Bulososo Development Co v Valepelo Development Co [2017] SBCA 2; SICOA-CAC 24 of 2016 (5 May 2017)

IN THE SOLOMON ISLANDS COURT OF APPEAL

NATURE OF JURISDICTION	APPEAL FROM JUDGMENT OF THE HIGH COURT OF SOLOMON ISLANDS (MAINA PJ)
COURT FILE NUMBER	CIVIL APPEAL CASE NO. 24 OF 2016 (ON APPEAL FROM HIGH COURT CIVIL CASE NO. 563 OF 2015)
DATE OF HEARING	26th APRIL 2017
DATE OF JUDGEMENT	5th MAY 2017
THE COURT	GOLDSBROUGH P WARD JA WILSON JA
PARTIES:	BULOSOSO DEVELOPMENT COMPANY AND OCEANIA TRADING COMPANY LIMITED -v- VALEPELO DEVELOPMENT COMPANY AND ATHENA INVESTMENT LIMITED
ADVOCATES: APPELLANT: RESPONDENT:	MR M PITAKAKA MS M BIRD
KEY WORDS:
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1-6

JUDGMENT OF THE COURT

1. This appeal arises from a decision of the High Court of 23 August 2016 following consideration of an application within civil proceedings for the claim to be dismissed under Rule 9.75 of the Solomon Islands Courts (Civil Procedure) Rules 2007 (the Rules).
2. The application in the High Court was dismissed after a hearing. It is against that order for the application to be dismissed and consequential orders that this appeal is brought. The consequential orders do no more than continue the interlocutory injunctive relief in place prior to the application for dismissal being heard.
3. The claim filed on 3 November 2015 seeks a permanent injunction against the present Appellants from logging within a concession area which includes land called “Tabunamanu” land. The present Respondents to this appeal, claimants in the court below, assert in these proceedings that they hold a valid timber felling licence. In addition to injunctive relief, the Respondents seek a declaration that the logging operations of the Appellants are illegal and that the Felling Licence held by the same Appellants is null and void because it is a licence to fell on the same concession area as a licence held by the Respondents. The claim also seeks damages for trespass and costs.
4. At earlier hearings, interim injunctive relief had already been ordered in favour of the Respondents. Following the hearing of the application the subject of this appeal, that relief was continued. That continued relief is also the subject of a part of this appeal
5. It is agreed between the parties that there are triable issues raised in the claim.
6. Chapter 9 of the Rules deals with ending proceedings early. The relevant rules in this matter are Rules 9.58, 9.61, 9.64, 9.66, 9.75 and 9.76. For convenience those rules are set out here.

“9.58 A defendant may apply to the court for a summary judgment against the claimant where the defendant has filed a defence and believes that there is no real prospect of any part of the claim succeeding.

9.61 A defendant's application for summary judgment must have with it a sworn statement that:

(a) verifies the facts stated in the defence; and

(b) states that the defendant believes there is no real prospect of any part of the claim succeeding; and

(c) states the specific orders that are sought by the defendant in addition to dismissal of the claim.

9.64 If the court is satisfied that:

(a) the defendant has no arguable defence to the claim or part of the claim or that there is no real prospect of the claim succeeding; and

(b) there is no need for a trial of the claim or that part of the claim;

the court may:

(c) give summary judgment for the applicant; and

(d) if the court gives summary judgment for only part of the claim, give leave to defend the balance of the claim; and

(e) make any other orders the court thinks appropriate.

9.66 The court must not give summary judgment if it is satisfied that there is a real dispute between the parties about a material fact.

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 a 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”

7. There are two grounds of appeal. The first is that the trial court erred in finding that there was a reasonable cause of action in law and fact. The second is that the trial court erred in finding that the interim injunction perfected, signed and sealed on 10 November 2015 should continue without giving any reasons as to the law of granting relief and/or misapplied the law in relation to injunctions, there being no evidence for such findings or (in the alternative) such findings being contrary to the weight of the evidence.
8. It is possible to dispose of the second ground quite quickly without any further recital of the factual circumstances of the claim. Prior to the hearing of this application interim injunctive relief had been ordered. Part of the application for early dismissal of the claim includes a request for relief from the interim relief which of course would follow automatically if the application were to succeed. No subsisting claim, no place for continued interim relief is a quick summary of the position. Given that the application for early termination of the proceedings was not successful, it appears that the judge did no more than continue the injunctive relief as previously ordered.
9. We take the view that unless the judge was asked to consider variation of the existing relief if the application was dismissed, then he had no obligation to investigate the relief position further when deciding to do no more than continue it until trial. On this appeal, we were told that through effluxion of time the issue of previously felled timber wasting in log ponds or in situ at the place of felling was no longer an issue. Given that the proceedings were going to trial, it seems there is no valid complaint about the continuation of the existing injunction. We certainly do not take the view that a general discussion of the law relating to relief and its application in this case was called for on the application made by the present Appellants. That ground of appeal must fail.
10. The Category C claim filed by the Appellants seeks a permanent injunction against the respondents from carrying out logging activity on Tabunamanu or other concession lands covered by a licence numbered TIM2/119 A which was issued to the 1^st Appellant. The claim further seeks a declaration that the Respondents’ logging operation is illegal and null and void through lack of development consent under the Environment Act and that the Felling Licence A10925 issued to the First Respondent is null and void because it purports to include concession lands already covered in another Felling Licence belonging to the First Appellant. The claim goes on to seek damages for trespass to be assessed and costs.
11. We note that what is couched as declaratory relief amounts, in our view, to quashing orders.
12. It is said within ground one of this appeal that the material sworn and filed on behalf of the present Respondents shows on its face an irregularity in the grant of the Felling Licence. That is the basis for the application whether it be for strike out or summary dismissal. The same submission goes further to suggest that this is outlined more clearly or obviously when one considers the sworn material from the present Appellants.
13. The sworn material of the Respondent states, inter alia, that a valid Felling Licence has been issued by the Commissioner of Forest. That licence is exhibited within the material. Additional material exhibited as annexures to the sworn statement of the Respondent seeks to show the procedure followed to obtain that Felling Licence. It is this material which the Appellants seek to demonstrate on this appeal which shows the irregularities within the Timber Rights procedure.
14. We do not agree that the material demonstrates with such clarity that the Felling Licence issued by the Commissioner of Forest should not have been issued. We agree that the material taken together with the material filed by the Appellants raises issues. Those issues are trial issues, not issues that can be determined at a preliminary stage such as this. For that we must turn to the test to be applied in making determinations at a preliminary stage.
15. Within this appeal there is no issue between the parties as to the correct test to be applied when considering an application to strike out or an application for summary judgment. This Court has set out and applied those test in previous cases and will only set out the tests briefly here and they can be found in greater detail in authorities referred to on this appeal.
16. The applicable tests are not in issue on this appeal, merely their application. The tests can be found set out in Nori v Saki SICOA CAC 11 of 2016 and Sa’oghatoga v Mugaba Atoll Resources Company SICOA CAC 2 of 2015. Nori v Saki draws attention to the difference between a summary judgment and a strike out application.

“As the judge identified on an application to strike out based on an allegation that the claim revealed no cause of action, the judge must assume the claim can be proved. The judge must then ask – assuming the claimant can prove all of these allegations, does the claimant have a sustainable cause of action? With these facts proved could the claimant succeed? If the answer is yes, the claim cannot be struck out.

In this case the judge asked himself whether the claim disclosed an arguable case. This is an evidence based test appropriate to summary judgment applications not to strike out applications.”

Sa’oghatoga goes further and states: -

“[8] Whilst rule 9.75 is essentially the same as the previous Order 27 rule 4, the new rule 9.76 replaces 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 ors SBHC 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 v Lawson [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."

17. We agree with the learned trial judge in his application of the relevant test and his conclusion that the matters raised are matters for trial. In that event, this appeal must fail. We go further and note that the decision not to terminate the proceedings early amounts to an interlocutory decision. It is not a final order within which the rights of parties have been determined. To that extent this appeal requires leave under section 11 (2) (f) of the Court of Appeal Act [Cap 6]. No such leave has been sought or granted.
18. In the event, we do not grant leave for that part of the appeal which requires leave and in relation to the balance of the appeal, being the continuation of the interlocutory relief for which no leave to appeal is required, we dismiss the appeal. Costs on the appeal will be paid by the Appellants such costs to be agreed or assessed and in any event paid within 28 days.
    

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Goldsbrough P

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Ward JA

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Wilson JA