Saoghatogha v Mugaba Atoll Resource Company [2014] SBHC 157; HCSI-CC 128 of 2014 (15 December 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
(Faukona PJ)
CIVIL CASE NO. 128 OF 2014

BETWEEN:

CHIEF NORMAN SA'OGHATOGHA (Representing himself and the Kagua/Magautu Land Owing Tribe)
Claimant

AND:

MUGABA ATOLL RESOURCES COMPANY
First Defendant

AND:

PACIFIC CREST ENTERPRISE LIMITED
Second Defendant

AND:

ATTORNEY-GENERAL (Representing the Commissioner of Forests)
Third Defendant

Date of Hearing: 5th November 2014
Date of Ruling: 15th December 2014

Mr M. Pitakaka for the Claimant
Mr D. Marahare for First Defendant
Mr T. Kama for the Second Defendant
Mr D. Damilea for the third Defendant

RULING ON APPLICATION TO STRIK OUT

Faukona PJ: An application for order to strike out the claim was filed on 14th July 2014, supported by a sworn statement deposed by Mr. Warren Tinohitu filed on the same date.

2. A claim in category A was filed on 29th April 2014 for damages in terms of exemplary and punitive for trespass and conversion of logs from customary land known as kagua/magautu claimed to have been owned by the Claimant. The Claimant seeks six (6) reliefs comprising damages, permanent injunction, costs and interest.

Background facts
3. The litigation emerged as a culmination of logging activities invited onto the land. Immediately after logging machines were landed on matakiakau log pond on or about second week of November 2013 logging operations commenced.

4. Initially, there was a timber rights hearing on 17th or 18th May 2013, to consider Form 1 application by the first Defendant. The Renbel Provincial Executive (RPE) following the hearing published its determination in Form II on 20th July 2013. The (RPE) determined by identifying Mr. Eric Baiabe on behalf of his brother Mr Tesua as person representing all persons lawfully able and entitled to grant timber rights over gagoniu customary land. The other four customary lands which comprised the concession area were withdrawn by the landowners and two were under dispute hence exempted.

5. After unloading of machines at matakiakau log pond, the second Defendant conducted road construction and logging operations forthwith. Subsequently, as the Claimant claim, it encroached well outside of the concession area of gagoniu and entered into kagua/magautu customary land, the land claim by him.

6. On 2nd May 2014, interim injunctive orders were made by this Court on ex-parte application by the Claimant.

7. The first and second Defendant denies encroaching into kagua/magautu customary land. They did not operate beyond the boundaries they know of. Mr Warren Tinohitu by his sworn statement filed on 14th July 2014 said that he represented the true landowners of the land in question and he supported the report compiled by the Forest Rangers based in Rennel and Bellona Province that there was no encroachment or trespass.

This application:
8. This application was filed premised on Rules 9.75(a) to (c) and the usual reasons for striking out are outlined in the submissions. They are, the proceedings are frivolous or vexatious; or no reasonable cause of action is disclosed; or the proceedings are an abused of Court process.

The Law on Striking out.
Reasonable cause of action.
9. The Court has discretionary power under R9.75 to dismiss the claim or the proceedings generally, if it finds one ground under the rule is present. That power is exercised only in plain and obvious cases where no reasonable amendment would cure the defect[1]

10. A reasonable cause of action is defined as a cause of action with some chances of success or where a tenable case has been disclosed for the relief sought[2]

11. In such application, as this one, the usual considerations which have to be taken into account were set out in the case of Tikani V Motui[3]. Before the Court exercises its discretion it has to examine the substance of the claim before considering the requirements under the Tikani's case which I summed up in the following paragraphs.

12. For an application based on no reasonable cause of action, the Court can only look at the facts in the pleadings and particulars; no evidence is admissible at this stage[4].

13. This type of application is only appropriate if it stands out clear that the claim is insufficient, even if proved, to entitle the Claimant to what he seeks[5].

14. So long as the statement of claim discloses some cause of action, or raise some question fit to be decided by trial, the fact it is weak and not likely to succeed is no ground for striking out[6]

15. Striking out a claim or dismissing a proceeding is a drastic action which should be done only in very clear cases where the claim is baseless or so bad and does not disclose a cause of action. It should be done only where the statement of claim and the asserted facts do not raise an arguable case fit to be decided at trial.

Frivolous and vexatious or abuse of process.
16. It may seem the case that the legal reasons for consideration when an application for strike out premise on R9.75 (a) to (c) in terms of no cause of action disclosed or, if they are frivolous and vexatious. His Lordship's approach in Tikani[7] case are similar in nature. For application based on this ground, His Lordship added that the Court should practically and reasonably utilise its jurisdiction only on exceptional cases[8] where the claim is devoid of all merit or cannot possibly succeed[9].

17. In the Tikani case, His Lordship made reference to an English case. Norman V Mathew[10] and I quote the test propounded by Lush J;

"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".

18. In this case, the Claimant relies on claim derived, inter alia, on damages for trespass into kagua/magautu customary land which he claims to be he's and his tribe. That land is adjacent to gagoniu customary land, which was covered by the felling licence.

19. The claim is in fact founded on a chief's determination delivered orally in the Claimant's favour in early 1980's. There is no copy of such decision being delivered in Court and nothing can be expected of it as its status is well acknowledged. The significant problem encountered by the Claimant is that, in the absence of any tangible or material evidence it would be difficult to proof customary ownership of the land. In Daiwo V Lano,[11] it was held that a crucial element in any claim for trespass to land is proof of ownership. Such ownership must be proved on the balance of probabilities. In Thabatia V Capital Construction[12], the Court upon relying on Daiwo case struck out a claim for damages for trespass to land because the Claimants had failed to establish their standing.

20. From paragraph 3 of the sworn statement deposed by the Claimant, filed on 29th April 2014, I noted there was no detail and extension of the land boundaries and traditional land marks claimed. The nature of cause of dispute is not known as well. There is nothing in evidence to either directly or by implication produced as to customary ownership in terms of succession by inheritance, chieftaincy, occupancy, current custom usages and possession of land. And of course no direct evidence on the verbal pronouncement of the Chiefs determination. There was no evidence of the Chiefs who heard the dispute. One conclusion I would draw is that the Claimant's case is 'based on mere assertions.

21. On the issue of the purported chief's decision Mr Kama submits, it has no binding effect, on the basis that the amendment came into force on 24th January 1986 after it was gazetted. Technically, the legal position in both facts and law is as Mr Kama has put. However, my perception is differed in that the Chiefs decision delivered before 1986 are valid and often considered by this Court as evidence of proof as to ownership of customary land. Provided it is in a form of writing. Where no formality of such decision is relied on, then it is a mere assertion, evidence which is inadmissible in nature. The fact that there was no reference to the Local Court was expected. The Local Court need material evidence to proof such a decision had been made.

22. The onus is on the Claimant to satisfy the Court on the balance of his ownership of Kagua/Magautu customary land. He has failed to do so and to proof the Defendants had trespassed beyond the concession area into kagua/Magauta customary land. He could not able to provide evidence of ownership, and could not able to identify the boundaries of his land to ascertain and to provide conformity to his ownership of the land.

23. Applying the principle in Tikani case, it stands out clear that the claim is insufficient. It raises no issue or question fit to be decided at trial. It is likely not to succeed but certainly fail. Therefore, the claim discloses no reasonable cause of action and should be strike out with costs.

Setting aside interim injunctive orders
24. Mr. Marahare submits that setting aside the interim orders is an alternative approach, should the Court refuse the application to strikeout. However, the application to strike out has been granted. In view of Mr. Marahare's intention that should suffice. In my respectable view, to give justice to the case since there are submissions in respect, I will consider the application to set aside the interim orders of 2nd May 2014.

25. Those orders were granted on ex-parte basis. Now parties appear through Counsels in an inter-parte to consider inter alia, the basis for granting of the orders.

27. The first issue normally considered in application for injunctive orders is triable issue. Whether or not the first and second Defendants have encroached out of the concession area not authorized by the licence. Any allegation of physical encroachment into another customary land must be proved by document of ownership. In this case, the Claimant has not possessed any. A verbal adducement averring there was a verbal decision cannot be accepted. It is a risk and may tantamount to hearsay evidence. In such circumstances, the triable issue which confine to trespass and damage may tend to lose its grip. A mere assertion of ownership without proof of material evidence does not support the Claim. To persist relying on it holds no basis hence rendered no triable issue fit to be considered at trial. Therefore, the first hurdle has not been proved.

26. Where the claim discloses no issues to be tried as part and partial of not disclosing reasonable cause of action, there is nothing much the Court can do. Balance of convenience only falls to be considered where there are serious issues to be tried and where damages alone are not an adequate remedy. In this case, there is no evidence on the right to ownership of the said land area so that the Claimant is entitled to an injunction to protect the incurrence of that violation.

27. The second Defendant admits constructing certain access roads requested by respective land owners. Having completed those access roads it had no interest in the said land and does not wish to carry on further road access. The reason is that landowners gave permission to construct the access roads and they were not used for any commercial purposes at all. It is not clear whether the Claimant is capitalising on such intrusion to claim trespass. However, evidence reveals such activity ceased upon completion of construction of access road. It was not a continues intrusion so as to require injunctive orders. Of course damages is serious but cannot be contemplated because no cause of action is disclosed.

28. On the balance of convenience, the usual obligation is for the Court to grant injunction for protection of rights or prevention of injury according to legal principles. In this case, the Claimant is merely asserting rights to ownership of kagua/Magautu customary land where there is no final determination of ownership in his favour. On the other hand, the grantors had timber rights determination in their favour before they entered the timber rights agreement with the first Defendant and eventually a felling licence was granted. In any event since there are no serious issues to be tried there is no need to consider the balance of convenience, which should include consideration whether the damages alone are not adequate remedy. In this case damages are adequate, suffice to say.

29. In respect to under taking as to damages the Court took into account and waived the requirement of providing such undertaking. The practice in this jurisdiction is that undertaking can be waived in exceptional cases where the inability to provide adequate undertaking would affectively precluded the Claimant from the opportunity of having his right determined in full in a trail. However, problematic encountered by the Claimant is that his claim discloses no cause of action. Simply there would be no trial accorded him. There is no merit in his case.

30. In the circumstances, the balance of convenience weighs in favour of discharging the interim injunctive orders.

Orders:
1. Order that the Claimant claim (Category A) filed on 29the April 2014 pursuant to R9.75 be stuck out.

2. Interim orders perfected by this Court on 2nd May 2014 pursuant to R17. 55 (a) and (c) set aside and discharged.

3. Consequent to orders 1 and 2, hereby grant leave for the Applicant to seek compensation against the Claimant in respect of the loss and/or damages sustained as a result of the interim injunctive orders obtained against first and second Defendants.

4. Consequent to order 2 the proceeds, which were paid into solicitor's joint trust account shall be released forthwith to the second Defendant.

5. Cost of and incidental to this proceeding is cost in indemnity basis pursuant to R 24.12 (b) and (c).

The Court.

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^[1] Hubbuck v Moloney [1963] 1 W.L.R, 38.
^[2] Gatu V SIEA, Attorney-General, gold Ridge CC 59/95
^[3] Wenlock V Moloney [1965] 1 WLR 12, at 38
^[4] Chow V Attorney-General [200] HC-CC 127 of 2000
^[5] The Moore V Lawson[1915] 3 T.L.R 418
^[6] Laucence V Lord Norrys [1890] 15 App Case 210.
^[7] Ibid
^[8] Ibid (6).
^[9] Willis v Earl [1886] 11 P.D 59.
^[10] [1916] 85 L.T, K.B, 857, 859.
^[11][2011]SBHC 15; HCSI-CC367 of 2007 [5 April 2011].
^[12] [2013] SBHC 108; HCSI-CC 323 of 2011 [9 August 2013].