In the High Court of Fiji at Labasa
Civil Jurisdiction                                                         
                                                           HBC 79 of 2006 L

                                                          Fred Wehrenberg 
     Plaintiff
                                                                      vs
Sekaia Suluka,Crime Officer
First defendant
  Tao, Police Officer, Rakiraki
Second defendant
 Eparama, Police Officer, Rakiraki
Third defendant
                                                      Commissioner of Police
Fourth defendant
     And		
                                                     The Attorney General 
                                                           Fifth defendant

                         COUNSEL          :    The plaintiff in person
		           Mr J. Pickering for the defendants
		 Date of hearing    :    13th February, 2017
 Date of Ruling     :    27th February, 2017

Ruling
1.	The plaintiff  filed  writ  and  statement  of  claim  on 23rd March, 2006, in  the High Court of Lautoka for damages. An amended statement of claim was filed on 22nd November, 2013. The defendants filed statement of defence denying the claim. The case was transferred to this Court on 3rd October, 2016.

2.	I  have before me four interlocutory applications, viz:
a)	The  preliminary issue raised  by  the defendants in  their document  of  12th August, 2014.
b)	The notices of  motion filed by the plaintiff for leave: 
(i)	to use  at  the  trial, combined and supplementary  affidavits  of the plaintiff and Walburga Wehrenberg,which refer to United Nations Conventions, the 1997 Constitution and the law.
(ii)	to  join his wife  as the second plaintiff.
(iii)	to  subpoena  a  former court  clerk, to  give evidence  in regard to proceedings of the High Court.

The preliminary issue raised by the defendants
3.	I will in the first instance set out the relevant Orders made in this case:
(a) 	1st July, 2011	:	Wickramasinghe J  stated  that  the  plaintiff  has “already filed 				affidavit” and ordered  the plaintiff  to  file evidence in chief of 				his witness by 15/11/11.
(b)	6th March, 2012:	Nawana J recorded that  the plaintiff moved for leave to file 				further affidavits and “Defendants have no objection to those 				Affidavits being  filed through the deponents of the Affidavit 				before 31/08/2012”.
(c) 	12th August, 2014:	Abeyguneratne J in his interlocutory order held that there was 				no formal order on record by his predecessors allowing either 				party to submit evidence in chief by affidavits.
At the hearing, Mr Pickering, counsel for the defendants agreed that Abeyguneratne J’s observation was incorrect.

4.	The  defendants  move that  the  plaintiff  gives  oral evidence at the trial and the  affidavit evidence filed  by  the  plaintiff  be  struck  out, for the reasons that the  affidavits  should  have pleaded  factual  events,  not  law and  contain only facts that a deponent is able of his own knowledge to prove, as provided in Or 41, r5 .

5.	Or 38, r 2 empowers the Court at or before the trial of an action to order evidence by affidavit. Or 38, r 6  enables such an order to be revoked or varied on “ sufficient cause” being shown.

6.	 There  is  a  long line  of  authority  which  have  held   that “ affidavits should depose only as to facts in accordance with Order 41 Rule 5 of the Rules of the High Court and not be in reality as here, a submission on the law and an expression of opinions” as  Byrne J (as he then was) stated  in  Kylie-Jane Anderson v Iowane Salaitoga,[1999] 45 FLR 241 at 243.

7.	In Ratu Jeremaia Natauniyalo v The Native Land Commission & Another,[1998] 44 FLR 280  as cited  by  Mr Pickering,  the  FCA  “wholeheartedly”  approved the remarks of Byrne J’s (as he then was) on  affidavits which breached Or 41 r 5.

8.	In my view, the  material  question is whether any prejudice has been caused to the defendants by the disputed affidavits.
9.	Byrne J (as he then was) in State v Police Service Commission, ex parte Tikotikoca, [1993] 39 FLR 12  as  cited  by  the  plaintiff  stated  that  in “ all  future cases Affidavits in reply in Judicial Review proceedings should not contain submissions on the law which must be left to counsel for the parties”, but  he did not consider that any injustice has been caused and appreciated what he termed the “chain of legality”.

10.	His  Lordship  Gates CJ  in Qarase v Bainimarama,[2007] FJHC 41 as also cited by the plaintiff, stated :
Challenge is made by the defence to the contents of the plaintiff’s affidavits.  Indeed they have breached the rules in regard to hearsay, and appear to state that of which the deponent has no personal knowledge [Order 41 r.5 (1)].  In some place what is stated is non-factual or irrelevant or merely amounts to advocacy with opinions and conclusions proffered.  Little weight can be attached to these parts of the material…(emphasis added) 
11.	In  my  view,  it  is  for  the  trial  judge   to  decide  on the  probative and  evidential value of  the  contents  of  the   affidavits  ordered  to  be filed  and whether  he  requires  additionally,  to  hear  oral  evidence in chief  of  the  plaintiff  for  clarification,  before he is cross-examined. I  would  accordingly, direct  that  all  witnesses  be available to testify at the trial.

12.	On  this  point,  I  would refer to the judgment of  Lord  Donaldson MR  in  Mercer  v  Chief Constable,[1991] 2 All ER 504  as cited by the plaintiff.  His Lordship  at pg 507 said  that   witness  statements  should  be exchanged  and  ordered  to  stand  as evidence in chief  on a “selective basis” and  stated further:
.. it will be more appropriate in the case of expert witnesses than in the case of witnesses as to fact ,...But perhaps the most important factor of all will be the extent to which the evidence of a particular witness is likely to be controversial and his credibility in issue. If so, the way in which he responds to oral examination-in-chief may be of great importance. Against this background it is wrong in principle to make a general order applying to all witness statements .. without regard to .. the extent to which the witness’s evidence is likely to be controversial and go to the heart of the dispute” (emphasis added).

13.	I  decline  the application  of  the defendants to strike out the  affidavits filed by the plaintiff.
14.	The  plaintiff,  in  his   notice  of  motion  filed  on 10th May, 2016,  has sought  leave to use  at  the trial  the  combined affidavit (evidence-in-chief) of the plaintiff and Walburga Wehrenberg filed  on 4th  November,2011, and supplementary affidavit(evidence-in-chief) of  the  plaintiff  and Walburga Wehrenberg filed  on 2nd August, 2012, “ as ordered by the Court on 1.7.2011 and 6.3.2012  which  contain  references  to United Nations Conventions, the 1997 Constitution and the law”.

15.	 I  find  that  the  Orders  of  1st July, 2011, and  6th  March,2012,  do  not provide for the filing  of  a  combined  and  supplementary  affidavit,  contrary to the contention of the plaintiff.  It  follows  that  the  affidavit of  4th November, 2011, which  is challenged by  the  defendants does not arise for consideration.

16.	The plaintiff’s notice of motion filed on 10th May, 2016, is declined.

The plaintiff’s application to join his wife as second plaintiff
17.	The  plaintiff’s  affidavit  in support  of his application for joinder of his wife states that he and his wife  lived on their two jointly owned properties on Nananu-i-ra Island from May, 1989, until July, 2004, when they had to flee, due to the tortious acts of the defendants. They  sold  their  properties to the  first bidder  at  half price to save their lives. His  wife became the target of criminal organization and she begged him to sell the property quickly. The affidavit concludes that there is “ a very strong relationship between this cause of action contained in the amended statement of claim and (his) wife’s sufferings as joined owner”.

18.	Or 15, r 6 (5) enables  the addition of  a party after the expiry of the relevant period of limitation in the following two circumstances:
(a)	the relevant period (of limitation) was current at the date when proceedings were commenced and it is necessary for the determination of the action that the new  party should be added, or substituted, or
(b)	the relevant period arises under the provisions of subparagraph (i) of the proviso to paragraph 4(1)(d) of the Limitation Act and the Court directs that those provisions should not apply to the action by or against the new party. (emphasis added)

19.	Or 15, r 6(6) in  so  far  as relevant  to  the  present  application,  states  that  the  new party shall be treated as “necessary.. if the Court is satisfied that”:
(a)	the new party is a necessary party to the action in that property is vested in him at law or in equity and the plaintiffs claim in respect of an equitable interest in that property is liable to be defeated unless the new party is joined, or
(b)	the relevant cause of action is vested in the new party and the plaintiff jointly but not severally, or
(emphasis added)

20.	The plaintiff  makes  this application under Or 15, r6 (6) (b). 

21.	The defendants submit that the application at this stage, will effectively deprive their right to plead limitation against the proposed plaintiff. 

22.	 The  plaintiff  relied  on  two cases where joint owners  were  added  as plaintiffs after the  limitation period  had  lapsed,  on  an  interpretation  of  a provision  in pari materia to Or 15, r 6(6).  

23.	In  the first  case, Kennedy v Small & Ors, [2013] NIQB 81 a decision of the High Court of Northern Ireland, the plaintiff discovered  discrepancies in the title of the lands he  purchased. He claimed damages from the defendants who acted for him in the conveyance of the lands. The plaintiff  had  intended to sell his house held jointly with his wife and use the equity to buy the lands. It was held that it was necessary that his wife  be joined to enable the full amount of any loss to be recovered under the original claim.

24.	In Merrett v Babb,[2001] EWCA Civ 214 the loss was likewise, in respect of a purchase of property by  a mother and daughter.  The  action  was  originally  brought by the daughter against a surveyor who had negligently failed to report on settlement cracks in the  building purchased.

25.	 In  the  above  two  cases, it  is clear  that the  plaintiffs were added  so  that  all matters arising out of  the  same claim could be dealt with once and for all. The present case is different. 

26.	The plaintiff pleads in his amended  statement of claim that  he suffered:
i.	injuries, as a result of  the “physical and mental torture and cruel, inhumane and disproportionately severe treatment by the 1st, 2nd and 3rd Defendants” ; and 
ii.	loss and damage, as a result of  his “reputation.. severely been harmed,.. distress and mental anguish, loss of liberty for 30 hour expenses in defending himself”, as  a result of  being  maliciously  prosecuted by the Police in Rakiraki. 
The issues recorded  at  the  PTC  of  7th May, 2008, have been accordingly, raised on these two grounds.

27.	In  my  judgment, the  plaintiff’s  wife  is  not  a  “necessary” party  for  the  determination  of   his  claims.  His  claims  are personal  and  are  not “vested”  jointly  with  her,  as contemplated by  Or15, r6 (6) (b).  

28.	The plaintiff argued that in his amended statement of claim, he seeks  damages  for   invasion  and  interfering  with  the peaceful  enjoyment  of  his property  and  damages caused to his wife.  It  suffices to state that  in order to obtain  relief,  a cause of  action  must  be pleaded and relief  is granted to parties before court.

29.	I  decline the application for joinder. 

Subpoena the former court clerk
30.	The issue on this summons filed on 8th January, 2015, has been decided. On 3rd July, 2015, Abeyguneratne J had disallowed this summons. The matter is res judicata.  

31.	I  decline the plaintiff’s application to subpoena the former court clerk.  
Costs 
32.	The plaintiff made  an application before me for  costs of $ 1000  for the adjournment  on  12th August, 2014. Abeyguneratne  J  had stated that he would consider costs, in  his  order on the acceptance of affidavits. That did not eventuate. Mr Pickering agreed to pay a sum of $ 450 as costs.

33.	I  make  order  that  the  defendants pay the plaintiff  $ 500 costs summarily assessed.

34.	Orders 

(a)	I  decline  the  defendants application  to  strike out the affidavits filed by the plaintiff. 
(b)	I  direct  that  all witnesses  be  available to give evidence at the trial.
(c)	The plaintiff’s notice of motion filed on 10th May, 2016, is declined.
(d)	The plaintiff’s application to join his wife as a plaintiff is declined.
(e)	The plaintiff’s application to subpoena the former court clerk is declined.
(f)	The defendants shall pay the plaintiff costs in the sum of $500.
(g)	I order costs in the cause in respect of  the four applications I have determined.
(h)	This  case will  be called  before the Master of the High Court of Labasa on 3rd  March, 2017, at  9a.m. to fix  for hearing.

                   A.L.B.Brito-Mutunayagam
Judge
      27th February, 2017
    At Suva