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Hanif v Shah [2008] FJHC 303; HBC142.2006L (6 October 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO 142 OF 2006L

BETWEEN

MOHAMMED FIROZ HANIF
Plaintiff

AND

MOHAMMED AZAM SHAH
Defendant

Appearances:Mr R Singh for the Plaintiff
No Appearance for the Defendant.

Date of Hearing: 6 October 2008
Date of Ruling: 6 October 2008

EX-TEMPORE RULING

[1] The defendant has not appeared for hearing of his summons this morning. There is no explanation before me justifying the non-appearance. For that reason alone the summons dated 13 June 2006 is struck out.

[2] I will however also give my reasons on why the summons should be dismissed on the merits. I have taken into account the oral submissions of Mr Singh made this morning, the defendant’s written submissions of 14 April 2008 and plaintiff’s written submissions.

Material non-disclosure

[3] The matters which the defendant takes issue with does not satisfy the test for material non-disclosure which may justify immediate dissolution of the injunction obtained ex-parte. They are matters which are peripheral to the central questions in dispute and to the injunction application made before Connors J.

Strike out

[4] This is not a "clear and obvious case" which falls with the ambit of Order 18 rule 18. Even if the issue of illegality were decided in the defendant’s favour, the plaintiff still has an action in "money had and received". I adopt the principle outlined by Bingham J in Saunders –v- Edwards[1] applied by Fatiaki J (as he then) was in Sakashita –v- Concave Investment Ltd[2] as follows:

"Where issues of illegality are raised, the courts have (as it seems to me) to steer a middle course between two unacceptable positions. On the one hand it is unacceptable that any court of law should aid or lend its authority to a party seeking to pursue or enforce an ... agreement which the law prohibits. On the other hand, it is unacceptable that the court should, on the first indication of unlawfulness affecting any aspect of a transaction, draw up its skirts and refuse all assistance to the plaintiff, no matter how serious his loss nor how disproportionate his loss to the unlawfulness of his conduct."

[5] In Sakashita, Justice Fatiaki in applying the above stated:

"Neither is my decision made any easier by considering the conduct or relative moral culpability of the parties to ‘the Agreement’ since both were aware of the need to obtain the Minister’s approval and both have acted on the basis that there was a valid and binding contract in existence.

In the final analysis I am content to categorise this aspect of the plaintiff’s originating summons as being a claim for ‘money had and received’ or for restitution according to the principles discussed in the judgments of the House of Lords in the case of Fiborosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd. [1942] UKHL 4; (1943) A.C. 32."

Security for Costs

[6] I have upheld Mr. Singh’s argument. There is no dispute that the sum of CAN$50,000.00 was sent by plaintiff to Fiji and was received by the defendant and that he retains the proceeds of sale of the motor vehicles, the purchase of which was funded the plaintiff. More importantly he has defied Connors J’s order to account for those monies. In the circumstances I have exercised my discretion against an order for security for costs.

Orders

(i) Summons is dismissed with costs to plaintiff in the sum of $750.00.

(ii) An amended statement of claim to be filed and served within 21 days.

(iii) File remitted to Master’s list on 14 November 2008 for directions.

Gwen Phillips
Judge

At Lautoka
6 October2008

^[1] [1987] 1 W.L.R 1116 at 1134
^[2] [1999] FJHC 3 HBJ 0121 judgment 1990S