IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Civil Action No. HBC 140 of 2015
Cross Referenced file (HPP 05 of 2012)

BETWEEN :

MOHAMMED RAFIQ of California. USA, Retired.
PLAINTIFF

AND :

MAJIDAN of 21 Tanoa Street, Flagstaff, Suva.
1ST DEFENDANT

AND :

MOHAMMED ISRAEL ISMAIL of 1457 Oriole Avenue San Leandro, California 94578, Occupation not known to the Plaintiff, MOHAMMED IQBAL ISMAIL 5359 Jarvis Avenue, Newark, California 94560, Occupation not known to the Plaintiff and MOHAMMED NAUSHAD ISMAIL of 5323 Jarvis Avenue, Newark, California 9460, Occupation not known to the Plaintiff.
2ND DEFENDANT

BEFORE : Master Vishwa Datt Sharma
COUNSEL : Mr. Shelvin Singh - for the Plaintiff
Mr. A. Pal  - for the Defendant (Applicant)
Date of Hearing : 03rd September, 2015
Date of Ruling : 07th December, 2015

RULING

Striking out of the Plaintiff’s Originating Summons (Order 18 Rule 18 High Court Rules, 1988) by the Defendant. 

INTRODUCTION

1.	The First Defendant filed a Summons on 04th June, 2015 and sought for the following orders-

(a)	This action be stayed until the determination of the First Defendant’s application for the striking out of this action;
(b)	This action be struck out;
(c)	Costs on a Solicitor-Client indemnity basis; and
(d)	Any other Orders that this court deems just, fair and necessary.

2.	The application is supported by an affidavit deposed by Majidan (First Defendant) and also on the grounds that-

(a)	That this action by nature of the remedies sought is a duplication of the Suva High Court Probate Action No. HPP 05 of 2012 and as such is an abuse of process and the First Defendant relies on the records of the said action.

3.	This application is made pursuant to Order 18 Rule 18 (1) (d) and 18 (3) of the High Court Rules, 1988 and the Inherent Jurisdiction of the High Court accordingly. 

4.	The Plaintiff filed its Affidavit in Reply deposed by Mohammed Rafiq.

THE LAW

4. Striking out pleadings and endorsements (O.18, r.18)

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) ------------------; or
(b) ------------------; or
(c) ------------------; 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) ------------------------------.

(3) This rule shall, so far as applicable, apply to an originating summons and a petition as if the summons or petition, as the case may be, were a pleading.

BACKGROUND FACTS

5.	The parties to this proceeding are owners as to one third (1/3) share each of the property comprised in the Crown Lease No. 2264.

6.	According to the Plaintiff, the First Defendant resides on the property while the Plaintiff and the second Defendants are resident oversea.

7.	Further, the property is located at 21 Tanoa Street, Flagstaff, Suva and according to the Plaintiff each of the Defendants has acquired their respective interests in the said property by way on intestacy.

8.	The Counsel representing the Plaintiff submits that the Plaintiff’s claim in the present case is for:

(i)	A joint valuation of the property;
(ii)	An order for sale of the property;
(iii)	Each of the parties to have the net proceeds of the sale of the property.

9.	No Defence of Affidavit in Opposition has been filed by either of the Defendants in the within action to the Plaintiff’s substantive application.

10.	According to the Plaintiff, the Plaintiff had through previous lawyers filed a probate action based on similar facts and sought for similar relief which proceedings had been dismissed by the court on 08 November, 2013.

11.	Part of the basis for the dismissal of the proceedings within the HPP Action No. 05 of 2012 was that the First Defendant’s Counsel asked for an order for the proceedings to be dismissed by the court based on procedural irregularities wherein the Counsel stated to the court on 08th November, 2013 ‘that there is no basis of the application. Proceedings begun with a motion. I am of the view there is no legal basis on Ex-Parte notice of notion filed on 28th February, 2012 or the notice of motion filed on 02nd October, 2013.” 

12.	The court then proceeded to make an order dismissing the action and had it struck out accordingly.

ANALYSIS and DETERMINATION

13.	The application made by the First Defendant for striking out of the Plaintiff’s Originating Summons is made pursuant to Order 18 Rule 18 (1) (d) of the High Court Rules, 1988- That is “it is otherwise an abuse of the process of the court.”

14.	Therefore, the issues that this court needs to determine are- 

(i)	Whether the Plaintiff’s Originating Summons filed on 16th April, 2015 is an abuse of the process of the court?

(ii)	Whether the Plaintiffs are attempting to re-litigate or duplicate the issues within the present pending HBC case No. 140 of 2015 arising out of the High Court Probate Action HPP No. 05 of 2012 and relies on principles of res-judicata?

(iii)	Whether there will be any issue of prejudice arising?

15.	Let’s have a look at the principles of the “striking out” of an application based on the law- Order 18 Rule 18 (1) (d) of the High Court Rules, 1988.

16.	In dealing with the issue of striking out of application, I bear in mind the following passage from Halsbury’s  4th Ed. Vol. 3 at para 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 circumspection and only where 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.

17.	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.”

18.	It is well settled that this Court has inherent jurisdiction to strike out the claim or pleadings for abuse of Court process and reference is made to paragraph 18/19/18 of the Supreme Court Practice 1993 Vol. 1.

At paragraphs 18/19/17 and 18/19/18 of Supreme Court Practice 1993 (White Book) Vol 1 it is stated as follows:-

"Abuse of Process of the Court"- Para. (1) (d) confers upon the Court in express terms powers which the Court has hitherto exercised under its inherent jurisdiction where there appeared to be "an abuse of the process of the Court." This term connotes that the process of the Court must be used bona fide and properly and must not be abused. The Court will prevent the improper use of its machinery, and will, in a proper case, summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation (see Castro v. Murray (1875) 10 P. 59, per Bowen L.J. p.63). See also "Inherent jurisdiction," para.18/19/18." 
"It is an abuse of the process of the Court and contrary to justice and public policy for a party to re-litigate the issue of fraud after the self-same issue has been tried and decided by the Irish Court (House of Spring Gardens Ltd. v. Waite [1990] 2 E.R. 990, C.A)."

"Inherent Jurisdiction - Apart from all rules and Orders and notwithstanding the addition of para.(1)(d) the Court has an inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or an abuse of its process (see Reichel v. Magrath (1889) 14 App.Cas. 665). (para 18/19/18)

19.	Further reference is made to the case of Timoci Uluivuda Bavadra v The Attorney General (Sup. Ct. (now High Court) C.A. No. 487 of 1987 where Rooney J said:
"I am not required to try any issues at this hearing. All I have to decide whether there is an issue to be tried. It is not enough for the defendant to show on this application that the plaintiff's case is weak and unlikely to succeed".

20.	The following passage from the judgment of Court of Appeal in National MBf Finance (Fiji) Limited v Nemani Buli, (Civil Appeal No. ABU 0057 of 1998) very clearly enunciated and determined the principles of striking out. At page 2  of the judgment their Lordships said:-

"The law with regard to striking out pleadings is not in dispute. Apart from truly exceptional cases the approach to such applications is to assume that the factual basis on which the allegations contained in the pleadings are raised will be proved. If a legal issue can be raised on the facts as pleaded then the courts will not strike out a pleading and will certainly not do so on a contention that the facts cannot be proved unless the situation is so strong that judicial notice can be taken of the falsity of a factual contention..."

21.	In Halsbury's Laws of England at Vol 37 page 322 the term'Abuse of process" is described as follows-

"An abuse of process of the court arises where there its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression of for ulterior purposes, or, more simply, where the process is misused. In such a case, even if the pleadings 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 pleadings or endorsements 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."

22.	I have very thoroughly perused the referenced Probate Case No. HPP 05 of 2012, and the present substantive HBC Case No. 140 of 2015 respectively. In both of these case, the Plaintiff and the First Respondent are the same person that is Mohammed Rafiq and Majidan. The difference can only be noted as far as the second Defendants/Respondents are concerned.

In the Probate Case No. HPP 05 of 2012, the pending issue therein related to the subject property comprised in Crown Lease No. 2264 being Lot 20, Flagstaff Extension, Suva. The orders sought therein are very much similar or almost same to the orders presently being sought on the pending HBC Case file no 140 of 2015. Except that in HPP 05 of 2012, the property is being asked to be sold at the market value after valuation whereas on HBC case no. 140 of 2015, the orders seek that the property be sold by tender to the highest tenderer and in addition is seeking a further order that the Defendant to provide an account of all rental collected by her and for the Defendant to pay out the Plaintiff's share of rental to him. That is the difference but overall I would confirm that the subject matter is the property comprised in Crown Lease No. 2264 being Lot 20, Flagstaff Extension, Suva.

The Probate Case No. HPP 05 of 2012 is not pending anymore for deliberation before the High Court now, since the court has dismissed the action and struck out the same on the application of the Defendant's Counsel Mr A. Pal on 08th November, 2013.

The only matter that is now pending before this High Court is the present HBC Case No. 140 of 2015 in which the present striking out (Order 18 Rule 18) application of the First Defendant is being deliberated upon. So it is now confirmed that there are no duplicity of cases before the High Court on the subject property comprised in Crown Lease No. 2264 being Lot 20, Flagstaff Extension, Suva.

There is another pertinent fact to note herein is that the Plaintiff only filed and commenced with the present second action by HBC 140 of 2015 on 16th April, 2015, subsequent to the initial pending Probate action HPP 05 of 2012 was dismissed and struck out on 08th November, 2013 by the very Counsel's application who is now representing the First Defendant in this accordingly.

Therefore, bearing in mind the above, the question I now pause is how and from where does the First Defendant's Counsel then come up with the issue that the Plaintiff's Originating Summons is an abuse of the court process in terms of his pending striking out application pursuant to Order 18 Rule 18 (1) (d)?

The answer is simple, that there is no abuse of court process.

23.	On the issue of duplication or Res-Judicata? 

In Razak v. Fiji Sugar Corporation Ltd [2005] FJHC 720; HBC 208.1998L (23 February 2005) case his Lordship Justice Gates (current Chief Justice) stated as follows:- 

"To raise the doctrine of res judicata the defendant must be able to show that the same parties have been before a court of competent jurisdiction and had a decision on the same issues, or at least had had an opportunity of raising related issues.'

24.	 His Lordship further went on to say that:- 

"For operation of the doctrine of res judicata there must be also an identity of subject matter between the proceedings. The identity may arise from a cause of action or from issue estopple: Green v Hampshire CC [1979] 1 CR 86 at p.864.

25.	In Halsbury's Laws of England 4th Edition (Volume 16) "res judicata" is 
defined as follows:- 

"The doctrine of res judicata is not a technical doctrine applicable only to records: it is a fundamental doctrine of all courts that these must be an end of litigation. It will therefore be convenient to follow the ordinary classification and treat it as a branch of the Law of the estoppel." (para. 1527). 

26.	I find there is no duplication of cases nor any issue of res-judicata existing since the initial Probate Action HPP No. 05 of 2012 was dismissed and struck out by the court on 08th November, 2013 on the First Defendants own application citing irregularity and as explained hereinabove at latter part of paragraph 22 . 

27.	With respect to the issue of prejudice, if any that will be caused.

As I have said earlier, there is no duplicity of the case before the High Court as of the present time neither there is any abuse that this court can dwell upon. As rightly submitted by the Plaintiff's Counsel that the First Defendant cannot complain of any prejudice as the issue of res-judicata does not arise or exist. For the present time, there is only one case impending deliberation and determination and that is the High Court Civil Case HBC No. 140 of 2015. Therefore there will be no prejudice caused to the First Respondent in anyway.

28.	For the aforesaid rationale, I now proceed to make the following Final Orders.

FINAL ORDERS 

1.	The First Defendants application to strike out the Plaintiff's Originating Summons on the grounds of abuse of court process is hereby struck out accordingly.
2.	Matter to take its normal cause of action in terms of the law.
3.	Grant costs summarily assessed at $750 to be paid within 14 days.

DATED at Suva on 07th December, 2015

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

cc. Mr. Shelvin Singh of Shelvin Singh Lawyers, Suva.
Mr. A. Pal of AP Legal, Suva.