IN THE HIGH COURT OF TUVALU 2023

CIVIL CASE NO. 1/23

BETWEEN
SULANI TRADING LTD
PLAINTIFF

AND
TUVALU GOVERNMENT's CHANCERY TASKFORCE
FIRST DEFENDANT

LANDS DEPARTMENT
SECOND DEFENDANT

Before	Hon Judge Sir John Muria
Hearing	18th April, 2023

Ms L Kofe for Plaintiff 
Mr V Liai for Defendants

JUDGEMENT

Muria J:	By their application, the defendants seek to strike out the plaintiff's Statement of Claim on the grounds that the plaintiff's Statement of Claim discloses no cause of action and that it is frivolous and vexatious.
The brief background
2. The plaintiff had been operating a branch of its business on a piece of Government leased land at Kavatoetoe. The second defendant gave permission to the plaintiff to use the said piece of land since 2010. There were discussions between the plaintiff and the second defendant for a lease arrangement between the parties. However, a lease agreement was never made and so no lease payment was paid by the plaintiff to the second defendant for the use of the land.
3. There had never been any interference by the second defendant with the plaintiff's occupation and business operation at the Kavatoetoe Branch for more than 10 years. It was in mid 2021that the plaintiff was told by the second defendant that the land on which the plaintiff's Kavatoetoe Branch situated would be given to the Australian High Commission in Tuvalu. 
The first formal meeting between the Government's representatives and plaintiff was held on 23rd March 2022 at which occasion the questions of relocation and compensation to the plaintiff were discussed. Various exchanges of correspondence between the plaintiff and the Government had transpired.
4. The plaintiff's position became obvious, namely, that it was willing to vacate the land but insisted on fair compensation for the loss of its business. The second defendant offered to compensate the plaintiff and suggested the sum of $50,000 AUD, which the plaintiff did not accept. The plaintiff's total claim of compensation appears to be well over AUD900, 000 as pleaded in its Statement of Claim.
5. The crux of the plaintiff's claim in this case is one of fair compensation for its loss. It rejects the defendant's offer of AUD 50,000 as compensation.
The Law
6. The law on striking out of pleadings is well settled. The cases decided by the Courts in our region are replete with authorities on the point. In an application for striking out pleadings, the Court is not required to determine issues of disputed facts or questions of credibility. The Court is bound only to take the statement of facts as disclosed in the Statement of Claim and materials before the Court as established facts. Those are the facts that the Court has to consider in determining whether a reasonable cause of action is disclosed.
7. The above statements of the law can be found in the two cases cited by Counsel. Ms Liai of Counsel for the defendants/applicants cited the case of Apia Quality Meats Limited -v- Westfield Holdings Limited [2009] WSSC 1 (January 2009) On the question of whether a Statement of Claim should be struck out as disclosing no reasonable cause of action, the Court adopted the position as set out in its earlier decision in Bluesky Communication Ltd -v- Attorney General [2007] WSSC 58 which stated:
	"The approach which the Samoan Courts have adopted to a motion to strike out a statement of claim disclosing no reasonable cause of action has been stated and applied in numerous cases that it is well understood by now. It is that the summary jurisdiction to strike out a statement of claim as disclosing no reasonable cause of action is to be sparingly exercised. It will only be exercised in a plain and obvious case where it appears from the material before the Court that the plaintiff's cause of action is so clearly untenable that it cannot possibly succeed and is certain to fail."
8. Ms Kofe of Counsel for the plaintiff referred to the case of Auspacific Construction Company Limited -v- The Honourable Attorney General [1995] KIHC 4 (19th September 1995), decision of the High Court of Kiribati. On a motion to strike out the plaintiff's Statement of Claim, the Court stated:
	"Only if, on the face of the Statement of Claim the statements of facts show that the plaintiff cannot on any view of the facts establish a cause of action can the Statement of Claim be struck out. It must be plain and obvious that the action is one which cannot succeed or is in some way unarguable."
9. The Court in Auspacific, went on to stress that in an application for striking out Statement of Claim as disclosing no reasonable cause of action, the Court is not required to decide on questions of credibility or determine disputed facts.
10. As to the exercise of Court's power in on application for his nature the general principle is that the Court should only exercise its summary power to strike out a Statement of Claim on the basis that it disclose no reasonable cause of action cautiously and in plain and obvious cases: see Drummond-Jackson -v- British Medical Association and Ors [1970]. All ER 1101; and Walters -v-Sunday Pictorial Newspapers Ltd [1961] 2 All ER 761 cited by Ms Kofe, setting out the above general principle:
Should the plaintiff's Statement of Claim be Struck Out?
11. In basic term, the applicants/defendants' argument is that the plaintiff's claim for compensation for breach of contract based on a promise made by the defendants is without legal basis. Further, in relation to the claim in negligence, the defendants say that the plaintiff unlawfully occupied the land and as such the defendants owe no duty and obligations to the plaintiff. Consequently, the defendants submitted that the plaintiff's claim for loss and damages has no legal basis.
12.Whether there has been a breach of contract or not in this case is a matter that the Court will have to decide at the trial. At this stage, suffice it to say, that on the facts as stated in the Statement of Claim, the plaintiff occupied the land at Kavatoetoe and operated its business there with the permission of the second defendant for over 10 years. Discussions to have a lease arrangement between the plaintiff and second defendant were made. However, no lease had ever eventuated. The plaintiff had closed its business and vacated the land at Kavatoetoe, the consequence of which is that it incurred losses to its business. On those facts in the Statement of Claim there can be little doubt that the plaintiff has shown that it has a reasonable cause of action. It may well be that the veracity of those allegations will be contentious, but this is not the time to determine that issue.
13. As to the claim in negligence the Statement of Claim shows that following the discussions between the plaintiff and second defendant over the question of the plaintiff obtaining a lease over the land in question, the officers of the second defendant took the initial steps in measuring and determining the boundary of the land. The plaintiff waited for the processes and documentation for the lease, which had never been completed on the part of the second defendant and continued to allow the plaintiff's business operation on the said land without interruption. Now the second defendant claimed that the plaintiff had been illegally occupying the land. Whether the plaintiff's claim amount to a breach duty and obligation on the part of the second defendant or not is a question to be determined at the trial. However, on the face of the Statement of Claim, the plaintiff has raised a triable issue sufficient to found a cause of action which must be permitted to be put before the Court for its consideration.
14. The cautionary words Fletcher Moulton LJ in Dyson -v-AG [1911] 1 KB 410 at 419, are worth bearing in mind:
	"The Court will not permit the plaintiff to be driven from the judgment seat except where the cause of action is obviously bad and almost incontestably bad"
15. I find in the present case that the plaintiff's Statement of Claim discloses a reasonable cause of action. The defendants' application fails.
Dated this 19th day of April 2023.
Sir John Muria
Judge
19/4/23