IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CASE NUMBER: HBC 330 OF 2009

BETWEEN:

SABIR MOHAMMED
PLAINTIFF

AND:

LAND TRANSPORT AUTHORITY
DEFENDANT

Appearances: Mr. S. Shah for the Plaintiff.
Mr. S. Waqainabete for the Defendant.
Date / Place of Judgment: Wednesday 20 June, 2012 at Suva.
Coram: The Hon. Justice Anjala Wati.

JUDGMENT

Catchwords:
Order 18 rule 18 (1) (a) and (b) application- substantive claim for malicious prosecution- pleading discloses a cause of action of malicious prosecution- elements of malicious prosecution – need for elements to be proved at the trial- application dismissed.

Legislation:
The High Court Rules 1988.

1.	The plaintiff has brought an action for malicious prosecution against the defendant.
 
2.	The claim indicates that the defendant charged the plaintiff and was found not guilty by the Court. The plaintiff pleads that the defendant had no reasonable or probable grounds for charging the plaintiff and that the charges were actuated by malice.

3.	The defendant filed an application to strike out the claim on the grounds that it discloses no reasonable cause of action; and that the action is scandalous, frivolous or vexatious.

4.	The defendant's application is supported by the affidavit of its prosecutor who handled the traffic cases from which arises this civil suit.

5.	Mr. Waqainabete submitted that the charges were withdrawn on technical grounds and not on merits. He argued that this withdrawal of the charges upon which the plaintiff was discharged, cannot indicate malice, and if Courts were to uphold that the withdrawal of the charge was in fact a malicious charge, it will open floodgates and any person charged under the criminal justice system will sue the State, in the event the accused is discharged or acquitted. 

6.	Mr. Waqainabete also submitted that the claim is unsustainable and to allow the same to continue would be an abuse of the process of the Court.

7.	Mr. Shah stated that the defendant can sue and be sued. In this case they are being sued because the plaintiff was being charged and later found not guilty. Mr. Shah says that the defendant had no reasonable and probable cause for charging the plaintiff and that the charges were as a result of malice. Mr. Shah says that he has a case for malicious prosecution and that he must be allowed to proceed.

8.	The Court has power to order striking out on various grounds. The power is enshrined in order 18 Rule 18. It reads:

"18 –(1)	The Court may at any stage of the proceedings order to be struck out or amended any pleading or the indorsement of any writ in the action, or anything in any pleading or in the indorsement, on the ground that –

(a)	 	It discloses no reasonable cause of action or defence, as the case may be; or
(b)	 	It is scandalous, frivolous or vexatious; or
(c)	 	It may prejudice, embarrass or delay the fair trial of the action; or
(d)	 	It is otherwise an abuse of the process of the court; and may order the action to be stayed or dismissed or judgment to be entered accordingly as the case may be.

(2)	No evidence shall be admissible on an application under paragraph (1) (a)..."

9.	The elements of malicious prosecution are:-

(a)	institution of criminal proceedings by the defendant.
(b)	termination of proceedings in favour of the plaintiff, if from their nature they were capable of so terminating.
(c)	absence of reasonable and probable cause.
(d)	malice, or a primary purpose other than that of carrying the law into effect.

10.	The pleading contains all the elements for malicious prosecution and as such there is a reasonable cause of action. Whether the action is sustainable or not is not what I can decide now without hearing the evidence from the parties.

11.	To find whether there is a cause of action or not, I am not required to discuss the evidence or else I will offend the requirements of Order 18 Rule 18 (2). However the requirement not to admit evidence does not relate to the ground that "the claim is scandalous, frivolous or vexatious". 

12.	This is another ground that the defendant has raised for striking out and in evidence it relies on the fact that the charges were terminated on technical grounds and not on merits. 

13.	In a malicious prosecution case, it does not matter how the termination of the charges came about. The crux is not so much whether the plaintiff has been proved innocent as that he has not been convicted. The plaintiff thus is not required to show an acquittal on the merits.

14.	All the elements of malicious prosecution must be established by the plaintiff and the trial is the only proper place where this could take place. 

15.	I find that the statement of claim discloses an action for malicious prosecution and as such the application for striking out must be refused.

16.	The application for striking out is dismissed.

17.	The defendant must pay the plaintiff cost of the application, which I summarily assess in the sum of $550, to be paid within 14 days.

18.	The matter must now proceed in its normal course with effect from today.

Anjala Wati
Judge
20.06.2012
_______________________

1.	Mr. Sheik Shah for the plaintiff and Mr. Waqainabete for the Defendant.
2.	 File: HBC 330 of 2009.