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Wati v BSP Life (Fiji) Ltd [2015] FJHC 421; HBC165.2012 (10 June 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 165 of 2012

BETWEEN :

RAMILA WATI
father's name Ram Khelawan of Vunimono Settlement, Nausori.
PLAINTIFF

AND:

BSP LIFE (FIJI) LIMITED
4 Thompson Street, Dominion House, Suva.
DEFENDANT

BEFORE : Acting Master Vishwa Datt Sharma
COUNSELS : Ms Ramila Wati in Person
Mr. Haniff for the Defendant

Date of Hearing : 02nd April, 2015
Date of Ruling : 10th June, 2015

DECISION

1. On 15th June, 2012, the Plaintiff filed a Writ of Summons and a Statement of Claim against BSP Life (Fiji) Limited.
   
2. A Statement of Defence was filed and served by the Defendant on 29th June, 2011.
   
3. Subsequently, the Plaintiff filed and served a Reply to Defence on 04th October, 2012.
   
4. The Defendant filed and served a Summons together with an affidavit in support of Mahendra Chand seeking an order to strike out the Plaintiff's Statement of Claim on the grounds that the Statement of Claim was scandalous, frivolous, and vexatious and an abuse of process or as otherwise appears in the affidavit of Mahendra.
   
5. An affidavit opposing the Defendant's striking out application was filed by the Plaintiff.
   
6. The application was heard and determined on 21st March, 2013 wherein the summons to strike out was dismissed with $200 costs and the case to take its normal cause.
   
7. Pending before this court is another striking out application filed by the Defendant for the courts determination..
   
8. The Defendant again filed and served a Second Striking out Summons coupled with an affidavit of Nazia Lal on 02nd June, 2014 and sought for the following orders:-
   
   • (i) The action be struck out and dismissed;
   • (ii) That the Plaintiff pays the Defendant indemnity costs to be assessed by the Court within a prescribed period.
     
9. Following are the Grounds upon which the orders were sought:-
   
   • (i) The action is an abuse of process of this Honourable Court as the Plaintiff has no right whatsoever to issue these proceedings;
     
   • (ii) As otherwise appears in the affidavit of Nazia Lal filed herein.
     
10. The application was filed pursuant to Order 18 Rule 18 (1) (d) of the High Court Rules 1988 and or upon the Inherent Jurisdiction of this Honourable Court.
    
11. There is one (1) main issues which require determination by this honourable court and that is:

(a) The action is an abuse of process of this Honourable Court as the Plaintiff has no right whatsoever to issue these proceedings;

12. Whether or not the action is an abuse of process of this Honourable Court and that the Plaintiff has no right whatsoever to issue this proceedings, it is necessary to visit the relevant laws regarding the striking out application.
    

Law on Striking Out Application

13. The Application to strike out has been made pursuant to Order 18 Rule 18 (1) (a) (b) & (d) of the High Court Rules 1988. Order 18 Rule 18 (1) (a) (b) & (d) states as follows:
    

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) ....................................
(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).

(Since this application is filed pursuant to Order 18 Rule 18 (1) (d) only, this court will therefore confine its determination to Rule 18 (1) (d) only)

14. In dealing with the issue of striking out of application, I bear in mind the following passage from Halsbury's 4th Ed. Vol. 3ara 435::
    

"The power to strike out, stay or dismiss under the inherent jurisdiction is discretionary. It is a jurisdiction, which will be exercised with great cipection and only where it i it is perfectly clear that the plea cannot succeed, it ought to be exercised sparingly and only in exceptional cases. However, for this purpose the court is entitled to inquire into all the circumstances of the case, and to this end affidavit evidence is admissible.

15. In the case of Khan v Begum (2004) FJHC 430; HBC0153.2003L (30 June 2004) Justice Connors discussed 18 (1) (a) and (d) where he held that;
    

"It is said that the fact the court has this inherent jurisdiction is one of the characteristic which distinguishes the court from other institutions of the government. It is a jurisdiction, to be exercised summarily and as I have said, is in addition to the jurisdiction conferred by the rules. It is not in issue that if a party relies solely upon Order 18 rule 18 there no evidence may be considered by the court in making its determination but that limitation does not apply where the applicant relies upon the inherent jurisdiction of the court."

16. Order 18 Rule 1 (d) – abuse of process of the court
    

The Defendant's main contention here is as follows:-

(a) That the Plaintiff has incorrectly brought this claim in her personal capacity as the lawful wife of the deceased Imam Ali;

(b) The Plaintiff alleges that BSP Life (Fiji) Limited is negligent in not paying out on an insurance claim on behalf of the deceased Imam Ali. The Plaintiff seeks inter alia aggravated damages for psychological harm, pain and humiliation.

17. I have perused the Plaintiff's Writ of Summons and the Statement of Claimed filed herein. The Plaintiff commenced this proceeding on 15th June, 2012, after the demise of her husband Imam Ali on 25th August, 2008.
    
18. I reiterate that this is the second striking out application filed by the Defendant seeking striking out of the Plaintiff's claim.
    
19. The Plaintiff's claim is based on the fact that prior to her husband's (Imam Ali) death, he (Imam Ali) had an insurance policy number 810089 with the Defendant, BSP Life (Fiji) Limited, purchased on 29th November, 2006. According to the Plaintiff, Imam Ali's demise took place on 11th August, 2008 due to a congestive heart failure.
    
20. The Plaintiff filed this action seeking a payment of the insurance entitlement on behalf of the deceased husband from the Defendant. She further claims for general damages for negligence.
    
21. According to the Plaintiff, the Defendant refuses to pay the sum insured under the life insurance policy of her late husband.
    
22. Further, it is important that I make reference to an earlier application for striking out of the Plaintiff's Writ of Summons and the Statement of Claim by the Defendant. On 21st March, 2013, the court then delivered a decision that the Defendant Summons for strike out of the Plaintiff's application was dismissed on the four grounds of scandalous, frivolous, vexatious and an abuse of process of this court accordingly.
    
23. Once the court has already determined the grounds for the striking out application and delivered a decision in particular as to the ground of the action being an abuse of the court process.
    
24. Should the Defendant time and again bring back an action to this court on the same ground? Will that not tantamount to an abuse of process on the part of the Defendant? Obviously, it is an abuse of process on the part of the Defendant and this fact cannot be denied because the court has already dealt with this issue of the abuse of process on the part of the Plaintiff and has clearly delivered its decision at paragraph 10 'that this cannot be considered as an abuse of process since the facts needs to be elicit in trial since contradictory evidence is presented by the parties and facts are in dispute in this action.
    
25. However, upon re- visiting the ground stated by the Defendant that the action is an abuse of process of this court as the Plaintiff has no right whatsoever to issue these proceedings. (Underline is mine for deliberation).
    
26. A careful examination of the abovementioned ground informs court that the Plaintiff did not have any right to commence this proceedings since the husband has taken the demise and there is no letters of administration grant and or other grants sought by the Plaintiff which would empower her in law to bring or file any legal proceedings in a court of law and therefore that will tantamount to an abuse of process.
    
27. This court agrees with the Defendant's contention and or the argument but the mere error on the part of the Plaintiff acting in person should not tantamount to an abuse of the process, but in law that can be cured by the Plaintiff.
    
28. For the aforesaid rational, the Defendant's application for the striking out of the Plaintiff's action fails.
    
29. This court needs to allow the Plaintiff to amend her claim in accordance of the requirements of the law and she should be given the liberty to seek legal advice and may be legal representation and not to be mislead by her Mackenzie friend, as has happened in this case of which this court was made aware of.
    

FINAL ORDERS

1. The Defendants Summons to strike out the Plaintiffs Writ of Summons and the Statement of Claim is hereby struck out.
   
2. The Plaintiff is at liberty to file and serve an appropriate application and seek an order to amend her Writ of Summons and the Statement of Claim accordingly.
   
3. The Defendant is hereby ordered to pays $300 costs to the Plaintiff within 14 days.
   

Dated at Suva this 10th Day of June, 2015

.....................................
VISHWA DATT SHARMA
Acting Master of High Court, Suva