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Imtiaz v Rizvi [2011] FJHC 108; HBC194.2009L (3 February 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

Civil Action No: HBC 194 of 2009L

BETWEEN:

SHEIK SHAFI IMTIAZ and IMAN TRADING COMPANY LIMITED
Plaintiffs

AND:

FURQAN RIZVI trading as AL-RIZVI TRADING
1st Defendant

AND:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
2nd Defendant

AND:

FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY
3rd Defendant

INTERLOCUTORY JUDGMENT

Judgment of: Inoke J.

Counsel Appearing: No appearance for or by the Plaintiff.
Mr V Perera with Ms S Chand for the 2nd Defendant.

Solicitors: In-house solicitors for the Defendant.

Date of Hearing: 24 August 2010
Date of Judgment: 3 February 2011

INTRODUCTION

[1] This is the Second Defendant's Summons to strike out the Plaintiffs claim against it pursuant to Order 18 Rule 18(1)(d) of the High Court Rules 1988 and the Court's inherent jurisdiction.

[2] None of the other Defendants are involved in this application. On 7 June 2010 I gave leave for solicitors then acting for the Plaintiffs to withdraw. An affidavit of service was filed to the effect that the strike out Summons was served personally on the Plaintiff Sheik Shafi Imtiaz. He is said to be a Pakistani national doing business in Fiji. He did not appear either in person or by counsel on the day of the hearing so I proceeded to hear the application. This is my judgment on the Summons.

THE APPLICATION TO STRIKE OUT

[3] The Summons was filed on 19 May 2010 pursuant to Order 18 Rule 18(1)(d) of the High Court Rules 1988 which provides that the Court may strike out a pleading at any time on the grounds that it is an abuse of process.

[4] The Statement of Claim so far as relevant to the 2nd Defendant pleads that the Plaintiffs are suppliers of motor vehicle parts and the 1st Defendant is a dealer in those parts. Between June and July 2009, the Plaintiffs supplied on credit to the 1st Defendant parts worth FJD$384,615.40. The 1st Defendant did not pay the total amount owing so the Plaintiffs claimed an unpaid vendor's lien over the parts. The 1st Defendant has now been charged with certain criminal offences relating to the container so on 4 September 2009, FICAC and FIRCA seized and took into their custody a container load of the parts. The Plaintiff seeks an order for the 2nd Defendant to forthwith release the container and the parts.

[5] The affidavit in support of the application was sworn by the FICAC officer handling the criminal case against the 1st Defendant. He said the container and its contents are the subject of two criminal prosecutions in the criminal division of this Court. The Plaintiffs are not parties to those prosecutions. The container and its contents, except for certain items, have been released to the 1st Defendant pursuant to an order in the criminal prosecutions by the Judge.

THE LAW

[6] The law is well settled. I refer to the Court of Appeal in National MBF Finance (Fiji) Ltd v Buli [2000] FJCA 28; ABU0057U.98S (6 July 2000):

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 proved. 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. It follows that an application of this kind must be determined on the pleadings as they appear before the court.

[7] See also Tawake v Barton Ltd [2010] FJHC 14; HBC231.2008 (28 January 2010), a decision in which Master Tuilevuka summarised the law in this area and which I respectfully adopt:

[33] The jurisdiction to strike out proceedings under Order 18 Rule 18 is guardedly exercised in exceptional cases only where, on the pleaded facts, the plaintiff could not succeed as a matter of law. It is not exercised where legal questions of importance are raised and where the cause of action must be so clearly untenable that they can not possibly succeed (see Attorney General –v- Shiu Prasad Halka 18 FLR 210 at 215, as per Justice Gould VP; see also New Zealand Court of Appeal decision in Attorney -v- Prince Gardner [1998] 1 NZLR 262 at 267.

[34] His Lordship Mr Justice Kirby in Len Lindon -v- The Commonwealth of Australia (No. 2) S. 96/005 summarised the applicable principles as follows:-

1. it is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided.

2. to secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action ... or is advancing a claim that is clearly frivolous or vexatious ...

3. an opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination ... Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.

4. summary relief of the kind provided for by O 26 r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer ... If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.

5. if, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading ...

6. The guiding principle is, as stated in O 26 r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.

APPLICATION TO THIS CASE

[8] This is clearly one of those cases which should be struck out. The Statement of Claim discloses no possible cause of action against the 2nd Defendant. An amendment will not cure it. The container has been released to the 1st Defendant pursuant to an order of a Judge of the criminal division of this Court so to reverse that would be an abuse of its process. The release of the container also suggests that the Judge did not accept that the Plaintiff had an unpaid vendor's lien over it. The Plaintiffs have not appeared in person or by counsel and are now unrepresented and probably have no interest in pursuing his claim further.

COSTS

[9] The 2nd Defendant asks for the costs of this application which I summarily assess at $800.

ORDERS

[10] The Plaintiffs claim against the 2nd Defendant is struck out. The Plaintiffs shall pay the 2nd Defendant's costs of $800.

[11] This matter is to be mentioned before the Master on a date to be advised by the Registry.

Sosefo Inoke
Judge