Pitakere v Metro Team Ltd [2020] SBHC 26; HCSI-CC 86 of 2019 (31 March 2020)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Pitakere v Metro Team Ltd
Citation:
Date of decision:	31 March 2020
Parties:	Caleb Pitakere v Metro Team Limited
Date of hearing:	20 November 2019
Court file number(s):	86 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona PJ
On appeal from:
Order:	Dismiss the application to join the second and third Defendants as parties Cost of this application is to be paid to the Claimant by the Defendant
Representation:	Ms. L Ramo for the Claimant Mr. J Dudley for the Defendant/Applicant to join Second and Third Defendants
Catchwords:
Words and phrases:
Legislation cited:	Civil Procedure Rule, R3.5
Cases cited:	Uraharia v Muda [2016] SBHC 1, Lifuasi v Solomon Telekom Company Ltd [2015] SBHC 119, Transol Shipping Ltd v Laore [2013] SBHC 182, Wale v Philip [2011] SBHC 32

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 86 of 2019

CALEB PITAKERE
Claimant

V

METRO TEAM LIMITED
Defendant

By the Counter-Claim

BETWEEN:

METRO TEAM LIMITED
Claimant/Defendant

AND:

CALEB PITAKERE
First Defendant

AND:

MALELI ZALAO
(Sasa Pezoporo Development Company Limited-Licensee)
Second Defendant

AND:

CALEB PITAKERE, CHIEF JOHN VELOBULE, RODY TOVALA, JOHN SNIDER, ALISTAIR LILIKERA, PAUL SEBE AND HENRY JULEBOSO
(Trustees and Landowners for Sasa Pezoporo Tribe)

Date of Hearing: 20 November 2019
Date of ruling: 31 March 2020

Ms. L Ramo for the Claimant
Mr. J Duddley for the Defendant/Application to Join Second and Third Defendants

RULING ON APPLICATION FOR JOINDER OF THIRD PARTIES

Faukona PJ: A claim for damages for breach of contract was filed by the Claimant on 21^st February 2019.

2. A defense with counter-claim was filed on 22nd March 2019. In the counter-claim the Defendant had included the second and the third Defendants as 2nd and 3rd Parties. It was this inclusion which paved the way for this application for joinder.
3. The Counsels seem to acknowledge concertedly the rational for joining a party. Rule 3.5 states that the Court may order a person becomes a party to a proceeding if the person’s presence as a party is necessary to enable the Court to make a decision fairly and effectively in the proceedings.
4. The case of Uraharia v Muda ([1]) shared the sentiment as expressed by R3.5, however, added on the basis that the Claimant and the applicant had a common interest in the property the subject of the proceeding. In other words, the interest of the parties to be added must be common to the original parties, of which in their absence, the decision of the Court may not be fair and effective but render their rights prejudiced.
5. Supporting the principle is the case of Lifuasi V Solomon Telekom Company Ltd ([2]), and the case of Wale V Philip ([3]).
6. Noted, the quote from the latest case first, is relatively logic in order to reflect the importance of common interest which the parties have or related to the subject matter of dispute.
7. More important to the applicant who relies on paragraphs 7 and 8 in the sworn statement of Mr. P. Tang filed on 3rd June 2019, as providing records for the monies borrowed by the first, second and the third Defendants in the counter-claim.
8. A prominent question to pose is has those monies borrowed under any such agreement written on otherwise? The Counter Claimant has failed to explain any guidance of security that ruled and guide the borrowing of such monies. However, the counter-claim was for monies borrowed from the Company by Defendants in the Counter Claim.
9. Fortunately, the Counsel for the Claimant submits that the claim which her client filed, in this court was for breach for contract in the total sum of USD23, 895.00 for incentive benefit for negotiations, consultations and liaisons.
10. That the counter-claim against the second Defendant is vexatious and lacks ground to proceed with. On the ground that Mr Zalao had obtained a judgment in the Magistrates Court against Metro Team Limited in respect to the first incentive payment due, and obtained another judgment against Metro Team Limited in the High Court in CC No. 95 of 2017, for the second and third incentive payments.
11. What actually transpired from evidence is that there was a written agreement endorsed by Mr Lam on behalf of Metro Team Limited, and with Mr Zalao and the Claimant in this case. Mr Zalao and the Claimant endorsed the agreement in their own capacity as individuals and not as representing the Company that owned the license, and the Trustees and Landowners of their tribe.
12. The statement of personal capacity is clear from the agreement where individual names of the two persons appeared without any ambiguity or trusteeship.
13. The crux of the agreement is that the Claimant and Mr Zalao (the propose second Defendant in the counter-claim) had agreed with the Defendant, for the Defendant to pay them USD1.50 each for one cubic meter of the total volume of logs exported per shipment as their incentive benefit fees.
14. It would appear both men were not paid, and the Defendant in two cases was liable by orders of the Court to pay the incentive benefit fees to Mr Zalao. It was the Claimant that was yet to be paid the amount due to him according to the written agreement. Therefore considered as prudent hence filing this civil suit.
15. In respect to the counter-claim against Mr Zalao, he is no longer has any issue outstanding, his dues had been paid. Therefore his rights or entitlement under the written contract had been fully discharged.
16. If he had borrowed any money from the logging Company, which is yet to be paid, then a counter-claim should have been filed against him when he litigated his case against Metro Team Limited in the two previous court cases. There was no Counter-claim filed therefore his rights under the agreement had been discharged. However, if Metro Team Limited wishes to recover borrowed money from Mr Zalao it can do so in a separate civil suit but cannot include Mr Zalao, in this case as a 3rd party to become the second Defendant.
17. The case of Mr Pitakere can be distinguished from Mr Zalao’s case. I find both men had entered into a written agreement with Metro Team Limited in their personal capacities. Mr Zalao had successfully litigated his cases under the contractual terms, whilst Mr Pitakere still progressing in this case.
18. Because the trustees and landowners were not a party to the written agreement, they cannot sue or be sued under the agreement. In the case of Transol Shipping Ltd V Laore[4] the Court held that the essence of the doctrine of privity of contract is the idea that only those who are parties to the contract can have the rights or liabilities under it, including the right to enforce it or be sued under it.
19. So what is necessary at this stage now, is that the Defendant can file a counter-claim against the Claimant for monies he borrowed in his personal capacity as an individual person.
20. Any money borrowed by trustees or members of the tribe can be recovered from them in a different suit but not this one.
21. This case derived from the basis of the written agreement of which the Claimant endorsed with the Defendant. Any counter-claim can be made against Mr Pitakere in his personal capacity and none other.

Orders:

1. Dismiss the application to join the second and the third Defendants as parties.
2. Cost of this application is to be paid to the Claimant by the Defendant.

The Court

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^[1] [2016] SBHC 1; HCSI – CC 279 of 2014 (18 January 2016)
^[2] [2015] SBHC 119; HCSI – CC 302 of 2014 (18 January 2016)
^[3] [2011] SBHC 32; HCSI – CC 42 of 2011
^[4] [2013] SBHC 182, HCSI – CC No. 173 of 2012 (27 November 2013).