Panda v Naphtali [2016] SBMC 2; Civil Case 26 of 2016 (23 February 2016)

IN THE CENTRAL MAGISTRATE COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

Civil Case No.26 of 2016

BETWEEN: Jefferson Panda Claimant

AND: Pendrine Naphtali Defendant

Date of Hearing: 19^th February 2016
Date of Ruling: 23^rd February 2016

Mr. Lawrence Kwanafor the Claimant
Mr. Andrew Radclyffe for the Defendant

RULING ON APPLICATION TO SET ASIDE EX PARTE RESTRAINING ORDERS AND TO STRIKE OUT CLAIM

1. This is an application to set aside the ex parte restraining orders issued on 5^th of February 2016 and to strike out the claim filed on 18^th of February 2016.
   

Background

2. Briefly, the ex parte interim orders were in the nature of restraining the defendant, his agents, associates or relatives from interfering, intimidating or performing any related activities that would disturb or prevent the claimant from carrying out his business of fuel depot at Poitete area in Kolombangara, Western Province. The restraining orders also required the defendant to immediately handover the keys of the said fuel depot to the claimant. The keys were believed to be withheld by the defendant since March 2015.
   
3. Those restraining orders then were pleadedin the claim,including orders for damages for loss of business and profit, interest and costs. The claim was filed in compliance with the direction of the Court for the claimant to file the claim within 14 days after the hearing of the ex parte application.
   
4. For this hearing, counsels only made verbal submissions.
   

Submissions from both parties

5. Counsel for the defendant Mr. Radclyffesubmitted that the restraining orders should not be granted because the nature of this case is not urgent to warrant the hearing of the application as an urgent ‘ex parte application’. He submitted that his client were in possession of the keys since 25 of March 2015 and no legal action was taken against him until 5^th of February 2016, a period of more than ten months. He further argued that the defendant should not be sued and some of the facts deposed in the sworn statement of the claimant against the defendant were false^[1] or in other words, misleading. He made reference to a letter^[2] written to Sutcliffe George on 7^th of September 2015 by JSP Legal Services to support his contention. On that same line of argument, he argued that the defendant has the right to have access to Kolombangara Forest Products Limited(KFPL) properties including the location of the fuel depot of the claimant. He concluded this matter ought to be heard in the High Court as the claimant had pleaded in the claim a possibility of filing a claim in the High Court based on the same complaint for damages for full loss of business and interest that exceeds the amount allowable in the Magistrates Court.
   
6. Mr. Kwana on the other hand submitted that the defendant is yet to return the keys to the claimant despite the interim restraining orders. He argued that the claimant has a valid contact with KFPL and was permitted to use the premise which currently still closed due to the defendant still holding on to the keys. He further submitted that the claimant decided to file the claim this year because he had been waiting to solve an extra marital issue levelled against him but nothing forthcoming from theother concerned parties. His main thrust of argument is that the financial loss of business and profit incurred by the claimant was due to the defendant’s own action not KFPL.
   

Issues for determination

7. Having confronted with these opposing set of arguments and taking into account the materials filed for this hearing, the two issues for the Court to decide are: first, whether or not the claim should be struck out on the grounds put forward by the defendant and finally, whether or not the Court should set aside the ex parte interim orders. If the Court answer the first issue in the affirmative then it is needless to deal with the second issue since its consequence will inevitably affect the interlocutory orders.
   

Application to strike out claim

8. In our jurisdiction, an application to strike out claim falls under rule 9.75.^[3] Accordingly, it requires the applicant to prove on the balance of probabilities that the case is frivolous and vexatious, it has no reasonable cause of action and it is an abuse of court process. Once the Court is satisfied on those grounds then it can exercise its powers to strike out a claim under this rule.
   
9. Beside the legislation, our Courts have explained its application and is well settled.^[4] In Mane vEvo^[5], Faukona J, when explaining the application of this principle stated:
   

“In brief the principle is that to strike out a claim the Court may do so in exceptional cases only where it is shown that there is no reasonable cause of action. Even if leave is granted for amendment such would not cure the defects. If pleadings or statement show some essential facts which disclose some cause of action or raise question fit to be considered, the Court should not strike out the pleading or statement of claim. Even if the case is weak and likely not to succeed, that is no ground to strike out.”^[6]

10. The principle set out in Mane v Evo’s case has been advocated by the Courts in all cases of this nature. To simply put, what matters for the Court is to ascertain that a cause of action is one which a reasonable person could perceive and content or satisfied that a claimant did have a real grievance to come to Court and seek redress. In my view, this is an objective test, clear and simple. So the question now is whether the claim in the present case is frivolous and vexatious, or it has no chance to succeed or reasonable cause of action,or it is an abuse of court process. I now turn to the claim.
    
11. According to the statement of case in the claim, the claimant claims he operated a business of fuel depot at Poitete Station in Kolombangara in the Western Province. He owns the building where he conducted his business except for the land which was owned by KFPL. As part of his business, he was required to supply fuel to KFPL customers in and around Poitete and in Kolombangara pursuant to a Memorandum of Understanding (MOU) made on 19^th of January 2012 between the General Manager of KFPL and the claimant. That MOU was exhibited as ‘JPI’.
    
12. On or about 31^st of March 2015, the defendant, without the consent of the claimant, took the keys to his fuel depot and kept them away. Untildate, he never returned them despite several attempts by the claimant coupled with a letter from the Manager of KFPL for the return of those keys. Since then, his business still closed. He suffered financial loss to his business and profit as a result of the defendant’s action. As anticipated, he seeks the orders outlined in the claim.
    
13. In summary, that is the claim as it stands.
    
14. I have carefully considered the entire claim andtranslating it to the legal requirements, it is my view that on the face value of the claim, the claimant has a cause of action and an issue that needs to be triedand heard for full determination by the Court. That is - the defendant’s action as evidenced by the continuous withholding of the keys which resulted in the closure of the fuel depot and loss of business and profit suffered by the claimant. The defendant in his sworn statement did not dispute that he was in possession of those keys since 25^th of March 2015. If that is the case then this simply means the status regarding the closure of the business since March 2015 is still the same. In other words, this is an admission of what had actually occurred and being complaint of. Are these factsin a nutshell do not raise a cause of action, orare they not worthy of any attention or consideration by the court, or does the claim totally put an innocent person under duress to defend him in a law suit? I don’t think so. The claim at its highest clearly reveals a cause of action and exceeds the requirement in Tikani v Motui^[7]where the Court stated that if the proceedings disclose some cause of action, the fact that the case is weak or not likely to succeed is not sufficient ground for dismissing them.
    
15. Counsel for the defendant raises grounds of false statements or allegations in certain paragraphs of claimant’s sworn statement. With respect, in my view, those are matters if there is any defect could easily be cured before trial proper or perhaps, issues regarding witness credibility and reliability be dealt with during the trial. However, at this stage, they are minor to render this Court to conclude that the claim is frivolous and vexatious, or it has no reasonable cause of action and it is an abuse of court process.
    
16. Having reached this conclusion, the best approach for this Court is rather than to prematurely terminate this case, it should go to trial.
    

Application to set aside the interim restraining orders

17. This brings us to the next issue of whether or not the court should set aside the ex parte interim orders issued by this Court on the 5^th February 2016.I am mindful that an application of this nature is governed under rule 17.55.^[8]
    
18. I noted from the verbal submissions of Mr. Radclyffe that the claimant during the hearing of the ex parte application did not disclose to Court that the land^[9] which his fuel depot situated on was a registered land owned by KFPL and therefore, the defendant as an employee of KFPL was entitled to have access to all KFPL properties. It can be gleaned from his argument that this information was not disclose to Court and if disclosed at the hearing of the application then, it would be likely that the restraining orders would not be granted.
    
19. In relation to the issue of nondisclosure of information particularly in ex parte hearings, the High Court has made the rules about this issue very clear which I am bound to follow. In CTP International (SI) Co. Ltd v Ghiro^[10], Apaniai J stated:

“17. The rules regarding non-disclosure are clear. When making an application for injunction, in particular ex parte applications, the applicant has a duty to make full disclosure to the court. Full disclosure means disclosing all relevant facts that support the application as well as all relevant facts which are unfavourable to the application. The applicant must not withhold relevant facts, nor must he mislead the court either in what he says or in not saying what he is supposed to say. Relevant facts are those which have a clear connection with the relief sought in the application. Those facts must be disclosed.”^[11]

20. His then Lordship continued at paragraph 18 which for this purposes, is important for me to borrow from his words: “Where these requirements are not met, there is non-disclosure and the court will, as a general rule, discharge the injunction because, by suppressing the facts or by making misleading statements, the court was presented with a case which is different from what actually exists.”^[12]
    
21. Except for paragraph 7 of the claim which was filed 13 days after the hearing, I agree with Mr. Radclyffe that this information was not disclose either verbally or in the materials filed during the ex parte application. However, whether relying on this information alone is sufficient ground to set aside the interim restraining orders is a point of contention. In my view, there are other competing factors that the Court should consider and take into account whether or not to set aside restraining orders. Those factors are but not limited tochanges in the circumstances of the case, the need to preserve the status quo of the case and that damage will not adequately compensate the claimant for the loss of business and profit. When all these factors are considered together, its cumulative effect will show whether or notthe issue of nondisclosure is a sole decisive factor against the nature of this application to set aside the interlocutory orders.
    
22. In the present application, unfortunately, the issue of nondisclosure raised by the defendant when considered against the other competing factors mentioned earlier does not justify why this Court should set aside the restraining orders. The defendant is yet to return the keys of the fuel depot and now he insists to uplift the order which he seemed to ignore. Whether his continuous withholding of the keys isin the best interest of KFPL or perhaps a frolic of his own is an issue that needs to be tried in Court.
    
23. I noted from the sworn statement of the defendant and a letter from Peter Whitehead that the defendant needs to access all KFPL properties as part of his employment. That letter states that the fuel depot is located within the office compound of KFPL. I have looked at the restraining orders and when considering them in their actual applications and in light of the existing MOU, an area of 10 meters around the fuel shed where the defendant wants to access is simply a tiny portion of area and a doorstep to the fuel depot. Unfortunately, there isn’t any material to persuade me why it will be prejudicial to his job if he is not permitted to access that area within the KFPL he is prohibited from. For him to further go inside the fuel depot building while this case is still active before the Court will against the balance of convenience that favours the granting of these restraining orders. It follows therefore that I am not satisfied that the defendant has made out a sufficient case for discharging the interlocutory orders on the grounds of non-disclosure and his status of employment.
    
24. This application is therefore dismiss.
    
25. Consequent to this ruling, the defendant shall pay to the claimant costs incidental to this hearing on standard basis to be taxed if not agreed.
    
26. On a minor observation, it appears from the sworn statement of the defendant that there were threats from several aggrieved persons to burn down the fuel depot of the claimant. Whilst I acknowledge and commend whatever role the defendant may take to ensure they do not translate their intention into action, it is my view that these parties needs to be reminded of this simple but wise advice from Palmer J in R v Saeniorea^[13]where his Lordship said: “Chiefs elders even church pastors can be requested and should be used to assist in the settlement of such disputes or customary offences. Individuals directly affected should not make the approaches themselves because quite often these lead to further trouble...”^[14] If we are to live in a society where it is peaceful, harmonious, nothing but only the prevalence rule of law then this kind of behaviour has no place in our modern Solomon Islands societies. Otherwise, this kind of matter should be properly referred to appropriate authorities for further dealings.
    

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THE COURT

Augustine Aulanga

(Senior Magistrate)

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^[1]Paragraphs 4, 5 and 7 of the claimant’s sworn statement
^[2]Marked as exhibit ‘JP3’
^[3]Solomon Islands Courts (Civil Procedure) Rules 2007
^[4]See Abe v Minister of Finance and Attorney-General HC Civil Case No. 197 of 1994, Tikani vMotui (2001) SBHC; HC-CC 29 of 2001 (25 October 2001)
^[5] [2015] SBHC 7; HCSI-CC 414 of 2012 (3 March 2015)
^[6] At paragraph 13
^[7] (2001) SBHC; HC-CC 29 of 2001 (25 October 2001)
^[8] Solomon Islands Courts (Civil Procedure) Rules 2007
^[9] Described as Parcel No: 081-003-106
^[10] [2014] SBHC 66; HCSI-CC 33 of 2014 (10 June 2014)
^[11] Paragraph 17
^[12] Also see Gazokesa v Orion Ltd [2014] SBHC 17; HCSI-CC 379 of 2011
^[13] [2005] SBHC 173; HCSI-CRC 36 of 2004
^[14] At page 2