Leo v Mazarakis [2004] SBHC 21; HC-CC 340 of 2003 (3 March 2004)

IN THE HIGH COURT OF SOLOMON ISLANDS

Case No. 340 of 2003

Between

JOSEPH LEO and SILAS TELENGEIA
(Representing Fanalei Community of Malaita Province)
Plaintiffs

and

CHRISTOS MAZARAKIS, CHRISTOPHER PORTER
and MIKE SCHULTZ
First Defendants

and

SOLOMON ISLANDS MARINE MAMAL EDUCATION CENTER Ltd
Second Defendants

and

MARINE EXPORTS Ltd
Third Defendants

Hearing 3^rd March 2004
Judgment 3^rd March 2004

Mr G Suri for the Plaintiffs
Mr A Radclyffe for the 2^nd and 3^rd Defendants

Before Registrar Chetwynd

Registrar Chetwynd – I am dealing with two applications by summons. The first in time is by the Second and Third Defendants and seeks an order striking out the Writ. The second is that by the Plaintiffs seeking leave to join in one Mr Philip O’ou as Plaintiff. I heard both applications together.

Mr Radclyffe abandoned his application pursuant to O.27, r.4 (of the High Court Civil Procedure Rules 1964) but proceeded with the application on the basis that the Court has inherent jurisdiction to regulate proceedings before it. The reason for this was that an application under O.27, r.4 can only be dealt with by reference to the pleadings. In simple terms, the Court can only decide on whether pleadings should be struck out by looking at those pleadings and those pleadings alone. Under it’s inherent jurisdiction a Court can look at evidence.

The first question then is whether I can strike out the Writ under the inherent jurisdiction of the Court to regulate proceedings before it. I do not think there is any doubt in my mind that a Court can so act. A quick glance at the White Book (the English Supreme Court Practice) will show a number of instances where that has happened. Those cases clearly show that such a course is a proper exercise of Judicial discretion. However, those same cases also show that it is a discretion to be exercised sparingly and only in exceptional circumstances.

What is the situation in this case? The Plaintiffs say they are representatives of the Fanalei Community. They say that the First Defendants (not represented today because they have not been served with the Writ) and the Second and Third Defendants reached an oral agreement with them. The basic terms of the agreement were that the Fanalei Community would capture dolphins and the Defendants (in particular the Second and Third Defendants) would pay the Fanalei Community $2,500.00 for each dolphin. The Plaintiff’s say that they handed over 12 dolphins to the Defendants and that they are therefore owed $30,000.00.

The Second and Third Defendants have not filed a defence. They did lodge the application to strike out though and that was accompanied by an affidavit made by one of the First Defendants on behalf of the Second and Third Defendants (and filed in Court on 13^th February). I am entitled to look at that affidavit (and indeed to affidavits lodged by the Plaintiffs to support their application for joinder). The Defendants say basically that they have no idea who the Plaintiff’s are and that they negotiated primarily with a Chief of the Fanalei Community one Joseph Au.

The affidavit also exhibits a letter from Joseph Au dated 6^th November 2003 in which he says, “My Committee and myself still stand on our decision made during our meeting Fanalei Community/SIMMEL for payment of (12) twelve dolphins that have already been paid to my community”. In other words, Mr Au is confirming the agreement referred to in the Writ and saying that payment for the 12 dolphins has been made by the Defendants.

I have also looked at affidavits filed by the Plaintiffs and by the “prospective Plaintiff”. They do not dispute that payments have been made. What they say is that payments were made to the wrong people, i.e. to Mr Au and the Community and not them. Mr Leo in his affidavit says that he believes Mr Au is a “self claimed” Chief of the Fanalei Community. However, he does not dispute that Mr Au and “his supporters” negotiated with the Defendants. At paragraph 7 he says, “In fact they [meaning Joseph Au and others supporting him] made the oral agreement with the Defendants purporting to represent the people of Fanalei but the truth is they made the agreement for themselves”. In paragraph 9 Mr Leo says’ “My actions also helped reveal the discrepancies in the agreement made by Joseph Au and the Defendants”.

The affidavits filed by the second named Plaintiff Mr Telengeia and by the “prospective Plaintiff” Mr O’ou do not assert anything very different.

In order to resolve this matter I must look at the amended Statement of Claim filed on 26^th February. That sets out the positions of the Plaintiffs as representatives of the Fanalei Community. The pleading also sets out the position of the Defendants. As between the parties in this case there is not a great deal controversy so far. The Plaintiffs then go on to recite the agreement. It was for the Fanalei Community to catch and supply dolphins and for the Defendants to pay $2,500.00 for each dolphin supplied. The Statement of Claim acknowledges payment of at least $2,500.00. Thereafter the waters get muddier but really the crux of the Plaintiff’s claim is set out at paragraph 17. I will quote that in full. It says:-

“17. The Fanalei Community had at the meeting of the Village Committee and the Church Committee agreed to use the monies gained from the sale of dolphin to purchase roofing iron for the Church Building at Fanalei”

In other words, the Plaintiffs are saying that at a separate meeting, between different parties, agreed on how to use the proceeds. That must raise the question as to what that has to do with the Defendants. It is not claimed that they agreed to buy roofing iron or indeed that they knew roofing iron was going to be purchased. It says that at a separate meeting between the Village Committee and the Church Committee those two bodies agreed to use the proceeds to buy roofing iron. There is no claim or suggestion that the Defendants were party to that agreement in any shape or form. Clearly there is a dispute but it is between the Plaintiffs and some members of the Fanalei Community and Mr Au and other members of the Fanalei Community.

Paragraph 6 of Mr Telengia’s affidavit of 26^th February makes this clear. He recites details of the meeting between the Village and Church Committees. He says that those two Committees agreed to use the proceeds in a certain way. He does not allege the Defendants were party to that agreement. He does say, at paragraph 7, “Instead, as we learnt later, the defendants bought musical equipment for the Fanalei youth and an outboard motor for Joseph Au”.

Mr Philip O’ou in his affidavit talks of meetings between the Church and Village Committees. He goes on to say at paragraph 5, “These meetings were held after our discussions with the First Defendants.” [My emphasis.]

Mr Leo also confirms this at paragraph 5 of his affidavit.

As I have said, it is clear that the dispute is not between the Plaintiffs and the Defendants it is between Mr Au and the Plaintiffs. The whole tenor of the claim is that an agreement was reached for the supply of dolphins and that the consideration was agreed. There is tacit acceptance in all the affidavits and pleadings that payment at the agreed rate or something approximating it was made by the Defendants. The real claim is that is was paid to the wrong person or persons because of some other agreement as to the payment of the proceeds to which the Defendants were not party.

For that reason I cannot see the claim succeeding against the Defendants. They cannot be held responsible for any breaches of an agreement to which they were not party and to which they were not privy. Should I therefore strike out the Writ?

As I indicated earlier, I can do so but that my discretion should be exercised very carefully and in exceptional circumstances. As I understand cases that have been dealt with in other jurisdictions, the accepted way forward is to first see if the pleadings can be amended to avoid them being struck out altogether. What amendments could be made to this claim to keep it alive? Certainly on the evidence before me today, nothing which would keep the claim alive as against the Defendants. I cannot see how any amendment can be made which would make the Defendants liable for a breach of an agreement to which they were not party.

Should I strike out the claim against the Defendants and substitute Mr Au? I do not think so. The Plaintiff’s are legally represented and this possibility must have been considered. The Plaintiff’s have chosen not to proceed against Mr Au. Maybe they have very good reason for not doing so. If that is the case why should I force then to do so by joining him as a Defendant in these proceedings?

All things considered I see no option but to strike out the Writ of Summons. I order accordingly.

That then leaves the application by the Plaintiff’s to join Mr O’ou as Plaintiff. Having ordered the Writ to be struck out the Plaintiff’s application must fail.

No one addressed me as to costs but they are claimed in the Second and Third Defendant’s original summons. I do not believe that abandoning the application under O.27, r.4 changes the situation. In any event costs are always in the discretion of the Court. I order the Plaintiff’s to pay the Second and Third Defendant’s costs of this application. Such costs to be taxed if not agreed.

R D Chetwynd
Registrar

Dated 3^rd March 2004