Ali v Moantau [2024] KIHC 13; Civil Case 89 of 2016; Miscellaneous Application 136 of 2019 (2 May 2024)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CIVIL CASE 89 OF 2016
MISCELLANEOUS APPLICATION 136 OF 2019

BETWEEN:
AHSA ALI
1^ST Applicants/1^ST Defendant

ANZ BANK OF KIRIBATI LTD
2^ND Applicant/2^ND Defendant

AND:
RUUTE MOANTAU
Respondent/Plaintiff

Date of Hearing: 29 APRIL 2024
Date of Judgment: 2 MAY 2024

Appearances: Ms Elsie Karakaua for the Applicants
Mr. Raweita Beniata for the Respondent

R U L I N G

Introduction:

1. On 17 September 2019, the Applicants filed a miscellaneous application (this application) for an order to strike out the Plaintiff’s claim on two grounds as listed below;
   
   1. The plaintiff has delayed for more than two years in prosecuting this claim
   2. The claim against the first applicant does not disclose any reasonable cause of action, and as such, the action against the first applicant is not likely to succeed.
      
2. At today's hearing, the applicant’s Counsel stated that the hearing will proceed on their amended application filed on 03 February 2023. The respondent’s Counsel was not prepared since they only received this amended application last Friday and the supporting affidavit this morning, so they requested an adjournment. The court is reluctant to allow the adjournment as the preparation stage has passed. At the end of their discussion, both agreed that since the original application raises the same issues as the amended one, they will make their submissions on the original application.

No Reasonable Cause of Action Against First Applicant/Defendant

3. The claim against the applicants/defendants is based on unlawful dismissal. The first applicant/defendant was sued because she drafted and signed the termination letter in her official title, and according to the respondent/plaintiff, she had no power to do so. Counsel for the applicants argued that this shows no cause of action. Order 27 Rule 4 of the High Court Civil Procedure Rules allows the applicant/defendant to apply for a dismissal order against the pleading where no cause of action was disclosed.
   
4. No privity of contract exists between the first applicant/defendant and the respondent/plaintiff. Both were employees of the second applicant/defendant at the relevant time.
   
5. I agree with the applicant that there is no reasonable cause of action against the first applicant/defendant. The Statement of Claim did not explain why the first applicant/defendant was sued or who she was in relation to the claim. Paragraph one of the Statement of Claim only explains the ‘Defendant’ as the “Bank.” Clearly, the first applicant/defendant is not the ‘Bank.’ She was sued in her personal capacity.
   
6. However, her involvement in the dismissal is stated in paragraph 17 of the Statement of Claim, that she issued the termination letter in her capacity as the Head of Retail. The applicants may be right that no employment contract existed between the respondent and the first applicant/defendant. This could be inferred from the fact stated in paragraph 17. The first applicant/defendant was merely executing her duty in her official capacity to write a termination letter on behalf of the second applicant/defendant, the Bank. Even if she did not expressly state that she wrote for the Bank, her official title is more than enough to show this intention.
   
7. The supporting authority referred to by the applicants demonstrates the point argued. Case of Prasad and Chand Investment Ltd v Ali [2011] FJHC 56, HBC 216.2010 (9 February 2011). This case quoted Halsbury as follows;
   

“The doctrine of privity of contract is that, as a general rule, a contract cannot confer rights or impose obligations on strangers to it, that is persons who are not parties to it.”

8. I also consider the remedies or relief sought in the Statement of Claim and find that none are directed toward the first applicant/defendant. The reliefs are all sought from the employer, the second defendant.
   
9. For the above reasons, this ground is accepted; therefore, the case against the first applicant/defendant is dismissed. The first applicant/defendant’s name must be removed from the case.
   

Delay of more than two years.

10. The applicants argued that the respondent had failed to take out the Summons for Direction within 14 days after the close of pleadings pursuant to Order 32 Rule 1 of the High Court Civil Procedure Rules.
    
11. According to the applicants, the pleadings closed when the Statement of Claim was filed on 4 May 2017. Therefore, under Order 32 Rule 1, the respondent/plaintiff should file for Summons for Direction within 14 days, which ended on 28 May 2017.
    
12. The respondent objected and submitted that the pleading was ongoing even after 28 May 2017. The pleading should end after they filed their reply to the Statement of Defence on 3 April 2017. I agree, and as mentioned in my verbal judgment in court, the pleadings close after the defence is filed 14 days after the memorandum of appearance is due, or after the defence to the counter-claim is filed 14 days after the defence is due. In fact, the pleading just started on 4 May 2017 when the Statement of Claim was filed.
    
13. The question is: Is there a delay in prosecuting the matter? There is a delay of seven months as the respondent/plaintiff filed the Summons for Direction in November 2017. In February 2019, the case manager wrote to the Counsel for the respondent/plaintiff that the summons filed had some typological errors. The second Summons filed in the same month was also found to contain typological errors, so the respondent filed another one on 17 October 2019, almost a month after this miscellaneous application was filed.
    
14. I asked Counsel for the applicants whether the applicant, ‘the Bank,’ suffered substantive prejudice because of the delay. Her only response is that the applicant suffered because the case had not progressed for a long time since 2017, and the respondent/plaintiff did nothing to pursue her case.
    
15. In reply, Counsel for the respondent/plaintiff submitted that they are also very eager to have the substantive matter resolved. However, there was a delay when this miscellaneous application was filed. The then-Chief Justice ordered that this miscellaneous application be dealt with first. This was in mid-2022.
    
16. After considering the basis of the application, which is to apply for striking out for want of prosecution on the ground that the respondent/plaintiff failed to take out the Summons for Directions, I find that the application lacks its merit. The respondent/plaintiff had taken out Summons for Directions, first in 2017 and then in 2019. Even if there was a delay of seven months, this also does not meet the requirement that a delay of proceeding must be twelve months from the last proceeding, as per Order 62 Rule 1 for striking out for want of prosecution.
    
17. Order 32 Rule 8 gives the discretion to dismiss a claim for failure to take out a summons for directions and also discretion to the Court to treat the matter as if it were a summons for directions. Since the respondent/plaintiff had taken out the summons for direction I will treat this application as if it were a summons for direction. Hence, the following directions are made;
    

-The usual directions to be issued and

-Parties are to inform the court, through the clerk, before May 10 of the number of witnesses they wish to call.

The court will sign and issue the Order on Directions once this information is received.

Conclusion:

18. In light of the above reasons, this Court makes the following decision;
    1. The application to dismiss the case against the first applicant/defendant on the ground that it shows no reasonable cause of action is granted.
       
    2. The application to strike out the case against the second applicant/defendant for want of prosecution on the ground that the respondent/plaintiff failed to take out the Summons for Direction is denied.
       
    100. The Order on Direction will be signed and issued by the Court as stated in paragraph 17 above.
         
    4. Parties to bear their own cost.
       

Order accordingly.

HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice of the High Court