X Field Confection v Bank of South Pacific Ltd [2014] SBHC 167; HCSI-CC 217 of 2015 (2 September 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 217 of 2015

BETWEEN:

X FIELD CONFECTION
1st Claimant

AND:

PETER EKE & MARTIN EKE
2nd Claimant

AND:

C.W CAKE SHOP LTD
3rd Claimant

AND:

BANK OF SOUTH PACIFIC LTD
Defendant

Date of Hearing: 2nd September 2015
Date of Ruling: 2nd September 2015

ANH Legal Services: No appearance for the Claimants
Mr. A. Radclyffe for Defendant

(EX-TEMPORE) DECISION ON APPLICATION
FOR STRUCK OUT ORDERS OF THE CLAIM

Maina J:

In this application the Defendant applies for an order to strike out the claim under Rule 9.75 (a), (b) and (c) of the Civil Procedure Rules of 2007.

The claim was filed on 1st June 2015. In the claim the Claimants is seeking a declaration that the action and inaction by the Defendant in failing to fully comply with the specific instruction of the second Claimants amount to negligence by the Defendant. Consequent to that declaration, for an order to pay damages, for the Defendant to pay interest until judgment, pay cost and other orders the Court thinks fit to make in the circumstances. The claim is said to be based on the negligence of the Defendant.

In the sworn statement by Counsel Radclyffe for the Defendant he requested better particulars of the claim in 3 letters but Claimant's solicitors have failed to provide further and better particulars requested or to reply to any of his letters. As at the date hereof the Claimant has not filed and served an amended claim.

Counsel for the Defendant stated that the First Claimant is not a legal entity capable of suing as with company register it is Exfield Confectionery Limited.

The document before the Court indicates or shows the Claimants are trying to re-litigate High Court case No. 121 of 2011 in which a judgment was entered against the Claimants by the Defendant and others for the sale of the properties referred to in the claim obtained. The Claimants appealed orders in the High Court case to the Court of Appeal in CAC 24 of 2014 but was abandoned the appeal on 13th April 2014.

In this case what appears clear is that the Claimants are alleging negligence on part of the Defendant but have failed to properly plead the cause of action. The Claimant were given reasonable opportunity to amend the claim and provide better particulars but failed to do so.

Further it is clear from the claim that the Claimant is trying to re-litigate High Court case No. 121 of 2011 in which Defendant's case is res judicata and the validity of the judgment and the orders in that case cannot be questioned in these proceedings.

The proceedings are frivolous or vexatious, no reasonable cause of action is disclosed and an abuse of the process of the Court and therefore the Claimant's claim is struck out in its entirety.

The Court

Justice Leonard R Maina
Puisne Judge