Sam v Omex Ltd [2015] SBHC 44; HCSI-CC 76 of 2013 (29 May 2015)

IN THE HIGH COURT OF SOLOMON ISLANDS.
(Faukona PJ)

Civil Case No.76 of 2013

BETWEEN:

MOSES SAM, TIMOTHY PAPANGU, ANASTASIA
AVU, JIMMY OSAKA, MARIA VAKIA and SAVINO
LAUGANA II
(Representing the Kakau Roha Tribe)
First Claimant

AND:

CHIEF SAVINO LAU GANA, JOSEPH MANE
HAMOSA, NEMESIO KOSE, SOTERE SANGAVI,
SIPOLO LOQA and JOSEPH VALKAVI
(Representing the Gaubata Tribe)
Second Claimant

AND:

OMEX LIMITED
First Defendant

AND:

GULF FIVE LIMITED
Second Defendant

Date of Hearing: 15th May 2015
Date of Ruling: 29th May 2015

Mr A. Rose for the First and Second Claimants
Mr D. Marahare for the First and Second Defendants

RULING ON APPLICATION TO STRIKE OUT.

Faukona PJ: This is an application to strike out the Claimants' claim category A, filed on 27th March 2013 and to discharge the ex-parte orders, on the ground that the claim does not disclose reasonable cause of action Rule 9.75.

2. The Defendants contend that these proceedings seek to challenge the validity of the felling licence No. 101104 issued to the Defendants, and a claim for damages for trespass. They further state that the orders sought in the relief are structured toward a claim for judicial review. A claim for quashing orders is governed by Chapter 15.3 of the Rules; in particular Rule 15.3.8 which requires a claim for quashing order must be filed within six months from the date of decision. That can be extended on requirement of substantial justice. There was nothing done in this case.

3. The Counsel advocate for the Claimants admits they seek declarations, but not wholly on a claim for judicial review. They also seek orders for permanent injunction and damages for trespass grounded on the facts that they own the customary land, and that felling licence had already been granted to Success Company Ltd to conduct logging on the customary land well before the felling licence was granted to the first Defendant for the same lands.

The issues:

4. The current issues are whether the Claimants' are pursuing a claim under Category A, or pursuing a claim for judicial review. If for judicial review, whether it is barred by Rule 15.3.8 to file within six months. Secondly which of the two felling licences granted for the same two customary lands is valid.

Background facts:

5. In 1993, the Claimants together with other trustees granted timber rights to Success Company Ltd over the two customary lands namely honiata/ravuneha. In 2006, Success Company carried out its first logging operation which was later suspended due to burning down of one of the bulldozers own by the contractor, Bulacan Integrated Wood Industries Company (SI) Ltd. In 2009 Success Company Ltd resumed operation but was restraint by Court Order in Civil Case No. 147 of 2009 that case is still pending.

6. Over the same lands was an appeal against the High Court striking out the Claimant's claim for judicial review in CC No. 452 of 2011. The Court of Appeal quashed the decision, now the case is till on foot.

7. In Civil Case No. 175 of 2012 the parties were Success Company Ltd and Omex Limited. That case is still pending as well and concerns the same customary lands.

8. On 29th April 2011, and 3rd May 2011 were dates of timber rights hearing, hearing Form 1 application lodged by the first Defendant. A determination in Form 2 was issued on 8th May 2011.

9. On 14 May 2012, the Commissioner of Forests issued a show cause notice to the first Defendant to show cause why the lands in dispute were not excluded from the first Defendant's licence. Despite of the show cause notice, the first Defendant continued to fell tress and logs. As a result the interim orders were granted on 28th march 2013.

10. In CC 283 of 2012 Mr. Reinunu who represented the Claimants had on 5th March 2017, discontinued the case. The Claimants who originally granted the timber rights to Success Company Ltd did not agree and were not consented to, hence the filing of this case as a new proceeding.

Discussions:

11. I have read the claim which comprised the reliefs sought and the facts pleaded in support in the statement of case. In measuring those to the arguments raise by Mr Marahare, I noted that the relief sought is a mixture of category A claim and claim for judicial review. There is one order sought for permanent injunction and two for declarations. One declaration consists of a claim for trespass and another declaration derived as consequent to successful determination of the first declaration sought.

12. The first question that comes to my mind is whether an amendment can cure the defects. Mr Marahare argues it cannot be cured. The only option is to strike out the claim.

13. I agree with Mr. Marahare that there are irregularities surfaced in the pleadings and asserted facts. The question is can a competent Court exercising its discretion resume to strike out as the only option available?

14. I noted R 9.75 gives the Court discretionary power to dismiss a claim if it finds one ground under the rule is proved. That power can be exercised only in plain and obvious cases[1]. In this case the Defendants rely on R9.75 (b) no reasonable cause of action disclosed. A reasonable cause of action is defined as a cause of action with some chance of success or where a tenable case has been disclosed[2]. As such the Court can only look at the pleadings and the asserted facts; no evidence is admissible at this stage[3], but cannot completely be the case – see Norman V Mugaba Atoll (2014) SICA – CAC NO 2 of 2015 (24 April 2015).

15. Order for striking out is only appropriate if it stands out clear that the claim is insufficient, even if proved, to entitle the Claimant to what he seeks[4]. So long as the statement of claim discloses some cause of action, or raises some question fit to be decided at trial, the fact it is weak and not likely to succeed is no ground for striking out.[5] Striking out a claim 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[6]. Striking out on the ground of frivolous and vexatious is to be used sparingly only in exceptional cases[7].

16. The first relief sought is an order for permanent injunction. That in nature is a claim under category A. Already there were ex-parte orders granted and current. It would be most appropriate that this cause of action or issue be heard, whether at inter-parte hearing proceedings or at some stage. The normal practice is after issuant of ex-parte orders there ought to be an inter-parte hearing. The Defendants decided to resume as they saw fit to apply for striking out the claim and plea for dismissal of the interim injunction orders without even progressing through the inter-party process. It can be argued that grant of interim orders is often premised on the claim. Practically that is not always the case. In most cases a claim is filed in due course after the interim injunctive orders were granted. In this case there is no challenge to the interim injunctive orders which should have prompted an early reaction to challenge; that can be done at the inter-parte hearing. It would seem the Claimants are concern more on reaching to the foundation of the case rather than complying with the processes.

17. The second relief sought is for a declaration to invalidate the first Defendant's licence No. A101104 issued on 18th August 2011. I agree with Mr Marahare that should be done by way of claim for judicial review. It is a relief in terms of quashing order under Rule 15.3.4 which require filing within six months R15.3.8. If the Claimant decided to resume to that line of action seeking to quash the decision to grant the felling licence, the Commissioner of Forest should be named as one of the Defendants. That is not the course opted to by the Claimants. Hence makes the status of the claim mixture.

18. The Claim for damages for trespass hinges on the validity of the said felling licence. Again this is another mixture of category A claim and a claim for judicial review. However, I noted that trespass is a life issue which ought to be tried at some stage, by a proper forum, as this Court lacks jurisdiction. Perhaps this issue is one of the main causes of action and it is a life issue. Trespass to land derives from a claim of ownership to land. It would appear the issue of ownership has not been determined yet. In the absence of such, any claim would be a mere assertion. However grant of timber rights should accord a better right than not. Therefore, it is my respectable view the claim for trespass is a cause of action which cannot be affected by an early determination. In the recent Court of Appeal Case Norman Sa'oghatogha V Mugabe Atoll Resources Company, Pacific Crest Enterprises Limited and Attorney-General,[8] their Lordships stated that claim for trespass is sufficient ground to defeat application for striking out.

19. On the whole the claim does disclose some cause of action which fit to be decided at trial. It is not a case that it is absolutely baseless and so bad. In fact, there are a number of causes of action; the most significant one is the legal issue of two felling licenses issued over the same lands.

20. The other issue of vey paramount importance is noncompliance with direction orders issued on 9th October 2014, including filing of a defence by 23rd October 2014. Since then the Defendants' are yet to file a defence. Nevertheless, six months have gone and the Defendants are yet to file defences. This raises the question whether the Defendants still wish to contest the claim – see Rule 5.11. Their failure to pursue manifests an attitude of disinterest, which must be determined against them. They cannot come one and half months late after the date ordered to file defence and file this application to strike out the claim. It is my opinion that they must be disqualified from filing this application to strike out. It is a simple message, which I must uphold in this case.

21. To move the case forward there is need to amend the claim, either be wholly based on Category A claim, or a claim for judicial review which ever suits the Claimants. To allow the claim accommodate both may tantamount to irregularity. And perhaps the Defendants may be permitted to file their defences.

Orders:

1. Refuse order for striking out the claim.

2. Refuse orders for discharging the ex-parte injunctive orders.

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

4. Case adjourn to 11th June 2015 9.30 for mention.

The Court.

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^[1] Hubbuck v Moloney (1963) 1 W.L.R 38.
^[2] Gatu V SIEA, AG, Gold Ridge. CC 59 of 1995.
^[3] Wenlock v Moloney (1965) 1 W.L.R 12, at 38.
^[4] The Moor V Lawson (1915) 3 T.L.R 418.
^[5] Lawrence V Lord Norrys (1890) – 15 App. Case 210.
^[6] Ibid 5
^[7] Ibid 5
^[8] (2015) CAC No. 2 of 2015.