Lukasaru v Profit On Enterprises Ltd [2017] SBHC 79; HCSI-CC 400 of 2015 (31 July 2017)

IN THE HIGH COURT OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case Number 400 of 2015

BETWEEN: LUKE LUKASARU, JEFFERSON - Claimants
VILAKA AND BELIS QORAJOPA
(Representing the Zamakana Land Owners
of Choiseul Province)

AND: PROFIT ON ENTERPRISES LIMITED - First Defendant

AND: NEW VENTURE LIMITED - Second Defendant

Date of Hearing: 26^th July 2017.
Date of Ruling: 31^st July 2017.

Ms. M. Bird for the Claimants/Respondents.
No Appearance for the First and Second Defendants/Applicants.

KENIAPISIA; PJ:

RULING ON AN APPLICATION TO STRIKE OUT THIS CLAIM

Introduction

1. By application filed 6/7/2017, first and second defendants (“defendants”) sought to strike out this claim under Rule 9.75 (a) and (b). Court convened and Counsel Makario, who filed the said application on behalf of the defendants was absent. Court proceeded to hear the application. Court was satisfied counsel had prior notice and proceeded to deal with the application on the papers counsel filed. Counsel Bird for the claimants/respondents, made oral submissions, on the basis of her written submission, tendered to Court.
   

The Law

2. When an application is brought under Rule 9.75 (a), it is normally because, the applicant believes, the claim is frivolous and vexatious or under Rule 9. 75 (b), that the claim disclosed no reasonable cause of action.
   
3. In Tikani and numerous other cases, this Court has established considerations or bench marks against which to judge claims that are frivolous and vexatious and claims that disclosed no reasonable cause of action.
   
4. 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 sparingly strike out claims, only in exceptional cases.
   
5. 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 no ground for striking. Only if the cause of action is certain to fall, then the claim should be strike out.
   

Application of the Law

6. When the above considerations or bench marks are applied to the case before me, from the pleadings (statement of case/claim) I am satisfied that the claim cannot be knocked out under Rule 9.75 (a) and /or (b). The claim must go to trial for proper investigation.
   
7. The claim is for trespass to customary land and for damages in respect of conversion of trees. The issue for trial will be, whether the defendants trespassed onto Zamakana land when they enter the land and fell trees or whether Zamakana land is inside their concession land. And therefore they did not trespass felling trees inside Zamakana land. That issue means the claim has merit. That issue means the claim raised questions fit to be tried. And so this claim should proceed to trial.
   
8. Reading the statement of case in the application, the applicants are saying that the claim should be struck out because the defendants have reached settlement with claimants’ tribal chief and compensation of $100,000.00 already paid. If that was so; then a settlement or deed of release should be concluded. And consent order should be filed and matter can be discontinued. That is no ground for striking out under Rule 9.75 (a) and / or (b).
   

Conclusion and Orders

9. Accordingly, the orders of the Court are:
   

9.1. Application to strike dismissed with costs.

9.2. Current directions orders be completed by parties.

9.3. Matter progressed to trial with speed.

THE COURT

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JOHN A KENIAPISIA

PUISNE JUDGE