Hivu v Pacific Crest Enterprises Ltd [2017] SBHC 27; HCSI-CC 315 of 2015 (3 May 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

(Faukona, PJ)

Civil Case No. 315 of 2015

BETWEEN: TANGOLO HIVU AND ALDRIAN TUITIKAVO Claimants
(Representing themselves and members of Nose
Riko (Siakivara) Tribe of Marovo, Western Province)

AND: PACIFIC CREST ENTERPRISES LIMITED First Defendant

AND: SIMON CHACHABULE AND SISIFA Second FA’ARODO Defendant
(Representing Lio Tribe of Marovo, Western
Province)

Date of Hearing: 20^th February 2017
Date of Ruling: 3^rd May 2017

Mr J. Taupongi for the Claimants
Mr D. Marahare for the First and Second Defendants

RULING ON APPLICATON FOR DISMISSAL OF CLAIM AND DECISION

ON INTER-PARTE HEARING

Faukona PJ: A claim in Category A was filed on 19^th August 2015 pursuant to Rule 7.12. This cause of action was commenced by way of ex-parte application for interim injunctive orders; the orders were granted in favour of the Claimants on 5^th July 2015.

2.	Subsequently, the orders and the documents were served upon the Defendants, and in reply the Defendants had filed a conditional response on 10th September 2015.
3.	Further response was by filing of this application to dismiss the claim or cause of action pursuant to Rule 9.75 (a).
4.	The general tenor as agreed is the view that at the inter-parte hearing, the application for dismissal will be heard in consolidation with the inter-parte hearing. This is significant and relevant as a perquisite process immediately after the ex-parte orders were granted.
5.	To enable the Court consider the issues at the inter-parte hearing process, a defence must be filed after the services of the orders, documents and the claim.
6.	Unfortunately, there was no defence filed but sworn statements were in support of some unknown purposes, of them is the application for dismissal.
7.	The argument advanced by the Council for the Defendants are in respect of two situations in which the High Court may grant injunction. One in aid of lower Courts exercising their jurisdiction to decide a land ownership issue, and secondly the applicant must show he has a binding decision in his favour.
8.	Whilst I agree on the law, it is worth noted that injunction orders can also be granted to preserve properties from disposal and also to restraint threat and aggressive behaviour of humans.
9.	I also noted that the Claimants do not provide evidence of their financial position in the event the case is not in their favour and that the injunction orders should not have been granted; and whether they would be able to compensate the Defendants.
10.	Variation or dismissal or affirmation of any interim ex-parte orders can be done at the inter-party hearing following the grant of such orders. The problem encountered by the Defendants is that they had failed to file a defence. Without a defence filed this Court cannot entertain an inter-parte hearing. The question whether the orders would continue must be shown by facts or law pleaded in the defence with support of evidence from sworn statements.
11.	In this case no defence was filed; therefore it is prudent in the circumstance to maintain the orders until the issues are resolved or until such further orders of the Court.
	APPLICATION FOR DISMISSAL OF THE PROCEEDINGS.
	The law on striking out or dismissing of a claim.
12.	The law on dismissal or striking out of a proceeding is a trite law which obviously being well versed by all who practice law in this country. Rule 9.75 outline three situations whereby which the Court can dismiss a proceeding generally on in relation to that claim.
13.	It is my fervent belief, in modern Solomon Islands, a profound statement by Palmer ACJ. (as he was then), on the subject, is far more a culmination of various authorities put together. His Lordship had adopted a well known paragraphs and had entranced into the case of Tikana v Motui[1]. That case outlined the test to be applied.
14.	However, the relevant passage in Wenlock V Moloney[2] has now being omitted by authority of Sa’oghatoa V Mugaba Atoll Resources Company[3] prohibiting reliance on evidence in striking out cases. This omission is relevant in order to maintain consistency with Rule 9.76 of the Court Rules. In other words this Court may consider evidence instead of being confined to pleadings alone.
15.	On the outset the test which had been set by Tikani V Motui[4], Saoghotoga V Mugabe Atoll Resources limited[5], Abe V Minister of Finance and AG[6] are authorities which are relevant to this subject.
16.	Perhaps the minimum standard of test as I can perceive, is one which upheld in the case of More V Lawson[7] and Wenlock V Molony[8]; it states
		“So long as the statement of claim discloses some cause of action, or raises some question fit to be decided by trial, the mere fact it is weak and not likely to succeed is no ground for striking.”
17.	In maintaining the standard of test, a combination from various authorities, it is ideal to note that the prospect of success as enunciated in Gatu V SIEA, AG and Gold Ridge[9] is by far placed at the top of the scale which in my view requires identification of issues pleaded and facts in support, and then concluded by allowing it to shift through the process of judicial analysis.
18.	To conclude, whether a cause of action is not likely to succeed or weak or certain to fall, analysis must be made concerning facts or law pleaded in the claim and defence. Sworn statements are evidence proving facts or law pleaded embodied in the claim and defence.
19.	Dismissing a claim at an early stage is cost saving mechanism and only in the situation outlined by the authorities.
20.	In this case there are number of issues raised by the Council as basis and reasons for striking out; obviously there are three significant ones. One is the right of ownership, second is lack of standing and thirdly the decision by the Marovo Council of Chiefs.
	(1). Right of Ownership
21.	This case concerns a portion of land known to the Claimants as ramoso customary land and to the Defendants as lio customary land. The Claimants are alleging that the first Defendant has been conducting logging operation in that land and denied the existence of lio customary land.
22.	On the face of arguments the conflicting views attested by the parties in relation to ownership of the land cannot be entertained by this court. It is an issue ought to be resolved by an appropriate tribunal established by a statute. Therefore this court lacks jurisdiction to resolve any dispute in respect of ownership of customary land.
23.	However, the Claimants had come to Court equipped with a decision by the Marovo Council of Chiefs after the hearing on 18th June 2015, concerning ramoso customary land. This was despite the same panel of Chiefs ruled on the ownership of the same land in favour of the second Defendants in 2005 and 2006. Apparently there existed competing claims by the parties.
24.	In such circumstances it is more appropriate that the two conflicting claims be heard in the right forum to determine the issue of customary ownership of the land. Meantime, why should it interest the parties that the legitimacy of the conflicting decision ought to be placed before this Court? The court will only inquire and draw a determination after trial. This is not an issue to determine summarily but a matter for defence. It is a very important issue which the Court has to make pronouncement even appropriate in a claim for judicial review.
25.	Of course it involves evidence as to proper boundaries and location of the land; whether the disputed land was included in the timber rights hearing as apart and partial of the concession area. The issue of none involvement by the Claimants in the timber rights process and the question why there was no filing of an appeal against the Provincial Executive decision. Those are numerous issues which have to be investigated at trial.
	Lack of standing:
26.	The question to pause is whether the Claimants have an interest or standing to come to Court to prosecute their claim for trespass, damages and permanent injunction. From materials disclose I am able to verify that the Marovo Council of Chiefs gave their determination concerning ramoso or lio customary land on 3rd July 2015. The claim in this case was filed on 19 August 2015.
27.	Apparently it appears that the Claimants come to Court equipped with the Chiefs decision which was in their favour, therefore supports their claim for trespass and damages. Let alone the in-consistency decision of the same house of chiefs be a matter for consideration at trial, including their legitimate functions.
28.	In short I am confident this issue as it stands grounded some facts fit to decide at trial. The issue of standing itself gain the status fit for inquiry. It is not an issue that should be struck out summarily.
	Decision of the Marovo Council of Chiefs:
29.	Practically, the conflicting decisions (as it appears) by the Marovo Council of Chiefs (MCC) ought to stand until a Court having jurisdiction dislocate it. At the moment the ownership issue remain an issue. However, the question of legitimacy of those decisions is a major issue which have to be inquired into. In particular the composition, the authority and compliance with the Local Court Act.
30.	If the Defendants think the Council was wrong in its decision, it is open for the Defendants to seek orders from this Court to quash the Council’s decision under Rule 15.3. In any event the Marovo Council of Chiefs must be named as a party and must be given an opportunity to defend itself.
31.	As it now seems, the two decisions cannot operate concurrently, one is in favour of one party and the other was in favour of other party. This must be sorted out. The legitimate part of it and law can be sorted out in this court and allow the issue of ownership be heard by a right forum.
32.	In all that I say, I find the statement of claim discloses some cause of actin fit to be decided at trial. It may be weak and not likely to succeed however, is no ground for striking out. In fact there are real issues and questions which must be inquired into at trial. Therefore I must dismiss the application to dismiss the claim.
	Orders:
	1.		Application to dismiss the statement of claim refused and dismissed.
	2.		Interim injunctive orders granted on 5th August 2015 continue remain on foot until the issues are resolved or until further orders of this Court.
	3.		Cost in this proceeding is to be paid by the Defendants to the Claimants.
	4.		Case adjourns to 18th May 2017 for mention to further manage the file.
	The Court.

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^[1] (2000) SBHC 10: HC-CC 29 of 20001 (18 March 2002)
^[2] (1965) 1 W.L.R12
^[3] (2015) SBCA 4; SICAA – CAC (20/4/2015).
^[4] Ibid(1)
^[5] Ibid(3)
^[6] HC-CC No. 197 of 1994
^[7] (1915) 31 T.L.R 418
^[8] Ibid (2)
^[9] CC 59 of 1995