Vlymen v Kwaiga [2014] SBHC 93; HCSI-CC 151 of 2013 (30 June 2014)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction

BETWEEN:

WILLEM VAN VLYMEN
1st Claimant

AND:

LEVERS SOLOMONS LTD
2nd Claimant

AND:

RUSSELL ISLANDS PLANTATION ESTATE LTD
3rd Claimant

AND:

LESLIE KWAIGA
1st Defendant

AND:

ANTI-CORRUPTION NETWORK OF SOLOMON ISLANDS
2nd Defendant

Mr. G. Suri for the 1st and 2nd Claimants/Respondents.
Ms. M. Bird for the 1st Defendant/Applicant.
No appearance for the 2nd defendant.

Date of hearing: 12 May 2014.
Date of Judgment: 30 June 2014.

RULING
Apaniai, PJ:

Introduction.

1. This is an application by the 1st defendant, Mr. Leslie Kwaiga ("Applicant") seeking further and better particulars of the claim filed against him and the Anti-Corruption Network of Solomon Islands ("2nd defendant") by the Respondents on 22 April 2013.
   
2. In the claim, the claimants allege that they have been defamed by an article written by the Applicant and published in the Solomon Star newspaper issue No. 5156 of 27 April 2013.
   
3. The further and better particulars are being sought in the form of questions which the Applicant wants the court to compel the Respondents to answer. The questions are set out in a letter by Bird & Hiele Legal Services to the Respondents' former solicitors, Light Lawyers, dated 30 May 2013 ("letter of 30 May") which is exhibited as Exhibit "LK1" to the sworn statement by the Applicant filed on 31 July 2013.
   
4. It is noted that at the time of the hearing of this application, no defence had yet been filed by the Applicant. I understand the Applicant to be saying that he intends to raise the defence of fair comment and to do so it is vital that the Respondents answer the questions, hence, this application.
   

Principles governing requests for further and better particulars.

5. The general rule is that if a party fails to plead his case with sufficient detail, his opponent is entitled to request further and better particulars of the claim. The object of obtaining further and better particulars is to enable the party requesting them to know what case he has to meet at trial, and so to save unnecessary expense and avoid allowing parties to be taken by surprise. The request must be confined to the facts, not the evidence.
   
6. As stated by Awich, J. in Goh v LCL Enterprises Ltd[1]:
   

"The purpose of pleading, for which further particulars may be requested and obtained, is to inform the other party and the court of what one intends to prove either to establish the claim or the defence. Pleadings are brief statements of facts not the evidence. ... It follows therefore that pleadings are not statements outlining the evidence that one intends to adduce, although if one relies on the document, the document must be produced if requested. They are not detailed account of the events of the case."

7. Therefore, to grant this application, the burden is on the Applicant to show that the statement of the case does not disclose sufficient details that will enable him know the case against him and therefore put him in a position where he can decide whether he admits or denies the claim and, if he denies the claim, to be able to file the necessary defence. It is important to note that the purpose of this procedure is not for the Respondents to provide facts which support a defence which the Applicant thinks he has or which he is proposing to raise. The purpose is to enable the Applicant consider whether he has a defence.
   

The article.

8. In the present case the article, which is said to contain defamatory words, is in the following terms:
   

"A local anti-corruption group calls on foreign investors in Levers Solomons Limited and Russell Islands Plantation Estate Limited (RIPEL) to reveal their investments on Guadalcanal to enable them to own the vast lands belonging to the people of the province.

Chairman of Anti-Corruption Network of Solomon Islands (ANSI) Leslie Kwaiga made the call as he revealed the current owners of Levers Solomons Ltd and RIPEL.

"The previous genuine Levers Company that once operated the thriving plantations on Guadalcanal never sold any of the lands to any persons," Mr. Kwaiga said.

"However, the current Levers Solomons Ltd without spending a single cent on Guadalcanal is hell-bent on selling land to make millions of dollars for themselves at the expense of the true landowners".

Mr. Kwaiga said it's regrettable that the country's laws had been manipulated and molested to enable such dubious investment to suddenly owned millions of dollars worth of property without investing any dollar in the country.

He further called on the Government to deport any foreigner who is "still in the country and is involving in these dubious and false enriching undertakings whilst using the laws of the land to protect their fraudulent investment here".

"We condemned the foreign investors involved in Lungga and Tenaru land and requests those nationals are being used for the dubious gains of the foreigners to quit their directorships and withdraw their shareholdings from this false enriching enterprises of these dubious foreign investors".

9. The article then went on to name the directors and shareholders in both Levers and RIPEL. Amongst those named as directors of Levers and RIPEL was the 1st Respondent ("Mr. Vlymen"). According to the article, Mr. Vlymen is not a shareholder in either Levers or RIPEL although he was named as a director in International Comtrade & Shipping (SI) Ltd, a foreign company which is also a shareholder in both Levers and RIPEL.
   

Issues.

10. The issues raised by this application, therefore, are whether the averments in the statement of the claim contain sufficient facts to enable the Applicant plead to the claim and, if not, whether the questions posed in the letter of 30 May are seeking facts or evidence.
    

The questions.

11. The first thirteen questions posed by the Applicant in paragraph (i)(a) to (m) of the letter of 30 May relate to paragraph 1 of the claim which alleges that Mr. Vlymen is a director of both Levers and RIPEL and had invested substantial amounts of funds in the two companies.
    
12. The article says that Mr. Vlymen is a director of both Levers and RIPEL but says nothing about Mr. Vlymen having invested substantial amounts of funds in the two companies. A simple reply or defence to paragraph 1 would have been for the Applicant to admit the first part of the paragraph, which alleges that Mr. Vlymen is a director of both Levers and RIPEL, and to deny the second part which alleges that Mr. Vlymen has invested substantial amounts of funds in the two companies because the article says nothing of that sort.
    
13. To venture into areas such as what investments Mr. Vlymen had made in Levers and RIPEL; whether Mr. Vlymen has shares in International Comtrade & Shipping (SI) Ltd and Overseas Shipping, Trading & Investment Pty Ltd and Pacific Investment Pty Ltd; whether Mr. Vlymen has obtained foreign investment approval; whether his investment in Levers was an approved investment, etc, are absolutely unnecessary as far as the assertions in paragraph 1 of the claim is concerned.
    
14. It follows therefore that the thirteen questions posed in paragraph (i)(a) to (m) of the letter of 30 May are disallowed and need not be answered.
    
15. The next fourteen questions in posed paragraph (ii) of the letter of 30 May relate to paragraph 2 of the claim. In paragraph 2, the Respondents assert that Levers is a duly incorporated company owning extensive lands and plantations on Guadalcanal, Lungga, Tenaru, Tenavatu and in the Russell Islands.
    
16. The fourteen questions posed by the Applicant seek to enquire as to the kinds of plantations that Levers operate; whether they are coconut or cocoa plantations; whether the plantations are currently in operation; if the plantations are not in operation, when did they cease operating; what caused the operations to cease; when was the last export of the plantation products made; how much land is owned by Levers, etc.
    
17. Again, in my view, these are questions which are unnecessary to ask at this stage of the proceedings. The assertions in paragraph 2 of the claim are quite clear. They refer only to the fact that Levers is a legal entity which owns land and plantations in Guadalcanal, Lungga, Tenaru, Tenavatu and in the Russell Islands. It is not necessary to know how much land is owned by Levers and the location or the total area of the plantations in order for the Applicant to plead to paragraph 2. It follows that the questions in paragraph (ii) of the Letter of 30 May need not be answered.
    
18. The next three questions and twenty two sub-questions posed in paragraph iii) of the letter of 30 May relate to paragraph 3 of the claim. Paragraph 3 simply asserts that RIPEL is a duly incorporated company which is responsible for operating and managing lands and plantations owned by it.
    
19. The questions posed in paragraph iii) ask whether RIPEL operates and manages the plantations owned by Levers at Lungga, Tenaru and Tenavatu; when did RIPEL commence managing those plantations; whether the management of those plantations and lands includes sale of unimproved land, planning and re-zoning the lands, sub-division of the lands, valuation of the lands, etc.
    
20. In my view, there are sufficient facts provided in paragraph 3 to enable the Applicant file a defence to that paragraph. A simple defence to those two assertions would have been for the Applicant to admit or deny the assertions or to simply say that he does not know and cannot plead to the assertions. It is not necessary for the Applicant to know at this stage whether RIPEL also manages Levers plantations or whether the management of its own lands and plantations includes sale of unimproved land, planning and re-zoning the lands, sub-division of the lands, valuation of the lands, etc. The questions posed in paragraph iii) of the letter of 30 May need not be answered.
    
21. The next three questions in paragraph iv) of the Letter of 30 May relate to sub-paragraphs (d) of paragraphs 6,7, 8, 9 and 10 of the claim. Sub-paragraphs (d) of those paragraphs allege that the Applicant said those defamatory words knowing that the words were false, etc, and were calculated to benefit the Applicant and enhance his position as chairman of the 2nd defendant.
    
22. The three questions posed in paragraph iv) ask what benefits the Applicant had derived from the statement; how the Applicant had benefitted from the statement; and, how the statement had enhanced the standing of the Applicant as chairman of the 2nd defendant.
    
23. It seems to me that the Applicant had misread sub-paragraphs (d) of paragraphs 6 to 10 of the claim. The wordings of sub-paragraphs (d) are clear. They say that the Applicant knew that the words he said were false or that he was reckless as to their truth or their falsehood and that by using those words, the Applicant's intention was to enhance his position as chairman of the 2nd defendant. According to those sub-paragraphs, the benefit alleged to have been derived from the statement is the enhancement of the Applicant's position as chairman of the 2nd defendant. To enhance means to heighten or intensify[2]. In what way the Applicant's chairmanship is heightened or intensified is a matter of evidence. In my view, those questions need not be answered.
    
24. The next seven questions in paragraph v) of the letter of 30 May relate to sub-paragraphs (e) of paragraphs 6, 7, 8, 9 and 10 of the claim which allege that the words used by the Applicant were calculated to disparage the current investors. The seven questions ask who the current investors are; which investor is involved in the management of Levers; whether the investor is a foreigner or local; who do the words "their management of LSL" refer to; how the statement disparage the investors; and so on.
    
25. In my view, it is not necessary to answer those questions because the article itself had already answered the questions. As stated in paragraph 9 above, the article then went on to name the directors and shareholders in both Levers and RIPEL. The investors are the shareholders in Levers and RIPEL. The article has already named those shareholders. It is therefore unnecessary to answer the seven questions in paragraph v) of the letter of 30 May.
    
26. The next two questions in paragraph vi) of the letter of 30 May relate to sub-paragraph (f) of paragraphs 6, 7, 9 and 10 of the claim which allege that the defamatory words were calculated to destroy the goodwill of Levers. The two questions posed ask the question what is the goodwill of Levers and how the statement destroyed the goodwill of Levers.
    
27. To answer the two questions, it will be necessary to define what "goodwill" is; whether Levers has a "goodwill"; and, whether that "goodwill" has been destroyed. Defining "goodwill" is a matter of law. The Respondent cannot answer that question. In any event, a simple reply or defence to sub-paragraph (f) of paragraphs 6, 7, 9 and 10 of the claim would have been to deny that the goodwill of Levers has been destroyed by the article. It follows that it is unnecessary to answer the two questions posed in paragraph vi) of the letter of 30 May.
    
28. The comments in paragraph 27 above also apply to the two questions posed in paragraph vii) of the letter of 30 May. It is unnecessary to answer these two questions.
    

Decision and orders.

29. In my view, the statement of the case in this proceeding has disclosed sufficient facts to enable the Applicant know what case he has to meet at trial and therefore it is not necessary to answer the questions posed in the Applicant's letter of 30 May.
    
30. The application is therefore dismissed. The Applicant will pay the Respondents' cost of this application on standard basis.
    
31. Orders accordingly.
    

THE COURT

_________________________
James Apaniai
Puisne Judge.

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^[1] [1997] SBHC 20; Civil Case No. 138 of 1995; see also Spedding v Fitzpatrick [1888] UKLawRpCh 86; (1888) 38 ChD 410, per Cotton LJ; Roni v Ross Mining (Solomon Island) Ltd [1997] SBHC 66; HC-CC 060 of 1997 (12 June 1997).
^[2] Australian Concise Oxford Dictionary, 4^th Edition.