Marany v MSL Import and Export Company [2003] SBHC 133; HCSI-CC 253 of 2002 (16 October 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 253 of 2002

ANDREW MARANY

-v-

MSL IMPORT AND EXPORT COMPANY

High Court of Solomon Islands
(Brown, P.J)

Date of Hearing: 16th October 2003

Date of Judgment: 16th October 2003

Mr. Michael Ipo for the Plaintiffs
No representative for the Defendant

JUDGMENT

Powers of the Court to set aside orders ex debito justitiae

Brown, J: This judgment shall be set aside ex debito justitiae (as a matter of right, in opposition to a matter for the favour or discretion of the court).

The writ of summons contained a special endorsement under O.3 r 5 where a plaintiff seeks to recover a debt or liquidated demand. (The rule sets out and illustrates the simple debts and in Appendix A Part IV Section1 to the Rules, simple claims are set forth).

This statement of claim pleaded a written contract of employment which was not exhibited and which the plaintiff says, was breached by the defendant. The sum of money claimed was for a running total from an earlier date but it is not clear whether this accruing sum is for damages for breach of contract, for illegal dismissal (for instance) or for arrears of salary. The pleadings in the statements of claim cannot, in any way, be seen as giving rise to a cause of action for a simple debt will lie. The cause of action cannot be categorized as a simple debt or liquidated demand. It does not fall within the definition. (Odgers principles of pleadings and practice in civil actions in the High Court of Justice 20th edit 1971 by Giles Francis Harwood, Stevens & Sons) (See Principles of Practice and Procedure, O’Leary and Hogan, Butterworths, Sydney 1976, at 86.

When the amount to which the plaintiff is entitled can be ascertained by calculation, or fixed by any scale of charges or other positive data, it is said to be "liquidated" or make clear. But when the amount to be recovered depends upon the circumstances of the case and is fixed by opinion or by assessment or by what may be judged reasonable, the claim is generally unliquidated.

This claims does not fall within claims.

- For which the action of debt will lie;
- For which an indebitatus (or "common) count will lie, including those cases formerly covered by the quantum meruit or quantum valebat counts, notwithstanding that the only agreement implied between the parties in such cases is for payment at a "reasonable" rate; or
- For which covenant, or special assumpsit will lie, provided that the claim is for a specific amount, not involving in the calculation thereof elements the selection whereof is dependent on the opinion of the jury.

Alexander v Ajax Insurance Co Ltd (1956) VLR at 440

The statement of claim does not fall within the category of a simple debt or liquidated demand and consequently the provisions of O.13. r. 3 do not apply.

It is not proper for the court to proceed to issue process, to recover the judgment, by default, irregularly obtained.

The writ of fieri facias is set aside. The application for oral examination is refused and the judgment obtained on the 23 April 2003 is set aside ex debito justitiae. The plaintiff will need to comply with the rules if he wishes to pursue his claim.

THE COURT