Leo v Mazaraks [2004] SBHC 32; HC-CAC 340 of 2003 (8 April 2004)

HIGH COURT OF SOLOMON ISLANDS
Civil Appeal No. 340 of 2003

JOSEPH LEO AND SILAS TELENGEIA
(representing the Fanalei Community)

-v-

CHRISTOS MAZARAKS, CHRISTOPHER PORTER AND MIKE SCHULTZ, SOLOMON ISLANDS MARINE MAMMAL EDUCATION CENTRE AND MARINE EXPORTS LIMITED

HIGH COURT OF SOLOMON ISLANDS
(KABUI, J.)

Date of Hearing: 7^th April 2003
Date of Judgment: 8^th April 2004

G. Suri for the Appellant.
A. Radclyffe for the 2^nd and 3^rd Defendants

JUDGMENT

Kabui, J. This is an appeal against the ruling made by the Registrar of the High Court on 3^rd March 2004. The appeal filed on 8^th March 2004 seeks the following the orders-

1. That the judgment made by the Registrar be set aside.
   
2. That the Second and Third Defendants’ application for striking out on the ground of locus standi be dismissed with costs.
   
3. That the Plaintiff’s application for joinder of one Philip O’ou, as another Plaintiff be granted.
   
4. That the Plaintiffs be given leave to amend the Statement of Claim to provide particulars of false representations in paragraph 16 of the Statement of Claim.
   
5. That one Joseph Au be added as the Fourth Defendant in these proceedings.
   
6. Costs of and incidental to this application be paid by the Second and Third Defendants.
   

The grounds of appeal.

The grounds of appeal are lengthy and it serves no useful purpose to reproduce them in this judgment. However, the complaint is about the issue of locus standi being the basis for the striking out the Plaintiffs’ action, contrary to Order 27, rule 4 of the High Court (Civil Procedure) Rules 1964 “the High Court Rules” in terms of the court exercising its inherent jurisdiction to control its own procedure by striking out pleadings. The other grounds of appeal are really arguments against the manner in which the Registrar reached his decision based on the issue of locus standi against the Plaintiffs in the exercise of its inherent jurisdiction.

The background.

The Plaintiffs filed a Writ of Summons and a Statement of Claim on 18^th December 2003 against the 1^st, 2^nd and 3^rd Defendants in which the Plaintiffs claim specific performance of a contract and damages for breach of that contract. The Statement of Claim was later amended and filed on 26^th February 2004. Counsel for the 2^nd and 3^rd Defendants filed a memorandum of appearance on their behalf on 2^nd February 2004. The 1^st Defendants filed no appearance. By Summons filed on 13^th February 2004, the 2^nd and 3^rd Defendants applied for an order to strike out the Plaintiffs’ claim on the basis that they had no locus standi or on the basis that the claim was frivolous and vexatious and an abuse of the court process. By Summons filed on 26^th February 2004, the Plaintiffs applied for an order that Philip O’ ou be joined as one of the Plaintiffs. These two applications were heard together by the Registrar on 3^rd March 2004, followed by his judgment that same day from which this appeal arises.

Arguments by the Plaintiffs based on the grounds of appeal.

Counsel for the Plaintiffs, Mr. Suri, argued that under Order 27, rule 4 of the High Court Rules, locus standi was not a ground for striking out pleading. The correct grounds, he argued, was the lack of a reasonable cause of action and the action or defence being shown in the pleading was frivolous and vexatious. This is a powerful argument because of the use of the term “locus standi” in the summons filed by the 2^nd and 3^rd Defendants on 13^th February 2003 but the Registrar did not use or mention the issue of locus standi in his judgment. The reason is that Mr. Radclyffe abandoned his application under Order 27, rule 4 of the High Court Rules, meaning that the issue of locus standi and the claim being frivolous and vexatious had been abandoned. That position was made clear at page 1 in the second paragraph of the judgment. The basis upon which the Plaintiffs’ claim had been dismissed was the exercise of the court’s inherent jurisdiction to control its own procedure. The issue of locus standi does not arise and is therefore irrelevant. The use of the term “locus standi” in the summons filed by the 2^nd and 3^rd Defendants was rather unfortunate because what was meant was that the Plaintiffs had no cause of action on the basis that they were not parties to the alleged oral agreement. In that sense, they might not have been able to claim “locus standi” in that they had a right to protect although the matter should not have gone that far in this case. There being no cause of action was enough to dispose of the matter. This was probably why Counsel for the 2^nd and 3^rd Defendants, Mr. Radclyffe, decided to abandon his application under Order 27, rule 4 of the High Court Rules. The argument by Counsel on this point is rejected. This disposes of ground (a). The next argument was that the issue of privity to contract should have been dealt with under Order 27, rules 2 and 3 of the High Court Rules, being treated as a point of law under those rules. The simple answer to that argument is that the Court cannot act on its own under Order 27, rules 2 and 3 because the responsibility of putting that issue before the Court belongs to the party who wants to make that application for determination by the Court if not agreed by the parties. It is not for the Court to run the case for the parties. For that reason it is not right to put any blame on the Registrar and so I reject that argument. This disposes of ground (b).

The next argument was that the finding by the Registrar that the oral agreement was between Joseph Au and the Defendants and not between the Fanalei Community and the Defendants was wrong in law. I do not know how this could be so because the affidavits filed was the evidence before the Registrar and based on that evidence the Registrar found that the oral agreement in question was between Joseph Au and the Defendants. The Fanalei Community as a group of persons had not been a party to that oral agreement because the Plaintiffs as representatives of the Fanalei Community did not personally negotiate the agreement with the Defendants so as to become parties to the agreement and can sue upon it on behalf and for the Fanalei Community. The Registrar found that the dispute appeared to be between Joseph Au and the Plaintiffs because apparently he had acted for himself in the deal with the Defendants. What might have happened was that there had been a meeting or meetings of the members of the Fanalei Community at which the intention of the Defendants was explained and accepted on terms of the Fanalei Community but the person who purportedly acted for them was Joseph Au who later diverted the benefit of the oral agreement to himself in the end. Whilst it may be the case that the Plaintiffs are the members of the main tribes in Fanalei, they never were the persons who sealed the oral agreement with the Defendants for the Fanalei Community. Obviously, the Plaintiffs were the wrong parties in the action. It is as simple as that according to the judgment delivered by the Registrar. Whilst rules 8 and 9 of Order 17 of the High Court Rules may well apply in this case, they do not really assist because the Plaintiffs were not the persons who made the oral agreement with the Defendants though they may well be the right persons in custom under rule 8 above to negotiate and enter into contracts for and on behalf of the Fanalei Community. This is a situation where there was no cause of action arising from a contract in that the Plaintiffs are not parties to any contract, not so to the oral agreement upon which they had purported to be parties to in this case. No contract existed for the Plaintiffs to enforce and so there was no cause of action to take to court. The Registrar was correct in striking out the Plaintiffs’ action in the exercise of the inherent jurisdiction of the Court. In this sort of case, the court is not expected to treat the evidence before it as though it were a trial situation where witnesses are called, cross-examined and re-examined and a decision is made by the court. The finding by the Registrar that the Plaintiffs had no cause of action is correct in law and so the argument on that point is rejected. This disposes of ground (c).

The next argument was that paragraph 7 of Joseph Leo’s affidavit and paragraph 4 of Mr. Silas Telengeia’s affidavit, the Plaintiffs, were sufficient to warrant the case proceeding to trial. I do not think there is any merit in this argument. I reject it. A contract had been made and fulfilled between Joseph Au and the Defendants. Silas Telengeia cannot enter into a contract between two different parties that had already been performed. Again, what might have happened was that Joseph Au did not act for the Fanalei Community at all but for himself so that in the end the Fanalei Community never entered into any contract with the Defendants as originally understood and intended. It is now too late for Silas Telenngeia to act to protect the Fanalei Community. This disposes of ground (c). The next argument was that the Registrar failed to consider the fact that the oral agreement was made in public at Fanalei in April, 2003 and the Defendants breached that agreement. This is tantamount to accusing the Registrar of not treating the hearing as a trial because the finding that the Plaintiffs were not parties to the alleged oral agreement was enough to conclude that there was no cause of action upon contract. That conclusion did entitle the Registrar to reach the decision he made in his judgment. That argument is rejected. This disposes of ground (e).

The final argument was that the Registrar failed to consider the claim for false representation as a separate cause of action. It is true that the Registrar made no mention of this point in his judgment but the fact is that according to Michael Schultz’s affidavit filed on 13^th February 2004, his discussions were made with one Joseph Au representing the Fanalei Community and not with the Plaintiffs. There would not have been any false representation made to the Plaintiffs for that reason. Paragraph 16 of the amended Statement of Claim filed on 26^th February 2004 refers to such false representation to the Plaintiffs’ community. The Fanalei Community cannot be the Plaintiffs or Joseph Au for that matter. The alleged false representation must be made to a person not a community at large though the community is identifiable such as the Fanalei Community. The false representation allegation cannot possibly form a cause of action in law in this case. The final argument is also rejected. The Plaintiffs could not have succeeded in any case in the first place on the pleading before the Registrar. This disposes of ground (f).

Arguments by the 2^nd and 3^rd Defendants and conclusion.

This being the position, I need not address the arguments advanced by Counsel for the 2^nd and 3^rd Defendants, Mr. Radclyffe. He succeeds in upholding the judgment by the Registrar. This appeal must therefore be dismissed with costs.

F.O. Kabui
Puisne Judge