Fairtrade Company v Panasasa [2015] SBHC 54; HCSI-CC 81 of 2014 (15 June 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona PJ)

Civil Case No. 81 of 2014

BETWEEN:

FAIRTRADE COMPANY
Claimant

AND:

IODINE PANASASA
Defendant

AND:

ATTORNEY-GENERAL
Third Party.
(Representing the Western Provincial Executive)

AND:

ATTORNEY-GENERAL
Third Party
(Representing the Registrar of Titles)

Date of Hearing: 19th May 2015.
Date of Ruling: 15th June 2015

Mr A. Pehu for the Claimant
Mr N. Laurere for the Defendant
Mrs Soma for both Third Parties

RULNG ON APPLICATION TO STRIKE OUT

Faukona PJ: A claim in category A was filed on 20th March 2014. The relief sought are (1) immediately give vacant position of FTE in PN 097-005-122, (2) mesne profit at $2500.00 per month from 1st January 2005 up to date of judgment and (3) permanent injunction.

2. In the third party notice filed on 14th July 2014 the Defendant sought five reliefs including, the Third party contributed or caused the situation (2) declaration granting of whole of PN 097-005-122 to the Claimant and subsequent registration was done by mistake (3) title of the land be rectified (4) Western Provincial Executive to subdivide and grant title to the Defendant.

3. The Third Party then response by filing an application to strike out or dismissed the third party notice on the basis that no reasonable cause of action is disclosed.

4. Counsel for the third parties relies on the authority of Tikani V Motui[1] to support her contention. The Tikani case sets down the principles, even to a minimum level in applying a similar factual situation. It is a case that accumulates and articulates a vast collection from common law case authorities to substantiate the reasons for decision. The paragraph the Counsel refers to is merely a definition of cause of action which provides a very minimal expression as to the principle to apply.

5. The proper application should feature as thus: order for striking out is only appropriate if it stands out clear that the claim is insufficient even if proved to entitle the Claimant to what he seeks[2]. So long as the statement of claim discloses some cause of action, or raises some question fit to be decided at trial, the fact that it is weak and not likely to succeed is no ground for striking out[3]. Striking out a claim should only be done in very clear cases where the claim is baseless or so bad and does not disclose a cause of action. It should be done only where the statement of claim and the asserted facts do not raise an arguable case fit to be decided at trial[4]. Striking out on this ground should be used sparingly only in exceptional cases[5].

6. In this case, it would appear the Defendant has admitted the claim for trespass but pleaded the third Party was solely responsible for it. His reason is that he was issued with a letter probably in 1995 agreeing and allocating part of lot 376 PN 097-005-122 by the third party. The question is, is that the true situation, a reflection of what had actually happened? If not, then it is an issue relevant to be litigated at trial.

7. By relying on the letter as the basis for possession and occupation and undertook substantial development without any offer, has the Defendant any right whether in equity or law, or is the principle legitimate expectation applies here? Those are cause of action which must be put to test at trail. Again by occupying and developing the land is it part performance based on the promise. That is another cause of action.

8. Then again the issue of mistake which directly link to rectification. All these issues had been pleaded and were supported by asserted facts. If the Defendant fails to show how the failure is fraudulent or amounts to mistake, then the claim cannot be strike out because the mistake alleged is directly connected with the letter of agreement and allocation. It is not an issue that stands out of its own. Therefore cannot be strike out independently. The case of South pacific Oil V GRP[6] does not assist much in this case.

9. This is a case where there are cause of actions disclosed, whether they are weak, insufficient, or cannot succeed but at least disclose some cause of action which is fit to be decided at trial. They are not baseless or so bad or very exceptional. In my respectable view it is no wise to strike out the claim at an early stage but allow it to proceed to trial.

Orders:

1. Refuse to grant order striking out third Party Notice filed on 14th July 2014.

2. Cost of this application is to be paid to the first Defendant by third party.

The Court.

---

^[1] (200) SBHC 10
^[2] Moor V Lawson (1915) 3 T.L.R 418
^[3] Lawrence V Lord Norrys (1890) 15 Appl Case 210
^[4] Ibid (3)
^[5] Ibid (3)
^[6] (2102) SBHC 20