Afu v Dalgety [2003] TOSC 30; C 0858 2002 (30 June 2003)

IN THE SUPREME COURT OF TONGA
CIVIL JURISDICTION
NUKU'ALOFA REGISTRY

NO. CV. 858/2002

BETWEEN:

FILIPE AFU
Plaintiff

AND:

1. RAMSAY R. DALGETY QC
2. LIQUIDATION COMMITTEE
Defendants

BEFORE THE HON MR JUSTICE FORD

Counsel: Mr Kengike for the plaintiff and Mr Afeaki for the defendants

Date of hearing: 27 June 2003
Date of judgment: 30 June 2003

JUDGMENT

The defendants have applied to strike out the claim as being statute barred and disclosing no reasonable cause of action. The principles applicable to strike out applications are well established and were summed up by the Court of Appeal in Jagroop v Kingdom of Tonga (unreported) Appeal No 7/2001, as follows:

"The principle upon which an application to strike out a claim may be entertained by the court is clear. No party should have his claim denied without a hearing in the ordinary way, except where the claim is so hopeless that it cannot possibly succeed."

The plaintiff is a squash grower. In 1994 he was a registered grower with Tai Agency Services Ltd ("Tai"). That year he grew 6 acres of squash on his tax allotment at Masilamea. He duly delivered 43 bins of squash to Tai for export to Japan. The agreed value of the 43 bins was said to be $11,180.00 but no payment was ever made to the plaintiff. On a date sometime prior to 12 March 1996 (the exact date is not disclosed in the pleadings) Tai went into liquidation.

The plaintiff brings the present action against Ramsay R Dalgety QC as "Chairman of the Liquidation Committee" (first defendant) and the "Liquidation Committee" as second defendant. The Liquidation Committee, which the court was informed from the bar ceased to exist in 1997, is not and never has been a legal entity. It should not have been cited as a party in the proceedings.

The basis for the claim against the first defendant is not apparent from the pleadings. The statement of claim is a totally inadequate pleading. It comprises of some 15 numbered paragraphs of which paragraphs 4 to 13 (inclusive) are, without any acknowledgement, a word for word reproduction of extracts from a report to creditors prepared, ironically, by the first defendant on behalf of the joint liquidators for the purposes of a creditors' meeting held back in April 1996.

The two final paragraphs of the statement of claim, paragraphs 14 and 15, simply restate the agreed price for the 43 bins of squash at $11,180.00 and then record that the plaintiff attended a creditors' meeting on 12 April 1996. There is a suggestion in paragraph 14 that the agreement for the growing of squash was made, not with the company Tai but with the "Liquidation Committee". No facts are pleaded that might support or lend weight to such a legally absurd proposition. In any event, as counsel acknowledged during the hearing, that is not what the plaintiff complains about.

There then follows, after paragraph 15, the prayer for relief. Extraordinarily, that is it. No cause of action, whatsoever, is pleaded. The statement of claim is a disgrace and it shows not even a basic appreciation of the fundamental principles of pleading in civil proceedings. Litigants in the Kingdom deserve better from licensed law practitioners. They should not have to put up with such incompetency. In fairness, I hasten to add that the statement of claim was not drafted or filed by the plaintiff's present counsel.

The authorities indicate that in cases where a statement of claim does not disclose a cause of action then the courts, rather than ordering a strike out will, in appropriate cases, consider granting the plaintiff an opportunity to amend the statement of claim even though the formulation of the amendment is not before the court. To this end, I invited Mr Kengike to explain from the Bar exactly what his client's complaint was really all about. As I understood counsel's response, it would appear that the plaintiff's real concern is that during the creditors' meeting in question, held on 12 April 1996, the first defendant undertook to send out to creditors a Notice containing a list of assets of the company in liquidation but no such Notice was ever received by the plaintiff.

I asked counsel if the plaintiff had ever approached the first defendant or some other member of the Liquidation Committee for the information he required. Mr Kengike told the court that the plaintiff's former counsel had made such a request in writing but the letter has not been produced to the court and Mr Kengike was unable to confirm whether or not a reply had ever been received.

In addition to his "no cause of action" submission, Mr Afeaki also relied in his strike out application upon the fact that the plaintiff's claim was statute barred by virtue of section 16 (1) of the Supreme Court Act (CAP. 10) which prohibits proceedings being brought after the expiration of five years from the date on which liability was incurred.

In a rather convoluted submission in response, Mr Kengike claimed that the limitation period did not apply for two reasons. First, he rather boldly claimed that the present action was a continuation of another case ( No. C1105/99) which had been struck out by this Court on 22 November 2002. Counsel's argument was that as the earlier case had been commenced within the five-year period then the present action was protected. Secondly, counsel argued that as the Notice expected from the first defendant has never been received, the five-year limitation period has not, as yet, even commenced.

I reject both of these submissions. In the earlier proceeding No. C1105/99, the plaintiff attempted, unsuccessfully, to take action against Tai (in liquidation). The first defendant was never a party to that proceeding.

In relation to the limitation point, it is only in a very clear case that a defendant can seek to have an action struck out pursuant to a statutory limitation defence. In such a case the action is treated as being frivolous and vexatious and as an abuse of the process of the court. I regard the present proceeding as one which falls within this category of case. The statement of claim was filed on 12 December 2002 which is well outside the prescribed five-year limitation period, even accepting for the moment that the plaintiff could establish a proper cause of action arising out of what was said by the first defendant at the meeting on 12 April 1996. For the record, however, having listened to Mr Kengike's explanation from the Bar, I have not been persuaded that his client has a proper cause of action. Certainly none has been pleaded and there was no suggestion by counsel that the problem could be cured by amendment.

My conclusion is that the pleadings are frivolous and vexatious and an abuse of the process of the court. I also find that they disclose no reasonable cause of action and the obvious defects are not capable of being cured through amendment - however ingenious. In other words, in the language of the Court of Appeal in the Jagroop case, the claim is "so hopeless that it cannot possibly succeed."

The action is struck out with costs to the first defendant to be agreed or taxed.

NUKU'ALOFA: 30 JUNE 2003
JUDGE