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Court of Appeal of Solomon Islands |
IN THE SOLOMON ISLANDS COURT OF APPEAL
| NATURE OF JURISDICTION: | Appeal from Judgment of the High Court of Solomon Islands (Faukona J.) |
| COURT FILE NUMBER: | Civil Appeal Case No. 02 of 2015 (On Appeal from High Court Civil Case No. 128 of 2014 ) |
| DATE OF HEARING: | 15 April 2015 |
| DATE OF JUDGMENT: | 24 April 2015 |
| THE COURT: | Goldsbrough P Ward JA Wilson JA |
| PARTIES: | CHIEF NORMAN SA'OGHATOGHA - V – MUGABA ATOLL RESOURCES COMPANY PACIFIC CREST ENTERPRISE LIMITED ATTORNEY GENERAL (Rep the Commissioner of Forest) |
| ADVOCATES: Appellant: Respondent: | Michael Pitakaka for Appellant D. Marahare for 1st & 2nd Respondents |
| KEY WORDS: | |
| EX TEMPORE/RESERVED: | |
| ALLOWED/DISMISSED | ALLOWED IN PART |
| PAGES | 1- 7 |
Judgment
[1] The first respondent is a Solomon Islands company the interests of which include logging. In December 2011, it lodged a Form 1 application under the Forest Resources and Timber Utilisation Act for approval to negotiate the acquisition of timber rights on customary lands on Rennell Island. There were five areas of customary lands identified on Form 1 over which the company had held preliminary discussions. Those areas included Kagua land and the person with whom it was stated there had been discussion in respect of it was the appellant who claims to be the recognised Chief of the Kagua/Magautu land owning tribe.
[2] At the timber rights hearing convened the following May by the Rennell and Bellona Provisional Council, four of the named areas, including Kagua land, were withdrawn by the reresentatives of the owners. That left only Gagoniu land and the procedures for making a logging agreement with the trustees of that land, including agreement over a log pond, were completed in2013. Machinery was delivered and logging started in December of the same year.
[3]The appellant claims that the logging operations crossed the boundary with Kagua/Matautu land and, on 24 April, 2014, he filed an application, accompanied by a certificate of urgency, for an interim injunction restraining the first and second respondents from entering Kagua/Magautu land for any purpose.
[4] The application was heard ex parte on 1 May 2014 and granted in the form sought:
[5]On 29 April, 2014, the appellant filed a Category A claim for trespass, damages and a permanent injunction (Civil Case No 128 of 2014) and, on 14 July, 2014, the first respondent filed an application to strike out the claim under rule 9.75 of the Civil Procedure Rules. It was heard by the learned judge on 5 November, 2014. The ruling was delivered on 15 December, 2014, and perfected on 30 December 2014. The judge granted the application and ordered:
1. Order that the Claimant claim (Category A) filed on the 29th April 2014 pursuant to R 9.75 be stuck (sic) out.
2. Interim orders perfected by this Court on 2nd May 2014 pursuant to R 17.55 (a) and (c) set aside and discharged.
3. Consequent to orders 1 and 2, hereby grant leave for the applicant to seek compensation against the Claimant in respect of the loss and/or damages sustained as a result of the interim injunctive orders obtained against first and second Defendants.
4. Consequent to order 2 the proceeds which were paid into solicitor's joint trust account shall be released forthwith to the second Defendant.
5. Cost of and incidental to this proceeding is cost in indemnity basis pursuant toR4.12 (b) and (c).
The Appeal
[6] By Notice of Appeal dated 29 January, 2015, the appellant sought to have the judgment of 30December, 2014, set aside or, in lieu thereof, the interim injunction of 2 May 2014 reinstated on the grounds that:
His Lordship erred and further or alternatively his discretion miscarried as he could not have been satisfied of the evidence that:
(a) There was a clear case for striking out the Claim; and
(b) Even if there was a clear case for striking out was established which is denied, damages for compensation against the Claimant in respect of the loss and/or damages sustained as a result of the interim orders was not available due to the expressedwaiver of any undertaking as to damages by court thereby not open to his Lordship to make such order.
The High Court Application to Strike Out
[7] Rules 9.75 and 9.76 of the 2007 Civil Procedure Rules provide:
Frivolous and vexatious proceedings
9.75 If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:
(a) the proceedings are frivolous or vexatious; or
(b) no reasonable cause of action is disclosed; or
(c) the proceedings are an abuse of the process of the court; the court may, on the application of the party or on its own initiative, order that the proceedings be dismissed generally or in relation to that claim.
9.76 The court may receive evidence on the hearing of an application for an order under rule 9.75.
[8] Whilst rule 9.75 is essentially the same as the previous Order 27 rule 4, the new rule 9.76replaces the earlier qualification (from Wenlock v Moloney [1965] 1 WLR 12,38) that no evidence is admissible when the court is considering whether the claim discloses a reasonable cause of action.
[9] The judge, in his ruling on the present application, correctly set out the well established considerations listed by Palmer ACJ in Tikani v Motui[2002] SBHC CC029/01 - a case decided under the old Rules. With the exception of the power now given the court by rule 9.76, they still accurately summarise the factors a court should consider in an application to strike out. The passage, with the omission of the reference to Wenlock v Moloney, bears repeating:
" The Court should only exercise its discretion to strike out in 'plain and obvious' cases(Hubbuck& Sons v Wilkinson [1899]1 QB 86) and where no reasonable amendment would cure the defect. Such an application is only appropriate where it is clear that the statement of claim as it stands is insufficient, even if proved, to entitle the plaintiff to what he asks (Chow v Attorney General SBHC CC127/00). A reasonable cause of action means basically a cause of action with some chance of success or where a tenable case has been disclosed for the relief sought (Gatu v SIEA and orsSBHC CC59/95;Ma'uana v Solomon Taiyo SBHC CC 109/97. So long as the statement of claim discloses some cause of action, or raises some question fit to be decided by trial, the mere fact it is weak and not likely to succeed is no grounds for striking out (Moore vLawson [1915] 31 TLR 418). If however, it is found that the alleged cause of action is certain to fail, the statement of claim should be struck out (Drummond Jackson v BMA[1970]1 WLR 688."
[10] We note that the judge in the present case included the reference to Wenlock v Moloney when he quoted from Tikani's case. However, it is clear the inclusion was inadvertent because he principally based his conclusion as to the cause of action on information disclosed in the sworn statements of the appellant and the defence witnesses as is permitted under the 2007 Rules.
[11] The judge's decision that the claim disclosed no cause of action arose from his conclusion that the appellant would be unable to prove his claim to be the chief and proper representative of his tribal landowners. As the judge correctly pointed out, a claim for trespass required the Court to be satisfied of the claimant's ownership of the land upon which the trespass was alleged to have occurred.
[12] The claim shows that the claimant founded his right to the land on a decision of the chiefs made and delivered orally in the early 1980s of which he had no written record. That claim was as firmly challenged by the defence witnesses as it was asserted by the claimant. The judge decided that the lack of a written decision in the claimant's favour as to his chiefly status and the fact that there appeared to be no evidence of which boundaries had been crossed would be an absolute bar to his claim of trespass.
[13] He explained:
"The claim is in fact founded on a chief's determination delivered orally in the Claimant's favour in early 1980s. There is no copy of such decision being delivered in court and nothing can be expected of it as its status is well acknowledged. The significant problems encountered by the claimant is that, in the absence of any tangible or material evidence, it would be difficult to proof customary ownership of the land. In Daiwo v Lano[2011] SBHC CC367/07, it was held that a crucial element in any claim for trespass to land is proof of ownership. Such ownership must be proved on the balance of probabilities. In Thabatia v Capital Construction,[2013] SBHC CC322/11the court upon relying on the Daiwo case struck out a claim for damages for trespass to land because the Claimants had failed to establish their standing. From paragraph 3 of the sworn statement deposed by the Claimant, I noted that there was no detail and extension of the land boundaries and traditional land marks claimed. The nature of cause of dispute is not known as well. There is nothing in evidence to either directly or by implication produced as to customary ownership in terms of succession by inheritance, chieftaincy, occupancy, current custom usages and possession of land. And of course no direct evidence on the verbal pronouncement of the Chiefs' determination. There was no evidence of the Chiefs who heard the dispute. One conclusion I would draw is that the Claimant's case is based on mere assertions."
[14] The judge went on to explain that chiefs' decisions delivered before 1986 "are valid and often considered by this Court as evidence or proof as to ownership of customary land. Provided it is in a form of writing. Where no formality of such decision is relied on, then it is a mere assertion ..."
[15] The judge has confused the differing roles of the judge when considering an application to strike out and when conducting a trial. Counsel agreed the 2007 Rules had not changed the longstanding rule that evidence should not generally be pleaded. Rule 9.76 has replaced the previous rule that no evidence is admissible when the court is considering whether there is a reasonable cause of action and undoubtedly means a judge determining an application to strike can review the chances of possible success more comprehensively. That is no doubt partly the cause of the substantial amount of evidence pleaded in the claim in the present case. However, the judge must always bear in mind that he or she is not meant to be evaluating the case in the way that would be appropriate in a trial.
[16] With respect to the judge in the present case, that is where he fell into error. A claim of trespass is undoubtedly a reasonable cause of action in itself and, if the claim is brought by a person entitled to bring it, that is generally sufficient to defeat an application to strike it out. Even if, as in the present case, there is evidence produced by the party applying to strike which strongly challenges the claim, the final decision of what has been proved on balance is a matter for the trial judge who will see and hear the whole of the evidence.
[17] Even when, as in this case, much of the evidential basis to the claimant's assertion of ownership has been pleaded, the judge should not assume that no other, possibly persuasive, evidence will be adduced at the trial. Equally, whilst rule 9.76 clearly allows the judge to consider evidence beyond the matters pleaded in the claim, he should not determine conflicts between the evidence put forward by the opposing parties. That is the role of the judge at trial and a judge determining an application to strike out a claim should be careful not to trespass on that role.
[18] Clearly in such an application, the judge may consider the likelihood of the claim succeeding based on his consideration of the pleaded claim and evidence in the sworn statements. As the Tikanicase reminds us, the power to strike out a claim for failing to disclose a reasonable cause of action must only be exercised in clear and obvious cases where the claim is so bad as to be baseless or does not disclose an arguable case fit to be considered at trial or claims a remedy not known to law. Beyond that, the likelihood of success, unless it is certain the case will fail, is not relevant to the consideration of whether to strike out a claim.
[19] That was not the case here. Trespass is undoubtedly a cause of action and the appellant's locus was based on his claim to represent his tribe. Both claims would have to be proved by proper evidence at the trial. A written decision by a competent court that he has the claimed right to ownership of customary land is usually sufficient to establish it but it is not the only way in which such a right might be sufficiently proved. Similarly the judge's view that the precise boundaries of the land where the alleged trespass occurred had not been disclosed at that stage did not preclude the possibility that evidence of those matters would be presented at the trial and evaluated by the trial judge.
[20] The appeal against the order striking out the claim is allowed, the order is quashed and the action shall be reinstated.
Setting aside the interim injunction.
[21] The respondent sought to set aside the interim injunction as an alternative remedy should the application to strike out be unsuccessful. As the judge pointed out, the first question was whether there was a triable issue. The conclusion he had already reached, that any alleged trespass onto another's customary land had to be proved by evidence of ownership, applied equally to the question of whether there was a triable issue. In consequence he did not examine any question of the balance of convenience or the adequacy of damages but concluded,
"... since there are no serious issues to be tried there is no need to consider the balance of convenience which should include consideration whether the damages alone are not adequate remedy. In this case damages are adequate, suffice to say."
[22] Having reinstated the claim, we must decide whether or not the injunction should also continue. It is undisputed that the first and second respondents' involvement in the area is to harvest and export round logs. The effect of the interim injunction was to prevent them carrying that out. Should it subsequently be demonstrated that the injunction should not have been sought, any consequential loss can be accurately calculated and adequately satisfied by an award of damages.
[23] We therefore decline to reinstate the interim injunction. The question of whether a permanent injunction should be ordered must await the result of the trial.
The waiver of an undertaking as to damages.
[24] The terms of the order for an interim injunction set out above make no mention of an undertaking having been offered or made
by the appellant when he applied ex parte for the relief.
However, in his ruling striking out the claim the judge explained:
"In respect to undertaking as to damages the Court took into account and waived the requirement of providing such undertaking. The practice in this jurisdiction is that undertaking can be waived in exceptional cases where the inability to provide adequate undertaking would effectively precluded the Claimant from the opportunity of having his right determined in full in a trial."
[25] The second ground of appeal appears to be challenging the terms of paragraphs 3 and 4 of the Order of 30 December 2014. The terms of paragraph 3 appear unnecessary as there was no need to give the respondents such leave. It may have been included to ensure that the parties understood that the judge's waiver of the undertaking had not absolved the appellant from liability to pay any damages which might have arisen from the interim injunction.
[28] Mr Pitakaka, for the appellant, sought to persuade the court that waiver of the undertaking means the party seeking the injunction cannot be found liable for any loss wrongly caused to the party against whom the injunction is issued. That is plainly wrong.
[29] The undertaking is an undertaking to the court that the requesting party accepts he will pay any damages should they be found to have resulted from the injunction. It is given as an assurance to the court being requested to make the injunctive order that, should the order subsequently be shown to have been incorrectly ordered, the party seeking it accepts that the consequence is an obligation to pay any damages caused. Contrary to Mr. Pitakaka's submission, the waiver of such an undertaking does not in any way remove on reduce responsibility for damages arising as a consequence of the injunction.
[30] It has long been the practice that an injunction is likely to be refused if it is not accompanied by such an undertaking. The power of the court, in exceptional cases, to waive the requirement is to avoid injustice in a case where to insist on such an undertaking may prevent a disadvantaged party from seeking the court's protection from a serious and, frequently impending, wrong. However, the courts should treat such a waiver as the exception rather than the rule especially when the injunctive relief is sought ex parte.
[31] We note that no order is sought in respect of paragraphs 3 and 4 of the judge's order and we are advised from the Bar table that no funds have been paid into the joint trust account referred to in paragraph 4.
Order
[32] The appeal against the Court ruling in Civil Case No 128 of 2014 is allowed in part as follows:
1. The order setting aside the claim by the appellant is quashed and the claim reinstated.
2. The order setting aside and discharging the interim injunctive order is to remain.
3. No order is made in respect to the consequential orders made in paragraphs 3 and 4 of the ruling.
4. The costs in this Court and in the court below to date shall be costs in the cause.
Goldsbrough P
President of the Court of Appeal
Ward JA
Member of the Court of Appeal
Wilson JA
Member of the Court of Appeal
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