IN THE SUPREME COURT OF SAMOA
Leota-Vaai v SWA & Anor [2023] WSSC 62 (22 September 2023)

Case name: 	Leota-Vaai v SWA & Anor	
		
Citation: 	[2023] WSSC 62 	
		
Decision date: 	22 September 2023	
		
Parties: 	SIMEAMATIVA LEOTA-VAAI (Applicant) v SAMOA WATER AUTHORITY (First Respondent) & THE MARIST FATHERS IN SAMOA INCORPORATED (Second Respondent)	
		
Hearing date(s): 	6th & 13th July 2023	
		
File number(s): 	MISC176/17	
		
Jurisdiction: 	CIVIL	
		
Place of delivery: 	Supreme Court of Samoa, Mulinuu	
		
Judge(s): 	Justice Niavā Mata K. Tuatagaloa	
		
On appeal from:		
		
Order:	The application to strike out is dismissed.	
		
Representation: 	K Koria for Applicant
V Leilua & F Sofe-Tuala for First Respondent
P Fepulea’i for Second Respondent	
		
Catchwords: 		
		
Words and phrases:		
		
Legislation cited:		
		
Cases cited:		
		
Summary of decision:		

MISC 176/17

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER:

a claim for Declaratory Orders and relief under the Declaratory Judgments Act 1988.

BETWEEN:

SIMEAMATIVA LEOTA-VAAI, of Palisi

Applicant

AND:

SAMOA WATER AUTHORITY, a statutory body continued by the Samoa Water Authority Act 2003.

First Respondent

AND:

THE MARIST FATHERS IN SAMOA INCORPORATED, an incorporated society pursuant to the Incorporated Societies Ordinance 1952.

Second Respondent
					
Counsels:		K Koria for Applicant
			V Leilua & F Sofe-Tuala for First Respondent
			P Fepulea’i for Second Respondent

Hearing:		6th July & 13 July 2023

Reserved Judgment:	22nd September 2023	

JUDGMENT OF JUSTICE TUATAGALOA
(MOTION TO STRIKE OUT BY SECOND RESPONDENT)
This is the reserved decision of the Court on the Application by the Second Respondent to Strike Out proceedings brought against them. 
Proceedings
1. 	The Second Respondent by Motion to Strike Out dated 17th October 2022 seeks to strike out the Applicant’s second amended Motion for declaratory orders dated 19th September 2022. The Applicant opposes the Application.
2. 	The Second Respondent seeks to strike out the Applicant’s Motion for Declaratory Orders that it is statute barred (section 6(1)(a) of the Limitation Act 1975). The Applicant however contends that she was mistaken and therefore the commencement of the limitation period was postponed by virtue of section 26(c) of the Limitation Act 1975.
3. 	Affidavit of Father Patolo Matiasi was filed in support of the application by the Second Respondent. Both the Second Respondent and Applicant filed written submissions in support of their contention.
4. 	The First Respondent supports the application by the Second Respondent and also filed written submissions.
 (i) The original Motion for Declaratory Orders: Applicant v Samoa Water Authority
5. 	The Applicant originally by way of Motion (dated 21st July 2017,) filed on 4th September 2017; later amended on 27th November 2017 sought declaratory orders against the Samoa Water Authority (“SWA”) seeking compensation for the existence of a water pipe traversing a portion of her property which had injuriously affected her property resulting in loss. The loss claim is to the current market value of the property due to damage to the property.
6. 	The Applicant claims that she is entitled to compensation pursuant to section 22 of the Samoa Water Authority Act 2003 and section 25 of the Taking of Land Act 1964; and that no statutory compensation has ever been paid by Samoa Water Authority or its predecessor, the Public Works.
(ii) Application to Join
7. 	On 5th September 2022 the Applicant pursuant to Rule 32 of the Supreme Court (Civil) Procedure Rules 1980 filed a Motion to join the Marist Brothers as a party. There was no opposition by the First Respondent; leave was granted and the Marist Brothers was joined as Second Respondent.
(iii) The Amended Motion for Declaratory Orders: Applicant v Samoa Water Authority & Marist Fathers
8. 	On 19th September 2022 the Applicant further amended its Motion seeking in the alternative declaratory orders claiming that she is entitled to remedies against the Second Respondent upon the following grounds (summarised): 
(a) 	That the Second Respondent who conveyed the land to the Applicant knew or ought to have known that the land was encumbered by water pipes (or pipelines) belonging to the First Respondent and had failed to notify the Applicant at the time of sale;
(b) 	As such, the Second Respondent breached the covenants implied under the Property Law Act 1952, specifically section 72(1)(a) and (b). 
9. 	As a result, the Second Respondent filed a Motion to Strike Out against the Applicant, the subject of these proceedings. 
Background
10. 	The Applicant and her grandmother (deceased) purchased land (Lot 960, Plan 5691) from the Second Respondents on 18 August 1994 and deed of conveyance was registered on 7 September 1994.
11. 	From the pleadings and affidavits filed between the Applicant and First Respondent, the pipeline in question was laid sometime in 1986/1987. The pipeline is made of Ductile Iron pipe approximately 559 meters long and 400mm wide from the Tank going all the way down to Vaitele Street. The length of the pipeline that traverses a portion of the land sold to the Applicant is 26.5metres. 
12. 	The Reservoir Tank on Mt Vaea built in the 1970s or early 1980s through this pipeline supply water to the central town area extending west to Vaimoso and Pesega and to Moataa and Fagalii on the east.
13. 	 A brief history of the land traversed by water pipes owned by SWA relevantly as follows:
•	On 11 March 1972 the land was conveyed and registered to the Marist Fathers in Samoa (Second Respondents).
•	On or about 1987 the pipeline in question was laid by the Public Works Department pursuant to the Water Act 1965. Samoa Water Authority (First Respondent) did not exist at the time and was only established in 2003.
•	On 13 July 1993 the land was subdivided creating the “Palisi land” and registered under the Marist Fathers.
•	On 8 August 1994 the Marist Fathers sold Palisi land and was registered to the Applicant and her grandmother as joint owners.
•	In 2003 Samoa Water Authority (First Respondent) came into existence pursuant to the Samoa Water Authority Act 2003
•	Around 2014 the Applicant discovered the pipelines traversing her land.
The Grounds of Strike Out
The Second Respondent
14. 	The Second Respondents say they were not aware that the pipes went through their land as the pipes were buried underground when laid by the First Respondent in 1986. The Second Respondents’ land was subdivided in 1993 and land sale took place on 8 August 1994 with the land registered to the Applicant and her grandmother on 7 September 1994. It has almost been three decades since the Second Respondent had sold and conveyed the land to the Applicant. The Second Respondent says that the Applicant had ample time to reasonably discover the water pipes on her land and bring her action, but did not within the limitation period.
15. 	The Second Respondent seeks to strike out the Applicant’s Motion upon the following grounds:
(i) 	The Motion for Declaratory Orders is statutorily barred as it has been filed out of time;
(ii) 	Any actions based on contract or tort brought after the expiration of 6 years from the date on which the cause of action accrued is statutorily barred under section 6(1)(a) of the Limitation Act 1975; or
(iii) 	An action upon a deed brought after the expiration of 12 years from the date on which the cause of action is statutorily barred under section 6(3) of the Limitation Act 1975.
16. 	Father Patolo Matiasi in his affidavit on behalf of the Second Respondent notes the transfer of the said land by the Second Respondent to the Applicant and her grandmother, Tofaeono Anufesaina twenty-eight (28) years ago.
The First Respondent’s stance
17. 	The First Respondent did not file a Motion to Strike Out. The First Respondent purports to support the Motion to Strike Out by the Second Respondent and filed submissions in support to having the matter struck out against the Second Respondent. The First Respondent on the same ground of statutory limitation advanced it to their benefit to have the Motion by the Applicant struck out against them. This is unacceptable. The Court will not consider the submissions by the First Respondent for the following reasons:
(a) 	The First Respondent did not file an application to have the Applicant’s Motion to be struck out against them instead they tried to piggy-back on the Second Respondent’s application;
(b) 	The First Respondent did not address any of the grounds given by the Second Respondent in their application to strike out instead they advanced grounds that were completely different from those advanced by the Second Respondent in their submissions to strike out.
18. 	Should the First Respondent want to pursue to have the Applicant’s Motion for Declaratory Orders against them struck out, they must file their own motion to strike out listing the specific grounds they wish to pursue. This will allow the Applicant to properly respond and address those grounds and for the court to adjudicate with just and fairness.
The Applicant’s submissions
19. 	The Applicant opposes the application to strike out by the Second Respondent.  She claims that she was not aware that any cause of action existed until 2014 when she discovered that her land was disturbed by the presence of the First Respondent’s water pipes. The Applicant seeks to overcome the problem that her claim against the Second Respondent is statute barred upon the following grounds: 
(i) The applicable time limitation is postponed owing to a mistake pursuant to section 26(c) of the Limitation Act 1975. 
19.1	The Applicant further claims that pursuant to section 26(c), the limitation period(s) under section 6(1)(a) and (3) did not begin to run until she became aware of her mistake in 2014. At present, the Applicant is claiming a mistake upon the deed of sale (s6(3)) whereby the limitation period is twelve years.
(ii) Pursuant to section 21 of the Limitation Act 1975 (“LA”), the breach is a continuing breach and has not been remedied or ceased as the water pipes continue to be on the land.
19.2	The Applicant also claims that the underlying default in relation to the water pipes is said to be a continuing breach and as long as the default is continuing the limitation period of twelve years to bring an action against the Second Respondent pursuant to section 21 has not yet begun. 
19.3	Section 21 of LA 1975 where the first Proviso says that, “Where the act, neglect, or default is a continuing one, no cause of action in respect thereof is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased;”. 
Discussion
(a) The Limitation Period for Claims and Accrual of Cause of Action
20. 	The Applicant seeks remedies against the Second Respondents for breach of implied covenants pursuant to section 72(1)(a) & (b) of PLA 1952 upon a deed of sale. Section 72(1)(a) & (b) relevantly provides:
	“72. Covenants implied in conveyance by way of sale, etc.
	– (1) In a conveyance by way of sale, ….and in any other conveyance for valuable consideration, there is implied (except as provided by section 75) the following covenants by the person or each of the persons who conveys, so far as regards the estate or interest expressed to be conveyed by him or her, with the person to whom the conveyance is made, or with the persons jointly to whom the conveyance is made as joint tenants, or with each of the persons to whom the conveyance is made as tenants in common, that is to say: 
	(a) a covenant for right to convey, meaning thereby a covenant that the conveying party has good right and full power to convey and assure the estate or interest purported to be conveyed, and that free and clear from all encumbrances other than such as are mentioned in the conveyance; 
	(b) a covenant for quiet enjoyment, meaning thereby a covenant that the party to whom the estate or interest is purported to be conveyed, and all persons claiming under him or her, shall quietly enjoy the same without any disturbance by a person;
	……”
	(section 75. Covenants implied in conveyance by trustees, etc.)
21. 	The Applicant seemed to have framed her cause of action to include both a breach of contract of sale and deed of conveyance. The Second Respondent submits that such action or actions are statute barred pursuant to sections 6(1)(a) and (3) of the Limitation Act 1975 which relevantly provides:
	 “6. Limitation of actions of contract and tort, and certain other actions –(1) Except as otherwise provided in this Act, the following actions are not to be brought after the expiration of 6 years from the date on which the cause of action accrued, that is to say:
	(a) actions founded on simple contract or on tort;
	……
	(3) An action upon a deed is not to be brought after the expiration of 12 years from the date on which the cause of action accrued:(my emphasis)
	PROVIDED THAT this subsection does not affect any action for which a shorter period of limitation is prescribed by any other provision of this Act.
	…...”	
22. 	The effect of the Limitation Act 1975 is that the action must be brought within the period of six (6) years for action based on contract or twelve (12) years for action brought upon a deed.  The Applicant refers to a breach of implied covenants pursuant to section 72(1)(a) & (b) of PLA 1952 of the deed of sale of land between the Applicant (purchaser) and Second Respondents (vendor) in 1994. No deed of sale was pleaded (or provided) by the Applicant. There is only a deed of conveyance annexed to the Affidavit of Filisita Heather which deed refers to the sale of land between the Second Respondents and the Applicant as follows: 
	“THIS DEED made the 8th day of August 1994
	BETWEEN: THE MARIST FATHERS IN SAMOA (INCORPORATED) a Society incorporated under the Incorporated Societies Ordinance 1952 (hereinafter called “the Vendor”) of one part
	AND: TOFAEONO ANUFESAINA of Tuloto in Western Samoa, Housewife and SIMEAMATIVA LEOTA of Vailima, Western Samoa, Student (hereinafter called “the Purchasers”) of the other part  
	WHEREAS the Vendor is seised of an estate in fee simple in the land more particularly described in the Schedule hereto.
	AND WHEREAS the Vendor and the Purchasers have agreed for sale of the said land to the Purchasers for the price hereinafter set forth NOW THIS DEED WITNESSETH that in pursuance of the said agreement AND IN CONSIDERATION of the sum of THIRTY THOUSAND TALA ($30,000.00) paid to the Vendor by the Purchasers have agreed (the receipt is hereby acknowledged) the Vendor DOTH HEREBY CONVEY UNTO the Purchasers ALL that the said land TO HOLD  the same unto the Purchasers, their executors administrators and assigns forever
	IN WITNESS WHEREOF these presents have been execute the day and year first hereinbefore written.”
	THE SCHEDULE
	“ALL that piece or parcel of land containing an area of one rood and naught nine perches (0a.1r.09p) more or less situated at Palisi near Apia in the District of Tuamasaga described as Parcel 274, Flur VI, Upolu and part of the land registered in VOLUME 10 FOLIO 294 of the Land Register of Western Samoa as the same is more delineated on Plan 5691 deposited in the Office of the Director of Lands in Apia, subject to the Memorandum of Easement endorsed thereon.	
23. 	The contract of sale of land was completed by payment of the purchase money. The assurance of freehold property to the purchaser is effected by deed, which deed has been registered to the Applicant and her grandmother since 7 September 1994.  
24. 	The implied covenants pursuant to section 72(1)(a) & (b) of the Property Law Act 1972 become part and parcel of the sale of land encompassed within the deed of conveyance. Accordingly, a cause of action for breach of contract accrues at the time of the breach while a cause of action for breach of the covenant for quiet enjoyment in a deed accrues not at the date of the deed but rather at the date of breach. This is because covenant for quiet enjoyment is a future covenant that the cause of action only accrues when the purchaser is disturbed in her enjoyment of the land.  This is supported by Halsbury’s Laws of England: 
	“Where, however, on the sale of property, the vendor covenants that he has a good title to transfer, while in fact he has not a good title, the breach of the covenant is at the time of sale, and there is no continuing breach; but if the vendor covenants for quiet enjoyment, there is no breach of that covenant until there is interference with the enjoyment of the purchaser or those claiming through him.” 
25. 	If the Applicant claims a breach of contract of sale for the Second Respondents not having given good title at the time of sale, then the cause of action accrued at the time of sale on 8 August 1994 and is therefore, statute barred. Where the Applicant claims a breach of covenant of quiet enjoyment, the cause of action accrues on the day the Applicant is disturbed in her enjoyment of her land. This, the Applicant claims to be when she discovered the water pipes on her land in 2014. If the accrual of action for breach of covenant was only discovered in 2014 the limitation period of twelve years, has not expired. 
26. 	The Second Respondent claims that they were not aware of any water pipes traversing the land at Palisi as they were laid underground. The Applicant claims that the Second Respondent knew or ought to have known about the water pipes. The affidavits before the Court filed between the Applicant and the First Respondent (before the Second Respondent was joined) provides the Court with sufficient factual foundation to form the view that the laying of the water pipes in 1986/1987 to supply water for most of the town area was a huge water project that would have required a period of time to complete. The ductile iron water pipe approximately 559 meters long and 400mm wide were laid underground which would mean a lot of earthworks involved. The supposition is that the owners of the lands involved if they were not made aware formally by notice, then they would have been made aware when the work was carried out at the time the pipes were laid. 	
27. 	The knowledge of the Second Respondent at the time of the sale of land is crucial to the determination of accrual of cause of action claimed by the Applicant. There is difference in facts put forward by the parties that I am of the view is best left to be resolved or to be determined in the substantive hearing.
28. 	I turn now to consider whether the limitation period is extended pursuant to section 26 upon a mistake or that the limitation period has not ceased pursuant to section 21 of a continuing breach. 
(b) The Limitation Period and Mistake
29. 	Similarly, the Applicant claims that the limitation period under section 6(1)(a) and (3) did not begin to run until she became aware of her mistake in 2014. Section 26(c) of the Limitation Act 1975 provides, as relevant to these proceedings, that where an action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the Plaintiff has discovered the mistake or could with reasonable diligence have discovered it.
	“26. Postponement of limitation period in case of fraud or mistake – Where, in the case of any action for which a period of limitation is prescribed by this Act, either:
	………..
	(c) the action is for relief from the consequences of a mistake – the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:
	………….”
30. 	The case of McCarthy v Samoa National Provident Fund is the only Samoan case to date on the question of the postponement of the limitation period in the case of mistake by virtue of section 26(c). Clarke J in McCarthy v Samoa National Provident Fund came across two identical provisions in s28(c) of the Limitation Act 1950 (NZ)(repealed) and s26(c) of the Limitation Act 1939 (UK). In view of the similarities between our Limitation Act 1975 and the Limitation Acts of New Zealand and the United Kingdom, New Zealand and English authorities are, therefore, persuasive.
31. 	The purpose of section 28(c) of the Limitation Act 1950 (NZ) is to recover back money paid under a mistake of fact or to a similar claim in equity for money paid under a mistake of fact or law.  This was apparent in Phillips-Higgins v Harper [1954] where Pearson J referring to the identical English s26(c) identified familiar mistakes when discussing the meaning of provision (c):
	“It seems to me that this wording is carefully chosen to indicate a class of action where a mistake has been made and has had certain consequences and the plaintiff is seeking to be relieved from those consequences. Familiar mistakes are, (i) money paid in consequences of a mistake - the mistake is made, in consequence of the mistake the money is paid, and the action is to recover that money paid; (ii) there may be a contract entered into in consequences of a mistake, and the action is to obtain the rescission, or in some cases, the rectification of the contract; (iii) there may be an account settled in consequences of mistakes, and if the mistakes are sufficiently serious, there can be a re-opening of the account.”
32. 	Phillips-Higgins v Harper (except where numbered reference appears) is the authority on the following propositions relevant to section 26(c) of Limitation Act 1975 (Samoa):
(i) 	A plaintiff must plead (and prove) a cause of action that involves mistake as a necessary or essential ingredient - must plead the mistake, its consequences and the relief sought from the consequences;
(ii) 	The right of action is for relief from the consequences of a mistake;
(iii) 	The provision applies to an action at common law seeking to recover back money paid under a mistake of fact;
(iv) 	The mistake must have relevant consequences for the purpose of the section;
(v) 	It is unlikely that the provision can apply to an action brought to enforce payment of money due to the plaintiff but paid by mistake to someone else.
33. 	According to Counsel for the Applicant, the ‘mistake’ claimed by the Applicant is to the state of the property at the time of the sale in 1994 that the land was free of any encumbrance. The Applicant submits that any perceived failure on her part to bring an action within the prescribed limitation period was the result of a mistake on her part. That is, the applicant was not aware that any cause of action existed until 2014, when she discovered that her land was disturbed by the presence of water pipes. 
34. 	The Second Respondent submits that the Applicant’s motion seeking declaratory orders against them is, simply, for breaching implied covenants under the Property Law Act 1952. I agree. The Applicant’s motion is not one based on mistake (or fraud).
35. 	Upon perusal of the Applicant’s Second Amended Motion, the Applicant has not pleaded mistake nor alluded to any mistake on her part as she now claims for purpose of section 26(c) nor pleaded the consequence of such mistake or the relief sought. 
36. 	The purpose of section 26(c) is to seek relief from the consequences of a mistake. The Applicant’s cause of action against the Second Respondent is a breach of a covenant in the deed of conveyance but not one in mistake. The ‘mistake’ now claimed by the Applicant is not an essential part or an ingredient of her claim against the Second Respondent, according Pearson J in Phillips- Higgins, the mistake now claimed by the Applicant has had no relevant consequences for the purpose of the section.
37. 	Section 26(c) cannot be invoked by the Applicant to postpone the accrual of her cause of action. 
(c) The Limitation Period and Continuing Breach 
38. 	 The Applicant claims that the breach of implied covenant for quiet enjoyment is a continuing breach and the limitation period of twelve years has not ceased pursuant to section 21. Where there is a continuing breach, the cause of action only accrues upon the ceasing of the default. The first proviso to section 21 refers “where the act, neglect, or default is a continuing one, no cause of action in respect thereof is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased;”. Section 21 in so far as relevant provides:
	“21. Protection of persons acting in execution of statutory or other public duty - (1) No action shall be brought against any person (including the Government) for any act done in pursuance or execution or intended execution of any Act of Parliament, or of any public duty or authority, or in respect of any neglect or default in the execution of any such Act, duty, or authority, unless:
	(a) Notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and the name and address of the prospective plaintiff and of his solicitor or agent (if any) in the matter is given by the prospective plaintiff to the prospective defendant as soon as practicable after the accrual of the cause of action; and
	(b) The action is commenced before the expiration of one year from the date on which the cause of action accrued:
	PROVIDED THAT, where the act, neglect, or default is a continuing one, no cause of action in respect thereof is deemed to have accrued, for the purposes of this section, until the act, neglect, or default has ceased:
	PROVIDED ALSO that the notice required by paragraph (a) may be given, and an, action may thereafter be brought, while the act, neglect, or default continues:
	PROVIDED FURTHER THAT any such person may consent to the bringing of such an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice has been given to the prospective defendant as aforesaid.
	(2) Despite subsection (1), application may be made to the Court, after notice to the intended defendant, for leave to bring such an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice has been given to the intended defendant under subsection (1) ……….
	………………..”
39. 	It is very clear that section 21 is for the protection of those persons (including government) acting in execution of statutory or other public duty. Section 21 provides that no action shall be brought against those persons unless they first comply with giving notice (s21(1)(a)) and the action must be brought within the time limitation of one year (s26(1)(b)) or six years upon application to Court (s26(2)) and where the consent of the prospective defendant is obtained the action must be brought within six years from the date on which the cause of action accrued.
40. 	The Second Respondent is not a government entity, but is the Second Respondent a “public authority” within the purpose of section 21? The Applicant has not pleaded or provided any authority as to what is a “public authority” and whether the Second Respondent is a public authority.  In any event, public authorities are corporate instruments of the State created under legislation to further public interests. The First Respondent (from the intitulement) is itself an incorporated society established pursuant to the Incorporated Societies Ordinance 1952 not for the purpose of pecuniary gain. 
41. 	The protection afforded by section 21 does not extend to the Second Respondents.
The principles of strike out
42. 	The principles applicable to strike out applications is well settled and can be summarised as follows:
(a) 	The Court derives its jurisdiction to strike out all or part of a statement of claim or counterclaim from either r 70 of the Supreme (Civil Procedure) Rules 1980, or its inherent jurisdiction or both. In either case a ground for striking out is that the pleading discloses no arguable cause of action.
(b) 	The pleading should be struck out if the Court is satisfied that even on the most favourable interpretation of the facts pleaded or available, the plaintiff could not succeed in law.
(c) 	For this purpose, the facts asserted in the pleading may be supplemented by affidavit so long as the material relied upon is incontrovertible. The Court will not attempt to resolve genuinely disputed issues of fact or consider evidence inconsistent with the pleading.
(d) 	The same applies to any other incontrovertible source of fact such as an independently recorded transcript of court proceedings.
(e) 	The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion. A claim should be struck out only if it is so clearly untenable that it could not possibly succeed.
(f) 	It follows that the jurisdiction should not be exercised if the pleading could be sustained by appropriate amendment or if there remains the realistic possibility that at trial evidence could emerge to rectify a seeming gap or flaw in the plaintiff’s case.
(g) 	However, where the claim depends on a question of law capable of decision on the material before it, the Court should not shrink from determining the question even if extensive argument may be required.
Conclusion
43. 	The jurisdiction is to be exercised sparingly, and only in clear cases where the Court is satisfied that it has both the material and the assistance from the parties required for a definite conclusion. This is not so with the present proceedings:
(i) 	There have not been proper and adequate pleadings by the Applicant of her claim against the Second Respondent. The Second Respondent also has not filed a response to the Applicant’s claim brought against them by Motion for Declaratory Orders. Without proper and adequate pleadings by the Applicant against the Second Respondents and without a proper response in writing by the Second Respondent to the Applicant’s Motion the Court does not have much to make a proper decision.  
(ii) 	There are differences in facts submitted by the Applicant and the Second Respondent that have not been properly pleaded. The Court will not attempt to resolve genuinely disputed issues of facts or consider evidence that are not properly pleaded.
(iii) 	I must also mention the issuance of judgment has taken some time due to lack of proper submissions with authorities by Counsels in support or opposition of their arguments. 
44. 	In general, proceedings should not be struck out if it appears that what is lacking in the pleadings can be cured with adequate amendments. For the foregoing reasons, the application to strike out is dismissed. 
JUSTICE TUATAGALOA