Beto v Kera [2003] SBHC 69; HC-CC 315 of 2002 (21 February 2003)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 315 of 2002

BILLY BETO

–V-

NATHAN KERA & KALENA TIMBER COMPANY LIMITED

High Court of Solomon Islands
(Muria, CJ)

Date of Hearing: 19^th February 2003
Date of Judgment: 21^st February 2003

A Tongarutu for the Plaintiff
John Sullivan for the Defendants

MURIA, CJ: There are two applications before the Court, one by the plaintiff seeking restraining orders against the defendants from paying out royalty monies, and the other is by the defendants seeking to strike out the plaintiff’s claim on the basis that it discloses no reasonable cause of action. The two applications are dealt with together and by their nature, the defendants’ application is dealt with first before that of the plaintiff.

The defendants’ application

By their summons filed on 27^th January 2003, the defendants seek to strike out the Writ of Summons on the ground that it discloses no reasonable cause of action. In support of the application Mr Sullivan relied on three affidavits filed on behalf of the defendants. These are the affidavits of Roderick Terry Kera, Nepia Oka and Heggai Keraeke. Simply put, the defendants’ case is that Statement of Claim filed by the plaintiff does not show a good cause of action.

Brief background

The background to the defendants’, as well as that of plaintiff’s applications, is that following a logging agreement entered into between first and second defendants, logs had been extracted from Saikile customary land. The first agreement was made on 29^th March 1984 and there were subsequent logging agreements made between the company (second defendant) and the Saikile landowners. More recently, the second defendant entered into a timber rights agreement with the representatives of the landowners of Saikile on 27^th March 2002 to fell, harvest extract logs on Tagosage land. Referred to also by counsel for the parties are the Consent Order dated 27^th July 2000 between Frank Dia, representing the Soloso Tribe and first and second defendants, and a Deed of Agreement for Advance Against Royalties dated 29^th May 2001 signed between first defendant and second defendant. These various documents have been said to form the basis of the plaintiff’s claim in this case.

Whether there is a reasonable cause of action

Mr Sullivan contended that the plaintiff’s Statement of Claim, in the first place, did not disclose any cause of action against the second defendant. In so far as the first defendant was concerned, Mr Sullivan argued that there was no evidence to support the allegations made against him nor were there any details of particulars to show the basis of the allegations raised on the Statement of Claim.

As regards the second defendant, the allegations raised against it were clearly vague, insufficient and lacking in substance. They simply cannot stand up to the test of what constitute a good cause of action as laid down in Slater Gordon and Others –v- Ross Mining and Others;^[1] Leslie Allinson –v- Monique Medlin^[2]; NBSI Ltd –v- Mbaeroko Timbers Limited^[3]. These cases set out the clear guidelines as to what constitutes a good cause of action. Pleading must depose to the facts disclosing a good cause of action (Slater Gordon –v- Ross Mining), essential facts which could disclose a cause of action must be pleaded (Leslie Allinson –v- Monique Medlin), and a pleading must contain the material facts on which a party relies for his claim to remedy or relief and also to be accompanied by particulars, where necessary, of dates, times, places, persons, documents and other circumstances sufficient to identify the matter or occasion that is being referred to and alleged (NBSI Ltd –v- Mbaeroko Timbers Ltd). On the authorities referred to, there is clearly no cause of action against the second defendant.

With regard to the first defendant, the position is slightly different. There is the allegation in the pleadings that first defendant received 10% royalty monies on behalf of the tribe through which the plaintiff claims entitlement to his share of the royalty monies. The plaintiff alleges that he has been unfairly treated as regard the disbursement of that portion of the royalty monies. He has referred to the amounts paid by the second defendant to the first defendant, the amount he had received and the amount alleged to be still outstanding. He has referred to documents, not only in the pleadings but also in the affidavit in support in these proceedings. In those circumstances, the plaintiff cannot be said not to have a reasonable cause of action against the first defendant. If there is still any further particulars required, that can be met by delivery of further and better particulars: (NBSI –v- Mbaeroko). The general rule is that a pleading which fails to include sufficient particulars will not for that reason be struck out it if can be made good by delivering further particulars sufficient to identify matters of the kind described in the pleading.

In the circumstances, I hold that the Writ of Summons cannot be struck out. However, as there is no cause of action against the second defendant, it must be removed as a party in this action.

Plaintiff’s application

By his summons, the plaintiff seeks the following orders:-

“1. That the Second Defendant, its servants and agents be restrained from paying out any royalty monies from logs extracted and sold from Tagosaghe customary land and due to the First Defendant.

2. That the royalty monies due to the Second Defendant from logs extracted from Tahosaghe customary land be placed in an interest bearing deposit account jointly held by Solicitors of each party.
   
3. That the First Defendant, its servants and agents be restrained from distributing any royalty monies from Tagosaghe land and presently held in any of their bank accounts to themselves or any beneficiaries claiming under them.
   
4. Costs.”
   

The principles governing injunction in this jurisdiction have been well settled and I do not need to recite them here. Suffice however to say only that the plaintiff must make out a strong arguable case which discloses triable issues in this action.

The materials so far before the Court, and in the light of what the Court said in respect of the second defendant when it considered the defendant’s application, there is clearly no arguable case against the second defendant. It must be removed as a party to the action and no restraining order can be made against it in this case. As such the order sought in paragraph (1) of the summons cannot be granted and it is refused.

I am not certain what is intended by paragraph (2) of the plaintiff’s summons which seeks to restrain the second defendant from disposing the royalty monies other than to place it in interesting bearing account in the joint names of solicitors for the parties. Firstly, the royalty monies are not due to the second defendant but rather to the first defendant and in turn, to the plaintiff and others who are entitled to them. Secondly, it is not clear whether the order sought in that paragraph is against the first or second defendant. Thirdly, it is equally unclear whether it is the second defendant who is being sought to deposit the royalty monies in the interest bearing joint account. The Court is not prepared to exercise its discretionary power in such vague and uncertain circumstances. The order sought in paragraph (2) of the summons is refused also.

As to paragraph (3) of the Summons, the order sought is directly linked to the plaintiff’s claim of unfair distribution of royalty monies. Although Mr Sullivan urged the Court that any action regarding the plaintiff’s claims on the royalty monies would have to be brought against the head of the tribe or family under which the plaintiff is entitled, the first defendant is the person who received the money from the second defendant in the first place before distributing it to the families. I agree that the evidence demonstrates that the first defendant distributed the royalty monies (10%) to the various tribes and families entitled to them. The plaintiff, however, claims that there is still outstanding $24,000.00 due to him and his family. He, of course, will have to substantiate that at the trial. On the other hand the first defendant has stated in his affidavit that he distributed the royalty monies as agreed at 10% apportionment to each tribe. These are matters that will have to be dealt with properly at the trial. But these contentions raise triable issues that belong to the trial judge at the trial.

I am inclined to grant an order sought in paragraph (3) of the plaintiff’s summons. However, before I do that, there is the requirement of an undertaking which in injunction cases must, in my view be, a prerequisite, even if such undertaking is not in damages. Thus an undertaking as to speedy prosecution of this action ought to be given as a condition to granting an injunctive relief such as that sought by the plaintiff here.

Having thus said, the order sought in paragraph (3) of the plaintiff’s summons is not to be granted unless the undertaking as indicated above is given in writing by the plaintiff through his Counsel to the Court and to the first defendant. The undertaking must specify a time within which the plaintiff must prosecute his claim. I consider that in the present case, a period of 90 days would be an appropriate length of time. The undertaking, however, must be given forthwith or at the latest within seven days from today.

Thus the order of the court is that the order sought in paragraph 3 of the plaintiff’s summons is not to be granted unless the plaintiff through his counsel gives the undertaking in writing to the court and to the first defendant within seven (7) days that he will prosecute his claim within 90 days. Failure to give the said undertaking within 7 days, the order will be refused upon application by either party.

As to costs, I feel in the circumstances, each party succeeds in some part in these proceedings. As such each party to bear its own costs.

(Sir John B. Muria)
Chief Justice

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^[1] Slater Gordon and Others –v- Ross Mining and Others (6^th July 2000) Court of Appeal, Civ. App. No. 7/99.
^[2] Leslie Allinson –v- Monique Medlin (6^th April 1996) Court of Appeal, Civ. App. No. 7/96.
^[3] NBSI Ltd –v- Mbaeroko Timbers Limited (26 Jan 1998) Court of Appeal, Civ. App. No. 10/97.