Virivolomo v Aseri [2014] SBHC 149; HCSI-CC 166 of 2012 (26 November 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)
Civil Case No. 166 of 2012.

BETWEEN:

FLORENCE HARRY VIRIVOLOMO
(the Chairlady representing the members of SAVUBO Tribal Community Trust Board Incorporated).
1st Claimant

AND:

PATRICK BESA
(Vice President representing the SAVUBO Tribal Community Trust Board Incorporated)
2nd Claimant

AND:

TAMANA ASERI
(Former Chairman, SAVUBO Tribal Community Trust Board Incorporated)
1st Defendant

AND:

BULACAN ENTERGRATED WOOD INDUSTRIES (SI) CO.LTD
2nd Defendant

Date of Hearing: 16th October 2014
Date of Ruling: 26th November 2014

Mr M. Pitakaka for the 1st and 2nd Claimants
Mr M. Tagini for the 1st and 2nd Defendants

RULING

Faukona PJ: This application was filed on 21st November 2012, to strike out the amended claim filed by the Claimants on 5th June 2012. The reason for application is that there was no reasonable cause of action disclose, that the amended claim is frivolous and vexatious and that the second Claimant do not have a locus standing to bring the action.

2. Both Claimants and the first Defendant are members of one and the same tribe who own sabere, vuvure and bokere customary lands on Rendova Islands, Western Province. The second Defendant is a logging company and a licensee.

3. In 2005 a timber rights processes were commenced by some members of the tribe including the first Defendant. By 2009 a timber felling license was granted to the second Defendant.

4. In 2008, the first Defendant and other members of the tribe formed and registered an Association. The Association was setup through which the tribe could receive royalty proceeds from the logging operation. A bank account in the name of the Association was created with the first Defendant and other office bearers as signatories.

5. After its formation, the Association did not conduct any annual general meeting in accordance with clause 13 of the Association's Constitution. Despite that, royalty monies were paid into the Association's bank account. As a result members of the tribe demanded that a general meeting be convened by the first Defendant and other office bearers and provided financial report. The first Defendant despite continuous demand refused to call a general meeting.

6. Finally in early 2012 members of the Association held an annual general meeting in the absence of the first Defendant and voted him and his supporters out, and elected new office-bearers including the Claimants. As new leaders of the Association, they engaged Mr Watts to commence this proceeding with a view to compel the first Defendant to account for royalty monies paid into the Association's bank account.

The Law on striking out:
No reasonable cause of action:

7. The Court has power under R9.75 to strike out any proceeding which (a) discloses no reasonable cause of action or (b) is frivolous and vexatious and amounts to abuse of court process. That power is exercised under the Courts discretion and is based on various principles.

8. Where an application for striking out is based on no reasonable cause of action, the considerations which have to be taken into account were set out by His Lordship Palmer ACJ (as he was then) in the case of Tikani V Motui, on page 2 paragraph 7, which stated;

"In such an application, no evidence is admissible and the Court can only look at the pleadings and particulars. (Wenlock V Moloney [1963] 1 W.L.R, 38). The Court should also exercise its discretion to strike out in "plain and obvious case: (Hubbuck & Sons V Wilkinson [1898] UKLawRpKQB 176; [1899] 1 Q.B 86, 91) 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 CC 127 of 2000). A reasonable cause of action means a cause of action with some chance of success or where a tenable case has been disclosed for the relief sought (Gatu V SIEA, Attorney-General & gold Ridge CC 59/95; Ma'uana V Solomon Taiyo Limited CC 109 (97). So long as the statement of claim disclose some cause of action, or raise some question fit to be decided by trial, the mere fact that it is weak and not likely to succeed is no ground for striking out (Moore V Lawson (1915) 31 .LR 418; Wenlock V Moloney (ibid). If however, it is found that the alleged caused of action is certain to fail, the statement of claim should be stuck out (Drummond Jackson V British Medical Association [1970] 1 W.L.R 688 at P-692 Lord Pearson).

Frivolous and vexatious or an abuse of process:
9. In relation to this particular ground for striking out, His Lordship Palmer ACJ in the same Tikani case, at page 6 paragraph 4 stated,

"The jurisdiction given to the Court on these ground is to be sparingly used only in exceptional cases (Lawrence V Lord Norrys (1890 15 App. Case 210 at 219 per Lord Herschell). It should be exercised only where the claim is devoid of all merit or cannot possibly succeed (Willis V Earl Beauchamp [1886] 11 P.D.59). In Norman V Mathews [1916] 85 L.J.K.B 857,859 Lush J propounded the test as follows;

"In order to bring a case within the description it is not sufficient Merely to say that the Plaintiff has no cause of action. It must Appear that his allege cause of action is one which on the face of It is clearly one which no reasonable person could properly treat As bona fide, and content that he had a grievance which he was Entitled to bring before the court."

Locus standi:
10. The first argument in support of the application is that the Claimants do not have a locus standi or standing to bring this action. That argument, though no reference is made to any authority is presumably reinforcing Rule 3.42 that a person representing community, tribe, line or group may sue or be sued, but the Court may require that person to provide proof of his entitlement in custom to act as such representative. Indeed that requirement is not mandatory, but upon discretionary power of the Court whether proof of entitlement of representative is necessary or not.

11. In this case, Mr Tagini's argument premise on the fact that the Claimants are not the timber right grantors but beneficiaries of the logging operations. That argument is not disputed and is a non-issue, hence, prompted no rebuttals. The thrust of that argument is premised on the fact that the Claimants were not authorized to institute this proceeding.

12. Mr. Tagini submits that the first Defendant is the original trustee plus others of Savuho Tribal Community Trust Board Incorporate. At no time the Board had ever appointed the first Claimant as chairlady and second Claimant as the Vice President. Their appointments were not consented to and hence not conceded with. In any event, the consequential effect is that both did not have sufficient interest to come to Court.

13. The question whether the Claimants have sufficient interest must be thoroughly analysed. The starting point is the undisputed fact that the Claimants and the first Defendant are members of the same tribe and they own the same customary lands. The issue why the Claimants have different status and entitlements as viewed by Mr Tagini is because they do not hold positions of authority, which would recognise them as having sufficient interest in this case. That in my view is a misconception of the reality. In every society, community and tribe there are persons who hold leadership position in custom. Not every member of the tribe acquires such leadership status. There is an equitable status that traditionally recognized that a tribal chief, trustee and an ordinary member, all of whom had acquired equal rights of ownership to their customary land. To differentiate by value of leadership role does not erase or diminish the interest of an ordinary member of the land owning group. Besides, that there is no one person out of the entire tribe regarded as principle land owner. That is a foreign phenomenon. In this case, the Claimants and the first Defendant are members of the same tribe. It does not mean because the first Defendant is a trustee that he has sufficient interest than the Claimants. That is a view unacceptable in Melanesia Society. So long as a land is owned by one and the same tribe, all tribal members including Chiefs, trustee, etc, have the same interest in the land. That is the land of their ancestors, which they have inherited through many generations.

14. If the first defendant as a trustee has a different interest from members of the same tribe in respect of one tribal land, then Mr. Tagini could have meant that the Claimants were not authorized nor do they acquired the leadership role they now hold by a traditional process accepted and adopted by the tribe which is mandated by Rule 3.42. That view holds no validity because members of the Association after many demands for the first Defendant to conduct a general meeting failed. Therefore they held a general meeting in early 2012 in the absence of the first Defendant and voted him and his supporters out and elected new officer bearers including the Claimants. That process in my view fulfils the mandatory requirement in R 3.42.

15. The second issue raised by Mr Tagini is in respect of declaration sought to grant order persuading the first Defendant to account for all royalty proceeds. Mr Tagini submits that is not necessary because it can be best dealt with by the Association as provided for in the Association's Constitution.

16. Where a proviso of the Constitution is not complied with by the Board or President established under that Constitution, then after many demands by members of the Association for compliance, and still there is no compliance, members can seek declaration order from a Court of law, except where the Constitution expressly stated that should problem arose incidental to compliance and implementation of the Constitution, that be sorted out by selected arbiter or members of the Association themselves rather than by a Court of law.

17. The arguments raised by Mr Tagini do not in any way encompass the requirements set out by R9.75 (a), (b) and (c) of which one is no reasonable cause of action. There are no submissions related to facts asserted in the pleadings and particularisation. As well, does not encompass the fact that the cause of action is frivolous and vexatious. If so, in what areas of the pleadings or the cause of action? That ought to be specifically upheaved and conveyed. What Mr Tagini concerns about is locus standi, a preliminary issue to be considered and noncompliance with the Association's Constitution, which is an administrative issue. There is nothing to relate to the principles and their application as set out in Tikani's case. Therefore the application to strike out holds no merit to be considered, and attracts no consideration from the principles. Therefore, I must dismiss the application with costs.

Orders:

1. The application to strike out the amended claim on the grounds of disclosing no reasonable cause of action and is frivolous and vexatious dismissed.

2. Order that the first and second Claimants have locus standing.

3. Cost of this application be paid by the Defendants to the Claimants.

The Court.