Kargere v Omex Ltd [2017] SBHC 149; HCSI-CC 549 of 2016 (6 April 2017)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Kargere v Omex Limited
Citation:
Date of decision:	6 April 2017
Parties:	Nelson Kargere v Omex Limited
Date of hearing:	6 April 2017
Court file number(s):	549 of 2016
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia PJ
On appeal from:
Order:	1. The application for striking is dismissed. 2. Parties meet their own costs. 3. Claim shall be amended and simplified. 4. All consequential amendment to pleadings are to be effected. 5. Matter progressed to trial with speed.
Representation:	Mr. C. Rarumae for the Claimant
	Ms. M. Bird for the Defendant
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule 9.75.
Cases cited:	Tikani v Motui

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION
Civil Case No. 549 of 2016

NELSON KARGERE
Claimant

OMEX LIMITED
Defendant

Date of Hearing: 6^th April 2017
Date of Ruling: 6 April 2017

Mr. C Rarumae for the Claimant
Ms. M Bird for the Defendant

RULING ON APPLIACTION TO STRIKE OUT

1. A claim was filed on 20/12/2016. It was served on the same day. A statement was also filed with the claim. The statement disclosed the contract under dispute. Contract of employment was executed between claimant and Omex PNG, may be the defendant.
2. The application for default judgment was withdrawn in court. Counsel for defendant had apparently come prepared for this application. Its sudden withdrawal will have implications in costs for the defendant.
3. As for the application to strike out the claim, it is declined; when court consider the principles of law involved in striking out of claims under Rule 9.75. When applications are brought under this Rule, it is normally because, the applicant believes, the claim is frivolous and vexatious, or that no reasonable cause of action is disclosed or that the claim is an abuse of court process.
4. In the case of Tikani, and other numerous cases, this Court has pronounced considerations or bench marks against which to judge claims that are frivolous and vexatious, claims that disclosed no reasonable cause of action and claims that amount to abuse of court process.
5. For frivolous and vexatious claims, the bench marks are: whether the claim lacks merit and was brought for ulterior purpose; whether the claim is devoid of all merit and cannot succeed and whether no reasonable person could properly conclude that the grievance is bona fide. Tikani case says that court should only sparingly strike out claims in exceptional cases.
6. For claims not disclosing any reasonable cause of action, the bench marks are: that the claim does not disclose a cause of action with some chances of success; or whether the claim has disclosed a tenable cause of action for the relief sought. Tikani says that if the statement of case disclosed some issues or questions fit to be tried, the mere fact that it is weak and not likely to succeed is no ground for striking. Only if the cause of action is certain to fall, then the claim should be struck out.
7. As for abuse of court process, the issue to consider is “Is the claim one which no reasonable person could properly conclude that the grievance is bona fide and contend that it is a grievance that the claimant is entitled to bring before the Court”.
8. When the above considerations or bench marks are applied to the case before me, from the claim and statements, Court is satisfied that the claim cannot be knocked out under Rule 9.75. The claim must go to trial. The statement of case disclosed issues fit to be tried. The claim is not weak, or is not devoid of all merit or very bad or not brought for an ulterior purpose. We look at the claim only and on “rough perusal and analysis” of evidence
9. The claim is for damages and outstanding dues for breach of contract. Claimant is pursuing a claim for damages and outstanding dues for breach of contract (written contract or any new and extended verbally made contract). Claim raised issues fit to be tried, in relation to the contract (s) under dispute. Reliefs claimed should be made clear and simplified. It is normal to plead – “damages for breach of contract to be assessed”. And in the statement of case, claimant should particularise the alleged breaches, in relation to the quantum of salary entitlement; salaries already received and outstanding dues. Claimant is given leave to rectify the pleadings accordingly. Court has power to rectify defect in pleadings. Claimant should also plead his rights in the contract that are breached.
10. This case should be confined merely to the alleged contract and its breaches. The other issues popping up on work permit, residence permit and passport have a different forum to address in the first instance. That the Immigration and Commissioner of Labour offices, are the proper avenues to raise these issues.
11. Accordingly; the orders of the Court are:
    • 11.1 The application for striking is dismissed.
    • 11.2 Parties meet their own costs.
    • 11.3 Claim shall be amended and simplified.
    • 11.4 All consequential amendment to pleadings are to be effected.
    • 11.5 Matter progressed to trial with speed.

THE COURT

JOHN A KENIAPISIA
PUISNE JUDGE