IN THE HIGH COURT OF FIJI
WESTERN DIVISION
AT LAUTOKA

CIVIL JURISDICTION

CIVIL ACTION NO. HBC 148 of 2014

BETWEEN:

ALIPATE TUIDRAKI as the authorised representative of the iTokatokaVunakuluraurau of the Mataqali Naduruniu of the YavusaNavatulevu, Nadi.
PLAINTIFF

AND:

PENI TUVU SEASEAa.k.a. VENI TUVU, JOSEFA QORO VATUNITU, SEMISI QORO and VASEVA TUVU all of Lotoiqere Island (part of), Vunavutu, Nadi.

DEFENDANTS

(Ms.) Seini Tokasa Tinaikoro for the Plaintiff. 
Mr. Kitione Vuataki for the Defendants.

Date of Hearing: - 24th August 2015. 
Date of Ruling : - 04th December 2015 .

RULING

(A) INTRODUCTION
(1) The matter before me stems from the Plaintiff’s Originating Summons dated 28th August 2014 seeking the grant of the following Orders;

 1. The Plaintiff and or its appointed representative be entitled possession of the land known as “Vunavutu” on part of the island Lotoiqere, Nadi (“hereinafter referred to as “the Land”), which the Defendants occupy, and appoint its surveyor to survey the Land.

 2. the Defendants to vacate the land; and

 3. costs of this action.

(2) The Originating Summons is supported by an Affidavit sworn by the Plaintiff on 28th August 2014.

(3) The Originating Summons is strongly resisted by the Defendants.

(4) The Defendants filed an Affidavit in Opposition opposing the Originating Summons followed by an Affidavit in reply thereto.

(5) The Plaintiff and the Defendants were heard on the Originating Summons. They made oral submissions to Court. In addition to oral submissions, they filed a careful and comprehensive written submission for which I am most grateful.

(B) THE FACTUAL BACKGROUND

(1)	What are the circumstances that give rise to the present application?

(2)	To give the whole picture of the action, I can do no better than set out hereunder the main averments/assertions of the pleadings/affidavits.

(3)	The Plaintiff in his Affidavit in Support deposes inter alia;

Para 1. THAT I am a member of the iTokatoka Vunakulurauru of the Mataqali Naduruniu of the Yavusa Navatalevu, Nadi (hereinafter referred to as “the iTokatoka Vunakuluraurau”) and its duly authorized representative in this action and authorized by it to make this affidavit.

2. THAT to the best of my knowledge and belief the iTokatoka Vunakuluraurau is the registered allottee of the land known as “Vunavutu” aka “Vunavuto” (hereinafter referred to as “Vunavutu”), which is located on part of the island of Lotiqere, in the District of Nadi.

3. THAT to the best of my knowledge and belief iTokatoka Vunakuluraurau was allotted Vunavutu in 1913 by the land owning units known as Tukani, NoiNaiqoro and Botiluvuka.

4. THAT to the best of my knowledge and belief and as advised by the native Lands Commission, Vunavutu was given to the iTokatoka Vunakuluraurau under Reserve Claim No. 10 and was given as the dowry of a woman who was given in marriage to a member of the iTokatoka Vunakuluraurau. Annexed and marked “A” is a copy of a letter issued to me by the iTaukei Land and Fisheries Commission, part of the Ministry of iTaukei Affairs.

5. THAT to the best of my knowledge and belief the Reserves Commission of the iTaukei Land Trust Board (“hereinafter referred to as the ILTB”) also confirmed to the Manager South West of the ILTB that Vunavutu is reserved to the iTokatoka Vunakuluraurau. Annexed hereto and marked “B” is a copy of an Internal Memorandum issued by the Reserves Commission to the Manager South West of the ILTB.

6. THAT since being allotted to iTokatoka Vunakuluraurau, Vunavutu has not been surveyed and so its boundaries and acreage is currently unknown.

7. THAT to the best of my knowledge and belief the Native Lands Commission and the iTokatoka Vunakuluraurau attempted to survey Vunavutu in 2011 but this was made difficult by one of the Defendants, namely, Mr. Peni Tuvu Seasea a.k.a. Veni Tuvu.

8. THAT the Defendants currently occupy Vunavutu without the consent of the iTokatoka Vunakuluraurau and to the best of my knowledge and belief the Defendants have been illegally occupying Vunavutu under the impression that Vunavutu was allotted to the said Mr. Peni Tuvu Seasea a.k.a. Veni Tuvu.

9. THAT I am not aware of any other individual residing on Vunavutu apart from the Defendants.

10. THAT I verily believe that the iTokatoka Vunakuluraurau gave an opportunity to one of the Defendants, namely, Peni Tuvu Seasea a.k.a. Veni Tuvu to vacate Vunavutu on two occasions, however, he has not vacated Vunavutu. Annexed and marked “C” are sworn Affidavit of Services of notices issued by Cromptons, Solicitors to the said Peni Tuvu Seasea a.k.a. Veni Tuvu to vacate Vunavutu.

11. THAT I am also advised and verily believe that the iTokatoka Vunakuluraurau has an indefeasible interest to Vunavutu and the Defendant does not have any defence in this action.

(4)	The Defendants for their part seeking to show cause against the Originating Summons, filed an Affidavit in Opposition, in which they deposed inter alia (so far as relevant);

Para 2. THAT paragraph 2 of the Affidavit is denied as;

a.	Part of the island Lotoiqere owned by Yavusa Tukani, Noi Naiqoro and Botiluvukawas allotted to Tokatoka Nakuluraurau by Reserve Claim Number 10.

b.	The boundary of that land is described as commencing from Nakase at the high water mark then in a straight line to Nadromai and back to Nakase. Nowhere in that description is the land Vunavutu or “Vunavuto” mentioned.

c.	The name “Vunavuto“ was added in pen by reference to an NLTB document. Attached is a copy of the Reserve Claim sent to iTaukei Land Trust Board by Plaintiff’s Solicitors and copied to Nakovacake Development Trust. Attached marked “PTS 2” is a true copy of Plaintiff’s Solicitor’s letter dated 2nd July, 2014. I am a member of YavusaBotiluvuka.

d.	The island Lotoiqere is part of NLC Lot 39 and has been surveyed and the drafting section of TLTB in Nadi has given me a Locality Diagram and google map setting out the location of Vunavutu where I and the Defendants reside and the island of Lotoiqere part of which was allotted to the Plaintiff iTokatoka. Attached marked “PTS 3” is a true copy of that map.

e.	It is apparent from that map that Vunavutu is on the mainland of VitiLevu and is not part of the island Lotoiqere.

f.	Vunavutu is part of the mainland beside the road to Denarau Island and Lotoiqere island is in the mangrove swamp.

g.	My father NimiroteSeasea had been cultivating the land I reside on called “Vunavutu” since the 1960s.

h.	My father’s brother Setoki Kaiwai then planted the land and after he passed away I started to cultivate it and I have applied for agricultural lease of the land over 61% of the Yavusa’s Tukani, NoiNaiqoro and Botiluvuka have given their consent.

i.	I have 5 acres of cassava, bananas, vegetables and other agricultural produce planted on the land named “Vunavutu” on the mainland.

j.	My father Nimirote Seasea, his younger brothers Mosese Varasikete and Setoki Kaiwai are all buried on Vunavutu.

k.	We have built four houses on Vunavutu with roading, electricity and water.

3. THAT paragraph 3 of the Affidavit is denied as Plaintiff Tokatoka was allotted part of Lotoiqere Island and I repeat paragraph 2 (a) to (f) above.

4. THAT paragraph 4 is denied. The letter from iTaukei Land and Fisheries Commission marked “A” by the Plaintiff does not mention Vunavutu. They only state a portion of land on Lotoiqere with the boundaries from Nakase to Nadromai. The word “Vunavutu” is not mentioned.

5. THAT paragraph 5 of the affidavit is denied as the Reserved Commissioner from iTaukei Land Trust Board only say that the island Lotoiqere is reserved to Plaintiff Tokatoka. It does not state the name “Vunavutu”. The Plaintiff Tokatoka is from the village of Narewa and they do not know the named and boundaries of our lands from the villages of Namotomoto and Navoci.

6. THAT as to paragraph 6 of the Affidavit is denied as NLC Lot 39 has been surveyed and the island of Lotoiqere is part of Lot 39. Only the island of Lotoloto beside the island of Lotoiqere has not been surveyed. Vunavutu is part of the mainland portion of Lot 39.

7. THAT as to paragraph 7 of the affidavit no one from iTaukei Land and Fisheries Commission came to Vunavutu where I reside in 2011. Only the deponent Alipate Tuidraki, Iromi Dawai and a Policeman and a surveyor came in a car to survey Vunavutu and i refused them entry and they left. I went to Police Station reported them and the Officer in Charge asked them who from iTaukei Lands and Fisheries Commission had come there and Alipate Tuidraki and his group could not answer that question. I left after that.

8. THAT except as to admit our occupation of Vunavutu paragraph 8 of the Affidavit is denied as we do not need the consent of Plaintiff iTokatoka. We are on the land as members of YavusaBotiluvuka which is part of the three Yavusas owning the land Vunavutu and such land has not been allotted to Plaintiff iTokatoka.

9. THAT as to paragraph 9 of the affidavit I reside on Vunavutu with five of my children, one son in law and two of my grandchildren. Joseva Qoro Vatunitu and his family is also on the land Vunavutu as my sister’s son. Semisi Qori is my cousin and is also on the land Vunavutu with his family and sister.

(5)	The Plaintiff filed an Affidavit in Rebuttal deposing inter alia (so far as relevant);

Para 2 In reply to paragraphs 2. a) to c) of the said Affidavit for which I seek leave to refer to attachment marked “PTS 2” in the said Affidavit, Reserve Claim No. 10 was allotted to the iTokatoka Vunakuluraurau and not to Tokatoka Nakuluraurau. 
The boundaries described in Reserve Claim Number 10 as contained in “PTS 2”have not been surveyed and it cannot be determined until a survey is conducted.

3. In reply to paragraphs 2 d) to f) of the said Affidavit, it is not denied that NLC Lot 39 has been surveyed, however, to the best of my knowledge and belief Reserve Claim Number 10 is within NLC Lot 39 and it boundaries and acreage are unknown until a survey is conducted.

4. In reply to paragraphs 2. G) to k) of the said Affidavit I do not have any knowledge of these matters and cannot admit to their contents, however, to the best of my knowledge and belief my uncle, Alipate Driu, held a NLTB lease for land at Vunavutu in or around early 1980’s which was later terminated by NLTB and his rights relating to the land at Vunavutu reverted to that of a land owner. Annexed and marked “A” is a copy of a letter dated 26th October, 1987 addressed to Alipate Driu.

5. In reply to paragraphs 3. to 6. Of the said Affidavit I repeat paragraphs 2 and 3 herein, that the boundaries relating to Reserve Claim Number 10 have never been surveyed and its boundaries and acreage cannot be determined, however, I verily believe that the Defendants occupy part of the land allotted to the iTokatoka Vunakuluraurau known as Vunavutu.

6. Paragraph 7, of the said Affidavit is denied, I had personally visited the land I believe to be that claimed by the i-Tokatoka Vunakuluraurau with an officer from the Native Lands Commission in December 2011 to place the first survey marker peg. The said Peni Tuvu was not at home on this occasion and the boundary peg was placed near the house of the said Peni Tuvu without any interference.

(C) THE LAW

(1)	The Originating Summons dated 28th August 2014 does not make reference to the High Court Rule or statutory basis, under which the application is being made. Nevertheless, the Summons dated 19th January 2015, does make reference to the statutory basis, which is pursuant to Order 113 of the High Court Rules.

(2)	Against the factual background, it is necessary to turn to the applicable law and the judicial thinking in relation to the principles governing the exercise of the discretion to make the Order the Plaintiff now seeks.

(3)	Rather than refer in detail to the various authorities, I propose to set out, with only limited citations, what I take to be the principles of the play.

Order 113 of the High Court Rules provides a summary procedure for possession of Land.
Order 113 provides;

“Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.”

(4)	Justice Pathik in “Baiju v Kumar (1999) FJHC 20; HBC 298 J.98, succinctly stated the scope of the order as follows;

“The question for (the) Courts determination is whether the plaintiff is entitled to possession under this Order. To decide this Court has to consider the scope of the Order. This aspect is covered in detail in the Supreme Court Practice, 1993 Vol 1, O.113/1-8/1 at page 1602 and I state hereunder the relevant portions in this regard:

“This Order does not provide a new remedy, but rather a new procedure for the recovery of possession of land which is in wrongful occupation by trespassers.”

 As to the application of this Order it is further stated thus:

“The application of this order is narrowly confined to the particular circumstances described in r.1 i.e. to the claim for possession of land which is occupied solely by a person or persons who entered into or remain in occupation without the licence or consent of the person in possession or of any predecessor of his. The exceptional machinery of this Order is plainly intended to remedy an exceptional mischief of a totally different dimension from that which can be remedied by a claim for the recovery of land by the ordinary procedure by writ followed by judgment in default or under O.14. The Order applies where the occupier has entered into occupation without licence or consent; and this Order also applies to a person who has entered into possession of land with a licence but has remained in occupation without a licence, except perhaps where there has been the grant of a licence for a substantial period and the licensee hold over after the determination of the licence(Bristol Corp. v. Persons Unknown) [1974] 1 W.L.R. 365; [1974] 1 All E.R. 593.”

This Order is narrowly confined to the particular remedy stated in r.1. It is also to be noted, as the White Book says at p.1603:

“this Order would normally apply only in virtually uncontested casesor in clear cases where there is no issue or question to try i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto.”

I have carefully considered all the affidavits evidence adduced in this case and the written and oral legal submissions from both counsel.

…

The facts do not reveal that the defendant is a trespasser on the land. He continued living there as a licensee …

On the facts of this case, the cases to which I refer to hereafter do not make the defendant a trespasser or a squatter.

Order 113 is effectively applied with regard to eviction of squatters or trespassers. In Department of Environment v James and others[1972] 3 All E.R. 629 squatters and trespassers are defined as:

“he is one who, without any colour of right, enters on an unoccupied house or land, intending to stay there as long as he can …..”

Goulding J. said that:

 “…..where the plaintiff has proved his right to possession, and that the defendant is the trespasser, the Court is bound to grant an immediate order for possession …..”

Another definition of “trespasser” is as set out in Clerk & Lindsell on Torts (15th Ed. 1982) page 631:

 “A trespasser is a person who has neither right nor permission to enter on premises”.

Also as was said by Lord Morris of-Borth-Y-Gest in British Railways Board v. Herrington [1972] A.C. 877 at 904:
 
 “The term ‘trespasser’ is a comprehensive word; it covers the wicked and the innocent; the burglar, the arrogant invader of another’s land, the walker blindly unaware that he is stepping where he has no right to walk, or the wandering child – all may be dubbed as trespassers”.

I agree with [Counsel for the defendant] that the defendant’s father and his children gained possession of the land only after the plaintiff had given his consent in or about 1970 and for that matter, the physical fact of the defendant’s occupation is that of acquiescence on the land. I refer to Sir Frederick Pollock’s statement in the case of Browne v. Dawson (1840) 12 Ad. & El 624 where he said:

 “….. A trespasser may in any case be turned off land before he has gained possession, and he does not gain possession until there has been something like acquiescence in the physical fact of his occupation on the part of the rightful owner…..”

(D) ANALYSIS

(1)	Before passing to the substance of the application, let me record that the Counsel for the Plaintiff and the Defendants in their written submissionshas done a fairly exhaustive study of the applicable law.

I interpose to mention that I have given my mind to the oral submissions made by the Counsel as well as to the written submissions.

(2)	At the oral hearing of the matter, the Defendants raised a preliminary legal issue.

The Defendant’s argument runs essentially as follows; [Counsel in his submission writes...]

Para 2. Order 7 rule 3 (1) requires an Originating Summons to state sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims the relief or remedy. The Order states as follows:

“3(1) Every Originating Summons must include a statement of the questions on which the Plaintiff seeks the determination or direction of the High Court or, as the case may be, a concise Statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims that relief or remedy.”

3. No cause of action being stated in the Summons we submit that the Summons should be dismissed for lack of cause of action.

As against this preliminary legal point, I heard no word said on behalf of the Plaintiff.

I note that the Defendants have failed to file any application to set aside the Plaintiff’s Originating Summons for “irregularity” under Order 2, rule (2) of the High Court Rules and have taken further steps in the proceedings without raising the issue of irregularity by filing an Affidavit in Opposition.

I am at a substantial loss to understand why the Defendants chose to offer response to the Plaintiff’s Originating Summons if there is any defect or irregularity in the Originating Summons.

If the Defendants have considered that the Plaintiff’s Originating Summons is irregular and defective, they could have moved under Order 02, rule (2) of the High Court Rules. The Defendants did not do so. 

For the sake of completeness, Order 2, rule (2) of the High Court Rules, is reproduced below in full.

Application to set aside for irregularity (O.2, r.2)

2.(1) An application to set aside for irregularity any proceedings, any step taken in any proceedings or any documents, judgment or order therein shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.

 (2) An application under this rule may be made by summons or motion and the grounds of objection must be stated in the summons or notice of motion.
 (Emphasis Added)

Reading those words in their natural and ordinary sense, it seems to me reasonably plain that, Order 2, rule (2) provides that an application to set aside any proceedings for irregularity shall not be allowed unless it is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. The requirements are cumulative. If the Defendants had considered that the Originating summons seeking vacant possession was in an irregularity, they could have moved under Order 2, rule (2)before they took another step. If any proceedings are to be set aside on the ground of an irregularity, Order 2, rule (2) is applicable. An application under this rule may be made by summons or motion and the grounds of objection must be stated in the Summons or Notice of Motion. The Defendants on their own volition chose not to follow the High Court Rules. I am curious to know as to why the Defendants chose not to follow the High Court Rules. It seems to me perfectly plain that the Defendants slept on the matter and did not wake up at all from their slumber. It is now too late to raise such an argument even if it had any validity.

Now let me consider what authority there is on this point.

In “Ashwin Prasad v Carpenters (Fiji) Limited”, Fiji Court of Appeal decision No; ABU 0004 of 2004S, “Penlington, J A said as follows;

“The affidavit was in substantial compliance with O.41 rr.4 and 5. The Appellant did not raise any objection to the affidavit in his affidavit of 24 December 2003. If he had considered that the affidavit was in an irregularity he could have moved under Order 2 r.2 before he took another step. Instead he did not do so. On 31 December 2003 he filed the statement of defence and the two affidavits referred to previously. It is now too late to raise such an argument even if it had any validity which we think it did not have.”
 (Emphasis added)

On the strength of the authority in the above case, I hold that the Defendant’s preliminary point must fail because of the delay involved.

(3)	In these circumstances, it will be at best a matter of academic interest only or at worst an exercise in futility to discuss the merits of the Defendant’s argument relating to the regularity of Plaintiff’s Originating Summons seeking vacant possession.

(4)	Now let me proceed to examine the substance of the Plaintiff’s application.

As I apprehend, the land in question is known as “Vunavutu” aka “Vunavuto” .

The Plaintiff alleges that the Defendants are in unlawful possession and occupation of the land in question, Vunavutu aka Vunavuto. The Defendants admit that they are in possession and occupation of “Vunavutu” aka “Vunavuto”. But the Defendants forcefully submit that “Vunavutu” aka Vunavuto, the land in question is part of the mainland and not part of the Plaintiff’s land.

The crux of the submission of the Defendants is that they have been inlawful possession and occupation of the subject land namely, “Vunavutu” aka “Vunavuto” since 1960 and it is part of the mainland and not part of the Plaintiff’s land. Put another way, the Defendants say that they do not reside on the Plaintiff’s land and their land is located outside the boundaries of the Plaintiff’s land.

In paragraph six (06) of the Affidavit in Support of the Originating Summons, the plaintiff deposed that the land in question, “Vunavutu” aka “Vunavuto” has not been surveyed and so its boundaries and acreage is currently unknown.

Reference is made to paragraph (02) of the Affidavit in Opposition filed by the Defendants.

Para 2. THAT paragraph 2 of the Affidavit is denied as;

a.	Part of the island Lotoiqere owned by Yavusa Tukani, Noi Naiqoro and Botiluvukawas allotted to Tokatoka Nakuluraurau by Reserve Claim Number 10.

b.	The boundary of that land is described as commencing from Nakase at the high water mark then in a straight line to Nadromai and back to Nakase. Nowhere in that description is the land Vunavutu or “Vunavuto” mentioned.

c.	The name “Vunavuto“ was added in pen by reference to an NLTB document. Attached is a copy of the Reserve Claim sent to iTaukei Land Trust Board by Plaintiff’s Solicitors and copied to Nakovacake Development Trust. Attached marked “PTS 2” is a true copy of Plaintiff’s Solicitor’s letter dated 2nd July, 2014. I am a member of Yavusa Botiluvuka.

d.	The island Lotoiqere is part of NLC Lot 39 and has been surveyed and the drafting section of TLTB in Nadi has given me a Locality Diagram and google map setting out the location of Vunavutu where I and the Defendants reside and the island of Lotoiqere part of which was allotted to the Plaintiff iTokatoka. Attached marked “PTS 3” is a true copy of that map.

e.	It is apparent from that map that Vunavutu is on the mainland of VitiLevu and is not part of the island Lotoiqere.

f.	Vunavutu is part of the mainland beside the road to Denarau Island and Lotoiqere island is in the mangrove swamp.

g.	My father Nimirote Seasea had been cultivating the land I reside on called “Vunavutu” since the 1960s.

h.	My father’s brother Setoki Kaiwai then planted the land and after he passed away I started to cultivate it and I have applied for agricultural lease of the land over 61% of the Yavusa’s Tukani, NoiNaiqoro and Botiluvuka have given their consent.

i.	I have 5 acres of cassava, bananas, vegetables and other agricultural produce planted on the land named “Vunavutu” on the mainland.

j.	My father Nimirote Seasea, his younger brothers Mosese Varasikete and Setoki Kaiwai are all buried on Vunavutu.

k.	We have built four houses on Vunavutu with roading, electricity and water.

In adverso, the Plaintiff submits; [Counsel in her submissions writes....]

Para 4.1 The Plaintiff seeks to have the boundaries of the Land determined which will reveal that the Defendants reside on the Land.

4.2 The Plaintiff further seeks to eject Defendants from the Land upon the boundaries of the Land being surveyed.

4.3 The Plaintiff exercises its right as the registered allotee of the Land to seek Orders to define the boundaries of the Land and for ejectment of the Defendants.

Therefore, it is manifest that there is conflicting affidavit evidence with regard to the location and the boundaries of the land in question. Thus, I am unable to resolve the issue unless oral evidence is given.

I interpose the view that the procedure under order 113 is a summary process (akin to Section 169 of Land Transfer Act) and it is only clearestof cases should it be used.

Now let me consider what authority there is on this point.

In “Jamaludin v Kamru Din” Civil Action No:- 37 of 2014, (unreported) the court held;

“Section 172 allows the Judge to make other orders and impose any terms but this can only be done if cause is shown by the defendant. For example the Judge can dismiss the summons and order that the application be instituted by a writ action where evidence is required to be adduced. In the past the High Court has held that if the proceedings involve complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature but will dismiss the summons without prejudice to the plaintiff’s right to institute proceedings in another manner or by writ action (see Caldwell v Mongston (1907) 3 F.L.R. 58 and Pirrier Watson v Venkat Swami(Civil Action 9 of 1967 – unreported).”

The following statements from the Court of Appeal case of Ambika Prasad f/n Ram Piyare v. Santa Wati f/n Kali Charan, BissunDeo f/n Jag Deo (Civ. App. No. 38/95s – FCA Reps 98/130) is apt and I adopt it here;

“Whether or not the appellant had an equitable interest and whetheror not there was fraud by the respondent in the manner alleged arematters which are disputed by the respondent in their affidavits.These are clearly issues which cannot be resolved by affidavit evidence and ought to go to trial.”

In “Vallabh Das Premji v. VinodLal and Others, F.C.A Civil Appeal No. 70 of 1974 (unreported)” the Court said:

“In the past, on earlier but similar legislation, the Supreme Court has held that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to the plaintiff’s right to institute proceedings by Writ of Summons. Instances quoted by counsel are Caldwell v. Mongston (1907) 3 F.L.R. 58 and Ferrier Watson v. Venkat Swami (Civil Action 29 of 1967 – unreported). The power of the court to adopt this approach has not been challenged so it is not material to consider whether it arises under section 172 of the Act or from inherent power to reject as unsuitable procedure where another, comprehensive and better suited to the determination of controversial matters, is available.”
(Emphasis Added)

The Supreme Court practice, 1993 Vol.01, O.113/1-8/1 at Page 1602reads;

“this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto.”

(Emphasis Added)

I echo the words of “Gould” V. P. in “Ram Narayan v. Moti Ram” Civil Appeal No. 16 of 1983.

“The summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way.”
(Emphasis Added)

(5) On the strength of the authority in the above cases, I venture to say beyond a per adventure that the Plaintiff’s application for vacant possession pursuant to Order 113, which is summary in nature fails as there is conflicting affidavit evidence with regard to the location and the boundaries of the land in question. The issue can properly be resolved by a trial, at which the parties and all relevant witnesses give evidence and the facility exists for that evidence to be tested.

(6) The Defendants seek indemnity costs.

What is the basis upon which the Defendants seek indemnity costs? [Counsel in his submissions writes ....]

“In this particular case the Plaintiff’s conduct has been reprehensible in

(a)	Filing a summons without stating a cause of action

(b)	Relying on evidence that does not support their claim

(c)	Not withdrawing their case when the Defendant has filed documentation that proves that Vunavutu where the Defendants reside is part of main land rather than part of an island that is Lotoiqere (see Annexure PT53)

(7) In adverso, the Counsel for the Plaintiff submitted;
 [Counsel in her submission writes....]

Para 5.1 The Plaintiff had made representations to the Defendants, namely Peni Tuvu, before filing the Summons dated 28th August 2014, however, the Defendants did not cooperate with the Plaintiff’s request to have the boundaries of the Land defined Annexure “C” of the 1st Affidavit of Alipate Tuidraki refers.

5.2 The Plaintiff had also made representations to the TLTB, annexure “PTS 2” of the Peni Tuvu’s Affidavit refers seeking assistance to clarify the boundaries of the Land.

5.3 The Plaintiff also sought the assistance of the TFLC for which a survey of the Land was arranged, however, the survey of the Land was made difficult by Peni Tuvu. Paragraphs 5 to 8 of the 2nd Affidavit of Alipate Tuidraki refers.

5.4 If the Defendants had allowed the Plaintiff to conduct the survey these proceedings would have been avoided.

5.5 The Defendants claims indemnity costs of $10,000.00 as legal fees and have deposited with their Solicitors $3,000.00, however, has not supported this with invoices or relevant documents to support or justify this amount Seman v Westpac Banking Corporation [2011] FJHC (page 7).

(8) Against this factual background, it is necessary to turn to the applicable law and the judicial thinking in relation to the principles governing “indemnity costs”.

(9) Order 62; rule 37 of the High Court Rules empower courts to award indemnity costs at its discretion.

For the sake of completeness, Order 62, rule 37 is reproduced below.

Amount of Indemnity costs (O.62, r.37)

37.- (1) The amount of costs to be allowed shall (subject to rule 18 and to any order of the Court) be in the discretion of the taxing officer.

(10) G.E. Dal Pont, in “Law of Costs”, Third Edition, writes at Page 533 and 534;

‘Indemnity’ Basis

“Other than in the High Court, Tasmania and Western Australia, statute or court rules make specific provision for taxation on an indemnity basis. Other than in the Family Law and Queensland rules – which define the ‘indemnity basis’ in terms akin to the traditional ‘solicitor and client basis’ – the ‘indemnity basis’ is defined in largely common terms to cover all costs incurred by the person in whose favour costs are ordered except to the extent that they are of general law concept of ‘indemnity costs’. The power to make such an order in the High Court and Tasmania stems from the general costs discretion vested in superior courts, and in Western Australia can arguably moreover be sourced from a specific statutory provision.

Although all costs ordered as between party and party are, pursuant to the ‘costs indemnity rule’, indemnity costs in one sense, an order for ‘indemnity costs’, or that costs be taxed on an ‘indemnity basis’, is intended to go further. Yet the object in ordering indemnity costs remains compensatory and not penal. References in judgments to a ‘punitive’ costs order in this context must be seen against the backdrop of the reprehensible conduct that often justifies an award of indemnity costs rather than impinging upon the compensatory aim. Accordingly, such an order does not enable a claimant to recover more costs than he or she has incurred.”

(11) Now let me consider what authority there is on this point.

The principles by which Courts are guided when considering whether or not to award indemnity costs are discussed by Hon. Madam Justice Scutt in “Prasad v Divisional Engineer Northern (No. 02)” (2008) FJHC 234.

As to the “General Principles”, Hon. Madam Justice Scutt said this;

•	A court has ‘absolute and unfettered’ discretion vis-à-vis the award of costs but discretion ‘must be exercised judicially’: Trade Practices Commission v. Nicholas Enterprises (1979) 28 ALR 201, at 207

•	The question is always ‘whether the facts and circumstances of the case in question warrant making an order for payment of costs other than by reference to party and party’: Colgate-Palmolive Company v. Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225, at 234, per Sheppard, J. 

•	A party against whom indemnity costs are sought ‘is entitled to notice of the order sought’: Huntsman Chemical Company Australia Limited v. International Cools Australia Ltd (1995) NSWLR 242

•	That such notice is required is ‘a principle of elementary justice’ applying to both civil and criminal cases: Sayed Mukhtar Shah v. Elizabeth Rice and Ors(Crim Appeal No. AAU0007 of 1997S, High Court Crim Action No. HAA002 of 1997, 12 November 1999), at 5, per Sir Moti Tikaram, P. Casey and Barker, JJA

•	‘... neither considerations of hardship to the successful party nor the over-optimism of an unsuccessful opponent would by themselves justify an award beyond party and party costs. But additional costs may be called for if there has been reprehensible conduct by the party liable’: State v. The Police Service Commission; Ex parte Beniamino Naviveli(Judicial Review 29/94; CA Appeal No. 52/95, 19 August 1996), at 6

•	Usually, party/party costs are awarded, with indemnity costs awarded only ‘where there are exceptional reasons for doing so’: Colgate-Palmolive Co. v. Cussons Pty Ltd at 232-34; Bowen Jones v. Bowen Jones [1986] 3 All ER 163; Re Malley SM; Ex parte Gardner []2001] WASCA 83; SDS Corporation Ltd v. Pasonnay Pty Ltd & Anor[2004] WASC 26 (S2) (23 July 2004), at 16, per Roberts-Smith, J.

•	Costs are generally ordered on a party/party basis, but solicitor/client costs can be awarded where ‘there is some special or unusual feature of the case to justify’ a court’s ‘exercising its discretion in that way’: Preston v. Preston [1982] 1 All ER 41, at 58

•	Indemnity costs can be ordered as and when the justice of the case so requires: Lee v. Mavaddat [2005] WASC 68 (25 April 2005), per Roberts-Smith, J.

•	For indemnity costs to be awarded there must be ‘some form of delinquency in the conduct of the proceedings’: Harrison v. Schipp [2001] NSWCA 13, at paras[1], [153]

•	Circumstances in which indemnity costs are ordered must be such as to ‘take a case out of the "ordinary" or "usual" category ...":MGICA (1992) Ltd v. Kenny & Good Pty Ltd (No. 2) (1996) 140 ALR 707, at 711, per Lindgren J.

•	‘... it has been suggested that the order of costs on a solicitor and client basis should be reserved to a case where the conduct of a party or its representatives is so unsatisfactory as to call out for a special order. Thus, if it represents an abuse of process of the Court the conduct may attract such an order’: Dillon and Ors v. Baltic Shipping Co. (‘The Mikhail Lermontov’)(1991) 2 Lloyds Rep 155, at 176, per Kirby, P.

•	Solicitor/client or indemnity costs can be considered appropriately ‘whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known ... he had no chance of success’: Fountain Selected Meats (Sales) Pty Ltd v. International Produce Merchants Ltd &Ors[1988] FCA 202; (1998) 81 ALR 397, at 401, per Woodward, J.

•	Albeit rare, where action appears to have commenced/continued when ‘applicant ... should have known ... he had no chance of success’, the presumption is that it ‘commenced or continued for some ulterior motive or ... [in] wilful disregard of the known facts or ... clearly established law’ and the court needs ‘to consider how it should exercise its unfettered discretion’: Fountain Selected Meats, at 401, per Woodward, J.

•	Where action taken or threatened by a defendant ‘constituted, or would have constituted, an abuse of the process of the court’, indemnity costs are appropriate: Baillieu Knight Frank (NSW) Pty Ltd v. Ted Manny Real Estate Pty Ltd (1992) 30 NSWLR 359, at 362. per Power, J. 

•	Similarly where the defendant’s actions in conducting any defence to the proceedings have involved an abuse of process of the court whereby the court’s time and litigant’s money has ‘been wasted on totally frivolous and thoroughly unjustified defences’: Baillieu Knight Frank, at 362, per Power, J.

•	Indemnity costs awarded where ‘the defendant had prima facie misused the process of the court by putting forward a defence which from the outset it knew was unsustainable ... such conduct by a defendant could amount to a misuse of the process of the court’: Willis v. Redbridge Health Authority (1960) 1 WLR 1228, at 1232, per Beldam, LJ

•	‘Abuse of process and unmeritorious behaviour by a losing litigant has always been sanctionable by way of an indemnity costs order inter partes. A party cannot be penalised [for] exercising its right to dispute matters but in very special cases where a party is found to have behaved disgracefully or where such behaviour is deserving of moral condemnation, then indemnity costs may be awarded as between the losing and winning parties’: RanjayShandil v. Public Service Commission (Civil Jurisdiction Judicial Review No. 004 of 1996, 16 May 1997), at 5, per Pathik, J. (quoting Jane Weakley, ‘Do costs really follow the event?’ (1996) NLJ 710 (May 1996))

•	‘It is sufficient ... to enliven the discretion to award [indemnity] costs that, for whatever reasons, a party persists in what should on proper consideration be seen to be a hopeless case’: J-Corp Pty Ltd v. Australian Builders Labourers Federation Union of Workers (WA Branch)(No. 2) (1993) 46 IR 301, at 303, per French, J.

•	‘... where a party has by its conduct unnecessarily increased the cost of litigation, it is appropriate that the party so acting should bear that increased cost. Persisting in a case which can only be characterised as "hopeless" ... may lead the court to [determine] that the party whose conduct gave rise to the costs should bear them in full’: Quancorp Pty Ltd &Anor v. MacDonald &Ors[1999] WASC 101, at paras[6]-[7], per Wheeler, J.

•	However, a case should not be characterised as ‘hopeless’ too readily so as to support an award of indemnity costs, bearing in mind that a party ‘should not be discouraged, by the prospect of an unusual costs order, from persisting in an action where its success is not certain’ for ‘uncertainty is inherent in many areas of law’ and the law changes ‘with changing circumstances’: Quancorp Pty Ltd &Anor v. MacDonald &Ors[1999] WASC 101, at paras[6]-[7], per Wheeler, J.

•	The law reports are replete with cases which were thought to be hopeless before investigation but were decided the other way after the court allowed the matter to be tried: Medcalf v. Weatherill and Anor[2002] UKHL 27 (27 June 2002), at 11, per Lord Steyn

•	Purpose of indemnity costs is not penal but compensatory so awarded ‘where one party causes another to incur legal costs by misusing the process to delay or to defer the trial and payment of sums properly due’; the court ‘ought to ensure so far as it can that the sums eventually recovered by a plaintiff are not depleted by irrecoverable legal costs’: Willis v. Redbridge Health Authority, at 1232, per Beldam, LJ

•	Actions of a Defendant in defending an action, albeit being determined by the trial judge as ‘wrong and without any legal justification, the result of its own careless actions’, do ‘not approach the degree of impropriety that needs to be established to justify indemnity costs ... [R]egardless of how sloppy the [Defendant] might well have been in lending as much as $70,000 to [a Plaintiff], they had every justification for defending this action ... The judge was wrong to award [indemnity costs] in these circumstances. He should have awarded costs on the ordinary party and party scale’: Credit Corporation (Fiji) Limited v. Wasal Khan and MohdNasir Khan (Civil Appeal No. ABU0040 of 2006S; High Court Civil Action No. HBC0344 of 1998, 8 July 2008), per Pathik, Khan and Bruce, JJA, at 11

 Defining ‘Improper’, ‘Unreasonable’ or ‘Negligent’ Conduct in Legal Proceedings as Guide to Indemnity Costs Awards: Cases where ‘wasted costs’ rules or ‘useless costs’ principles have been applied against solicitors where their conduct in proceedings has led to delay and/or abuse of process can provide some assistance in determining whether conduct in proceedings generally may be such as to warrant the award of indemnity costs. These cases specifically relate to solicitors’ conduct rather than directly touching upon the indemnity costs question; nonetheless the analysis or findings as to what constitutes conduct warranting an award of costs can be helpful. See for example:

•	Ridehalgh v. Horsefield and Anor[1994] Ch 205

•	Medcalf v. Weatherill and Anor[2002] UKHL 27 (27 June 2002)

•	Harley v. McDonald [2001] 2 AC 678

•	Kemajuan Flora SDN Bh v. Public Bank BHD &Anor(High Court Malaya, Melaka, Civil Suit No. 22-81-2001, 25 January 2006)

•	Ma So So Josephine v. Chin Yuk Lun Francis and Chan Mee Yee (FACV No. 15 of 2003, Court of Final Appeal Hong Kong Special Administrative Region, Final Appeal No. 15 of 2003 (Civil)(On Appeal from CACV No. 382 of 2002, 16 September 2004)

•	SZABF v. Minister for Immigration (No. 2) [2003] FMCA 178

•	Heffernan v. Byrne [2008] FJCA 7; ABU0027.2008 (29 May 2008)
Some of the matters referred to include:

•	At the hearing stage, the making of or persisting in allegations made by one party against another, unsupported by admissible evidence ‘since if there is not admissible evidence to support the allegation the court cannot be invited to find that it has been proved, and if the court cannot be invited to find that the allegation ahs been proved the allegation should not be made or should be withdrawn: Medcalf v. Weatherill and Anor, at 8, per Lord Bingham

•	At the preparatory stage, in relation to such allegations – not necessarily having admissible evidence but there should be ‘material of such a character as to lead responsible counsel to conclude that serious allegations could properly be based upon it: Medcalf v. Weatherill and Anor, at 8, per Lord Bingham

•	Failures to appear, conduct which leads to an otherwise avoidable step in the proceedings or the prolongation of a hearing by gross repetition or extreme slowness in the presentation of evidence or argument are typical examples of wasting the time of the court or an abuse of its processes resulting in excessive or unnecessary costs to litigants: Harley v. McDonald, at 703, para[50] (English Privy Council)

•	Starting an action knowing it to be false is an abuse of process and may also involve knowingly attempting to mislead the court: Ma So So Josephine v. Chin Yuk Lun Francis and Chan Mee Yee (FACV No. 15 of 2003, Court of Final Appeal Hong Kong Special Administrative Region, Final Appeal No. 15 of 2003 (Civil)(On Appeal from CACV No. 382 of 2002, 16 September 2004), at para[43], per Ribeiro, PJ (Li, CJ, Bokhary and Chan, PJ and Richardson, NPJ concurring)

•	Lending assistance to proceedings which are an abuse of the process of the court – using litigious procedures for purposes for which they were not intended, ‘as by issuing or pursuing proceedings for reasons unconnected with success in the litigation or pursuing a case known to be dishonest’ or evading rules intended to safeguard the interests of justice ‘as by knowingly failing to make full disclosure on ex parte application[s] or knowingly conniving at incomplete disclose rue of documents’: Ridehalgh v. Horsefield[1994] Ch 205, at 234, per Bingham, MR

•	Initiating or continuing multiple proceedings which amount to abuse of process: Heffernan v. Byrne [2008] FJCA 7; ABU0027.2008 (29 May 2008), per Hickie, J.
Specific Circumstances of Grant/Denial Indemnity Costs: Specific instances supporting or denying the award of indemnity costs include:

•	Indemnity costs follow per a ‘Calderbank offer’, that is, where a party makes an offer or offers prior to trial, which is/are refused, and that party succeeds at trial on a basis which is better than the prior offer: Calderbank v. Calderbank[1975] 3 WLR 586

•	However, no indemnity costs awarded where Calderbankletter contains no element of compromise, making it not unreasonable for the party not to accept the offer. The question is ‘... whether the offeree’s failure to accept the offer, in all the circumstances, warrants departure from the ordinary rule as to costs ...’: SMEC Testing Services Pty Ltd v. Campbelltown City Council [2000] NSWCA 323, at para[37], per Giles, JA Hence, if the offer is not a genuine offer of compromise and/or there is no appropriate opportunity provided to consider and deal with it, then no indemnity costs follow: Richard Shorten v. David Hurst Constructions P/L; D. Hurst Constructions v. RW Shorten [2008] AdjLR 06/17 (17 June 2008), per Einstein, J. (NSW Supreme Court, Equity Division T&C List); LeichhardtMunicipal Council v. Green [2004] NSWCA 341, at paras[21]-24], [36], per Santow, JA, Stein, JA (concurring); Herning v. GWS Machinery Pty Ltd (No. 2) [2005] NSWCA 375, at paras[4]-[5], per Handley, Beazley and Basten, JJA; Elite Protective Personnel v. Salmon [2007] NSWCA 322, at para[99]; Donnelly v. Edelsten[1994] FCA 992; [1994] 49 FCR 384, at 396

•	Indemnity costs awarded:

o	upon a winding-up petition’s being presented on a debt known to the petitioner to be genuinely disputed on substantial grounds;

o	the clearly established law being that a winding up order will not be granted in such circumstances, meaning that the petitioner ‘had no chance of successfully obtaining a winding up order’; 

o	where in these circumstances the filing of the petition ‘constituted a deliberate tactical manipulation of the winding up process by the [petitioner, the State Government Insurance Commission ‘SGIC’] for the purposes of bringing very substantial pressure to bear’ on Bond Corp Holdings ‘BCH’;

o	this in the circumstances meant that the ‘filing of the petition was an abuse of process of the court in the true sense of that expression’; 

o	the discretion to stay the petition should not be exercised because this would ‘cause BCH serious harm’ meaning it would be ‘extremely difficult for BCH to be able to conduct its business normally if the petition [were] not dismissed’: citing Re Lympne Investments [1972] 1 WLR 523, at 527, per Megarry, J.; also Re Glenbawn Park Pty Ltd[1977] 2 ACLR 288, at 294, per Yeldham, J.

o	an abuse of process ‘having been established in the circumstances outlined, justice requires the award of solicitor and client, or, rather, "indemnity" costs’ so that ‘the SGIC should be ordered to pay all the costs incurred by BCH except insofar as they are of an unreasonable amount or have been unreasonably incurred, so that, subject to [these] exceptions, BCH be completely indemnified by the SGIC for its costs’, citing Foundation Selected Meats (Sales) Pty Ltd v. International Produce Merchants [1988] FCA 202; (1988) 81 ALR 397, at 410, per Woodward J.: Re Bond Corp Holdings Ltd (1990) 1 ACSER 350, at 13, per Ipp, J.

•	 Indemnity costs are appropriate where an applicant (in an unfair dismissal):

o	'insists' over a respondents' objections that an application should proceed to trial rather than await the outcome of other possible litigation (including a police investigation);

o	 fails repeatedly, despite allowances, to meet deadlines for lodgment of a witness statement;

o	fails to advise her lawyers of her whereabouts so denying them of the ability to inform the court of reasons for seeking an unqualified adjournment less than a week prior to trial;

o	fails to comply with directions to provide a current address, consult a medical specialist and obtain a report of fitness to attend the trial; 

o	fails to appear at the final hearing when on notice that the application will be dismissed in event of such failure: Nicole Pender v. Specialist Solutions Pty Ltd (No. B599 of 2004. 17 May 2005), per Bloomfield, Commissioner

•	Indemnity costs denied as against a Plaintiff who discontinued a claim for a permanent injunction to restrain a Defendant's industrial action, where the Defendant had filed a chamber summons seeking to have the Plaintiff's claim struck out as an abuse of process: Cooperative Bulk Handling Ltd v. Australian Manufacturing Workers Union (WA Branch)(Unreported, WASC, Lib. No. 970190, 30 April 1997), per Wheeler, J.

•	Indemnity costs cannot be awarded in a criminal appeal, albeit 'in criminal appeals, as in civil cases, unreasonable conduct by the unsuccessful party might increase a usual award': SayedMukhtar Shah v. Elizabeth Rice and Ors(Crim Appeal No. AAU0007 of 1997S, High Ct Crim Action No. HAA02 of 1997, 12 November 1999), at 4, per Sir MotiTikaram, P., Casey and Barker, JJA

•	Indemnity costs awarded then reversed on appeal where solicitor held liable for costs (under a 'wasted costs' order) in initiating action for clients where solicitor taken to have known that the basis of the clients' action was wholly false"

(12) Let me now proceed to examine the first ground adduced by the Defendants seeking indemnity costs. I traversed the Originating Summons. The Originating Summons dated 28th August 2014, does not include the statutory basis under which the application is made. This is not disputed by the Plaintiff.

As against the first ground, I have not heard a single word said on behalf of the Plaintiff.

(13) The issue before this Court is whether the Plaintiff had prima faciemisused the process of the Court byissuing Originating Summons seeking vacant possession without stating the statutory basis.

Order 7, rule 3 (1) requires an Originating Summons to state sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims the relief or remedy. The Order states as follows:

"3(1) Every Originating Summons must include a statement of the questions on which the Plaintiff seeks the determination or direction of the High Court or, as the case may be, a concise Statement of the relief or remedy claimed in the proceedings begun by the originating summons with sufficient particulars to identify the cause or causes of action in respect of which the Plaintiff claims that relief or remedy."

It is obvious that the Plaintiff on its own volition chose not to follow the High Court Rules. The Plaintiff by its conduct has clearly demonstrated that he has no regard to the primary policy of the High Court Rules.

I am satisfied that there is reprehensible conduct by the Plaintiff, the penalty for which, in my view, should be an Order for costs on indemnity basis.

(14) Next, I propose to examine the third ground adduced by the Defendants seeking indemnity costs. The issue before this Court is whether the Plaintiff had prima facieabused the process of the Court by not taking steps to withdraw the Originating Summons when the Defendant filed documents to prove that the Defendant's land is located outside the boundaries of the Plaintiff's land (There is conflicting Affidavit evidence).

(15) Before I proceed to examine the substance of the Defendant's third ground for indemnity costs let me proceed to consider what is meant by the phrase "abuse of process"…

In Halsbury's Laws of England Vol 37 page 322thephrase "abuse of process" is described as follows:

"An abuse of process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."

The phrase "abuse of process" is summarized in Walton v Gardiner (1993) 177 CLR 378 as follows:

"Abuse of process includes instituting or maintaining proceedings that will clearly fail proceedings unjustifiably oppressive or vexatious in relation to the defendant, and generally any process that gives rise to unfairness."

In Stephenson –v- Garret [1898] 1 Q.B. 677 it was held:

"It is an abuse of process of law for a suitor to litigate again over an identical question which has already been decided against him even though the matter is not strictly res judicata"

 Domer –v- Gulg Oil (Great Britain) (1975) 119 S.J 392

"Where proceedings which were viable when instituted have by reason of subsequent events become inescapably doomed to failure, they may be dismissed as being an abuse of the process of the court"

Steamship Mutual Association Ltd –v- Trollope and Colls (city) Ltd (1986) 33 Build L.R 77, C.A

"The issue of a writ making a claim which is groundless and unfounded in the sense that the plaintiff does not know of any facts to support it is an abuse of process of the Court and will be struck out"

Let me now turn back to the present case. The Plaintiff alleges that the Defendants are in unlawful possession and occupation of the land in question, "Vunavutu aka Vunavuto". The Defendants admit that they are in possession and occupation of "Vunavutu" aka "Vunavuto". But the Defendants forcefully submit that "Vunavutu" aka Vunavuto, the land in question is part of the mainland and not part of the Plaintiff's land.

The crux of the submission of the Defendants is that they have been in lawful possession and occupation of the subject land namely, "Vunavutu" aka "Vunavuto" since 1960 and it is part of the mainland and not part of the Plaintiff's land. Put another way, the Defendants say that they do not reside on the Plaintiff's land and their land is located outside the boundaries of the Plaintiff's land.

In paragraph six (06) of the Affidavit in Support of the Originating Summons, the Plaintiff deposed that the land in question, "Vunavutu" aka "Vunavuto" has not been surveyed and so its boundaries and acreage is currently unknown.
 
Without determining the boundaries of the land in question, the Plaintiff issued Originating Summons against the Defendant seeking vacant possession of the subject land. This is clearly unwarranted.

It was unreasonable for the Plaintiff and his Practitioner to institute Summary proceedings seeking vacant possession when there are complicated issues of fact in relation to the location and the boundaries of the subject land. Order 113 of the High Court Rules is a summary process (akin to Section 169 of the Land Transfer Act) and it is only clearest of cases should it be used.

To be more precise, Section 169 of the Land Transfer Act and Order 113 of the High Court Rules would normally apply only in clear cases where there is no issue or question to try. That is not the case here. 

Any practitioner in the field should have known the clear state of the law on Summary proceedings for eviction. The Plaintiff and its practitioner must have known that they had no possibility of success against the Defendants.

To make matters worse, the Plaintiff continued proceedings despite conflicting Affidavit evidence in relation to the location and the boundaries of the subject land. The Plaintiff should have discontinued the proceedings since there is a serious question to be tried. I need only say that on the conflicting affidavit evidence before the Court, It seems quite plain that there is a bona fide dispute as to whether the Defendant's resides on the Plaintiff's land, and that dispute is not trivial or unsubstantial but is based on solid grounds. It clearly shows the indefatigable initiative and endless effort on the part of the Plaintiff who is so insistent in bringing litigation with no regard to any merits whatsoever.

In the circumstances, I get the distinct impression that the Plaintiff commenced and continued Summary proceedings for eviction for the purpose of causing trouble or annoyance to the Defendants. There has been reprehensible conduct by the Plaintiff.

It is quite evident in the material before me, that this attempt to evict the Defendants from the subject land is a clear abuse of the Summary proceedings for eviction. If the Plaintiff wishes to pursue his claim to recover possession, he should institute a High Court Writ of Summons as it is seriously and evidentially contentious.

As I mentioned earlier, there are certain principles governing Summary proceedings for eviction. In the context of the present case, I cannot help but recall the rule of law enunciated in the following judicial decisions.

In "Jamaludin v Kamru Din" Civil Action No:- 37 of 2014, (unreported) the court held;

"Section 172 allows the Judge to make other orders and impose any terms but this can only be done if cause is shown by the defendant. For example the Judge can dismiss the summons and order that the application be instituted by a writ action where evidence is required to be adduced. In the past the High Court has held that if the proceedings involve complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature but will dismiss the summons without prejudice to the plaintiff's right to institute proceedings in another manner or by writ action (see Caldwell v Mongston (1907) 3 F.L.R. 58 and Pirrier Watson v VenkatSwami(Civil Action 9 of 1967 – unreported)."

The following statements from the Court of Appeal case of Ambika Prasad f/n Ram Piyare v. Santa Wati f/n Kali Charan, BissunDeo f/n Jag Deo (Civ. App. No. 38/95s – FCA Reps 98/130) is apt and I adopt it here;

"Whether or not the appellant had an equitable interest and whetheror not there was fraud by the respondent in the manner alleged arematters which are disputed by the respondent in their affidavits.These are clearly issues which cannot be resolved by affidavit evidence and ought to go to trial.

In "Vallabh Das Premji v. VinodLal and Others, F.C.A Civil Appeal No. 70 of 1974 (unreported)" the Court said:

"In the past, on earlier but similar legislation, the Supreme Court has held that if the proceedings involve consideration of complicated facts or serious issues of law, it will not decide them on summary proceedings of this nature, but will dismiss the summons without prejudice to the plaintiff's right to institute proceedings by Writ of Summons. Instances quoted by counsel are Caldwell v. Mongston (1907) 3 F.L.R. 58 and Ferrier Watson v. Venkat Swami (Civil Action 29 of 1967 – unreported). The power of the court to adopt this approach has not been challenged so it is not material to consider whether it arises under section 172 of the Act or from inherent power to reject as unsuitable procedure where another, comprehensive and better suited to the determination of controversial matters, is available."
(Emphasis Added)

The Supreme Court practice, 1993 Vol.01, O.113/1-8/1 at Page 1602reads;

"this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try, i.e. where there is no reasonable doubt as to the claim of the plaintiff to recover possession of the land or as to wrongful occupation on the land without licence or consent and without any right, title or interest thereto."

(Emphasis Added)

I echo the words of "Gould" V. P. in "Ram Narayan v. Moti Ram" Civil Appeal No. 16 of 1983.

"The summary procedure has been provided in the Land Transfer Act and, where the issues involved are straightforward, and particularly where there are no complicated issues of fact, a litigant is entitled to have his application decided in that way."
(Emphasis Added)

Returning back to the instant case, I wish to emphasise that the Plaintiff's resort to Summary proceedings against the Defendants where the location of the land and its boundaries are undetermined, is a high risk strategy, the penalty for which, in my view should be an Order for costs on indemnity basis.

In my judgment, the factual background is clear and unambiguous. It clearly shows the indefatigable initiative and endless effort on the part of the Plaintiff who is so insistent in bringing litigation with no regard to any merits whatsoever.

It seems to me perfectly plain that the action has been commenced and continued in the circumstances where the Plaintiff and his Counsel should have known that they have no chance of success. Therefore, the action must be presumed to have been commenced and continued for some ulterior motive or because of some willful disregard of the known facts or the clearly established law.

The inherent jurisdiction of the Court to regulate its procedures by preventing abuse of its process is well recognized.

While the Court is generally reluctant except in exceptional cases, to award costs on an indemnity basis, a clear abuse might well justify an award of full indemnity costs.

In all the circumstances, I am satisfied that the Plaintiff's conduct on this matter is vexatious, oppressive and reprehensible.

In light of the above, I have no hesitation in holding that an award of indemnity costs is warranted.

In the result, I certainly agree with the sentiments which are expressed inferentially in the Defendant's submissions in relation to first and third grounds, seeking indemnity costs.

I must confess that I am not in the least impressed by the objections raised by the Plaintiff. I disallow the objections.

In view of the approach I have adopted, I do not think it is necessary for me to express my views on the second ground adduced by the Defendant seeking indemnity costs. It will be at best, a matter of academic interest only or at worst an exercise in futility to discuss the merits of the second ground seeking indemnity costs.

(E) CONCLUDING REMARKS
(1) After considering the facts of this case and the submissions made to court, I conclude that there is conflicting affidavit evidence and as a result the application for vacant possession under Order 113, which is summary in nature, fails.

(2)	Having had the benefit of written and oral submissions for which I am most grateful and after having perused the Affidavits and the pleadings, doing the best that I can on the material that is available to me, I have no doubt personally and I am clearly of the opinion that the justice of the case requires for me to depart from the normal rule and make my discretion to award indemnity costs. The Plaintiff is guilty of conduct deserving of condemnation as disgraceful and as an abuse of the process of the Court and ought to be penalised by having to pay indemnity costs.

(3)	I venture to say beyond a peradventure that this is an appropriate case for the Court to reflect, in its Orders for costs, its disapproval of attempts made to abuse the process of the Court by the Plaintiff.

(4)	I could see nothing to change my opinion even on the basis of exhaustive work contained in "Law of Costs", G.E. Dal Pont, Third Edition and "Company Law", Palmers.

(5)	I cannot see any other just way to finish the mater than to follow the law.

(F)	FINAL ORDERS

1.	The Originating Summons for vacant possession under Order 113 is dismissed.

2.	The Defendants application for indemnity costs is allowed.

3.	The Defendants are directed to file and serve its detailed costs for the assessment of the indemnity costs within 14 days from the date hereof.

Jude Nanayakkara
Acting Master of the High Court

At Lautoka
04th December 2015