Leo v Mas-Solo Investment Ltd [2017] SBHC 144; HCSI-CC 399 of 2015 (13 April 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case Number 399 of 2015

BETWEEN: BARNABAS HETA LEO - Claimant

AND: MAS-SOLO INVESTMENT LIMITED - First Defendant

AND: ELLIOT HAVILEGU

(Representing the Posamogo Moni Clan) - Second Defendant

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

Date of Hearing: 16^th March 2017.
Date of Ruling: 13^th April 2017.

Mr. W. Togamae for the Claimant/Respondent.
Mr. P. Tegavota for the First Defendant and Second Defendants.
No Appearance for the Third Defendant.

KENIAPISIA; PJ:

RULING ON AN APPLICATION TO STRIKE OUT THE AMENDED CLAIM

1. An amended Category A claim was filed on 25/2/2016. A number of sworn statements were filed in support of various inter-locutory applications already dispensed with.
2. By application filed 24/01/2017, the first and second defendants sought to strike out the amended claim (“claim”), under Rule 9.75. When applications are brought under this Rule, it is normally because, the applicant believes, the claim is frivolous and vexatious; or that no reasonable cause of action is disclosed or that the claim is an abuse of court process.
3. In considering the principles of law involved, in striking out under R.9.75, Court will decline the application to strike.
4. In the case of Tikani^[1] and numerous other cases, this Court has established considerations or bench marks against which to judge claims that are frivolous and vexatious; claims that disclosed no reasonable cause of action and clams that amount to abuse of court process.
5. For frivolous and vexatious claims; the bench marks are: whether the claim lacks merit and was brought for an ulterior purpose; whether the claim is devoid of all merit and cannot succeed and whether no reasonable person could properly conclude that the grievance is bona fide. Tikani case says that the court should only sparingly strike out claims in exceptional cases.
6. For claims not disclosing any reasonable cause of action, the bench marks are: that the claim does not disclose a cause of action with some chances of success, or whether the claim has disclosed a tenable cause of action for the reliefs sought. Tikani says that if the statement of case disclosed some issues or questions fit to be tried, the mere fact that it is weak and not likely to succeed is not ground for striking. Only if the cause of action is certain to fall, then the claim should be struck out.
7. As for abuse of court process, the issue to consider is “Is the claim one which no reasonable person could properly conclude that it is a grievance that the claimant is entitled to bring before the Court.”
8. When the above considerations or bench marks are applied to the case before me from the claim and statements, court is satisfied that the claim cannot be knocked out under Rule 9.75. Claim must go to trial. The statement of case disclosed issues fit to be tried. The claim is not weak, or devoid of all merit or very bad or not brought for an ulterior purpose. We look at the claim only and on rough perusal and analysis of evidence.^[2]
9. The claim is for damages for fraud among other reliefs and to declare License A101174 invalid on the ground of fraud as well. The claim raised serious issues, in relation to fraud alleged against the first and second defendants. The particulars of the alleged fraud is pleaded in paragraph 9 - that the claimant’s name was used in court cases without his consent, which eventually led to the granting of felling license A101174, to the first defendant. Fraud is a serious allegation because it borders on criminality. When fraud is raised, it therefore becomes a serious issue to be tried. On this basis alone, Court found that this claim has raised issues fit to be tried.
10. Counsel Tegavota laboured hard to distinguish between Block A and Block B of Gonogano to say that his clients are operating in Block B – Fofora, covered by a valid felling license. Hence the claim should be dismissed in the relief sought for trespass. For counsel said, there could be no trespass, where a license permits the operation. But prior to and leading to the issuance of the license, claimant is alleging fraud was involved. So the issue of fraud need to be fully and properly investigated at trial.
11. Accordingly, the orders of the Court are:-

11.1 Application to strike dismissed.

11.2 Cost to the claimant.

11.3 Matter progressed to trial with speed.

THE COURT

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JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Tikani v Motui (2002) SBGH 10, HC –CC 29 of 2011 (18^th March 2002)
^[2] Sa’oghatoga v Mugaba Attoll Resources Company (2015 SBCA 4; SICAO – CAC 02/2015