Tabe v Kurepitu [2017] SBMC 44; Civil Case 75 of 2017 (22 September 2017)

IN THE CENTRAL MAGISTRATE’S COURT
OF SOLOMON ISLANDS

CIVIL JURISDICTION

Civil Case No. 75 of 2017

REV. BURABETI TABE

Claimant

V

REV. WILFRED KUREPITU

First Defendant

REV. KINE MAEZAMA
Second Defendant

Date of Hearing: 18^th August 2017
Date of Ruling: 22^nd September 2017

Mr. L. Kwaiga for the claimant
Ms. M. Bird for the defendants

RULING ON APPLICATION TO STRIKE OUT CLAIM

1. On the 22^nd of June 2017, the claimant obtained the following ex parte interim restraining orders against the first and second defendants on the following terms:
   

“ (1) The First and Second Defendants, their agents or relatives or associates or servants or friends are restrained from harassing, threatening, molesting, abusing or intimidating the workers or agents or associates or servants of the United Church of Solomon Islands;

(2) The First and Second Defendants, their agents or relatives or associates or servants or friends are restrained from harassing, threatening, molesting, abusing or intimidating the workers in the United Church Assembly in Kokeqolo, Munda; and

(3) The First and Second Defendants, their agents or relatives or associates or servants or friends are restrained from going within 100 meters proximity of the United Church Assembly Office or within the same proximity of any of the Assembly office staff or their homes at any time.”

2. These interim orders were accompanied by a penal notice to reinforce the anticipated consequence of these orders if they are breached. These orders somehow did not go well with the defendants and hence, on the 11^th July 2017, the defendants filed an application to strike out the claim.
   
3. The defendants asserted the claimant did not have locus standi or right of standing on behalf of the United Church of Solomon Islands to bring the matter to court and this in their views, is an abuse of the court process. Alternatively, the court should also strike out this case since the claim on its face-value did not disclose any reasonable cause of action. If the court finds in favour of the defendants, then the court should issue the restraining orders and costs sought for by the defendants.
   

Brief facts

4. The claimant is the General Secretary of the United Church of Solomon Islands (“UCSI”) while the first defendant is their Moderator. The second defendant is one of their ministers and currently worked as their Christian Education Evangelism Resource Ministry.
   
5. Sometimes in 2014, the first defendant was believed to have involved in a sexual misconduct with a female from Titiana village in the Western Province and as a result, a compensation of $20,000 was paid. This allegation was first heard during the Assembly General Meeting held at Peinuna village in Rannoga but it was not brought up for deliberation. Later at a subsequent Combined Bishops Council and Board of Ministry meeting at Seghe, this matter was then first brought up for deliberation. From the latter meeting, the claimant was nominated to investigate into this alleged sexual misconduct of the first defendant.
   
6. Individual statements from that girl and her mother were obtained and eventually a report was compiled. It was proposed to be presented at a General Assembly Executive Meeting at Koleasi, but was prevented by the former General Secretary, Eddie Kotomae.
   
7. On the 4^th of August 2016, the Assembly Board of Meeting was convened at Kokeqolo to deliberate over the same issue. It was resolved on the following day^[1] by way of recommendation to the whole of the UCSI Assembly Meeting that the first defendant be suspended from his position as a Moderator and that proper pastoral measures be put in place as conditions for his suspension.
   
8. During the 12^th – 20^th of November 2016, a General Assembly Meeting was convened at Rawaki comprising of all Heads, Senior Officials and church members of the UCSI. During that said meeting, the issue regarding misconducts of church ministers was brought up for deliberation. A decision was passed by the said General Assembly Meeting under items GAM.16.C/1.7 and GAM.16.E/1.31 to appoint a Disciplinary Board or a Special Committee to deal with disciplinary cases and “to deliberate and make solutions”^[2] on cases involving sexual and other misconducts of the church ministers. The General Secretary being the claimant was appointed to head this Disciplinary Board or Special Committee.
   
9. The first defendant’s case was itemised as GAM 16E/1.2.12 and was included in the radar/agenda for investigation.
   
10. On the 26^th of April 2017, the Special Committee established pursuant to the Rawaki GAM commenced its meeting in Honiara. That committee comprised of the claimant with the following Reverends: Henry Kere Mamupio, Tikeri Biriata, Milton Talasasa and the Legal Advisor, Shepherd Lapo. That meeting was in effect to carry out the task bestowed on them as mandated by the Rawaki GAM. It was unanimously resolved under item UCSI/DB/April 2017/04 of that said meeting that the first defendant be disciplined with immediate effect. That decision was reduced in a minute and conveyed to the first defendant in a letter dated 28^th April 2017 signed by all the Special Committee members. The first defendant was asked to organise and vacate his office by the 12^th of May 2017 and ceased from his official duties with immediate effect.
    
11. Following that decision, the first defendant refused to comply with the decision and directives conveyed to him in the letter and remained defiant to the resolution passed by the Special Committee. He made his position clear in his letter dated 17^th May 2017, addressed to the Bishops of the UCSI. He insisted that he would not remove from his position except by a decision from the formal Assembly meeting of the church.
    
12. Months preceding the various meetings and following the resolution passed by the Special Committee, the relationship between the claimant and the two defendants was acrimonious even to the extent that some of the defendants’ family members had involved in exerting threatening and untoward behaviours/conducts towards the claimant, either at his office or his residence.
    
13. For the second defendant, on the record, it was said that he on 9^th of June 2016 had harassed their Human Resource Desk Officer, Rolland Hapa who worked at Kokeqolo and thereafter, there were instances where he had heated arguments with the claimant inside their office at Kokeqolo where they almost resulted in commotions, all connected to his frustrations and disagreements over the decision passed by the authority of the church regarding the alleged sexual misconduct of his close ally-the first defendant.
    

The defendants’ application and argument

14. The arguments advanced by the defendants premised on the undisputed fact that the first defendant is the Moderator of the church and by virtue of his position is the Head of the UCSI. Thus, his removal from office can only be legitimised in accordance with the provisions and procedures spelt out in the Constitution of the UCSI. Therefore, the purported resolution passed by the Special Committee for his immediate discipline and cessation from his duties is invalid and in breach of the disciplinary procedures embodied in their Constitution, and one that was made in excess of their delegated powers.
    
15. Because of this procedural impropriety as averred by the defendants, the claimant’s decision to institute this claim in court was improper since it was not sanctioned or authorised by the General Assembly. Therefore, he has no right of standing or locus standi to bring the matter to court. Consequent to the same reasoning, the court should not accept the claim as it has abused the legal process or one that the pleadings did not disclose any reasonable cause of action.
    

Claimant’s response

16. The claimant in brief argued that he has the locus standi to bring the matter to court. His right of standing emanated from his position as the General Secretary of the UCSI and therefore, he has the overall responsibility to ensure the continuity of the business of the church and more importantly, to oversee the implementation of the resolution(s) passed by meeting(s) of the General Assembly.
    
17. He further argued that the interim restraining orders were proper and necessary in the best interest of the UCSI to aid the implementation of the resolution passed by the Special Committee against the first defendant and further, to keep the status quo of the case whilst the matter is still pending final determination in court.
    

Issues

18. Three issues for me to decide. One is whether or not the claimant has the locus standi to bring the matter to court against the defendants. Second is whether or not the claim is an abuse of the legal process and finally, whether or not the pleadings in the claim disclosed a cause of action. If the answer to the first issue is in the negative, then it is needless for me to address the remaining issues since they are inherently linked and conditional upon the outcome of the first issue.
    

Findings of the Court.

19. Rather than to regurgitate matters that are peripheral, I decide to go straight to the findings of the court in the assessment of these issues.
    
20. It is well settled law that locus standi is a right to bring a legal action in court.^[3] In any application on the issue of locus standi, the test to be satisfied is explained in the High Court case of Sanga v Teika^[4] where Faukona J, stated:
    

“The test to be satisfied is that the applicant must show that his interest is peculiarly affected.”^[5]

21. Unless, the applicant has demonstrated that his/her interest is peculiarly affected, the court will not accede to such applications.
    
22. In the present case, there is no issue that the claimant and the defendants are the members of the General Assembly of the UCSI. There is also no issue that the Special Committee was more or less a subcommittee established by the Rawaki General Assembly meeting to carry out its mandate to deliberate and make solutions on the alleged sexual misconduct of the first defendant in so far as the minutes of the Rawaki General Assembly meeting are concerned.
    
23. I have read the arguments raised by the defendants in their written submission regarding the lack of standing of the claimant to bring this matter to court due to the alleged procedural impropriety and/or, no approval or sanction by the General Assembly and accordingly, I disagree with their views based on the following reasons:
    
    • (a) First, the claimant and the other members of the Special Committee are also the members of the General Assembly of the UCSI. They were mandated by the Rawaki General Assembly meeting under items GAM.16.C/1.7 and GAM.16.E/1.31 to investigate into the alleged sexual misconduct of the first defendant;
      
    • (b) Second, the claimant was specially appointed by the Rawaki GAM to head the Special Committee to carry out the investigation into this allegation;
      
    • (c) Third, the Rawaki General Assembly meeting has unanimously passed a resolution under item GAM.16.E/1.31 for the creation of a subcommittee called “Special Committee” to deliberate and make solutions into the allegation levelled against the first defendant. The use of the word “to deliberate and make solutions” is significant to note here as it signifies the clear intention of the Rawaki GAM in sanctioning the Special Committee not to make recommendations, but to pass a solution straightaway upon the outcome of its investigation. It is my view that when the Rawaki GAM had passed this resolution, it has already contemplated or had in mind the provisions of the Disciplinary Procedure A of the Constitution of the UCSI. Had it only for recommendations for GAM subsequent resolutions/actions, the minutes of the Rawaki GAM would say so;
      
    • (d) Fourth, the Special Committee was established by the Rawaki GAM to carry out its mandate and that is, to make solutions regarding the case of the first defendant. That is the specific mandate given to it by the Rawaki GAM and therefore, it matters not they would refer the findings of the investigation back again to the GAM since after all, these same persons will go back to themselves again. It would basically a repetition of the solution reached therein if they go back again to the GAM for subsequent resolution since they were in other words operating in circle and simply changing their caps/hats when becoming the members of the Special Committee. The reason reached herein would be considered different if the members of the Special Committee are totally different and not part of the members of the GAM;
      
    • (e) Fifth, the decision to discipline the first defendant was inevitable since it was a solution reached therein as required within the scope of the mandate conferred by the Rawaki GAM to the Special Committee taking into account the need to preserve the reputation and holiness of the church. I am at lose to understand why the first defendant should not call upon himself as the most senior leader of the UCSI and simply accepts the decision reached therein for the common good of the church and allow the investigation to continue uninterrupted. The position he occupied is a public position of the UCSI and therefore, it is reasonably expected in the public interest of the entire members of the UCSI to have unscrupulous senior church members like the first defendant to be scrutinised and where appropriate must subject to the decisions passed by the church authority, especially by an authority/body sanctioned by the GAM of the UCSI; and
      
    • (f) Finally, if the claimant is one of the most senior officials within the hierarchy of the UCSI and by virtue of his position is responsible for the good administration of the UCSI and the implementation of resolution(s) of the Church authorities, who else would have the right to bring this matter to court? This is the common sense question that is too obvious to understand it at the outset.
      
24. These are the inherent connections and interests the claimant has in this case, resulting in the filing of this matter in court.
    
25. Based on those reasons, I am not inclined to accept the defendants’ submissions/arguments, but of the view that the documents before me have sufficiently demonstrated the claimant has a locus standi to bring this matter to court. Consequent to this finding, I am also not inclined to accept the argument that the claimant’s decision in filing this matter in court is an abuse of the legal process. In my view, the claimant has come to the right forum seeking assistance from the court in light of the prevailing conducts of the first and second defendants.
    
26. In terms of the issue of whether or not to strike out this claim on the basis that the pleadings do not disclose a cause of action, the law as enunciated from the binding case authorities^[6] have made it very clear that the court should not strike out the claim if it is shown that the pleadings or statement of the case show some essential facts which disclose some cause of action or raise questions fit to be considered even if the case is weak and likely not to succeed.
    
27. I have perused the claim filed on 22^nd June 2017 and it is my view that the claim has disclosed a tenable cause of action or a real grievance against the defendants. It has pleaded serious questions fit to be tried and hence, it is improper to have them prematurely terminated. Further, the granting of the interim orders is appropriate in this circumstance to keep the status quo of the case and that is, to temporarily restrain the first and second defendants following their untoward conducts/behaviours towards the claimant and the members of their church as alleged herein. More significantly, it will help to speed up this case for determination in court.
    

Orders of the Court

28. It follows that this application is therefore dismissed. Consequent to this, the interim ex parte restraining orders perfected, signed and issued on the 22^nd of June 2017 will remain on foot.
    
29. Cost of this application is borne by the defendants and payable to the claimant on standard basis.
    
30. Order accordingly.
    

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(Augustine Aulanga – Principal Magistrate)

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^[1] 5^th of August 2016
^[2] Page 45 of the Minutes of the Rawaki UCSI General Assembly Meeting
^[3] Oxford Dictionary of Law, (2003), Oxford University Press
^[4] [2012] SBHC 105; HCSI-CC 263 of 2010
^[5] At page 1 of his Lordship’s ruling
^[6] See Evo v Mane [2015] SBHC 7; HCSI-CC 414 of 2012; Abe v Minister of Finance and Attorney-General HC Civil Case No. 197 of 1994 and Tikani v Motui (2001) SBHC; HC-CC 29 of 2001