Valepelo Development Company v Bulososo Forest Resources Ltd [2016] SBHC 141; HCSI-CC 563 of 2015 (23 August 2016)

IN THE HIGH COURT OF SOLOMON ISLANDS
Civil Jurisdiction
(Maina J)

Civil Case No. 563 of 2015

BETWEEN: VALEPELO DEVELOPMENT COMPANY - Claimants

AND ATHENA INVESTMENT LIMITED
AND: BULOSOSO FOREST RESOURCES LIMITED - Defendants
AND OCEANIA TRADING COMPANY LIMITED


Date of Judgment: 23^rd August 2016

Mr M. Pitakaka for Applicant/Defendant
Mr. B. Upwe for Respondent/Claimant

RULING

Maina PJ:

Introduction

This application was filed by the Defendant pursuant to rules 9.75 of the Civil Procedure Rules 2007 to strike out the proceeding on the ground that the claim discloses no cause of action.

The Defendant seek orders to generally dismiss the Claim filed on November 3, 2015 and further in the alternative for summary judgment against the Claimant. And to discharged the interim court order perfected, signed and sealed on 10^th November 2015 and any other orders as stated therein.

Brief Background

On 3^rd November 2015 the Claimants filed a Claim for permanent injunction against the Defendants on the ground that the Claimants holds valid felling licence on the concession areas which includes Tabunamanu land.
The Claimant also filed an interlocutory application for injunction against the Defendant on 3^rd November 2015. The Application was heard and an injunction order was granted and was perfected, signed and sealed on 10^th November 2015.

The Defendant in response to the injunctive orders filed an application for orders to dismiss generally the Claim under rule 9.75 (a) and (b) or in the alternative enter summary judgment against the Claimant under rules 9.58, 9.61 and 9.64 of the Rules. On granting, either orders sought, to discharged the interim court order of 10^th November 2015.

Agreed facts from the pleadings

In this application, both counsels agreed that from the pleadings this is arguable case. But Mr. Pitakaka for Defendants submits that sworn statements and documents by the Claimants to support his claim disclose no reasonable cause of action that will make the Claimant to succeed in this claim.

The issues

1. Whether the Court may receive or considers evidences on application under rule 9.75 of the Rules and
   
2. Whether there is a reasonable cause of actions.
   

Issue 1

As earlier alluded, the counsels agreed that this application has triable issues. However, Mr Pitakaka for Defendants submits that while that may be so, the evidences from the Claimant shows their log felling licence was not obtain according to the law. On that fact or so the claim discloses no reasonable cause of action that will make the claimant to succeed in this claim. And this is disclosed in the Claimant’s own witness sworn statements and documents.

Counsel for Defendants submits that the Court considers evidences in the sworn statements and documents of Claimant’s own witness, Joe Denty and Defendant witness Lawrence Rovua when determining this application. Yes, rule 9.76 of the Rules is clear that the Court may receive evidences in the application under rule 9.75.

And recently the Court of Appeal in case (Sa’oghatoga v Mugava Atoll Resources Company [2015] SBCA 4; SICAO-CAC 2 of 2015 (24 April 2015) ruled that Rule 9.76 has replaced the previous rule that no evidence is admissible when the Court is considering whether there is a reasonable cause of action. And as the Court of Appeal point out, it is for a judge to determine an application to strike can review the chances of possible success more comprehensively.

For the application under rule 9.75, the Court may receive and consider evidences filed for the case.

Issue 2

The Court may dismiss proceeding generally if in the Court’s view discloses no reasonable cause of action or is frivolous and vexatious and or amounts to an abuse of power.

This Court’s power under rule 9.75 to strike out a claim or proceeding is discretion. And His Lordship Palmer, ACJ (as he was then) in Tikani v Motui [2002] SBHC 10; HC-CC 029 of 2001 (18 March 2002) had also ascertained how the Court may exercise its discretion. His Lordship drew and formatted from both local and English cases of the general principles in a strike-out application. I am sure the Counsels are so familiar with the principles for consideration of the Court in Tikani v Motui case.

The principles formatted or sketched in Tikani v Motui case is for the consideration of application to strike out and are still intact except the replacement by rule 9.76 of the Rules.

This confirmed in Court of Appeal in the case Sa’oghatoga v Mugaba Atoll Resources Company [2015] SBCA 4; SICAO-CAC 2 of 2015 (24 April 2015). Brief under rule 9.67 of the Rules the Court may receive evidence on the hearing of an application for an order under Rule 9.75.

Mr. Pitakaka for the Defendant urges the Court to consider the sworn statements of Lawrence Rovua filed on 4^th December 2015, 18^th April 2016 and 27^th July 2016 and Joe Denty, Managing Director for the Claimant. The evidences in the statements pointed out that Joe Denty, Managing Director for the Claimant’s sworn statements and documents discloses no cause of action in the claim.

Briefly, the sworn statements of Lawrence Rovua stated that while the Defendant has a valid felling licence for the concession area or lands, which include Tabunamanu land, they have not yet enter or fell any log on the land. And he alleged the evidences and documents of the claimant’s witness shows that the licence the claimant is holding now is a “mere licence” as it is not obtained under the requirement of the law i.e Forest Resources Timber Utilization Act.

The Claimants also claim that they possess a felling licence for the area of land and which the Defendant has entered and fell the logs.

For sure, the two matters as described above are the cause of actions and raise issues in this proceeding, which the Defendant is trying to impress the Court that the Claimant cannot succeed in the trial. In all respect, they are among the issues in law and fact in this case.

Having carefully considered the pleadings, evidences and submissions from the parties, it appears to me that the Defendants’ application for strike out the statement of claim is based on no reasonable cause of action. The laws pertaining to the issues of reasonable cause of action area as noted above. And in my view what constitutes a reasonable cause of action or defence does not mean that the Court should look into whether the claim or defence is likely to succeed.
I think a reasonable cause of action means a cause of action with some chance of success, when the pleading and evidences in pursuant to rule 9.69 of the Rule is considered.

The Tikani v Motui case with the authorities referred to and Court of Appeal case Sa’oghatoga v Mugaba Atoll Resources Company briefly discussed above have affirmed that the discretion of striking out pleadings should be exercised sparingly. The right of the litigant to access to the proper and complete judicial process is required to consider by the Court while keeping in mind the fact that to prevent the Defendant to get unnecessarily involve in an action which is plainly and obviously has no cause of action or abuse of process of the Court.

Conclusion

This case is brought up as Category C case with serious issues and involve in law and facts. On that, the Court would require to examine the evidence at the trial before the Court will determine the issues in this action.

Therefore, I am satisfied that there is a cause of action with the issues in law and facts to be tried in the trial proper, and therefore the application by the Defendant is refused.

ORDER

1. The orders sought in this application are refused and dismissed.
   
2. Interim orders to continue until further directions.
   
3. Matter is referred to RHC to fix a date for the hearing of the contempt application.
   
4. Cost is reserved.
   

THE COURT

.................................................................
Justice Leonard R Maina
Puisne Judge