Ma'uana v Solomon Taiyo Ltd [1997] SBHC 106; HCSI-CC 109 of 1997 (29 July 1997)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 109 of 1997

PETER MA’UANA

-v-

SOLOMON TAIYO LIMITED

High Court of Solomon Islands
(Muria, CJ.)
Civil Case No. 109 of 1997

Hearing: 24th July 1997
Judgment: 29th July 1997

G. H. Nori for the Plaintiff
Loa Tepai for the Defendant

JUDGMENT

MURIA CJ: This is the defendant’s application for striking out the plaintiff’s statement of claim in this action. Basically the ground is that the statement of claim discloses no reasonable cause of action.

There is no affidavit filed in support of the defendant’s application. Counsel, however, asked that the matter be considered on the strength of the pleadings before the court. No objection had been raised by counsel for the plaintiff on this course of proceeding with the application. The court will therefore consider this application on the basis suggested by the defendant.

This action was commenced by a Writ filed on 14th May 1997 against the defendant claiming basically damages for trespass. In addition the plaintiff claims other orders including an order disclosing the amount of fish caught and removed from the plaintiff’s reefs and also for an order for disclosure of the commercial value of the bait fish removed during the period 7 April to 6 December 1992.

The question for the court is a short one, that is, whether on the pleadings before the court no reasonable cause of action is disclosed. It is not the defendant’s case that the action be struck out as counsel for the defendant conceded that the plaintiff may have an arguable case in the sense that there may be issues or questions in the plaintiff’s claim which need to be considered by the court but that the plaintiff failed to properly plead his claim in order to link the defendant with the alleged act of trespass.

Mr. Nori for the plaintiff contended that as long as there is some issues raised in the statement of claim the court can proceed and consider the matter. It is suggested that in this case there are sufficient facts pleaded disclosing a cause of action. Counsel further suggested that what the defendant ought to have done was to seek further and better particulars rather than bringing the present application.

The defendant’s application is based on 0.27, r.4 of the High Court (Civil Procedure) Rules as well as under the inherent jurisdiction of the court. Rule 4 of 0.27 provides as follows:

“4. The court may order any pleading to be struck out, on the ground that it discloses no reasonable cause of action or answer, and in 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.”

A pleading that discloses no reasonable cause of action is liable to be struck out under this rule. But what is a “reasonable cause of action?” How is it to be determined? These issues had been considered in numerous cases by the courts and I am grateful to both counsel for referring to the court the various authorities on the issue.

In this jurisdiction, the matter had been considered in a number of cases. See Judah Kulabule -v- Eagon Resources Development (SI) Limited (1993) Civ. Cas. No. 285 of 1993 (HC); Christopher Columber Abe -v- Minister of Finance and Attorney General, Civ. Cas. No. 197 of 1994 and Leslie Allinson -v- Monique Medlin Civ. App. No.7 of 1996 (CA). These cases had dealt with the provision of 0.27, r.4 of the High Court (Civil Procedure) Rules and recognised that the court’s power under the rule is very much discretionary. The cases referred to also support the Proposition that in considering whether there is a reasonable cause of action, it is necessary to show that the pleadings contain essential facts or particulars which disclose some cause of action. See also Lowa -v- Akipa [1991] PNGLR 265 which was also considered in Abe -v- Minister of Finance.

The position under 0.27, r.4 of the High Court Rules, therefore, must be that as long as the pleadings or statement of claim show some essential facts which disclose some cause of action or raise some question fit to be considered by the judge, the court would not strike out the pleadings or statement of claim on the ground that no reasonable cause of action has been disclosed. Even if the case is weak and not likely to succeed, that is no ground to strike out the pleadings. See also Moore -v- Lawson (1915) 31 TLR 418 which was also considered in Abe -v- Minister of Finance.

In the present case the plaintiff’s statement of claim contains the following allegations of facts: the plaintiff’s tribal group have customary rights and interest over four bait fishing grounds (“Reefs”) namely, Arai, Hato, Tanimou and Su’umou; the defendant fished harvested and removed unknown quantity of bait fish from the said Reefs between 7 April and 6 December, 1992 without permission or consent of the plaintiff; there was no bait fish or access agreement between the defendant and the plaintiff or any of the leaders of his tribe; the defendant used two of its vessels, “Soltai No.5” and “Soltai No.6” to carry out its alleged unlawful bait fishing inside the plaintiff’s Reefs; and by reason of the defendant’s conduct, the plaintiff suffered loss and damages. Those facts, in my view do raise a cause of action or at least a question for the court to consider in this case. That cause of action is one of trespass or at least the question raised by the facts is that for this court to consider whether or not the defendant had unlawfully entered onto the plaintiff’s Reefs and fished, harvested and removed bait fish between 7 April and 6 December 1992. The question of whether or not the plaintiff will succeed is another matter and it is not a matter for consideration as a ground for striking out pleadings.

As this court pointed out in Abe -v- Minister of Finance, the onus is on the party making the application to satisfy the court that there is no reasonable cause of action or that there is no question disclosed by the facts for the court to consider. This must be shown on the facts as disclosed in the pleadings.

In the present case I come to the conclusion that the essential facts contained in the statement of claim do disclose a reasonable cause of action and I am satisfied of that.

The defendant’s application is refused with costs.

(GJB Muria)
CHIEF JUSTICE