IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 348 of 2010

BETWEEN:

HOUSING AUTHORITY a statutory body established by the Housing Authority (Cap 267) having its registered office at Suva in the Republic of Fiji Islands.
PLAINTIFF

AND:

BANK OF BARODA a body corporate duly incorporated in India, having its head office at Mandvi, Baroda, India and duly registered in Fiji under Part X of the Companies Act and having its Head Office at 86-88 Mark Street, Suva.
DEFENDANT

BEFORE : Master Deepthi Amaratunga

COUNSELS : Legal Officer - Housing Authority for the Plaintiff
Neel Shivam Lawyers for the Defendant
Siwatibau & Sloan for the Intended Third Party

Date of Hearing: 16th March, 2011
Date of Ruling : 21st March, 2011

RULING

A.	INTRODUCTION

1.	The Plaintiff instituted this action against the Defendant by way of Writ of Summons on 30th December, 2010. The Defendant has filed a Statement of Defence on 19th January, 2011 and a reply to the Statement of Defence was also filed on 10th February, 2011.

2.	On 22nd February, 2011, the Defendant has filed a summons supported by an affidavit in pursuant to Order 16 Rule 2 seeking leave to issue third party notice.

3.	The application was served to the proposed third party and they object to the application on the basis of non compliance of rules, namely the affidavit supporting the application seeking leave to issue third party notice not containing the requirements stipulated in the Order 16 Rule 2(2) of the High Court Rules of 1988.

B.	LAWS AND ANALYSIS

4.	According to the Statement of Claim filed by the Plaintiff, the claim against the Defendant is for failure to pay the Plaintiff on a performance contract for alleged failure to fulfill a construction contract by the proposed third party.

5.	The Order 16 Rule 2 deals with the application for leave to issue third party notice. It states as follows:

"2 (1) Application for leave to issue a third party notice may be made ex parte but the Court may direct a summons for leave to be issued.

 (2) An application for leave to issue a third party notice must be supported by an affidavit stating-

(a) 	the nature of the claim made by the plaintiff in the action;
(b) 	the stage which proceedings in the action have reached;
(c) 	the nature of the claim made by the applicant or particulars or the question or issue required to be determined as the case may be, and the facts on which the proposed third party notice is based; and 
(d)	the name and address of the person against whom the third party notice is to be issued, (emphasis is mine)."

6.	The Defendant has filed the motion seeking leave to issue the third party notice and has also served it to the proposed third party. In terms of the Order 16 Rule 2(1) it is not mandatory to serve the application seeking third party notice as it can be made ex parte.

7.	Upon the receipt of the notice the proposed third party object to the application on the basis of non compliance of the affidavit filed in support of this application by the Defendant.

8.	The affidavit in support of the third party notice has annexed following documents:

(i)	The Performance Contract (RS-1);
(ii)	The Proposed Third Party Notice;
(iii)	A letter written by the Defendant to the General Manager of proposed third party;
(iv)	An e-mail reply to that letter.

9.	It is to be noted that the draft third party notice is contained in the Appendix 1, Form 9 of the High Court Rules of 1988 and the proposed third party notice has conformed to the requirements set out in the said Form 9 of the Appendix 1 of the High Court Rules.

10.	The Form 9 of the Appendix 1 of the High Court Rules of 1988 also contains certain requirements that overlap the Order 16 Rule 2(1) requirements that is needed to be sworn in the affidavit. The distinction being that in the affidavit, the content is sworn and can be considered as evidence before a court of law

11.	The affidavit in support seeking leave of the third party notice does not contain in its averments the requirements set out in the Order 16 Rule 2(2), but the contention of the Defendant is that since they have annexed the proposed third party notice, it has complied with the requirements laid down in the Order 16 Rule 2(1).

12.	I have not been submitted any decided authority on this point by the parties.

13.	It is pertinent to note that Order 16 Rule 2 states that third party proceedings 'must' be supported by an affidavit and also lays down the essential requirements in the affidavit.

14.	The annexed documents in an affidavit though form part of the affidavit they are neither sworn nor made by the deponent. In the circumstances when the High Court Rules stipulate that an application seeking leave to issue third party notice must be supported by an affidavit 'stating' the requirements, it cannot be substituted by annexing the Form 9 of the Appendix to High Court Rules of 1988 that deals with the third party notice, though the body of the proposed third party notice contained certain things that are required to be included in the averments of the affidavit in support of the third party notice, it is not the same as sworn statements in an affidavit.

15.	The requirement to file an affidavit is to place before the court evidence in support of the issuance of the third party notice. It is important to note that third party is not a party to the action in the writ of summons and no claim is also made by the Plaintiff. In order to request a party who is not included in the writ of summons to intervene in action the court needs to examine the facts and the only way is through an affidavit. So, upon the receipt of the evidence by way of sworn affidavit the court is required to consider the application to issue third party notice. So, it is clear that a court cannot act on materials that cannot be considered as evidence, and that is the rationale in the Order 16 Rule 2(2) which requires certain facts to be 'stated' in the affidavit in support. When it is stated that the requirements stipulated in the Order 16 Rule 2(2) must be stated in the affidavit it means that those facts that are laid down in Order 16 Rule 2(2) must also be sworn in the affidavit and same or similar facts containing in unsworn statements cannot be accepted, as evidence to determine the issuance of third party notice.

16.	The affidavit filed in support of the summons seeking leave to issue third party notice needs to be struck out in terms of Order 2 Rule 1(2) & (3) of the High Court Rules of 1988 and the Defendant is directed to file and serve an affidavit that conform the requirements in terms of Order 16 Rule 2(2) of High Court Rules within 7 days.

17.	Cost of this application is assessed summarily at $350 and to be paid within 7 days in pursuant to Order 2 Rule 1(2) and Order 63 Rule 10 of High Court Rules of 1988.

Dated at Suva this 21st day of March, 2011

………………………………………….
Mr. Deepthi Amaratunga
Acting Master of the High Court
Suva