BHAGAT v MURPHY & ORS

HIS HONOUR: Application is made by the plaintiff, Hari Bhagat, to strike out the notices of motion of Peter Young who is one of a number of defendants in proceedings brought by Mr Bhagat in this Court (numbered 20816/01, 20817/01 and 20095/02). Those proceedings, so far as Mr Young is concerned, allege what I might generally call fraudulent behaviour.

The notices of motion seek an order pursuant to Part 13 Rule 5 of the Supreme Court Rules that the proceedings be dismissed or, alternatively, stayed on the grounds that no reasonable cause of action is disclosed or the proceedings are frivolous or vexatious or are an abuse of process of the court.

Mr Bhagat submits that this Court has no jurisdiction to consider such an application by virtue of the provisions of section 88 of the Supreme Court Act , 1970 which is in the following form - “ Common Law Claim – fraud, defamation, etc 88. Proceedings on a common law claim in which there are issues of fact - (a) on a charge of fraud against a party; or (b) on a claim in respect of defamation, malicious prosecution, false imprisonment, seduction or breach of promise of marriage, shall be tried with a jury.”

In my opinion, s 88 concerns the trial of proceedings on a specified claim in which there are issues of fact which are permitted to go to trial. In no sense does it reflect on the jurisdiction of the Court to exercise its powers under Part 13 Rule 5. I might say that the powers given by Part 13 Rule 5 are at all events inherent powers of the Court.

I note that s 88 was repealed by Act No 124 of 2001. I have made this judgment upon the assumption that s 88 applies to the present litigation. I should not be taken, however, as determining that question.

Mr Bhagat also submitted that the notices of motion filed on Mr Justice Young’s behalf should be heard only by the Chief Justice. Even assuming I had the power to do so, which I doubt, there is no basis shown upon which such an order could be justified. Accordingly, I rejected the application. The order seeking dismissal of the notices of motion as frivolous and vexatious should also be refused. They raise matters of substance and I propose to hear and determine them.

No argument was tendered as to the application for leave to join further defendants and amend the statement of claim consequentially. I do not determine that application and it thus remains outstanding. Also outstanding is the application by Mr Bhagat to strike out notices of motion filed by other defendants in relation to their joinder in the various statements of claim. For the reasons sufficiently stated in the transcript, all outstanding applications both by Mr Bhagat and the defendants are transferred to the Equity Division of the Court.

I make no order as to costs of this notice of motion.