Sunway SI Ltd v Kakana [2024] SBHC 58; HCSI-CC 574 of 2019 (12 April 2024)

HIGH COURT OF SOLOMON ISLANDS

Case name:	Sunway SI Ltd v Kakana
Citation:
Date of decision:	12 April 2024
Parties:	Sunway Si Limited, Bawest Holding Limited, Walter Masura’a v Chief Edward Kakana, Ben Mahana, Richard Mono,Thomas Watairua, Ate Kobaka, Josses Mahana, Norman Mahana, Chief Mono & Holland Tauni
Date of hearing:	9 June 2022 (Last written Submission in)
Court file number(s):	574 of 2019
Jurisdiction:	Civil
Place of delivery:
Judge(s):	Keniapisia; PJ
On appeal from:
Order:	I find the current claim is an abuse of court process, discloses no reasonable cause of action and is frivolous and vexatious. This is a situation fitting for striking out under Rule 9.75 (a) – (c), because the current claim is certain to collapse, on the principle of res judicata or issues estoppel.
Representation:	Mr Pitakaka for the Claimant/ Respondents Mr Puhimana for the Defendants/Applicants
Catchwords:
Words and phrases:
Legislation cited:	Solomon Islands Courts (Civil Procedure) Rule 2007, r9.75 (a)-(c)
Cases cited:

IN THE HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 574 of 2019

BETWEEN

SUNWAY SI LIMITED
First Claimant

AND

BAWEST HOLDING LIMITED
Second Claimant

AND:

WALTER MASURA’A
Third Claimant

AND:

CHIEF EDWARD KAKANA, BEN MAHANA, RICHARD MONO, THOMAS WATAIRUA, ATE KOBAKA, JOSSES MAHANA, NORMAN MAHANA, CHIEF MONO & HOLLAND TAUNI
(Representing themselves and tribesmen of Kaunasuku and Wairaha customary land)
Respondents/Defendants

Date of Hearing: 9 June 2022 (Last Written Submission in)
Date of Ruling: 12 April 2024

Counsel: Mr Pitakaka for the Claimants/Respondents
Counsel; Mr Puhimana for the Defendants/Applicants

RULING ON APPLICATION TO DISMISS CLAIM

1. First, second and third claimants (“claimants”) filed this Category A claim on 17.10.2019. Defendants filed a Conditional Response on 26/11/2019. The Conditional Response indicated the defendants’ intention not to file a defence, but to instead move to strike the claim out. So, on 23/03/2020, the defendants filed an application to dismiss or strike out this proceeding.
2. The application was brought under Rule 9.75 (a) – (c). A claim may be struck out under this Rule, if the claim is: frivolous or vexatious, disclosed no reasonable cause of action and or is an abuse of Court process. In one of the strongest arguments run on behalf of the applicants/defendants, Counsel Puhimana submitted that this claim is an abuse of Court process because the issues and the parties here are the same as the issues and parities in a case that this Court has already decided. I will concentrate on this argument under abuse of Court process as a ground for strike out under Rule 9.75 (a) – (c).

The already decided or former case - Civil Case No. 476 of 2018

3. Civil Case Number 476/2018 was filed on 15/03/2018. Claimants were – Sunway SI Ltd and Barwest Development Holdings Ltd. Mr Walter Masura’a was not named a claimant party in the proceeding. It is clear from the sworn statement filed that he should have been named a claimant party. He was the supporter of the 2 named claimant companies in terms of his claim over Pwaranisuku customary land and for permitting the two companies to operate logging inside Pwaranisuku customary land. This is the same land subjected to the dispute in the current claim. The defendants are Ben Mahana and others in the current claim, who are also defendants in the former claim or already decided claim.
4. The three main reliefs sought in the former claim Civil Case No 476 of 2018 are: -
   • (i) Permanent restraining orders against the defendants from disturbing or interfering with claimants’ operations under felling license A10213A.
   • (ii) A permanent restraining order against the defendants in respect of defendants’ road block against claimants’ operation under license A10213A on Pwaranaisuku customary land.
   • (iii) Business loss to be assessed.
5. Civil Case Number 476 of 2018 was terminated when this Court handed down its decision on 25^th April 2019. The said decision made mention of Tawapuna customary land. The claim in the statement of case, made mention of the same land in relief (ii) above which land was referred to as Pwaranaisuku Customary Land (“PCL”). The statement of case in the application for restraining orders filed on 30/11/2018 made mention of the name Tawapuna Customary Land. So really any relief sought in respect of Tawapuna customary land was meant to apply to PCL, because PCL is the land mentioned in the statement of case in the claim. The claim is the foundation not the application for restraining orders.
6. After the ruling on application for injunction/restraining orders were handed down on 25/4/2019, Court dismissed the claim. One of the main reasons why the Court dismissed the claim was because claimants cannot establish on the materials before the Court that the defendants have trespassed or erected road blocks on PCL.
7. Claimants applied to re-instate the struck out/dismissed claim. Court again refused the application to re-instate the dismissed claim, saying the proper cause of action against the dismissal decision was to appeal to the appellate Court. Claimants were applying because, they have since obtained a chief’s decision which shows that the area defendants made their road blocks on was within PCL.

Current claim – Civil Case No. 574 of 2019

8. Current claim (CC 574/2019) was filed on 17/10/2019. Claimants are – Sunway Solomon Islands Ltd, Barwest Holdings Ltd and Walter Masura’a. The latter is the same person I said was an apparent missing claimant party in CC 474/2018. Current defendants are Ben Mahana and Others, who were principally the same defendants in the former case.
9. The three main reliefs sought in the current claim are: -
   • (i) Permanent restraining order against the defendants from interfering with claimants’ operations under felling license A10213A on PCL.
   • (ii) Damages for trespass to be assessed.
   • (iii) Business loss to be assessed.
10. Claimants also obtained an ex-parte injunction order perfected on the 8/11/2019. Since then there has been no return challenge to the ex-parte order. But defendants have applied to dismiss this claim on 23/3/2020. And then there was a long spell/delay because counsel have not filed written submissions as quickly as intended by the Court order perfected on 5/6/2020. Counsel Pitakaka only filed claimants’ written submission on 9/6/2022. Defendants filed their written submissions through former counsel Kwaiga on 4/6/2020. And then the file went into hiding, when I was shifted to the criminal bench and started surrendering civil files in my docket in year 2022/23. These are the kinds of attitudes that contribute to delays for court cases in this Court.

Are the 2 claims the same?

11. In the closed or former claim, the 2 claimants rely mainly on the felling license over PCL. In the current claim the 3 claimants also rely on the same felling license over the same PCL. In terms of the reliefs claimed, the reliefs here closely resemble the reliefs in the previous or former claim. In terms of parties there are 2 principal parties in both claims. And the 2 principal parties are the same too, even if Walter Masura’a was not specially named in the former case. I alluded to above that he was an apparent omission in terms of naming parties/pleadings. But in both cases, the 2 companies rely on Walter’s support in terms of alleged ownership over PCL and the permission to operate logging inside of PCL.

Is the current claim caught by res-judicata or issues estoppel?

12. Court found above that the issues and parties in the current claim are carbon copies of the former claim. That is to say, the current case and the former case, the same claimants in both cases are seeking the same reliefs and the same cause of action against the same defendants. On the doctrine of res judicata, claimants are estopped from re-litigating the same issues (first limb of the doctrine), between principally the same parties or estopped from re-litigating the same cause of action between principally the same parties (second limb). There is estoppel with respect to the entire cause of action or a discrete issue(s). It is abuse of Court processes for the Court to allow the same cause of action and the same issues to be re-litigated between the same parties^[1]. What the Court has closed on merit, it cannot re-open. To do so is abuse of Court processes, because the integrity of the Court will be called into question.

Conclusion and orders

13. Claimants’ current claim does not stand a chance of success. And no possible amendment would cure the defective current claim because the current claim is defective on merit and not on the pleadings. Claimants cannot re-agitate the same issues and the same cause of action, between the same parties in the High Court, in which a judgment was already pronounced by the same Court in an earlier decision. Accordingly, I find the current claim is an abuse of court process, discloses no reasonable cause of action and is frivolous and vexatious. This is a situation fitting for striking out under Rule 9.75 (a) – (c), because the current claim is certain to collapse, on the principle of res judicata or issues estoppel.

THE COURT
JUSTICE JOHN A KENIAPISIA
PUISNE JUDGE

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^[1] Principle of “Res Judicata or Issues Estoppel” in Talasasa and Bea case (both High Court and Court of Appeal).