Pacific Export Alliance Ltd v Sikwauta [2024] SBHC 22; HCSI-CC 280 of 2021 (12 March 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Pacific Export Alliance Ltd v Sikwauta
Citation:
Date of decision:	12 March 2024
Parties:	Pacific Export Alliance Limited v Jezreel Sikwauta, Brian Tobasa
Date of hearing:	28 February 2024
Court file number(s):	280 of 2021
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Aulanga; Commissioner
On appeal from:
Order:
Representation:	Mr R M Maemae for the claimant Ms P Firibae for the First Defendant No Appearance for the Second Defendant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rules 2007, r 9.57, r 3.14
Cases cited:	Golden Springs Ltd v Puia [1999] SBCA 11

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 280 of 2021

BETWEEN

PACIFIC EXPORT ALLIANCE LIMITED
Claimant

AND:

JEZREEL SIKWAUTA
(Trading as JTA Construction BN 20181548
First Defendant

AND:

BRIAN TOBASA
(Trading as FUNI BROS CHARTER (BN 20120651)
Second Defendant

Date of Hearing: 28 February 2024
Date of Ruling: 12 March 2024

Mr R M Maemae for the Claimant
Ms P Firibae for the Defendant
No appearance for the Second

RULING

Commissioner Aulanga

1. This is an application for summary judgment. Rule 9.57 of the Solomon Islands Courts (Civil Procedure) Rules 2007 gives right for the Claimant to apply for summary judgment where the Claimant believes the defence filed by the Defendant does not have any prospect of success.
2. In the present case, the Claimant believes the First Defendant’s defence filed on 3^rd March 2023 does not have any arguable or defence to the merit of the claim. At the hearing, counsel for the Claimant clarified that the application only targeted the First Defendant. The Claimant conceded that its case against the Second Defendant can be summarily dismissed on the basis of no disclosure of a cause of action. I agree with this concession and dismissed the case against the Second Defendant.
3. Having severed the Second Defendant from liability, the claim as founded in the amended Category B claim filed on 6^th May 2022 now seeks damages in $141, 212.40 against the First Defendant for breach of contract, interest of 5% and costs on indemnity basis.
4. The facts showed that an oral agreement was entered into by the Claimant and the First Defendant on 8^th December 2014. That agreement was for the First Defendant to take building materials on credit and payment would be made on instalments or periodically. The materials were taken over a period of time. By 13^th April 2015, the total bill was $220,634.96.
5. The Defendant only made part payment of $77, 422.56. The balance of $141, 212.40 was still outstanding. Undisputed evidence before this Court shows several requests were made to the First Defendant to settle the debt but all were futile. The Claimant even made a proposal for the First Defendant to settle the debt either in full or on instalment basis. However, for reasons unknown, that offer was ignored and rejected.
6. Then around 14^th June 2021, there was an attempt to enter into a written agreement by all the parties so that the debt could be financed or settled by the Second Defendant on behalf of the First Defendant. That agreement however was not agreed to by the Second Defendant which was indicative of its refusal to bear or shoulder the liability of the First Defendant.
7. Upon service of the claim, the First Defendant did not apply to include the Second Defendant as a third party to the proceeding, so that the Second Defendant can make contribution to the liability or indemnify the First Defendant if the case in the main claim is against the First Defendant. Given that obvious course of action, the First Defendant saw it fit not to include the Second Defendant as a third-party, which is unfortunate.
8. In the First Defendant’s defence, he conceded that he has a debt of $141, 212.40 with the Claimant. However, he maintained that the debt should be paid by the Second Defendant based on a written and oral contract purportedly entered into by the First and Second Defendants.
9. It somehow became the case that the written contract referred to and relied on by the First Defendant is exhibited as “TS1” in Timothy Sikwauta sworn statement filed on 21^st October 2021. That contract unfortunately was not signed by the Second Defendant. Despite no signing by the Second Defendant, the First Defendant continued to rely on that contract as the basis for shifting of his liability to the Second Defendant.
10. The First Defendant’s defence on this point when considered in whole is totally unmeritorious and one that is not arguable to warrant a trial. Upon perusal of the defence, it is one that has full admission of liability. Even if there was a contract between the First and Second Defendants, that only binds them and not the Claimant. It cannot be relied on as a defence against the Claimant in the present proceeding. What the First Defendant should do at the first place is to institute a third party proceeding under Rule 3.14 against the Second Defendant. This is to claim for indemnity or contribution or other remedy against the Second Defendant once judgment is entered against the First Defendant in the main claim.
11. In the absence of a third party proceeding, it is needless for me to enquire into any factual matters for the purposes of determining whether or not the Second Defendant should make contribution or to indemnify the First Defendant. In line with the authority in Golden Springs Ltd v Paia [1999] SBCA 11, this is a clear case that I must enter summary judgment against the First Defendant without going to trial. Judgment sum of $141, 212.40 is to be paid by the First Defendant with interest of 5% per annum, calculated from 12^th September 2018. Cost of this matter is to be paid by the First Defendant on standard basis.

Orders of the Court

1. The case against the Second Defendant is dismissed under Rule 9.75 (b) of the Solomon Islands Courts (Civil Procedure) Rules 2007 for disclosure of no cause of action.
2. The application for summary judgment against the First Defendant is granted.
3. Consequently, judgment sum of $141, 212.40 is to be paid by the First Defendant with interest of 5% per annum, calculated from 12^th September 2018.
4. Cost of this proceeding is to be paid by the First Defendant on standard basis.

THE COURT
Augustine Sylver Aulanga
Commissioner of the High Court