Mohammed Abu Baker Saddique v. Maimun Nisha
| Jurisdiction | Fiji |
| Judgment Date | 07 April 2017 |
| Date | 07 April 2017 |
| Docket Number | Civil Action No. HBC 251 of 2012 |
| Counsel | Mr Anil J. Singh for plaintiff,Ms U. Baleilevuka for first defendant |
| Court | High Court (Fiji) |
IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CIVIL JURISDICTION
Civil Action No. HBC 251 of 2012
Between:
Mohammed Abu Baker Saddique of 5987 Lemon Park Way, Sacramento, CA 95824, United States of America, Retired Truck Driver.
Plaintiff
v.
Maimun Nisha of Suva in her capacity as the Executrix and Trustee of the Estate Of Mohammed Umar Faruque.
First Defendant
And
Registrar Of Titles Government Buildings, Suva.
Second Defendant
And
Attorney General Attorney General's Chambers, Suva.
Third Defendant
Date of Hearing: 03November 2016
Date of Ruling: 07April 2017
Appearances:
Mr Anil J. Singh for plaintiff
Ms U. Baleilevuka for first defendant
Solicitors:
For plaintiff: Messrs Anil J. Singh Lawyers
For defendant: M A Khan Esquires Barrister & Solicitor
RULING
[On Security for Costs]
Introduction
[01] This ruling concerns with an application for security for costs.
[02] By an Inter-Partes summons supported by an affidavit of Maimun Nisha, first defendant (‘the application’), the first defendant (hereinafter ‘the defendant’) seeks the following orders:
(i) That the Plaintiff do deposit with the Court within twenty-one (21) days of making such order to give security for the costs of the 1st Defendant in the sum of $30,000.00 or such sum as the Court may think just and that pending the giving of such security, all further proceedings in the above action be stayed;
(ii) In the event that such security is not provided within 21 days from the date of the Order herein, the action be struck out against 1st Defendant;
(iii) That costs of this Application be awarded in favour of the 1st Defendant on an indemnity basis.
(iv) Further and/or other relief as this Honourable Court may deem just.
[03] The application is made pursuant to Order 23 Rule 1 of the High Court Rules 1988 (‘HCR’).
[04] In opposition, the plaintiff filed an affidavit of Mohammed Abu Baker Saddique, the plaintiff sworn on 13 October 2016. The defendant filed an affidavit in reply to plaintiff's affidavit in opposition.
[05] Both parties filed their respective written submissions and agreed to decide the matter upon the written submission. There was no oral hearing.
Background
[06] 1. The brief background of the case is as follows: On 4 December 2012, the plaintiff commences proceedings by way of writ of summons seeking among other things a declaration that the transfer No. 702754 of the Certificate of Title No. 12304 dated 3 June 2008 is null and void and of no effect on the ground that the plaintiff did not sign the transfer documents and vacant possession of the property.
2. The defendant filed the statement of defence and states that the plaintiff did sign the transfer document before a legal clerk.
3. The trial of the matter is yet to be assigned.
4. In the meantime, on 16 August 2016, the defendant applies for security for costs. She seeks security on the ground that the plaintiff is ordinarily resident out of the jurisdiction.
The Law
[07] The relevant rule that deals with security for costs is O. 23 of HCR which, so far as material, provides:
1. –(1) where on the application of a defendant to an action or other proceedings in the High Court it appears to the Court-
(a) that the plaintiff is ordinarily resident out of the jurisdiction or
(b) that …, or
(c) …, or
(d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation, then if, having regard to all the circumstances of the case, the court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs of the action or other proceedings as it thinks just.
(2) ….
(3) …”
Guidelines on security for costs
[08] The following guidelines have been laid down as to the circumstances which the court ought to consider in granting or refusing security for costs:
(1) whether the plaintiff's claim is made in good faith and is not a sham;
(2) whether the plaintiff has a reasonably good prospect of success;
(3) whether there is an admission by the defendant on the pleadings or otherwise that money is due;
(4) whether there is a substantial payment into court or an open offer of a substantial amount;
(5) whether the application for security was being used oppressively, for example, so as to stifle a genuine claim;
(6) whether the plaintiff's want of means, especially in the case of a limited company, has been brought about by any conduct by the defendant, such as delay in payment, or in doing his part of the work; and
(7) whether the application for security is made at late stage of the proceedings, see Halsbury's Laws of England, Vol. 37 (4 Ed) and see also Sir Lindsay Parkinson & Co Ltd v Triplan Ltd [1973] QB 609, [1973] 2 All ER 273, CA, per Lord Denning MR.
Determination
[09] The defendant applies for an order that the plaintiff gives security for the defendant's costs of the action. The application is made on the ground that the plaintiff is ordinarily resident out of the jurisdiction (ground 1(1) (a) of O.23). Security for costs sought by the defendant is in the sum of $30,000.00. The court may order the plaintiff to give security for costs of the action upon the ground that the plaintiff is ordinarily resident out of jurisdiction.
[10] The plaintiff is currently residence in the United States of America and has no assets in Fiji.
[11] It is common ground that the plaintiff is now residing out of jurisdiction. He lives in the USA. This makes a ground on which the court may order the...
To continue reading
Request your trial