Hou v Honiara Town Council [2011] SBMC 14; Civil Case 34 of 2011 (30 September 2011)

IN THE CENTRAL MAGISTRATES COURT

Civil Case No. 34/2011

BETWEEN:

BENTO HOU
Claimant

AND:

HONIARA TOWN COUNCIL
First Defendant

AND:

LAZARUS KAUHIONA
Second Defendant

AND:

CALVICK RUNIMETU
Third Defendant

Date of Hearing: 26/9/11 & 28/9/11
Date of Decision: 30/9/11

Claimant: Mr Edwin Saramo
First Defendant: Mr John Muria
Second and third defendants: No appearance

Decision on application to strike out by First defendant.

(1) The claimant filed his claim on 17/3/11

(2) On 13/4/11 the 1st defendant filed this application to have the claim dismissed for being frivolous, vexatious and for not disclosing a reasonable cause of action pursuant to Rule 9.75 of the Civil Procedure Rule 2007. Although this application was filed on 13/4/11 the registry did not issue it till September 2011 when it assigned a returnable date of 2/9/11. This delay in issuing this application by the registry is unacceptable and this should not be repeated.

(3) The claimant's claim is that:

- he is a businessman and operates a fuel depot at Afio, Small Malaita.

- That the second defendant was elected member of the first defendant.

- That the third defendant is a public servant and worked in the Ministry of Commerce, Industry Labour and Immigration.

- That both second and third defendants were appointed by the first defendant before 2010 to be on the tender board to consider tenders from the public in respect of lock up shops at the Central market.

- That the claimant put in his tender for one of the lock up shops in 2010.

- That on 20/3/10 the second defendant approached the claimant at Kukum market and asked him to pay a deposit fee of $10,000 for lock up shop 14 and that the claimant paid $10,000 at Kukum market.

- That on 10/5/10 the second defendant asked the claimant to pay $10,000 for various fees payable to the Honiara City Council and the sum of $10,000 was paid at Kukum market.

- That between 10/5/11 and 27/5/10 the second defendant collected a further sum of $3,000.00 from the claimant.

- That on 12/12/10 - the third defendant asked the claimant for a sum of $5,000 as the final payment and this was paid to the third defendant at Kukum market.

- That on 13/12/10 the second defendant collected a sum of $500 from the claimant.

(4) At paragraph 12 of the statement of case it is stated:

"The conduct of the second and third defendants amounted to misuse of public office and has caused loss of $28,000 to the claimant."

(5) At paragraph 13 it is stated:

"In the circumstances as described herein the second and third defendants were agents of the first defendant."

(6) Both parties filed written submissions.

• (a) The first defendant has submitted: that the pleading is defective and it lacks clarity and that no reasonable cause of action is disclosed.
  

- That nothing is pleaded against the 1st defendant to establish vicarious liability.

- That the claim should be struck out.

(b) The claimant has submitted:

- That although the claim lacks clarity it can be rescued by an amendment and therefore it should not be struck out.

- That the second and third defendant solicited and obtained money from the claimant in very suspicious circumstances.

(7) The counsel for the claimant also stated:

- That all the money was paid in Kukum market.

- That the payments were made in cash.

- That no receipts were issued by the second and third defendants.

- That the claimant only made the payments to second and third defendants as he felt it was bona fide.

- That all payments were made before the approval of the tender.

- That the claimant did not received any response from the tender board.

(8) The claimant himself concedes that the money was solicited and paid under suspicious circumstances and all payments were made before the approval of the tender and further all payments were made in cash and no official receipts were issued. All this leads me to draw an inference that the claimant as well as the second and third defendants acted in an improper manner and the claim itself appears to be tainted.

(9) In the circumstances I cannot see how the claimant would be able to establish vicarious liability against the first defendant and further I cannot see how an amendment will save the claim in light of my conclusion that the claim seems to be tainted. The claim against the first defendant is therefore dismissed with costs to be taxed if not agreed.

________________
Shafi Khan
Principal Magistrate