Rausu v Kagabule [2022] SBHC 47; HCSI-CC 524 of 2019 (6 July 2022)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Rausu v Kagabule
Citation:
Date of decision:	6 July 2022
Parties:	Harlen Rausu v Manasseh Kagabule, Winky Joseph and Rodrick, Pacific Crest Enterprises Limited
Date of hearing:	24 November 2021
Court file number(s):	524 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Faukona; DCJ
On appeal from:
Order:	1. All the ex-parte injunctive orders granted on 25th September 2019 be discharged, except the order that proceeds kept in a joint Solicitors Trust Account be still maintain until such further orders. 2. The application for dismissal of the claim filed on 17th January 2020 is hereby granted. 3. The parties to this proceeding, in particular the Claimant and the 1st Defendants to attend to Local Court upon hearing of the referral. 4. Cost of this hearing is to be paid by the Claimant to the Defendant.
Representation:	Ms. Kofana for the 1st and 2rd Defendants Mr. D Nimepo for the Claimant
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands (Civil Procedure) Rule 2007, r9.75
Cases cited:	Tikani V Motui & Ano [2002] SBHC 10, Abe V Ministry of Finance & AG [1994] SBHC 22, Zupukana V Sogati [2016] SBHC 118, Sa'oghatoga v Mugaba Atoll Resources Company [2015] SBCA 4, Fera V Ologa , Hivu V Pacific Crest Ltd [2004] SBHC 24, Earth Mover Solomon Ltd (Trading as Pacific Export Agency), Chow v AG [2000] SBHC 31, Tikani v Motui, Goldsmith v Sperrings [1977] 1 WLR 478, Sina v Allardyce [1995] ,

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 524 of 2019

BETWEEN

HARLEN RAUSU
(Representing the Rausu Family of Dovele, North Vella la Vella, Western Province)
Claimants

AND:

MANASSEH KAGABULE, WINKY JOSEPH AND RODRICK
1^st Defendants

AND:

PACIFIC CREST ENTERPRISES LIMITED
2^nd Defendant

Date of Hearing: 24 November 2021
Date of Ruling: 6 July 2022

Ms Kofana for the 1^st and 2^nd Defendants
Mr D Nimepo for the Claimant

RULING ON APPLICATION FOR DISMISSAL OF CLAIM

Faukona, DCJ: On 20^th September 2019, the Claimant filed the claim in this case asserting ownership of Vopasama customary land on Vella La Vella Island, Western Province.

2. Based on the claim, the Claimant filed an urgent application for interim injunction orders, restraining the Defendants from entering and carrying out logging operations on Vopasama Customary land.
3. On 25^th September 2019, the Court by ex-parte application granted the injunctive orders as sought by the Claimant.
4. On 1^st November 2019, the Defendants (1) and (2) filed their joint defense.
5. After the joint defense had been filed, the Court should have arranged for an inter-parte hearing to determine whether the interim ex-parte orders of 25th September 2019, should continue inforce or be discharged. After all they were interim orders.
6. Beside the inter-parte hearing the Court will also determine the application by the Defendants to dismiss the claim pursuant to R.9.75, Court Civil Procedure Rules 2007 (CPR).

Inter-parte determination.

7. The interim injunctive orders were granted on 25^th September 2019.
8. The Claimant had identified three grounds upon which he obtained the injunctive orders, one that he owns Vopasama customary land since time i-memory. Secondly that he was identified at the timber rights hearing with two others to grant timer rights in respect of Vopasama customary land. In the timber rights hearing, no one including the first Defendants objected his rights.
9. Thirdly, that in the previous timber rights hearing his tribe was identified as one of the grantors concerning the same customary land without objection from anyone.
10. As a result, the Claimant avers ownership of Vopasama customary land, supported by the reliefs he sought for judgment against the Defendants for trespass, and damages for conversion of merchantable tress.
11. Premise on the claim, it would appear that all the reliefs sought contain aspects of ownership, whilst in fact, was a mere assertion, because of lack of any decision by the land tribunals in the Claimant’s favour.
12. What appears so unfortunate was that the land which the Claimant claims had been logged. The Defendant’s version was that it was not Vopasama customary land that was logged but Vuivo customary land. If both parties claim the same land with different names then of course it is an issue of land ownership with boundaries, which ought to be identified before a proper constituted tribunal having jurisdiction.
12. However, what makes it further unfortunate is that all the royalties obtained from some undisclosed shipments were allegedly paid to the 1^st Defendants and not the Claimants and three others.
13. The reasons the 1^st Defendants rely on, was because there is no such Vopasama customary land existed, and that the Claimant was a descendant from Choiseul and was adopted by a family in Vella La Vella.
14. That assertion could have been timely exposed during the timber rights hearing, so that no hic-caps would be encountered during royalty payments. That again is an implication of landownership which at the moment is at stake.
15. Verily, this is the main reason for the injunctive orders. In response to the orders the 1^st Defendants therefore, file a land dispute issue before the Vella La Vella Counsel of Chiefs.
16. In the absence of the Claimant, who intentionally not to appear due to the very reason that the Chiefs did not take heed to his objections. Eventually the Chiefs convened a sitting and awarded the ownership of Vopasama customary land to the first Defendants. This is one of the changing circumstances since the injunctive orders were granted.
17. I noted in the sworn statement of Mr. Sasabule filed on 10^th July 2020, that there was a referral filed by the Claimant with the appropriate Local Court. A letter by the Local Court Office, Gizo, had confirmed and will be heard by Ghorena Local Court as soon as the funds are made available. As such the ownership issue is still at stake. A decision by the Local Court can go either way.
18. To assert that he owns the land and come to Court and obtain the injunctive orders was misleading the Court process. His assumption, perhaps, that he will obtain an ownership decision later is an elusive status. His assumption was wrong though, however, used to convince the Court to grant the orders.
19. On the issue of the Chiefs hearing and determination, it ought to be acknowledged that we are trying to discourage the process of one sided hearing. It won’t resolve any land dispute. Both parties must be present before the Chiefs proceed. That is the intention of the Local Court Act.
20. In furtherance, if any party wishes to object any members of the Chiefs’ panel that must be done as the first agenda in the Chiefs’ hearing. Both sides must be heard whether the objections are valid or not. Then allow Chiefs to considers and make determination on.
21. The Local Court Act is opened about which members of the Chiefs panel can be subjected to objections and which member cannot. In fact, no one is indispensable, all are subject to objections including the President/Chairman and even the Clerk/Secretary.
22. If the Vella Lavell Constitution does not allow the Chairman or the President or the Clerk/Secretary to be subjected to objection, then that is inconsistent to the Local Court Act. It is unfair and injustice, seen at play. All the sitting membership of the Chiefs panel is subjected to objection.
23. On the issue of the boundaries of the land in dispute, the Claimant had failed to show the boundaries of Vopasama customary land. The map used in form 1 application and which he produces was insufficient. It only maps out the concession area but not the specific lands within the area. Thus Vopasama customary land boundaries were uncertain. Given that circumstance the Court cannot grant injunctive orders concerning a land where the boundaries are not well define and demarcated.
24. Injunctive orders must apply to a concern land with specific known boundaries. It cannot apply to broader concession area if other lands in the concession are not in dispute. This issue was not clarified at the time of application for the injunctive orders.
25. I also noted in the sworn statement and the submission by the Counsel for the Defendants that certain amount of money had been paid into a joint Solicitors Trust Account.
26. Noted as well in the sworn statement of Mr. Hii on 2^nd October 2019, that his Company at the time when the orders were served on him (Defendant 2) the logging activities had been moved on to other blocks of lands. That implicated that logging in the land in dispute had ceased already and the need for injunction may not be necessary any more.
27. The Form II determination by the Provincial Executive may not maintain the same strength anymore. In particular, where the Chiefs had attempted to resolve the ownership issue, in spite of their shortcoming a decision was made and a referral is pending the Local Court. I shall assume for time being, that the 1^st Defendant have better rights over the Claimant in respect of ownership of Vopasama customary land until the Local Court decides otherwise.
28. There are many changing circumstances which I mention above. Definitely the Local Court will sit and hear the dispute later. In this instance, I will discharge all the injunctive orders. The proceeds that were paid in the Solicitors Trust Account will be maintained until further order of the Court. The Defendants can carry on logging activities on the concession area apart from Vopasama customary land which had been logged.

Application for dismissal of the claim.

29. The application for dismissing the claim was filed by the Defendants on 17^th January 2020. The Defendant advances that the Claimant came to Court with no decision from the land tribunal or the Courts to claim ownership of the land, and claim for damages for conversion of logs felled from the land, limited to one million dollars ($1,000,000.00).
30. Application of this nature often find its source from R9.75 of the Courts Civil Procedure Rules 2007. That is the benchmark. This particular rule focusses on three areas. A proceeding which is frivolous or vexation, or no reasonable cause of action disclose, or an abuse of court process.
31. There are many case authorities in this jurisdiction which the Courts have adopted the legal basis upon which the Court may dismiss a proceeding. Such examples are the cases of Tikani V Motui & Ano^[1], Abe V Ministry of Finance & AG^[2], Supukana V Sogati^[3], Saohatogha V Mugape Atoll & Ano^[4], Fera V Ologa^[5], Hivu V Pacific Crest Ltd^[6].
32. The law that upheld in those cases can be summarized as; a proceeding is frivolous or vexatious where a claim lacks all merit and was brought for ulterior purpose, that claim cannot possibly succeed.
33. A claim that discloses no reasonable cause of action is a claim that does not disclose a cause of action, and whether it disclose a tenable cause of action for relief sought. In determining reasonable cause of action the Court will assess the facts and decide whether a triable case been disclosed for the remedies and reliefs sought, see Earth Mover Solomon Ltd (trading as Pacific timbers) V Samuel Taho & Others (trading as Aola Timber Exports Agency)^[7].
34. Where a claim received it ought to be identified whether remedy sought is one supported by the statement of case and facts. If the facts do not support or give rise to relief then there is no cause of action. If there are defects that can be cured by amendment where pleadings are badly drafted and the facts are not clearly stated, see Chow V AG^[8].
35. Abuse of court process is clear where no reasonable person could properly treat as bone fide and contend that he had a grievance, which he was entitled to bring to the court, see Tikani v Motui^[9].
36. In the case Goldsmith V Sparrings^[10], Lord Denning define abuse of Court process as thus;

“In a civilized society, legal process is machinery for keeping and doing justice. It can be abused when it is diverted from its true course to serve extortion or oppression; or to exert pressure to achieve an improper end”.

37. The pleading can be struck out only in plain and obvious cases. The power of the Court to strike out should be exercised only when the case is beyond and that it is satisfied there is no reasonable cause of action. If the statement of claim discloses some cause of action or raise some question fit to be decided by the Court, the fact it is weak, and not likely to succeed, is no ground for striking out as disclosing no reasonable cause of action, where the Court is satisfied that some material averment has been omitted, it will not dismiss the action but give leave to the plaintiff to amend.

Grounds for the Claim to be dismissed.

38. The Defendants advance five (5) grounds as reasons for dismissing the claim. The first one is that the Claimant and his family are not the rightful owners of Vopasama customary land.
39. A casual approach, it would be an argument that would be best left for the Chiefs and Land Courts to answer. In the circumstances of this case, proof of land ownership is significant in particular where damages for trespass and conversion of trees hinges on the rights of ownership of the land.
40. As it may, the Claimant purportedly assumed that his family is the true owners of the land. He relies very much on the timber rights determination. However, the Chiefs decision on 25^th February 2020, in favor of the 1^st Defendants gave superior and better rights than that of the Claimant which became on mere assertion on the date of that decision.
41. The manner in which the Chiefs conducted the hearing may be questionable, but at least a decision from that authority had been made. Its effect had induced the Claimant to file a referral with the Local Court. After all it’s a decision by that authority which can only be changed by the Local Court.
42. I noted the Claimant made reference to the case of Sina V Allardyce^[11], by quoting the words of Kabui J stated, “justice in this case cannot be attained unless the appeal pending is resolved”.
43. I agree, but the referral to the Local Court is just the second step in the procedures. Perhaps at the end of the appeal processes the dispute of land ownership will be settled. Yet, whoever misses the final judgment will be like a hard stone to swallow; grievances will continue even to the end of time.
44. I do not consent with the ideology if the Local Court take the appeal grounds seriously, it will substantiate the ownership, and the decision obtained by the 1^st Defendants will be nullified. Against it’s a pure assumption. The Local Court may have a different view opposite to that conclusion. It is best to leave the referral to the Local Court to decide upon; meantime no early presumption can be entertained.
45. I noted from the materials the Claimant’s case had contained custom facts related to ownership of the land. That has been well reflected in the claim which premise on ownership of the land. That issue ought to be ascertained first before dealing with damages for trespass and conversion of trees. Whilst the issue is known to the court and lower land tribunals it can’t be overstated to continue to maintain the claim.
46. The issue of none-existent of the land known as Vopasama customary with the location is a misconception to derail the other party. There is such land located within the concession area. The 1^st Defendant may have a different name for it that is Vuivo. See paragraph 11 above. In any event it was identified during the timber rights hearing. Unfortunately, the map of the concession area did not physically identify the boundaries.
47. In respect to no decision of any kind in favor of the Claimant; it is obviously clear there was none. At the time of filing of this claim until now there is none. But there was a Chiefs decision in favor of the 1^st Defendants which they now fix their reliance on.

Representative capacity.

48. Concerning representative capacity the Claimant had failed to proof in material evidence that he was authorized to represent his family when he filed the claim. That act is contrary to Rule 3.42 of the Civil Procedure Rules. I acknowledge he filed a letter authorizing him to represent his family later. I must rule that is too late. Rule 3.42 particularly require that such entitlement to act as representative must be filed before any further step in the proceeding may take place. Simply such poof of entitlement to represent must file with the claim at the same time; not later.
49. In conclusion the Claimant knowing that he has no Court or Chiefs decision in his favor comes to Court and obtain the injunctive orders, in particular where damages and conversion of trees is the major relief sought.
50. Injunctive orders in this context are to protect further damages and felling of trees for export. As it appeared later, the land and trees the orders intend to protect were not own by the Claimant, according to the Chiefs decision.
51. Therefore, the facts of the claim, is clearly one which no reasonable person could treat as bona fide and content that he had a grievance which he was entitled to bring before the Court. The changing circumstances of the case does not permit that right to the Claimant.
52. This case is an exceptional one where the claim is decided on merits, or cannot possibly succeed. Simply, this claim cannot proceed further. The issue of ownership ought to be dealt with first in the appropriate avenue. Therefore, the claim ought to be dismissed with costs.

Orders:

1. All the ex-parte injunctive orders granted on 25^th September 2019 be discharged, except the order that proceeds kept in a joint Solicitors Trust Account be still maintain until such further orders.
2. The application for dismissal of the claim filed on 17^th January 2020 is hereby granted.
3. The parties to this proceeding, in particular the Claimant and the 1^st Defendants to attend to Local Court upon hearing of the referral.
4. Cost of this hearing is to be paid by the Claimant to the Defendant.

HE COURT.
Hon. Mr. Rex Faukona.
DEPUTY CHIEF JUSTICE.

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^[1] [2002] SBHC 10; HC-CC of 2001 (18 March 2002).
^[2] [1994] SHHC 22; HC-CC of 2015 (22 July 2016).
^[3] [2016] SBHC; HC-CC 117 of 2015 (22 July 2016).
^[4] [2015] SICAC-CAC.
^[5] [2015] SBCA 4118; – SICA CAC2 of 2015 (24 April 2015).
^[6] [2004] SBHC 24; HC-CC 266 of 2003 (16 March 2004.
^[7] Civil Case No. 65 of 1917.
^[8] [2000] SBHC 31; HC-Cc 127 of 2000 (8 August 2000).
^[9] Ibid (1).
^[10] [1977] 1 WLR 478.
^[11] [1995] 2 of 2015 (April 2015).