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Devi v Prasad [2022] FJHC 24; HBC271.2014 (26 January 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION


Civil Action No. HBC 271 of 2014


BETWEEN:


MALTI DEVI

PLAINTIFF


AND:


SHIVNEIL PRASAD & NAVNEEL PRASAD both being the Administrator & Trustee in the ESTATE OF AMBIKA PRASAD


1st DEFENDANT


AND:


SHARON SYLVIA PRATAP

2nd DEFENDANT


AND:


REGISTRAR OF TITLES

3rd DEFENDANT


AND:


SUNIL KUMAR practicing as SUNIL KUMAR ESQ, Barrister & Solicitor, General Practitioner Law


4th DEFENDANT


BEFORE:
M. Javed Mansoor, J


COUNSEL:
Mr. A. Nand for the plaintiff
1st defendant in person
2nd & 3rd defendants not represented
Mr. V. Kumar for the 4th defendant


Date of Hearing:
10 January 2022


Date of Judgment :
26 January 2022


DECISION

PRACTICE & PROCEDURE: Application to strike out – Third party notice – application to expunge amended statement of defence – Indemnity costs – Order 16 Rule 1, 2 & 3, Order 18 Rules (1) & (2) and Order 62 of the High Court Rules 1988


The following cases are cited in this decision:

  1. Uma Prasad v Chandar Prakash and Fiji Sugar Corporation Limited [2020] FJHC 18; HBC 58.2005 (30 January 2020)
  2. Yavusa Ketenavu v Native Land Trust Board and Native and Fisheries Commission [2005} FJHC 351; HBC 371.2003 (16 September 2005)
  1. Wing Investments Ltd v Rakesh Chand [2004] FJHC 394; HBC 440.2003L (24 March 2004)
  1. Jai Prakash Narayan v Savita Chandra AAU 37.1985 (8 November 1985) unreported
  2. Mafoa Kososaya & Kelera Kososaya v Director of Lands and two others [2013] FJHC 189; HBC 124.2009 (17 April 2013)
  1. The fourth defendant filed a summons to strike out the plaintiff’s action or alternatively for leave to issue third party notice on the plaintiff’s counsel, Mr. Ashneel Amit Nand. The application was supported by an affidavit filed by Mr. Sunil Kumar, the fourth defendant. At the hearing on 10 January 2022, the fourth defendant and the plaintiff made oral submissions. The fourth defendant also filed written submissions. The first defendant was present in court but made no submissions. The second and third defendants were not represented at the hearing.
  2. The fourth defendant sought the following in his summons filed on 3 September 2021:
    1. Plaintiff’s amended writ of summons and amended statement of claim filed on 6 January, 2020 be struck out for the following reasons:
      1. it discloses no reasonable cause of action against the fourth defendant;
      2. it is scandalous, frivolous or vexatious;
      1. it may prejudice, embarrass or delay the fair trial of the action;
      1. it is an abuse of the process of court;
    2. Alternatively, an order for leave to be granted to issue third party notice against Mr. Ashneel Amit Nand practicing as messrs Kohli and Singh Suva of 77 Cumming Street, Suva and be joined as third party to indemnify the fourth defendant of any damages, cost or causes of action arising therefrom;
    3. That the amended statement of defence filed on 3 October, 2016 contained in the copy pleadings filed on 22 December, 2020 be expunged from the court record and the first defendant be ordered to file a new statement of defence to the new claim.
    4. The costs of this application be costs in cause.

The summons was filed in terms of Order 18 Rule (1) (a), (b), (c) & (d) and Order 16 Rules 1, 2 & 3.


Strike out application

  1. A brief reference to the history of the main action is appropriate. The plaintiff was married to Mr. Ambika Prasad, the original first defendant. Prior to the institution of this action, the parties went through proceedings in the family court, and orders were made – commencing in 2009 – for dissolution of marriage and distribution of property. This action concerns a property in respect of which the plaintiff made an application for distribution. The subsequent conveyance of the property is being assailed in this action. After Mr. Prasad died in March 2018, the sons of the plaintiff and Mr. Prasad were substituted as administrator and trustee.
  2. In his affidavit, the fourth defendant made detailed averments explaining that he was not the solicitor on record for Mr. Ambika Prasad – the respondent in the family proceedings before the resident magistrate – and that he had only appeared on an ad hoc basis in those proceedings. The fourth defendant averred, among other matters, that:
    1. the orders of the then resident magistrate were superseded by subsequent orders;
    2. he ceased to act for Mr. Ambika Prasad on 29 November 2011. Thereafter, Mr. Prasad had come to his office three years later, in 2014 to obtain his signature. As Mr. Prasad’s case was already disposed, Mr. Kumar had signed transfer papers as a witness. Mr. Kumar later appeared for him on 4 July 2014;
    1. the plaintiff’s solicitors deliberately prolonged matters since 2009 by filing various applications including contempt proceedings against Mr. Ambika Prasad;
    1. his signature on the transfer documents did not amount to fraud as his signature was made pro bono three years after ceasing to act for Mr. Ambika Prasad. He averred that there was no claim of fraud or collusion against him when Mr. Ambika Prasad was alive in 2014;
    2. Mr. Ashneel Amit Nand delayed the trial in this action, and thereby caused him prejudice;
    3. the allegations made by the plaintiff are false, misleading and frivolous in nature;
    4. the sale of the property below the market price did not depict fraud;
    5. the property was advertised by Mr. Ambika Prasad, and that he, the fourth defendant, had no involvement in the matter. He said that when on 13 June 2014, the resident magistrate ordered the property to be advertised, he was not present in court and had no hand in the conveyancing of the property;
    6. there were ulterior motives in the plaintiff’s claim against him;
    7. that he could have been called as a witness to explain the circumstances under which he signed the transfer documents.
  3. At the hearing, counsel for the fourth defendant, Mr. V. Kumar cited several decisions in support of the application to strike out. These discuss the principles that are generally applicable to strike out applications.
  4. Mr. Kumar submitted that the resident magistrate’s order was made on 13 March 2009. That order, he submitted, was not the final order, and compliance orders were made by succeeding resident magistrates. Mr. Kumar submitted that the fourth defendant had appeared as solicitor for Mr. Ambika Prasad on an ad hoc basis in family proceedings. He submitted that the fourth defendant could not have recalled when Mr. Ambika Prasad called over at the fourth defendant’s law office and requested his signature as a witness for the property transaction. This had happened, he submitted, three years after the fourth defendant stopped appearing in the family court proceedings. Counsel contended that no claim was made against the fourth defendant from 2014 to 2019, and that this action against the fourth defendant was an abuse of the process of court. He also submitted that particulars of fraud have not been stated in the plaintiff’s amended statement of claim.
  5. Counsel for the plaintiff, Mr. Nand, submitted that the fourth defendant last appeared for Mr. Ambika Prasad on 21 November 2014 and that he had witnessed a property transaction document on 26 June 2014. He submitted that there is a triable issue concerning fraud and collusion which required oral evidence. Mr. Nand submitted it was sufficient to plead fraud without setting out the evidence in pleadings. He submitted that the fourth defendant was added as a party to this action after the court was satisfied with the plaintiff’s application to add Mr. Sunil Kumar as a party. The orders made by court on that occasion, he submitted, were not subject to a misjoinder application or appealed.
  6. Upon a consideration of the matters averred by the fourth defendant, it is clear that they have to be tested by evidence and cross examination at the trial. They are matters of dispute. In this regard, it is pertinent to note that order 18 Rule (1) (a) does not permit the reception of evidence.
  7. The fourth defendant has failed to satisfy court that the plaintiff’s amended writ and statement of claim filed on 6 January 2020 should be struck off.

Third party notice

  1. Mr. Sunil Kumar has asked for leave to issue a third party notice to the plaintiff’s counsel, Mr.Nand. A defendant to an action cannot issue a third party notice without the leave of court unless the action was begun by writ and the defendant issues the notice before serving his defence on the plaintiff[1]. The fourth defendant filed his statement of defence on 2 June 2020. The summons seeking leave to issue third party notice under Order 16 was filed on 3 September 2021.
  2. The fourth defendant averred that in lieu of striking off he was seeking to join Mr. Ashneel Amit Nand to indemnify him against any claim the plaintiff might have against him arising from family action no. 05/SUV/0377. This is on the reasoning that it was the plaintiff’s law firm that failed to execute the resident magistrate’s order within a reasonable time. He averred that Mr. Nand’s negligence led to the plaintiff’s purported losses, and that the lawyer’s prejudicial conduct fell below the standard set by the Legal Practitioners Act. He averred that Mr. Ambika Prasad sold the property due to contempt proceedings instituted against him by the plaintiff. Mr. Nand, Mr. Sunil Kumar averred, owed a duty of care to him, to Mr. Ambika Prasad and to the court; therefore, Mr. Nand was bound to indemnify claims by the plaintiff. Mr. Kumar averred that the proper forum to have taken the plaintiff’s complaint against him was the family court and not the High Court, as the family court had the power to cancel a transaction founded on fraud or where the transfer was carried out to defeat the judgment of court.
  3. Counsel, Mr. Kumar, submitted that there was no opposition by the plaintiff to the alternative application for third party notice, and, therefore, the fourth defendant was entitled to relief on the matter. Counsel submitted that the following judgments supported the fourth defendant’s application for alternative relief for third party notice. Uma Prasad v Chandar Prakash and Fiji Sugar Corporation Limited[2], Yavusa Ketenavu v Native Land Trust Board and Native and Fisheries Commission[3], Wing Investments Ltd v Rakesh Chand[4] and the Fiji Court of Appeal decision of Jai Prakash Narayan v Savita Chandra[5] were the decisions relied upon by the fourth defendant.
  4. The fourth defendant submitted that leave for third party notice was necessary to avoid a multiplicity of actions as well as to prevent the same question being tried again with a different result; that the fourth defendant came into the picture after the ruling of 23 December 2019 and that the plaintiff’s solicitor was liable by his conduct from the time the fourth defendant first appeared as a solicitor in the family court.
  5. Mr. Nand contended that there was no locus standi between the plaintiff’s law firm and the fourth defendant. He submitted that the plaintiff’s solicitors did not owe a duty of care to the fourth defendant, and without such a duty there could not have been a breach. In the event, he said, a third party notice could not be justified. Mr. Nand also submitted that when the matter was called on 22 October 2021, the fourth defendant was put on notice that the plaintiff would not be filing affidavits.
  6. Mr. Nand relied on the decision of Mafoa Kososaya & Kelera Kososaya v Director of Lands and two others[6]. In that case, counsel submitted, the application for joinder was dismissed as it was made after the limitation period. The court, in that case, Mr. Nand submitted, set out guidelines for joinder and misjoinder of parties. Mr. Kumar countered that this decision was related to Order 15 of the High Court Rules 1988, and did not consider the provisions of Order 16.
  7. Order 15 Rule 6 allows the court either of its own motion or on application to order a person to be added as a party where the circumstances set out in that section are satisfied. No person can be added as a party except in the situations contemplated by the rules and the court is satisfied that the addition is necessary[7] The court does not consider Order 15 Rule 6 (2) (b) to have been satisfied. In any event, there is no application before court under Order 15. Mr. Kumar submitted that Orders 15 & 16 must be considered together in adjudicating the application for third party notice.
  8. Order 16 makes it clear that notice may be issued to a third party where the relief or remedy sought is connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff, or requires that any question or issue relating to or connected with the original subject matter of the action should be determined not only as between the plaintiff and the defendant but also as between the plaintiff and the defendant but also as between either or both of them and a person not already a party to the action[8].
  9. The fourth defendant’s basis for leave to issue the third party notice is not connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff. The matters raised by the fourth defendant are not related to or connected with the original subject matter of the action so as to be determined in the action not only between the plaintiff and the fourth defendant but also between either or both of them and Mr. Nand. The facts averred in Mr. Kumar’s affidavit also do not show that he has a claim to a contribution or indemnity against Mr. Nand.
  10. It was submitted that the plaintiff’s counsel by his conduct caused the plaintiff’s alleged losses, that his conduct as a lawyer fell below the prescribed standards and that counsel must, therefore, indemnify the fourth defendant. This strikes me as a strange proposition. I have not been made aware of a principle on which the fourth defendant will become entitled to add the plaintiff’s counsel as a party for losses caused to the plaintiff through professional neglect or for conduct unsuited as a legal professional. The grounds on which the third party notice has been urged is in no way connected to the pleaded causes of action. If the plaintiff has suffered losses by the conduct of his counsel, it is for the plaintiff to make an application to add a person as a tortfeasor.
  11. In the sense commonly understood and in the context of the matters alleged, I can see no duty of care that the plaintiff’s counsel owed to the fourth defendant. In Mafoa Kososaya & Kelera Kososaya v Director of Lands and two others, cited by the plaintiff, Amaratunga, J said that there must be a relationship between the cause of action and the intended party. In this action, the third party’s presence is not necessary to determine the issues between the plaintiff and the defendants. If the fourth defendant is aggrieved by his addition to these proceedings, his claim is against the plaintiff. The fourth defendant filed his statement of defence and counterclaim on 2 June 2020. In his counterclaim, he has claimed damages of $50,000 and legal costs of $10,000 from the plaintiff.
  12. Mr. Nand submitted that the fourth defendant has not specified the date of the cause of action. He submitted that the assumption would be that the cause of action is in respect of the orders made by the resident magistrate in 2009, and on that basis the alleged cause of action was barred by limitation. He submitted that the fourth defendant has not made an application for enlargement of time. In view of the reasoning on which leave for third party notice is declined, the question of limitation need not be considered.
  13. As Mr. Kumar made references to a number of decisions, a brief reference must be made to those submissions. The Fiji Court of Appeal decision of Jai Prakash Narayan v Savita Chandra concerned the failure to file an affidavit and set out a defence. This case has no application to the present application. Yavusa Ketenavu v Native Land Trust Board concerned an interlocutory injunction. The decision made reference to Jai Prakash Narayan. Wing Investments Ltd v Rakesh Chand dealt with the failure to rebut material in interlocutory injunction proceedings. The decision highlighted the obligation of material disclosure. Decisions concerning injunction applications have no relevance to the present matter. In Uma Prasad v Chandar Prakash the question of limitation raised by the third party was one of the matters considered by court. The case has no application to the matters raised by the fourth defendant. It is prudent for counsel to bear in mind that decisions which have no relevance to the controversy before court will unnecessarily cause delay to proceedings in general, and the court is entitled to take note of such instances and impose due sanction.

First defendant’s amended statement of defence

  1. Mr. Kumar submitted that the first defendant’s amended statement of defence filed on 3 October 2016 should be removed from the copy pleadings and a new statement of defence be filed. The submission was in support of the fourth defendant’s deposition that it was prejudicial to him to have included the amended statement of defence of the first defendant.
  2. The fourth defendant averred that it caused a conflict of interest as he had prepared and signed the statement of defence on behalf of the first and second defendants. He averred that he did not represent the current first defendant in the matter.
  3. The substituted first defendant filed its amended statement of defence on 3 October 2019 in response to the plaintiff’s amended statement of claim. There is no application by the first defendant to file a fresh statement of defence. The first defendant did not file papers in response to the current summons or make submissions at the hearing. The fourth defendant does not represent the first defendant anymore. The plaintiff did not make submissions on this matter.
  4. The court is mindful of the long delays that have prevented the commencement of trial. Therefore, and in the absence of an application by the first defendant, the court is not inclined to order a fresh statement of defence to be filed.

Costs

  1. Mr. Nand sought indemnity costs. Mr. Kumar argued that the plaintiff was not entitled to indemnity costs without filing an affidavit or submissions.
  2. This action was filed in 2014. Trial is yet to commence. In the interim several applications were made by different parties. I have previously ruled on two such applications.
  3. The applications include one by the plaintiff for addition of party and amendment of the statement of claim. This was disposed of by the court’s decision dated 23 December 2019. The plaintiff’s application was allowed with costs. In that decision, the court also declined a summons filed by the second defendant on 16 January 2019 for striking out the plaintiff’s statement of claim. The ruling alluded to the fact that it was unfortunate that the court was required to expend time to make a ruling on technical objections. Following this decision, the fourth defendant was added as a party.
  4. Thereafter, the plaintiff filed an amended summons on 9 January 2020 seeking an extension of time to serve the amended writ and statement of claim to the defendants. The fourth defendant objected to the application. In my decision of 28 February, 2000, the court expressed unhappiness with the nature and the manner in which objections were raised and suggested that the objections were not raised with any serious intent. In that decision, the court noted that a matter dealt with by Kumar, J (as he then was) on 9 October 2018 and orders relating to which were sealed on 9 January 2019, was raised before this court for a second time. The court observed that it was a matter of regret that Mr. Kumar, the fourth defendant, had not brought it to the attention of court that the matter was already ruled upon.
  5. This was followed by the third defendant’s summons filed on 18 June 2020. Sensibly this was withdrawn by the second defendant on 24 August 2020. The court observes that the second defendant filed a notice of appointment of Khan & Co. as solicitor on 18 August 2020. The fourth defendant appeared as the second defendant’s solicitor until that point of time.
  6. The fourth defendant’s summons clearly lacks merit. The court’s time and resources are limited, and must be competed for by countless litigants. Frivolous applications, as will be known, take up the court’s valuable time and resources to the prejudice of other litigants. Order 62 of the rules equip the court to deal with litigants and lawyers who cause unnecessary expense or undue delay in proceedings to the detriment of the overall administration of justice.
  7. Costs are awarded on an indemnity basis and reflect the court’s dissatisfaction with the fourth defendant’s summons.

ORDER


  1. The fourth defendant’s summons is dismissed.
  2. The fourth defendant is to pay the plaintiff costs summarily assessed on an indemnity basis in a sum of $3,000 within four weeks of this decision.
  1. The action will proceed to trial.

Delivered at Suva on this 26th day of January, 2022


M. Javed Mansoor
Judge

[1] Order 16 Rule 1 (2) High Court Rules 1988
[2] [2020] FJHC 18; HBC 58.2005 (30 January 2020)
[3] [2005] FJHC 351; HBC 371.2003 (16 September 2005)
[4] [2004] FJHC 394; HBC 440.2003L (24 March 2004)
[5] AAU 37.1985 (8 November 1985) unreported
[6] [2013] FJHC 189; HBC 124.2009 (17 April 2013)
[7] Order 15 Rule 6 (5) & (6)
[8] Order 16 Rule 1

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