Pelobule v Vagolo [1996] SBHC 29; HC-CC 136 of 1996 (7 June 1996)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 136 of 1996

ter">UNDIKOLO PELOBULE

-v-

p align="center">KIKU'U VAGOLO AND TWO OTHERS

="3">Before: Awich, Judge

Hearing: 4 June 1996 - Ruling: 7 June 1996

Counsel: A G H Nori for the Plaintiff; A. Radclyffe for the Defendants

INTERLOCUTORY JUDGMENT

Sam Awich (Judge):

The plaintiff, Undikolo Pelobule obtained interim injunction from this court on 14.5.1996 restraining the fourth defendant, Silvania Products SI Limited from paying money into a bank account at National Bank of Solomon Islands, that the first defendant and others operated. The payment was royalty payment to land owners of Dokoso Maroana tribe. The first defendant, Kiku'u Vagolo, the second, Bisulu Vagolo and the third, Catheraena Kitu were stated in the claim to be trustees of the payments for the benefit of members of the tribe. The injunction also restrained the first to third defendants from using any money in the bank account and from receiving any further sums from the 4th defendant.

On the date for hearing the hearing of the application in inter partes, Mr Radclyffe counsel for the first, second and third defendants presented summons application seeking order that originating summons of the plaintiff by which he commenced proceedings be struck out on the grounds that the plaintiff had no locus standi. He was not a member of Dokoso Maroana tribe and had no right to claim any payment.

Submission of learned Counsel Radclyffe is surprising. He urged that the court should go into examining evidence at this stage to decide whether or not the claim, in the originating summons should be struck out. He proceeded to state that the only evidence as to whether the plaintiff is a member of Dokoso Maroana tribe so as to be a rightful claimant was, on the one part in the plaintiff's affidavit and a mere assertion that the plaintiff belonged to the tribe, but on the other part, there was also an assertion in affidavit of the first defendant, denying that the plaintiff belonged to the tribe. Counsel then urged that the court should, given that even state of evidence, find that there was not sufficient evidence to show that the plaintiff belonged to the tribe, and that he had no locus standi. Counsel justified that position by suggesting that to find otherwise would mean that anyone can come up and claim membership of a tribe which would lead to unnecessary blocking of business.

Learned Counsel's submission may have merit in philosophy, it certainly is not the position in law. In considering application to strike out claim, the court must assume that the facts as stated in the claim are true, and to decide whether given those facts, the plaintiff would be entitled under a principle of law, to the relief he claims. The court's discreation here cannot be exercised by protracted examination of documents and other minute facts that may constitute the evidence - see Wenlock v Moloney (1965) 1 WLR 1235 / 2 ALL ER 871. Moreover, the exercise of that discretion must be only in the clearest of cases, and even so the court might decide that the respondent may be given opportunity to correct his case by amendment. This rule which was stated with clarity in the case of Nagle v Feilden (1966) 2 QB 633, was applied in Drummond Jackson v British Medical Association (1970) 1 WLR 688. The principle dates back before the old case of AG of Duchy of Lancaster v L & NW Railway Company [1892] UKLawRpCh 134; (1892) 3 Ch 274 CA. Of course if amendments cannot correct the flaw, the court will strike out the claim.

The present case is not the clearest of cases for the court to say that the claim is unarguable and merely an abuse of process. The plaintiff asserts that he belongs to Dokoso Maroana tribe. Given that fact, he has reasonable prospect to succeed. Of course he will have to prove the facts he alleges and that may be before Local Court. The court dismisses the application to strike out the originating summons in this case, dated 8.5.96 and filed at court on 9.5.96. The costs of the application is awarded to the plaintiff.

The court, having read the affidavits filed on both sides, must take as evidence for the purposes of the application for interlocutory order, continuing the interim order granted on 14.5.96, the following facts:

1.That the fourth defendant has entered agreement with the first to third defendants in their capacity as trustees of members of Dokoso Maroana tribe for the harvesting of timber from land held by the three defendants in trust.

2. That payment of at least $366,142.24 has been made by the fourth defendant to the trustees for the beneficiaries of the trust.

3. That a loan of $49,764.94 has been granted out of the trust funds,

4. That only $59.74 is in the bank account now, and

5. That more payments of royalty are expected from the fourth defendant soon.

On those facts the court has to consider whether, if the plaintiff has made sufficient case for his claim, it is necessary for the court to exercise discretion to maintain status quo so as to preserve interests of the plaintiff. The defendants were asked as to whether they would have means other than the proceeds of royalty in this case, out of which they would be able to compensate the plaintiff should he succeed in his claim. They did not have the means. The plaintiff likewise did not tender undertaking as to damages in the event of him losing the case. On balance of uncompensatable losses however, it appears that there are no or less imminent losses arising to the defendants should injunction issue preserving the trust funds. It is the decision of the court, that a case for preservation of the funds held or that will become due to the trustees has been sufficiently established.

The one question that is left is whether the plaintiff has established triable issue with prospects to succeed. From what I have said above, it would have become clear that it is my view that the plaintiff has no doubt established an issue in the assertion that he is a member of the Dokoso Maroana tribe and that the first three defendants are receiving monies under an agreement with the fourth defendant. Those sums are being received in trust for members of the tribe and that he as a member is entitled, yet he has not received his share of the money. As to whether he has prospects of success will depend on proof of his membership of the Dokoso Maroana tribe and whether he is entitled to royalty arising from the tribes ownership of the land Lot 8 of Parcel 143-001-3. That is something to be proved in Local Court. I cannot deny him interlocutory injunction after he has proved a large part of his case except for the part before Local Court given the facts of this case. The court grants order to continue the interim injunction, it thereby becoming interlocutory injunction to last until determination of the case or until further order, and subject to alteration at paragraph 2(2) to read:

2) Requiring it to pay sums now due or will become due in connection with the contract over land parcel No 143-001-3, into court or into joint interest earning, trust bank account in the names of solicitors for the plaintiff and for the defendant.

Costs of the applications for the interim and interlocutory injunction are reserved.

="3">Dated this Friday 7th June 1996 at Honiara in Court.

JUDGE