ram for the defendant

Date of Hearing: 16 November 2007
Date of Decision: 25 January 2008

DECISION

[1] This action was listed for trial on 25 June 2007. pre-trial conference minutes had not been filed. The hearing was stood down to allow counsel to discuss draft pre-trial conference minutes. When the case was recalled I was informed by both counsel that the dispute had been narrowed down to one issue which may not involve evidence. A consent order was recorded as follows:

"By consent a preliminary question is to be determined under Order 33 of the High Court Rules prior to trial. The question is "whether on the basis of paragraphs 14 and 15 of the statement of claim, the plainitffs’ have any cause of action against the defendant who bought the land under mortgagee sale"."

[2] The parties further agreed (i) that no further directions were required (ii) to submit the Title by annexing the same to written submissions.

[3] A timetable for written submissions was ordered and the matter adjourned to 12 September 2007 for hearing of the preliminary question. Written submissions had not been filed by 14 September 2007. The hearing was adjourned to 19 October 2007 and time extended for submissions. On 19 October 2007 the hearing was further adjourned to 16 November 2007 to facilitate compliance with the order for submissions.

Jurisdiction

[4] Under Order 33 rule 3 the court has the power at any stage of the proceedings to order that a question or issue, should be tried as a preliminary question or issue. The trial of a preliminary point of law must be distinguished from the determination of a point of law otherwise than by trial, for example, a determination that the pleading does not disclose a reasonable cause of action or ground of defence. The distinction is:

i) the trial of a preliminary point of law takes place in open court, whereas the determination of a point of law by the normal interlocutory process takes place in chambers; and

ii) the jurisdiction to determine a point of law in the interlocutory process can only be exercised in plain and obvious cases, whereas on the trial of a preliminary point of law the court can decide the question in the ordinary way according to its view of what is the law.[1]

[5] Notwithstanding the consent order entered herein, the question I have been asked to determine is not one to which recourse to the Order 33 jurisdiction can properly apply in the circumstances of this case. It is apparent from the pleadings and the respective submissions of counsel that many relevant facts are clearly in dispute. In addition, the averments contained in paragraphs 14 and 15 of the statement of claim cannot be determined in isolation to other allegations raised in the plaintiffs claim, in particular those relating to fraud. The courts have warned against the lack of wisdom, save in very exceptional cases, of adopting this procedure of preliminary points of law, on the grounds that the shortest cut so attempted inevitably turns out to be the longest way round, and that it is highly undesirable that the court should be constrained to tie itself in so many knots.[2] This is the case at hand.

[6] The Order 14 jurisdiction is also inappropriate. Order 14 rule 1 applies to every other action began by writ other than an action which includes a claim by the plaintiff based on an allegation of fraud. Whether or not the defendant’s Title is tainted by fraud is an issue which can only be determined after trial. Nor is the Order 18 rule 19 procedure appropriate. It is trite law that it is only in plain and obvious cases that recourse to the summary process under this rule can be used. The pleadings here, considered in totality disclose a reasonable cause of action and the facts are clearly in dispute.

Conclusion

[7] For the above reasons I have declined the defendants submission that the claim ought to be summarily dismissed with costs. The factual disputes arising from the pleadings will have to be determined after taking evidence at trial. Making final conclusions on the disputed facts on the basis of assumptions is both undesirable and inappropriate.

Orders

i) This case is referred to the Masters List on 14 February 2008 for directions on the holding of a pre-trial conference and other directions as may be deemed appropriate by the Master.

ii) Costs of this application to be costs in the cause.

Gwen Phillips
JUDGE

At Lautoka
25 Januray 2008

^[1] Atkin’s Court Forms Second Edition 23 (2) 1998 Issue at page 14
^[2] Richards –v- Naum [1967] 1 QB 620, cited in Atkins supra @ page 15