IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 431 of 2004

JOSHUA GIVAUIKA

v

TONY KAGOVAI, LENCY TAGO AND
GEORGE WU AND COMPANY STORE Ltd

(Mwanesalua, J.)

Hearing: 3rd December 2004
Ruling: 5th December 2005

Ms. S Lawrence for the Plaintiff
Mr. J Apaniai for the 3rd Defendant
No appearance for the 1st and 2nd Defendants

RULING

Mwanesalua, J: This is an application by the 3rd Defendant by Notice of Motion filed on 7th October 2004 seeking the following orders -

1. That the Writ of Summons filed herein by the Plaintiff on 21st September 2004 be struck out as against the 3rd Defendant under Order 27 Rule 4 on the grounds that it discloses no reasonable Cause of Action against the third Defendant.

2. That the Plaintiff pays the Third Defendant's costs of and connected with this application.

Facts

The Plaintiff had a store on Rennell Island in 2003. He came to Honiara and bought goods worth $573.30 from the 3rd Defendant for his store on 8th and 18th December 2003. He left the goods with the 3rd Defendant while he waited for transport to return to Rennell. The 1st Defendant went to the 3rd Defendant on 22nd December 2003 and collected the goods, after he wrote his name on the top of the Plaintiffs receipt for the goods held by the 3rd Defendant and signed the delivery receipts for the goods. The delivery receipts showed that the 1st Defendant sent the Goods to Rennell on M.V. Tai Jin on 22nd December 2003. The Plaintiff discovered all that the 1st Defendant did to his receipts and goods, when he came to the 3rd Defendant to collect the goods on 23rd December 2003.

The Point to be considered in this application is whether the Statement of Claim filed on 21st September 2004 together with the Writ of Summons discloses no reasonable Cause of action against the 3rd Defendant.

Decision

The Plaintiff seeks payment of $13,178.00 damages from the 3rd Defendant. These damages cover the value of the goods, the loss of profit on the goods, the loss of profits due to the Plaintiffs inability to re-invest the profits from the sale of goods into further purchases and sale of similar goods, and the expenses incurred by the Plaintiff in pursuing this action.

The Plaintiff did not particularize the wrongful acts of the 3rd Defendant which caused him to suffer losses and upon which he seeks damages. The 3rd Defendant is entitled to know the nature of the wrongful acts alleged against it so that it is not taken by surprise at the trial. There is another matter I would like to mention. That is, that damages are usually awarded to successful litigants in Civil suits grounded on laws of bailment, contract and tort. In this case, there is uncertainty about the law under which the Plaintiff sought damages against the 3rd Defendant. For these reasons, I consider that there is no reasonable cause of action disclosed in the Plaintiffs Statement of Claim against the 3rd Defendant. I would order that the Writ of Summons and the Statement of Claim be struck out against the 3rd Defendant. I order accordingly. I make no order as to costs.

The Court