BETWEEN:
SANDALWOOD PROCESSING
PRODUCTS
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Plaintiff
AND:
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GREENLEAF EXTRACTS
First Defendant
AND:
BRAIN ROBERT HENSEL
Second Defendant
Date of Hearing: 30th March,
2001, 10 a.m
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Coram: Mr Justice Oliver A.
Saksak sitting in Chambers.
Counsel: Mr Saling Stephens of
Counsel for the Plaintiff
Mr Edward Naliel of Counsel for
the Second Defendant
INTERLOCUTORY JUDGEMENT
This is a chambers application
ed by way of a Summons (Gen (General Form) under O.57, R.13 of the High Court
Rules 1964.
The Applicant seeks orders that he as Second Defendant in this
Action be struck off as a Party, and that he be paid costs.
The grounds in support of the application are as appear in the affidavit of Mr Nigel Grant Morrison of
Counsel foel for the
Second Defendant. The affidavit dated 7th
November 2000 used in Civil Case No.76 of 2000 in the Magistrate’s Court was
redated 21st March, 2001 and refiled on 22nd March,
2001. The relevant parts are –
(i) nbsp; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp;
pan>Paragr wh 4 which rich reads:
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p>
an lang="EN-GB" style="font-size: 12.0pt">“That letter dated 16th
October,ober, 2000, with its attachment makes the following matters clear:
(i) &bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&&nsp; &nbp;
H wselan emploemployee of the First Defendant Company.
(ii">(ii) &nbbsp;& &nsp; &nsp; &nnbp;&
/span>Hensel isel is neit neither an officer or shareholf thendant Company.
(iii) &nnbsp;; &nsp; &nsp; &&nbp;;
/ Hensel asel acted ited in accord with the instructions of his employer, the
Firstndantany a timespan> ass="MsoNormal"e="margin-top:
1; margin-bottomottom: 1">: 1">
(ii)ot;"> &nnsp;&&nsp;;&nspp;&nssp;
sp;
Paragraph 5 reads:
>
The Magistrates’ Court
proceedings were discontinued on 6th December 2000, we wrote to
the lawyer for the Plaintiff by way of the letter annexed “B”.”
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(iii) &bsp; ;&nbssp;&nbp; &nsp; ;&nbpp; &nnsp;&
sp;
Paan>Paragraph 6 reads:
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“To date, there has been no
consent for the Plaintiff to discontinuance against the Second Defendant”.
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Upon those grounds the
Applicant further relies on O.27 R.4 of the Rules wreads:-
“The Court may order any
pleading to be struck out, on the ground that it discloses no reasonable
cause of action or answer,
an din any such case or in case of the action or
defence being shown by the pleadings to be frivolous or vexatious, the Court
may order the action to be stayed or dismissed, or judgment to be entered
accordingly, as may be just.”
Dealing first with the
affidavit of Mr Morrison Mr Stephens objects to its admissiothe basis
that it is t is hearsay.
Further that it was not even used in the Magistrates
Court. I accept that submission. Clearly paragraph 5 is hearsay evidence
and
cannot be admitted. Further the Court below did not rely on the affidavit
because there was no need for it. Civil
Case No.76 of 2000 was discontinued
by Order dated 30th November 2000. Civil Case No.70 remained in
motion. This Court in exercising its appellate jurisdiction on 18th
October, 2000 Ordered among others that –
“3. ;&nbssp; &nsp;&nbhe Plhe Plaintiff in
CivilCivil Case No.70 of 2000 file originating process in that proceedings within
7 days of these Orders.n>
4.
It seems to me that the Plaintiff had filed a specially Endorsed Writ on 12th October
2000 as Civs Civil Case No.29 of 2000 continuing Civil Case No.70 of 2000 in the
Magistrate’s Court. Orders 3
and 4 above are therefore pointless. That
probably explains why no arguments were advanced alleging failure by the
Plaintiff
to comply with Order 3.
The matter then boils dow
the grounds in O.27 R.4. That provision grants discretion to the Court to
strikstrike out any
pleading on the ground that it discloses no reasonable cause
of action. There is no evidence by the Second Defendant to support
that
argument. It follows therefore that his application must fail. I therefore
dismiss his application and order that
the Second Defendant pays the
Plaintiff’s costs of today’s hearing.
The Plaintiff also has filed an
Ex-parte summons seeking amthers, that leave be granteranted to him to serve
the First
Defendant out of the jurisdiction. Mr Naliel informs the Court
that he has no instructions to represent the First Defendant
in this matter.
That being so, leave is hereby granted to the Plaintiff to serve the First
Defendant out of jurisdiction.
The other orders ought are adjourned to a
date to be fixed. Costs will be in the cause.
DATED at Luganville this 30th
day of March, 2001.
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BY THE COURT
<
Judge
