Damne v Death [2005] VUSC 157; Civil Case 031 of 2004 (16 March 2005)

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Civil Case No.31 of 2004
BETWEEN:
PETER DAMNE
Claimant
AND:
BRYAN DEATH
Defendant

Mr. Godson Ijeh for the Claimant
Mr. Nigel Morrison for the Defendant
SUMMARY JUDGMENT
Introduction

1. The Supreme Court claim was filed on the 25th February 2004. The Claimant claimed that the defendant Mr. Bryan Death, General Manager of Iririki Island Resort owes him 9 million Vatu in compensation for development work carried out on land property title No. 12/0911/091 and cash crops planted for the period 1978 to 1993.
   
2. The first conference took place on 23 June 2004. Directions were issued to the Claimant to amend his claim and file it within 14 days thereafter. The grounds for such direction were that:-
   
   • (a) The Claimant had named the wrong party;
     
   • (b) The claim fails to show a cause of action against the defendant.
     
3. The second Supreme Court claim was filed on 9th June 2004 pursuant to the orders of 23rd June 2004. I will refer to that as the "Amended Claim".
   
4. The Amended Claim named the Defendants as Mr. Brayan Death – General Manager 1st Defendant, Mr. Peter Nicholson – former owner 2nd Defendant, Mr. Rich Graham – former owner 3rd Defendant, and Mr. Andrew Spinks – Owner of Iririki Island Resort, 4th Defendant. The only changes that occurred are the additions of further defendants. The pleadings remain exactly the same.
   
5. The defendants filed their defence and counter-claim on 14th July 2004. In the counter-claim the defendants submitted that the Claimant s claim be struck out on the grounds that –
   
   • (a) It discloses no cause of action against any of them; and
     
   • (b) It is frivolous and misconceived.
     
6. The application for summary judgment by the defendants was filed on 2nd December 2004.
   

Submissions

7. On 16th March 2005 the hearing of the summary judgment took place. The sworn statement of Brayan Death was filed in support of the application for summary judgment. The first defendant in his sworn statement says that he is the General Manager of Iririki Island Resort which is owned and operated by Iririki Island Holdings Limited. The leasehold title is 12/0911/091. Annex "A" to the sworn statement shows that the lease title 12/0911/091 is owned by the Iririki island Holdings Limited.
   
8. The defendants denies that the Claimant is entitled to be compensated, that he was the alienator of land comprised in title 12/0911/091 and that the pleading of facts do not show any cause of action against any of the defendants. They further claim that the Claimant has no defence to the counter-claim lodged because he has failed to show any cause of action against any of the defendants because they do not have any proprietorial interest in the leasehold title on which ex-hospital residence was located.
   
9. Mr. Godson on behalf of the Claimant claimed that he had not been served with the application for summary judgment and the sworn statement. He wants time to be able to respond to that application. Mr. Goodson went on to say that the Claimant sued the defendants because they employed him or as owners or former owners of the resort.
   

Discussions

10. The Amended claim introduced nothing new, except additional defendants. All the defendants have no proprietary interest in the leasehold property. Annexure "A" to the First Defendants sworn statement makes it clear that the Resort is owned by Iririki Island Holdings Limited. In other words, the Resort is owned by a company called Iririki Island Holdings Limited. A company has a separate legal entity and can sue and be sued in its name. The proper defendant in this case would be the Iririki Island Holdings Limited. However, the Claimant sued the wrong persons. Should the Claimant be given another opportunity to amend his claim.
    
11. During the First Conference in this matter, the Claimant was directed to amend his claim as he had named a wrong party and the pleadings also failed to show a cause of action. He was given that opportunity and he filed his Amended Claim on 9th June 2004. The Amended claim in my view repeated the same errors. Wrong parties were named. Pleadings remained the same and hence fell into the same error as the original pleadings.
    
12. The application for summary judgment and the sworn statement were served at the address given for service in the Memorandum of Appearance filed with the Court. Further Counsel for the defendants submitted that the defendant did receive those documents. Mr. Goodson did concede that the Post Office Box address is his, and that he had instructed the Claimant to deliver documents to him when they arrive in the box.
    

Findings

13. My views are as follows –
    
    • (a) The Claimant has named wrong parties in this proceeding.
      
    • (b) No cause of action arises from the pleadings against any of the defendants.
      
    • (c) The Claimant, as defendants in the counter-claim, does not have any real prospect of defending the defendants claim in the counter-claim.
      

Orders

14. The orders of the Court therefore are:
    
    • (a) The claim is struck out.
      
    • (b) Costs of this proceeding to be paid by the Claimant on a standard basis.
      

DATED at Port Vila, this 16th day of March 2005.

H. BULU
Judge.