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Naidu v Rafiq [2014] FJHC 832; HBC106.2014 (10 November 2014)

IN THE HIGH COURT OF THE REPUBLIC OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 106 OF 2014

BETWEEN:

SALWENDRA KALI NAIDU
as Executor & Trustee of the estate of Nagaiya Naidu of Raviravi, Ba, Cultivator/Legal Clerk.
Plaintiff

AND:

ABDUL KAIYUM RAFIQ
(Babba) of Simla Lautoka
1st Defendant

AND:

JAMAL ALI
of Raviravi, Ba, Unemployed
2nd Defendant

AND:

DIRECTOR OF LANDS,
Suva
3rd Defendant

AND:

ATTORNEY GENERAL OF FIJI,
Suva Level 7 Suvavou House, Victoria Parade, Suva
4th Defendant

AND:

REGISTRAR OF TITLES
Ground Floor, Civic Tower, Suva
5th Defendant

Counsel: Plaintiff in person
Mr Vakacakau for 1st defendant
No appearance for 2nd defendant
Mrs Lee for the 3rd – 5th defendant

Date of Hearing : 14 October 2014
Date of Ruling : 10 November 14

RULING
Introduction

[1] This ruling concerns with striking out applications.

[2] By summons to strike out dated and filed 4 August 2014 the 3rd, 4th & 5th defendants seek and an order that the action be struck out on the ground that it (a) discloses no reasonable cause of action and (b) is scandalous, frivolous or vexatious. Their application is supported by an affidavit of Vikash Rao, Acting Senior Land Officer in the Department of Lands and Survey sworn of 4 August 2014.

[3] By summons dated 22 August 2014 the 1st defendant also filed an application and seeks that the action be struck out and costs be paid by the plaintiff to the defendant on the ground that it (a) discloses no reasonable cause of action, (b) is scandalous, frivolous or vexatious and (c) is an abuse of the process of the Court. The 1st defendant's applications is supported by an affidavit of Abdul Kaiyum Rafiq (1st defendant) sworn on 22 August 2014. That affidavit exhibits documents marked 'A-Q.'

[4] Both applications are made pursuant to Order 18, rule 18 of the High Court Rules 1988 as amended. However, 1st defendant relies on only sub rule (a) & (b) of r.18 (1) while 3rd – 5th defendants rely on all three sub rules ((a), (b) & (c)) of r.18. In addition the defendants have also invoked the inherent jurisdiction of the court.

[5] The plaintiff filed six affidavits in response to these applications.

Background

[6] The plaintiff brought the action against the defendants jointly and severally praying for as follows:

(a) Judgement that the 1st and 2nd Defendants do pay the sum of $101,800.00 (one Hundred and One Thousand Eight Hundred Dollars) to the Plaintiff forthwith the damages caused, to the three houses and also as mentioned in paragraphs 10 and 38 of the Plaintiff Statement of Claim.

(b) An injunction restraining the 1st, 3rd & 5th Defendants from dealing with transferring, selling, alienating or otherwise disposing of CL No. 199245 until the final determination of this matter.

(c) An injunction restraining the 1st Defendant and/or his servant and/or his agents from interfering and/or refrain from entering the house site areas of the Plaintiff and his family's possession and occupation and in any way interfering with plaintiff prayer temple and debris on the same or otherwise until the final determination of this matter.

(d) An Order that the 1st Defendant do erect the 3 bedroom house to the Plaintiff forthwith with the 1st Defendant own costs which he demolished and dismantled without the Court Order, the Plaintiff knowledge, consent or informing the Plaintiff which was carried out in the Plaintiffs absence by the 1st Defendant.

(e) An order that the 1st defendant do repair and fix the Water Pipe to the Plaintiff forthwith at the 1st defendant own costs the damage which is caused by the 1st defendant.

(f) An order that the 1st defendant do surrender of lease No. 19245 LD 474059 forthwith the house site area of the Plaintiff and four other sitting tenants house site areas which the 1st defendant and the corrupt officers of the 3rd defendants fraudulently joined in 1st defendants Agriculture Lease which he is intending to buy without the knowledge, consent, or authority of the Plaintiff and also four other sitting tenants knowledge who are occupying their house site areas.

(g) Interest on damages for judgment awarded under the law reform (death and interest)(miscellaneous provisions) Act, Cap 27 of the Laws of Fiji at the rate of 10% per annum from 13th March 2014 till the date of Judgment.

(h) Damages for trespass at the rate of $30.00 (thirty dollars) per day from 13th March 2014 till the date of judgment.

(i) The Crown Lease 19245 be declared invalid and be cancelled as it is a nullity.

(j) The Plaintiff seeks an Order that the 5th defendant removes and/or cancelled the lease which was issued in the name of the 1st defendant from the Registrar Record kept at the Titles Office.

(k) A declaration that the lease no. 19245 registered on 14th February 2014 was a nullity.
(l) Declaration that the 1st defendant was fraudulent and not an innocent purchaser for value.

(m) General damages

(n) Punitive and exemplary damages

(o) Special damages

(p) Such other orders as this Honourable Court may deem just expedient.

(q) The defendants do pay costs on an indemnity basis.

[7] He brought the action on the basis that at all material times he was the proprietor as the Executor and Trustee of the Estate of Nagaiya Naidu Pursuant Probate No. 24768 the land comprised in LD File Ref No. 4/7/1542 land known as Farm No. 8073 and Lot 100 CT 11895 Raviravi (the land) and alleging that the very prejudiced and biased officers of the 3rd Defendant joined the house site area and issued the lease to the 1st Defendant by braking all the rules and regulations required by law:-

(i) No proper approvals or consent was sought from relevant bodies.
(ii) No consent of the Plaintiffs was sought.
(iii) No consent of the 4 sitting tenants sought.
(iv) The 1st and 2nd Defendant cheated, duped and hoodwinked the Plaintiff on their agreement.
(v) Any survey plan was approved by the Director of Lands that any time on which the corrupt officers of the 3rd Defendant issued the lease in the name of the 1st Defendant.
(vi) That the house site of the Plaintiff, Dorsami Naicker, Gandi Mati Satendra Kumar and Sanjay were all included on the said lease.
(vii) Complaints were lodged to FICAC, CID Department as a result by the Plaintiff.

The Law

[8] The relevant law involved in these proceedings is O.18, r.18 (1). That rule provides that:

'Striking out pleadings and indorsement (O. 18, rule 18)

18.-(1)The court 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-

1. It discloses no reasonable cause of action or defence, as the case may be; or
2. It is scandalous, frivolous or vexatious; or

100. It may prejudice, embarrass or delay the fair trial of the action; or

4. 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).'

The Principles on Striking out

[9] In the case of Paulo Malo Radrodro vs Sione Hatu Tiakia & others, HBC 204 of 2005, the High Court exhaustively explained the principles, citing several case authority, that are applicable to the exercise of jurisdiction under HCR Order 18 rule 18 application:-

"The principles applicable to applications of this type have been considered by the Court on many occasions. Those principles include:

(a) A reasonable cause of action means a caution of action with some chance of success when only the allegations and pleadings are considered – Lord Pearson in Drummond Jackson v British Medical Association [1970] WLR 688.

(b) Frivolous and vexation is said to mean cases which are obviously frivolous or vexations or obviously unsustainable – Lindley Li in Attorney General of Duchy of Lancaster v L.N.W Ry [1892] UKLawRpCh 134; [1892] 3 Ch 274 at 277.

(c) It is only in plain and obvious cases that recourse would be had to the summary process under this rule – Lindley MR in Hubbuck v Wilkinson [1898] UKLawRpKQB 176; [1899] Q.B 86.

(d) The purpose of the Courts jurisdiction to strike out pleading is twofold. Firstly is to protect its own processes and scarce resources from being abused by hopeless cases. Second and equally importantly, it is to ensure that it is a matter of justice, defendants are permitted to defend the claim fairly and not subjected to the expense inconvenience in defending an unclear or hopeless case.

(e) "The first object of pleadings is to define and clarify with position the issues and questions which are in dispute between the parties and for determination by the Court. Fair and proper notice of the case an opponent is required to meet must be properly stated in the pleadings so that the opposing parties can bring evidence on the issues disclosed– ESSO Petroleum Company Limited v Southport Corporation [1956] A.C 218 at 238" – James M Ah Koy v Native Land Trust Board & Others – Civil Action No. HBC 0546 of 2004.

(f) A dismissal of proceedings "often be required by the very essence of justice to be done"...... – Lord Blackburn in Metropolitan – Pooley [1885] 10 OPP Case 210 at 221 – so as to prevent parties being harassed and put to expense by frivolous, vexatious or hopeless allegation – Lorton LJ in Riches v Director of Public Prosecutions (1973) 1 WLR 1019 at 1027".

Determination

[10] These are applications filed under O.18, r.18 of HCR. Rule 18 allows the court to strike out any pleading on four grounds ((a), (b), (c) & (d)) as stated in para 8 above. They are alternative grounds. The court may strike out any pleading on any one of those grounds.

[11] Evidence will not be admissible when the court considering an application to strike any pleading out under ground (a), that it discloses no reasonable cause of action, for O.18, r.18 (2) prohibits admission of evidence on an application under paragraph (1) (a). Therefore, when I consider whether or not to strike out the plaintiff's claim on the ground that it discloses no reasonable cause of action, I will consider the statement of claim on the basis that it is true and undisputed.

[12] In addition to strike out any pleading under O.18, r.18 (1), the court also has an inherent jurisdiction to strike out pleadings and other documents which are shown to be frivolous, vexatious or scandalous, stay or dismiss an action or strike out a defence which is an abuse of the process of the court.

[13] I now endeavour to find whether the statement of claim discloses reasonable cause of action as against the defendants.

[14] It is pertinent to note what 3rd- 5th defendants say about the lease. In their affidavit in support they states that, an Approval Notice of Lease (ANL) was issued to Nagaiya Naidu for Farm 8073 and Lot 100 on CT 11895 with particulars as follows:

1. The term of the Approval Notice was 19 years 7 months and 5 days with effect from 1977.
2. The estimated area subject to survey of the Approval Notice was 16 acres.

100. The Approval Notice expired on 31 December 1996.

4. The Approval Notice has not been renewed.
   

[15] Mrs Lee contended that the Approval Notice expired on 31 December 1996 and upon expiry has not been renewed or transferred to the plaintiff. Hence the plaintiff does not have locus to institute this action. She also contended that the plaintiff has no consent to initiate proceedings in respect of protected land.

[16] It was common ground that a Nagaiya Naidu was issued with Approval Notice of Lease Form (Agricultural Lease) for 19 year and 7 months in 1977, that lease was expired on 31 December 1996 and that lease was not renewed.

[17] The only argument advanced by the plaintiff with regard to expiry of the lease was that he was not informed of the expiry of the Lease Notice. This argument is untenable, because he cannot now expect notice of expiry for a lease that expired in December 1996. He was very well aware of the expiry date of the lease, which is clearly indicated in the lease itself. He should have applied to have the lease renewed or new lease issued to him. He failed to do so.

[18] The land which is subject matter in this action is a protected land. The Lease Approval Notice under clause 2 clearly states that, 'this lease is a protected lease under the provision of the Crown (now State) Land Act.' Therefore section 13 of the State Lands Act will apply. That section provides:

13.-(1) Whenever in any lease under this Act there has been inserted the following clause:-

"This lease is a protected lease under the provisions of the Crown Lands