Russell Islands Plantation Estates Ltd v Kagovai [2017] SBHC 48; HCSI-CC 470 of 2013 (24 July 2017)

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AND: ATTORNEY-GENERAL Fourth Defendant
(on behalf of the Government of
Solomon Islands)

Mr D. Nimepo for the Claimant
Mr J. Taupongi for the First and Second Defendants
Mr D. Marahare for the Third Defendant

Faukona, PJ: An amended application to strike out the amended claim was filed on 18^th November 2016 by the third Defendant to strike out the claim against him. He avers that the claim is frivolous and vexatious, no reasonable cause of action disclosed and the proceeding is an abuse of Court process. In all, the third Defendant relies on R9.75 (a), (b) and (c) as basis for his application.

	The Law on striking out:

2.	Rule 9.75 concluded by saying “the court may, on the application of a party or of its own initiative order that the proceedings be dismissed generally or in relation to that claim”. With clarity and preciseness the rule has conferred upon the court to exercise its discretion to dismiss a proceeding should a claim fall under one of the three categories stated in R 9.75.
3.	In addition R9.76 clearly imparted that the Court may receive evidence on the hearing of an application for an Order under R9.75. With the authority of the case of Sa’oghatoga V Mugaba Atoll Resources Company^[1] in place, has reinforced that evidence may be considered in such application. Though R9.76 is in existence since the inception of the rules, the liberty to consider evidence was not liberally exercised; for fear that the Courts could transgress into an arena beyond the confines of pleadings. With the authority, the Court has option whether to consider evidence or not.

4.	The law related to whether a claim ought to be struck out or not, had been covered by numerous common law and domestic case authorities. Suffice for to quote a passage from the case of Sam V Omex Ltd^[2], which I thought summarise the entire tests.

		“... so long as the statement of claim discloses some cause of action or raises some question to be decided at trail the fact it is weak and not likely to succeed is no ground for striking out. 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 discloses 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 trail. Striking out on the ground of frivolous and vexatious is to be used sparingly only in exceptional case”.

5.	To add, if it is found that the alleged cause of action is certain to fall the statement of claim should be struck out (Drummond V British Medical Association)^[3]. The Court should exercise its power only where the claim is devoid of all merit or cannot possibly succeed^[4].

6.	It ought to be noted that the law in the case of Norman V Mathew^[5] which the Court had set a qualification where an applicant need to consider before filling an application to strike out. The Court states;

		“In order to bring a case within the description it is not sufficient merely to say that plaintiff has no cause of action, it must appear that his alleged cause of action is one which on the face of 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”.
7.	In this case the major argument advance by the third Defendant is that the amended claim fails to provide details as to what advice he gave, where, when and how those advices were given. He further avers that the amended claim fails to particularise in detail how the first and the second Defendants, including Solomon Islands National Union of Workers (SINUW) were carrying out the alleged illegal acts.

8.	A very significant point is that the third Defendant did not deny he was the Official Advisor of SINUW prior and at that time when the Courts made the orders on 7^th October 2004, that the industrial strike action by RIPEL employees at Yandina Russel Islands was illegal.

9.	In reality, by way of evidence, the third Defendant’s advisory function is affirmed by “Exh.JW3” Form 1 attached to John Whiteside’s sworn statement filed on 13^th December 2013. The form clearly stated the third Defendant was an Official Advisor with effect from 25^th June 2010. He was also the previous holder as stated in the second column of the form.

10.	As an Official Advisor previously and which or continued on from 25^th June 2010, what were his functions? Generally he was the Official Advisor to SINUW in all matters. All matters are an expression in generic term, which hopefully will unveil and immerge in detail at trial when oral evidence is given.

11.	I noted details of any advice is not pleaded or disclosed. But having considered all circumstances who else will advise SINUW in its activities and programmes. There is no other whom can be opted to but pointed to the third Defendant as the Official Advisor. The question whether his advice had influenced the first and the second Defendants and SINUW, can be further investigated at trial.

12.	I find the amended claim disclose some cause of action and is not baseless or so bad that will require striking out. In fact the claim has raised arguable case which is fit to be decided at trial. I therefore dismiss the application to strike out.

	Orders:

	1.		Application to strike out the claim dismissed.

	2.		Cost of this application to be borne by the third Defendant.
The Court.

High Court of Solomon Islands

Russell Islands Plantation Estates Ltd v Kagovai [2017] SBHC 48; HCSI-CC 470 of 2013 (24 July 2017)