Zupukana v Sogati [2016] SBHC 118; HCSI-CC 117 of 2015 (22 July 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 117 of 2015

BETWEEN: CHERRY ZUPUKANA, DERALD GALOTABA, AND - First Applicant
GRAHAM RUPAKANA /Claimant
(Representatives of Baravaziu Clan – North Choiseul Province)

AND: PROFIT ON ENTERPRISES LIMITED - 2^nd Applicant/.
Claimant

AND: ALICK SOGATI, RENCE ZAMA AND DERALD DANIEL- First Respondent/
Representatives of Kope Tribe, North Choiseul Province) Defendant

AND: MIDDLE ISLAND INVESTMENT PTY LIMITED - 2^nd Respondent/
Defendant

AND: ATTORNEY-GENERAL - Third Respondent/
(Representing the Commissioner of Forest) Defendant

Date of Hearing: 1^st July 2016.
Date of Ruling: 22^nd July 2016.

Mr. M. Tagini for the First and Second Claimants.
Mr. W. Togamae for the First and Second Defendants.
No appearance for the Third Defendant.

KENIAPISIA; PJ:

RULING: AFTER INTER-PARTES HEARING AND ON APPLICATION FOR STRIKE OUT

Introduction

1. Justice Faukona granted interim ex parte orders (“ex – parte orders”) against first and second defendants perfected 2/4/2015. Today is the inter – partes hearing, that followed the ex – parte orders. Simultaneously, I am also dealing with first and second defendants’ application for strike out filed 25/01/2016. First and second defendants also seek to set aside the ex – parte Orders of 2/4/2015, in the same application.
   
2. At the hearing, first and second claimants seek continuation of the ex – parte orders. First and second defendants, however, filed an application to set aside the ex – parte Orders. In the same application, first and second defendants (“defendants”) also seek to strike out the claim, pursuant to Rule 9.75. Defendants say that the first and second claimants (“claimants”) claim filed on 17/4/2015, should be struck out because: it is frivolous and vexatious, that it disclosed no reasonable cause of action and that it is an abuse of Court process.
   
3. I also ruled today that the claimants’ application for default judgment filed 12/5/2016, be deferred, to allow claimants apply for leave to precede the said application for default judgment. This is the requirement of Rule 15.12.22, because the third defendant is the Crown.

Setting Aside the Ex – Parte Orders and Issues

4. The issues at this hearing are whether the ex – parte orders should continue and/or whether the claim should be struck out, under R.9.75.
   

Legal Principles governing grant of Inter – Locutory Orders

5. The purpose of granting interim injunctions is to maintain the status quo, pending trial of the main issues in dispute between parties, to the proceeding. Status quo means the position prevailing before the conduct complained of^[1].
   
6. The principles of law that apply when determining whether or not to grant injunctive relief are settled in a number of cases in this Court based on the well-known English Case of American Cyanamid.^[2]
   
7. I summarise quickly the principles which I comfortably refer to as the fundamental legal requirements for the grant of Inter – locutory Injunctions: serious issues to be tried; damages will not be an adequate remedy; balance of convenience favours the granting of interim orders and applicant has given the usual undertaking as to damages. Other associated principles are: locus standi; irreparable harm; status quo and strength of the parties’ case.

Is There Triable or Serious Issue(s)?

8. Serious issues can be deduced from pleadings and sworn statement (ss) filed in the proceeding. Claimants filed a Category A Claim on 17/4/2015. Prior to that, a ss and other Court documents were filed in support of an application for ex – parte orders on 31/3/2015. The ss was jointly sworn by Cherry Zupukana and Robertson Polosokia and filed 31/3/2015. A subsequent joint ss by the two was again sworn on 29/10/2015. I have also read the ss by now deceased, Mr Sogati, filed 17/4/2015. I can say there are serious issues to be tried emanating from the said Court documents. I should briefly summarise the issues:

8.1 Whether or not Baravaziu Land (BL) and Kope Land (KL) are two separate lands. Additionally, whether or not BL or KL is within Ngatakobo Mother Land (NML). These will then have bearing on the allegation of who owns these lands and eventually determines whether or not there was trespass.

8.2 On Licence, claimants say they have a valid Timber Rights Hearing (TRH) and hence valid Felling Licence over BL and NML issued in 2015. Defendants, on the other hand, say they have a valid TRH and hence valid Felling Licence over BL and NML. To resolve this issue, we must determine whether BL and KL are two separate lands.

8.3 Another issue to resolve is both parties have a common claim to NML, in relation to their respective Felling Licences.

8.4 The other issue is on the validity of each of the two respective parties’ TRH and Felling Licences. I have not seen a valid Standard Logging Agreement (SLA) disclosed at this stage. A licence without a valid SLA is a bare Licence^[3]. But again, this is an issue to investigate at trial.

8.5 Whether defendants have a valid TRH and hence a valid Felling Licence over KL, in view of Exhibit AS1 and AS4 of Alick Sogati ss. AS1 shows that Middle Islands Investment Pty Limited’s application for TRH in respect of KL in 2014, was rejected by Choiseul Provincial Executive. Cherry of the claimants, was one of the objectors on boundary and on whether or not BL and KL are two separate lands.

8.6 Following Choiseul Provincial Executive (CPE) rejection, Derald, Daniel, Robert, Joshua, Barnabas Dikolo, Charlie Qarazu & others appealed to Western Customary Lands Appeal Court (WCLAC). Appellants subsequently withdrew the appeal based on an out of Court settlement, with Alick Sogati, Rence Zama & others as Respondents. After the appeal and withdrawal of the appeal, this Court does not know, if the WCLAC had overturned the CPE rejection. The issue for trial will be, whether withdrawal of the appeal meant the CPE rejection is null and void or the CPE rejection remain unfettered.

8.7 The out of Court settlement only settled half of the reasons for CPE decision to reject. That half is mainly between persons who purport to represent KL as Trustees. Following the “Out of Court Settlement”, the Appellants and the Respondents agree to all become Trustees for KL Timber Rights grants. The other equally important half of the reasons for CPE decision to reject is the objection by Cherry, of the Claimants, on boundary and whether or not BL and KL are two separate lands. So the issue for trial is whether the “Out of Court Settlement” overturns the CPE decision to reject, in view of Cherry’s objection not addressed by the withdrawal of appeal.

8.8 The other issue for trial may be, it seems there are two Licences issued in respect of NML.

8.9 If CPE decision to reject is not affected by “Out of Court Settlement” and withdrawal of appeal from WCLAC, then why did Middle Islands got to signing of the SLA over KL as per Exhibit AS4. Like I said above, I have yet to see the SLA.

9. I am satisfied that the foregoing issues are among the serious issues that have surfaced at this stage of the proceeding. Indeed there are serious issues to be tried.

Damages an Adequate Remedy

10. The principle of damages and adequate compensation for environment destruction does not become appropriate to consider because both sides are in favour of logging (claimants and defendants). It is a matter of who gets the benefit and which land is which and who owns which land (KL or BL or NML) for purpose each side’s felling licence to operate on.

Adequacy of Undertaking Ability of Undertaking to pay and Balance of Convenience

11. The first claimants only have made an undertaking as to damages. As village people, I am not convinced they have ability to pay for loss associated with logging. On balance of convenience, both parties should cease all logging activities on areas named under their respective licences as NML, KL and BL, until further orders of the Court.
12. The issues highlighted in paragraphs 8.1 – 8.9 must first be sorted out, before logging can resume under both parties’ respective Felling Licences.

Application to Strike Out

13. By application filed 25/1/2016, the defendants sought to strike out the claim, because they say the claim is frivolous and vexatious; that it disclosed no reasonable cause of action or is an abuse of Court process. These are grounds to strike out under Rule 9.75.

Frivolous and Vexatious

14. A claim which is frivolous and vexatious is one that is lacking in merit or brought for an ulterior purpose.

15. The jurisdiction given to the Court to strike out a claim that is frivolous and vexatious should be sparingly used and in exceptional cases only, where the claim is devoid of all merit and cannot possibly succeed. Leading case often cited as authority for striking out under the grounds stipulated in Rule 9.75 is Tikani –v- Motui (2002) SBHC further approved in the Court of Appeal case of Sa’oghatoga –v- Mugaba Atoll Resources Company (2015) SBCA 4.
    
16. In Norman –v- Mathews (1916) 85 LJKB 875 at page 859, cited with approval in Tikani (2002) SBCH 10, His Lordship Palmer CJ stated: -
    

“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 alleged cause of action, is one which is on the face of it is one which no reasonable person could properly treat as bona fide and content that he has a grievance which he was entitled to bring before the Court”.

No reasonable cause of action

17. A reasonable cause of action according to Tikani is a cause of action with some chances of success, or where a tenable cause has been disclosed for the relief sought. So long as the statement of case discloses some cause of action or raised some questions fit to be decided by trial, the mere fact that it is weak and not likely to succeed is no ground for striking out. It is only if it is found that the alleged cause of action is certain to fall that the statement of claim should be struck out (Tikani).
    

18. The power to strike out a claim for failing to disclose a reasonable cause of action must only be exercised in clear and obvious cases, where the claim is so bad as to be baseless or does not disclose an arguable case, fit to be considered at trial or claims for a remedy not known to law.

Abuse of Court process

19. In terms of what amounts to abuse of Court process, the test is whether on the facts of the claim, 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. Striking out on this ground should be done sparingly, in exceptional cases only; as in where the claim is devoid of all merit or cannot possibly succeed.

Application

20. Considering all the materials before me, not only the claim, but on a “rough perusal and analysis” of the ss evidence, I am satisfied that the claim: has merit; is not brought for an ulterior purpose; has the potential to succeed; has a tenable cause disclosed for the reliefs sought; is not weak and that the claim is not baseless or that it discloses a reasonable case of action or arguable case or it raises issues fit to be tried. At this stage, I am entitled to reach conclusions on a “rough perusal and analysis” of the ss evidence, in addition to pleadings^[4]. This is consistent with Rule 9.76; where the Court may receive evidence at the hearing of applications under Rule 9.75. Pleadings must close. Any issues that are not clear from the lengthy pleadings in the claim can be sorted out through interrogatories and request for better particulars. Any outstanding issues can be clarified through curing the pleadings through consent or by Court order.
21. I reached the conclusions in the preceding paragraph for the following reasons:

21.1 I found in paragraphs 8.1 to 8.9 above, that there are issues fit to be tried in the claim.

21.2 By reading Exhibit CB 2 of ss by Cherry and Robertson filed 31/3/2015, it seems NML ownership was settled in favour claimants’ tribe against Sogati in 1980. Claimants’ assertion that they own NML appear strong because Sogati lost the 1980 case. And the 1980 case it seems was also over NML. The 1980 case was over Zamakana. Zamakana is one of the 6 tribal lands within NML. The others are: Taravuru, Paizata, Kulubina, Korasi and Kokaba. Zamakana, Kulubina and Korasi are already mentioned in land court decisions as tribal lands with the NML (Exhibit CP 2 and 3).

21.3. Evidences now are pointing towards a preliminary conclusion that the claimants’ assertion on ownership of NML is strong. Their assertion is that Ngakatobo tribe has 6 portions of land within the NML shared between 6 sons of Biopogo as follows: Mamaka clan (Taravuru land inside NML); Batuvarani clan (Zamakana Land inside NML); Qilapota clan (Paizata land inside NML); Qaloruata clan (Kulubina Land inside NML); Baravaziu clan (Korasi Land inside of NML) and Sidali clan (Kokaba Land inside NML). As noted in 21.2 3 tribal lands are already mentioned in land court decisions.

22. The Orders of the Court are therefore as follows:

22.1 Orders 1 and 2 of the Ex – parte Orders to continue with a further Variation that both the claimants and defendants cease all logging activities on NML, KL and BL.

22.2 The application to Strike Out is refused.

22.3. Parties to meet their own costs.

22.4. Matter prepared for trial.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] John Leeghomo –v- James Ziru & Ors – cc 315/2014.
^[2] American Cyamamid Company –v- Ethicon (1975) ALL ER 396 UK.
^[3] Success Company Limited –v- Takolu Timber Limited (2011) SBHC 65; HCSI – CC 80 of 2009 (16^th August 2011).

^[4] Sa’oghatoga –v- Magaba – Court of Appeal Case.