Kirite'e v Ome [2012] SBHC 99; HCSI-CC 387 of 2011 (31 August 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 387 of 2011

BETWEEN:

Tangidua Kirite'e
Claimant

AND:

John Ome
First Defendant

AND:

David Suiti
Second Defendant

AND:

Alick Luina
Third Defendant

AND:

Lous J Wale
Fourth Defendant

AND:

ATTORNEY GENERAL
Fifth Defendant
(Representing the Department of Agriculture, Lands and Fisheries)

Mr. N Hou for the Claimant
Mr. E Kii for the Fourth and Fifth Defendants
No. appearance for the First, Second and Third Defendants

Date of Hearing : 13 August 2012
Date of Ruling : 31 August 2012

RULING

Mwanesalua J:

1. This is an application to strike out the Fourth and Fifth Defendants from the proceeding on grounds that there is no cause of action against them in the proceeding, pursuant to R. 9.75 (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007.
   
2. The First to the Third Defendants were not present in court. It would seem that they are at the Rove Correction Centre serving sentences for arson which gave rise to this civil proceeding. The court has not been informed by Counsel for the Claimant whether they have or have not been served with notice of this application. Further, the court is also not aware whether they have instructed Counsel to represent them in this claim.
   
3. The case for the Fourth and Fifth Defendants is based on two grounds. The first is that the Claim was time barred under section 5 of the Limitation Act (Cap. 18) ("The Act"). This section bars the filing of any action after the expiration of six years from the date on which the cause of action has accrued. The second is that there is no cause of action disclosed in the claim against the Fourth and the Fifth Defendants.
   
4. The Claimant's case is that section 5 of the Act does not apply to this claim. He contends that the relevant section which applies to circumstance of this claim is section 39 (1) and (2) of the Act. This section covers circumstances under which the court may allow a claim to proceed after six years after the cause of action had accrued.
   
5. This claim was filed on 27 September 2011. The Claimant seeks the following relief: (1) Damages for trespass and destruction of the Claimant's properties to be assessed; (2) statutory interest on the sum to be assessed from 16 September, 2010 until judgment; (3) costs of and incidental to this action; and such further and other orders the court thinks fit to make in the circumstances.
   
6. Since the case was filed, the Claimant has not filed any sworn statement in support of his claim. No reasons were given for not doing so.
   
7. The Fifth Defendant received the claim on 24 December 2011. In his response, he said that he would file a defence within 28 days of service. However, the Fifth Defendant is yet to file a defence. The Fourth Defendant is also yet to file his defence.
   
8. The Second limb of this application is based on the ground that there is no reasonable cause of action against the Fourth and Fifth Defendants. It is apparent from the statement of case that these Defendants were made parties to this claim based on a letter purported to be written by the Fifth Defendant on 23 August, 2000 through the Fourth Defendant, which the Claimant alleged to have directly led to his substantial loss and members of his family. The manner in which the letter directly caused the Claimant to suffer loss is not known at this stage. That letter is currently not before the court.
   
9. The court holds the view that this is a case where section 39 (1) and (2) would apply, rather than section 5 of the Act, in view of the material in the statement of case. The Claimant lost his properties through the arson of his properties which gave rise to the institution to this claim. It seems that cogent evidence merely became available to support this claim after the First, Second and Third Defendants were convicted of arson and sentenced. In the circumstances the application to strike out the claim is refused.
   

Order: (1) Application to strike out the claim is refused.
(2) Parties to pay their own costs.
(3) The claim is adjourned for mention on 6/09/2012 at 9:30am.

THE COURT