IN THE HIGH COURT OF TUVALU 2022

CIVIL CASE NO.16/21

BETWEEN  

MACKENZIE TRADING LIMITED (MTL)
PLAINTIFF

AND

TRANSAM (TUVALU) LTD, as the
Agent for NEPTUNE PACIFIC DIRECT LTD	
FIRST DEFENDANT

DIRECTOR OF MARINE AND PORT SERVICES
SECOND DEFENDANT

ATTORNEY GENERAL
THIRD DEFENDANT

Before 		Hon Judge   Sir John Muria

Hearing		24th March 2022

Mr Taukelina Finikaso for Plaintiff
Ms Chrisanthy Baniani for First Defendant
Mr Grant Drecala for Second and Third Defendant

J U D G E M E N T

Muria J:	This is an application by the Second and Third defendants dated and filed on 31st January 2022 to strike out the plaintiff’s claim against them on the following grounds, namely:

a.	There is no cause of action against the Second and Third Defendants;

b.	The Second and Third defendants are without fault in these proceedings;

c.	The Applicant’s claim against the Second and Third Defendants has no merit and is frivolous and vexations; and 

d.	The Applicant has wasted this Court’s time and the Second and Third Defendants’ resources.

Brief background

2.	I have already set out the background to this case in the Judgment I delivered on 8th February 2022 in which I refused to order the entry of default judgment against the Second and Third Defendants and ordered the case to continue in the case in the usual manner as between the plaintiff and Second and Third Defendants.  Briefly, and at the expense of repetition, I will briefly state the background to the case.

3.	The Plaintiff ordered frozen poultry from overseas, which were shipped, to Tuvalu on board the Vessel Captain Queros in a Reefer/Container.  The goods arrived in Tuvalu on 2nd February 2021 and the Reefer/Container was off-loaded and kept at the Governments main Wharf Depot for 5 days for quarantine purpose.

4.	After the 5 days quarantine period was over, the First Defendant, under whose name the Reefer/Container was consigned, discovered that the frozen poultry in the Reefer/Container were all damaged.  The cause of the damage was due to the Reefer/Container not plugged onto an electric power source throughout the entire 5 days quarantine period.  The Reefer/Container was sitting under the hot sun during the 5 days quarantine period.  The damaged frozen poultry were declared unfit for human consumption by the Health Authority.

	Issues: Whether a cause of action shown

5.	The only issue that I need to deal with here is whether the Plaintiff’s Statement Claim discloses a cause of action against the Second and Third Defendants.  In order to ascertain if there is a cause of action disclosed by the plaintiff’s Statement of Claim, I reiterated what I stated in Telaaka & Anor –v- Nia & Ors (30/3/2022) Tuvalu High Court (TVHC) Civil Case No. 17/21:

“ I need only at this stage, take the Statement of Claim on its face, and determine whether on any view of the Statement of Facts contained therein, a cause of action has been shown.  It is therefore not my purpose in this application to consider and determine any dispute over the facts in this case.”

6.	In paragraphs 2, 10, 17 of the Statement of Claim, the plaintiff raised the issue of the duty of the Second defendant as the body who has supervisory control of the Marine and Port Services of Tuvalu.  The plaintiff’s claim against the Second defendant is premised on the claim that the Second defendant who has supervisory authority over the Port Services was in breach of its legal duty of care toward the plaintiff in not providing proper and/or reasonable supervision over the port services resulting in harm caused to the plaintiff.  That must clearly be a reasonable cause of action.

7.	Further, the plaintiff’s case against the Second defendant in that of a breach of duty of care, a claim in negligence.  One of the essential elements of a cause of action in negligence is damages.  The plaintiff has shown by its pleadings that it has suffered damages to the tune of $116,405.87.

8.	As I have already stated it is not the function of the Court at this stage to evaluate or determine any dispute arising out of the facts presented in support or against the plaintiff’s claim.  That will come at the trial at which time the plaintiff bears the burden of establishing that the damages it suffered are directly touching on the duties of the Second defendant who failed to perform them.  For now the plaintiff has shown by its pleadings that it suffered damages due to the action or the lack of it, on the part of the Second defendant.

9.	In so far as the Third defendant is concerned, the plaintiff’s case is that it joined the Third defendant because the Government of Tuvalu is the authority that owns and controls the Ports of Tuvalu and managed and operated by the Marine and Ports Services (the Second defendant) on behalf of the Government of Tuvalu.  The plaintiff’s claim against the Third defendant is based on the principle of vicarious liability under which the Third defendant would be vicarious liable for the tortious actions of the Second defendant.  The plaintiff’s Freezer/Container was stored at the Government’s main Wharf Container Depot under the supervision of the Second defendant.

10.	Having read the plaintiff’s Statement of Claim and in the light of what I have stated above, I am satisfied that the plaintiff’s Statement of Claim discloses a reasonable cause of action in the present case against the Second and Third defendant who have, in fact, already filed a defence to the plaintiff’s Statement of Claim.  The defence contains admissions and denials of significance to the plaintiff’s Statement of Claim.  That being the case, the application by the Second and Third defendants seeking to strike out the plaintiff’s Statement of Claim against them and to remove them as defendants in the plaintiff’s action must fail.

11.	The application by the Second and Third defendants is refused. The plaintiff’s claim against the Second and Third defendants to continue.

12.	Costs of this application is reserved to be considered at the end of the trial in this action.

	Order accordingly.

	Dated on the 12th day of April 2022.

Sir John Muria
Judge