Tropicana Motel v Attorney-General [2006] SBHC 57; HCSI-CC 269 of 2005 (1 February 2006)

HIGH COURT OF SOLOMON ISLANDS.

Civil Case No. 269 of 2005.

TROPICANA MOTEL

–v-

ATTORNEY-GENERAL

(KABUI, J.).

Date of Hearing: 27th January 2006.
Date of Ruling: 1st February 2006.

P. Lavery for the Plaintiff.
N. Moshinsky Q.C. and R. Firigeni for the Defendant.

RULING

Kabui, J.: There are two applications before the Court for determination. The first one was filed by Tropicana Motel on 28th November 2005 asking for leave to enter a summary judgment against the Defendant for the sum claimed in the Defendant’s Statement of Claim. The second was filed by the Defendant on 24th January 2006 asking for an order that the Plaintiff should supply further and better particulars to the Defendant.

Tropicana Motel, being the Plaintiff, had claimed in its Statement of Claim that the Government through the Ministries of Rehabilitation, Peace and Reconstruction and Finance had not paid it the sum of $1,097,822.00 being damages for breach of contract entered into by it and the Government.

The Defendant in its defence filed on 15th August 2005 denied liability for the sum claimed by Tropicana Motel. In its application, Tropicana Motel invoked rule 2 of Order 14 of the High Court (Civil Procedure) Rules, 1964, "the High Court Rules" and sought an order that leave be granted to enter final judgment for the sum claimed in its Statement of Claim. It also asked for costs.

The procedure under Order 14 of the High Court Rules is often used in cases where the Plaintiff believes the Defendant does not have a defence to the action. However, in invoking this procedure, the Plaintiff must file an affidavit stating the facts verifying the cause of action and the amount claimed and that the Plaintiff believes there is no defence to the action.

The Court has the power either to grant the application or refuse it as the case may be. The Court must however bear in mind that the summary judgment procedure exists to enable a plaintiff who is clearly entitled to the payment of money claimed from the defendant being delayed by the ordinary steps in the pleading process thus preventing quick relief for the Defendant without incurring costs of litigation which would otherwise be the case in a normal trial.

The parties’ respective positions.

Tropicana Motel’s case is that the Defendant has no defence and summary judgment may therefore be obtained under rule 2 of Order 14 of the High Court Rules. Affidavit evidence by Father Teho had been filed in support of the application. The Defendant had filed a defence denying the existence of the contract alleged by the Plaintiff and had requested further particulars from the Plaintiff. Tropicana Motel has nevertheless asked the Court to grant its application on the basis that the Defendant has no defence of any merit. I think Tropicana Motel must have been prompted to deny any defence against its claim by the fact that the defence filed by the Defendant does not state the ground for the defence. It is a defence general in nature. This is again why the Defendant had requested further and better particulars from Tropicana Motel obviously to enable a further and better defence to be filed, if necessary. This is the second application at the hearing.

The issues to be determined.

Two issues arise for determination. The first is whether or not there is a case for granting leave to enter summary judgment against the Defendant. The second is, if leave is refused, whether or not Tropicana Motel as the Plaintiff should be ordered by the Court to supply further and better particulars to the Defendant.

Determination of the first application.

Counsel for Tropicana Motel was really saying in his argument that the claim by his client was a liquidated sum, being simply a debt to be paid by the Defendant. His argument is obviously consistent with Order 3, rule 5 as read with Order 23, rule 1 of the High Court Rules, the effect of which is that a mere denial of a debt is inadmissible. In other words, in terms of Order 14, rule 1 of the High Court Rules, the Defendant has no defence even to the extent of anything being arguable as a defence.

There is however, to the contrary, affidavit evidence by Joanne Hoffman on behalf of the Defendant showing that no contract had in fact been entered into between Tropicana Motel and the Defendant as alleged in the Statement of Claim. The Defendant disputes the existence of the contract alleged by Tropicana Motel. That non-existence of any contract clearly is a defence despite the fact that Mr. Tagana does confirm that booking had been made by his Department but to be paid for by another Ministry. The existence of a contract or not has therefore become an arguable point to be decided at trial.

Another possible defence is whether or not the contract, if any, is un-procedural and illegal under Chapter 22 of Financial Instructions issued under section 35 of the Audit and Finance Act, (Cap. 120) and therefore is unenforceable.

Tropicana Motel, being the Plaintiff, has therefore failed to make out a case for leave to enter summary judgment against the Defendant under Order 14, rule 2 of the High Court Rules. The application is refused.

Determination of the second application.

The application for further particulars does show that the Defendant believes the statement of claim needs amplification. Counsel for Tropicana Motel argued that the statement of claim was adequate and further amplification of the facts was unnecessary in this case. However, paragraph 3 of the statement of claim simply states that there had been agreement between the parties for accommodation and services to be provided as from 9th December 2000 on a rolling basis up to 9th October 2001. It further states that there had been a breach of contract for which the sum of $1,097,822.00 is being claimed as damages. In my view, inadequate particulars had been pleaded in paragraph 3 of the statement of claim. That is, the relevant details of the contract ought to have been stated in the statement of claim. Order 21, rule 6(1) as read with rule 26 of the same Order of the High Court Rules supports this view. There is indeed a case for providing further and better particulars in this case.

The application is granted.

Consequential Orders for directions.

I make, under Order 14, rule 8(a) of the High Court Rules, the following consequential orders following the determination of the two applications before this Court-

1. That Tropicana Motel as the Plaintiff, supply as requested by the Defendant further and better particulars of the alleged contract within 21 days from the date hereof.
   
2. Further order that a directions consent order be made by the parties within 14 days upon the expiry of 21 days directed above.
   
3. In the event that a consent order cannot be agreed by the parties upon the expiry of the 14 days directed above, a summons for directions be filed by Tropicana Motel, the Plaintiff, within 7 days for orders for directions.
   

Frank O. Kabui
Puisne Judge