HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 60 of 1997

WILLIE RONI & DAVID THUGUVODA

-V-

ROSS MINING (SOLOMON ISLANDS) LIMITED & OTRS

High Court of Solomon Islands
(Palmer J.)

Hearing: 29th May, 1997
Ruling: 12th June, 1997

A.Radclyffe for the First and Second Respondents
Attorney-General (Third Respondent)
C. Ashley for the First and Second Applicants
S. Patrick in attendance on behalf of the Fourth Respondents

Palmer J.: The First and Second Respondents (herein-after referred to as the "Respondents") apply by summons filed on 9th May, 1997 for orders inter alia, that the First and Second Applicants deliver within 7 days thereof proper particulars of the following paragraphs of the Statement of Claim:

Paragraphs 1(a), 2, 14, 17, 21, 24, 27(d), 29(d), 31(a), 36(a), 38, 46(a), 46(b) (first subparagraph so denoted), 47(a), 47(b) (first sub-paragraph so denoted), 47(b) (second sub-paragraph so denoted).

The Respondents rely on Order 21 Rule 9 of the High Court (Civil Procedure ) Rules in support of their application. They argue that the request for further and better particulars is necessary and desirable to enable them to plead their defence.

Rule 4 of Order 21 states concisely, how the pleadings in the Statement of Claim are to be set out. I quote:

"Every pleading shall contain, and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, . . . ."

In Robert Goh (Trading as Goh & Partners) v. LCL Enterprises Ltd, [1997] SBHC 20; Civil Case No. 138 of 1995 in an interlocutory judgment delivered on 12th April, 1997 by his Lordship, Awich J., (referred to by Mr Ashley) in his submissions, his Lordship stated:

"The purpose of pleading, for which further particulars may be requested and obtained, is to inform the other party and the court of what one intends to prove either to establish the claim or defence. Pleadings are brief statements of facts not of the evidence. That is the requirement stated in Order 21 rule 4. It follows therefore that pleadings are not statements outlining the evidence that one intends to adduce, although if one relies on document, the document must be produced if requested. They are not detailed account of the events of the case."

I couldn’t agree more. The function of pleadings in essence is to ensure that the matter to be submitted to the court for decision should be clearly ascertained. This was obviously what his Lordship Muria C.J., had in mind when he pointed out in his Ruling between the same parties to this case dated 21st April, 1997, that the language of the words used in the Rules covering this point, conferred wide discretion on the Court to enable it to find just solutions to the disputes brought to it (see page 5). The Court would not be able to find a just solution to the dispute between the parties if the claim of the plaintiffs cannot be ascertained. But also this means that the defendant would not know what it is that the plaintiff is alleging against him. 

It is essential therefore that the plaintiff states the material facts which constitute his claim concisely ( the Rules merely require in summary form). These material facts are those which the plaintiff relies on and which will be the subject of proof at the trial of the case. Scott L.J. in Bruce v. Odhams Press Ltd. [1936] 1 K.B. at page 712, defined the word "material" as " necessary for the purpose of formulating a complete cause of action, and if any one ‘material’ fact is omitted, the statement of claim is bad". 

Also in Odgers’ Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 22nd Edition by D.B.Casson and I.H.Dennis, at page 106, the learned Authors stated:

"Facts should be alleged as facts. It is not necessary to state in the pleadings circumstances which merely tend to prove the truth of the facts already alleged.

The fact in issue between the parties is the factum probandum, the fact to be proved, and therefore the fact to be alleged. It is unnecessary to tell the other side how it is proposed to prove that fact; such matters are merely evidence, facta probantia, facts by means of which one proves the fact in issue. Such facts will be relevant at the trial, but they are not material facts for pleading purposes."

Also at page 113 (ibid):

" Material facts must be alleged with certainty. The object of pleadings is to ascertain definitely what is the question at issue between the parties; and this object can only be attained when each party states his case with precision.

. . . The amount of detail necessary to ensure precision naturally varies with the nature of each case. The only general rule that can be laid is this- that the party pleading must use such particularity as will make it clear to the court and to his opponent what is the precise question which he desires to raise."

The learned Authors also quoted Cotton L.J. in Philipps v. Philipps (1878) 4 Q.B.D. 139:

"What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what they will have to meet when the case comes on for trial."

I also take note of the submissions and cases cited therein by learned Counsel for the Applicants. These have been of much use to the Court.

I now turn to the requests raised in the Summons. For ease of reference, the paragraphs cited here-in are the same paragraphs referred to in the document submitted "CONSOLIDATED REQUEST FOR FURTHER AND BETTER PARTICULARS OF STATEMENT OF CLAIM AND ANSWERS".

REQUEST 1. (Paragraph 1 of the Statement of Claim)

R:(b) The answer provided as to the definition of the term ‘Paramount Chief’ is adequate and sufficient to enable the Respondents to prepare their defence. Orders to compel in respect of this therefore must be refused.

FR 1(a), (b) and (c) As to the request for further particulars pertaining to the appointment of the First Applicant as a paramount chief, whilst I accept that this is tantamount to an interrogatory, I am prepared nevertheless to allow the requests, in the peculiar circumstances of this case involving appointments in custom; recognizing the litigious nature of this case and the fact that until the facts are ascertained, the Respondents would not be in a position to prepare their defence to those claims. Orders to compel granted therefore in respect of the further requests for particulars set out in FR 1(a), (b) and (c), to be supplied in 14 days.

REQUEST 2 (Paragraph 1)

R(C): The answer provided to this request is adequate and need not be expounded upon further. The Respondents have been provided with sufficient details to enable them to prepare a defence on this issue. Any other details required go to evidence and can be addressed at the interrogatory stage or at trial. Orders to compel refused. 

FR 2(a): The further request for particulars to specify the land to which the First Applicant as "Principal Landowner" claims, is vital to the just resolution of the dispute and to enable the defendants to know precisely the area of land claimed by the First Applicant. To do so, the most effective way is to produce a map or sketch map and a description of the boundaries of the land claimed. The First Applicant is ordered to produce further and better particulars within 14 days.

(b) Also the request to clarify whether the reference to "Principal Landowner" is the same as a "primary right holder" in paragraph 14 of the Statement of Claim is justifiable. The Defendants are entitled to know whether the same meaning is ascribed to both or not, and if not what the difference is. First Applicant ordered to supply the further particulars also in 14 days.

REQUEST 3. (Paragraph 2)

R(a): This is a proper request. A map or sketch map identifying the geographical area comprising the land occupied by the Thogo tribe is vital to the dispute. Second Applicant ordered to provide further particulars within 14 days.

REQUEST 4. (Paragraph 14)

R(b) This is a proper request. The geographical area of the land situated at Valehaichichi over or in respect of which the First Applicant exercises "primary rights" is essential to the just resolution of the dispute. First Applicant ordered to supply further particulars within 14 days.

REQUEST 5 [R(c) & (d)]:

R:(c) The particulars provided as to the characteristics, incidents, rights, and entitlements attaching to the "secondary rights" in respect of the land situated at Valehaichichi is adequate and sufficient to enable the Respondents to prepare defence. Orders to compel refused.

R:(d) The request on the other hand for further particulars as to the geographical area of land situated at Valehaichichi over and in respect of which the Second Applicant may exercise the alleged "secondary rights" is essential to the dispute. The particulars provided in answer to this request are inadequate. Which area in Valehaichichi could he be allocated an area to build a house and to make gardens etc.? A map or sketch map showing the boundaries of the land area over which the secondary rights may be exercised should be provided. Second Applicant ordered to supply further particulars in 14 days.

FR 5 (a) The further request for particulars to specify the alleged customary law obligations to be performed by the Second Applicant in order to go back and live on Valehaichichi is a proper request in the circumstances. Until these are spelled out, the Respondents would not know what matters in custom it is up against.

(b) The same applies for the request to specify to whom the alleged customary law obligations are owed. Order to compel granted in respect of FR 5 (a) and (b), to be provided within 14 days.

(c) As to the request for further particulars under this paragraph, it is my respectful view that the particulars which will be provided in the answers to FR 5(a) and (b) above will be sufficient to answer this request. In any event, the particulars sought here are tantamount to an interrogatory and not necessary. Order to compel is refused.

REQUEST 6 (Paragraph 14)

R(e) The answer given by the Applicants is adequate and sufficient to enable the Respondents to mount a defence. Order to compel is denied.

REQUEST 7 (Paragraph 17)

R(b) and (d) The answers or particulars provided to both requests are inadequate. Whilst the Applicants rely on clauses 1.11, 7 and 7.1 of the Compensation Agreement to support their allegation that the agreement is "illusory" in that it confers no enforceable rights on the Fourth Respondent or those whom it represents, that does not specify what the facts, matters and circumstances relied on, to support the allegation made. I am satisfied the Applicants must be ordered to supply the further particulars in 14 days.

REQUEST 8 (Paragraph 21)

R(c)(i), (ii), (iii): The answers provided in respect of these requests with respect are inadequate. They merely refer to clauses in the Compensation Agreement without more. The Respondents cannot know what facts, matters and circumstances are relied on in respect of the allegations raised. Orders to compel granted, further particulars to be supplied within 14 days.

REQUEST 9 (Paragraph 24)

R(b) and R(c) The answers provided in paragraphs 6(b) and (c) of the particulars supplied by the Applicants and answers to request "R(c)" are adequate and sufficient to enable the Respondents to know what case is mounted against them in respect of those allegations. Order to compel is refused.

REQUEST 10 (Paragraph 27(d) )

R(a) Whilst I appreciate that the answer given is inadequate, I note that the request in reality is similar to the request in R5 R:(d) and therefore may not be necessary to be answered if a map or sketch map delineating clearly the boundaries of the area of land at Valehaichichi which the Second Applicant claims rights and interest over is provided. An order to compel further particulars in those circumstances may not be necessary.

R(b) The request here is similar to the request made under Request 5(c) and (d) and therefore need not be answered. The answers provided under R5 (c) and (d) are adequate. Orders to compel refused. 

R(c) and (d) The further particulars sought in these requests have been addressed adequately in earlier requests and do not need to be answered any further. Orders to compel refused.

REQUEST 11 (Paragraph 29(b))

R(a) The answer provided to this request is inadequate. It is too general and imprecise to let the Respondents know who all those other persons are. The Respondents are entitled to know who those other persons are apart from the First and Second Applicants, if any. The Applicants are ordered to supply those further particulars in 14 days.

R:(b) Again the answer provided is inadequate. The same orders above apply.

R:(c) and (d) The requests made herewith have been adequately addressed in answers to earlier requests. The reference to those previous answers in this case is proper. Orders to compel refused.

R:(e) The same applies to this request. Order to compel refused.

REQUEST 12 (Paragraph 31(a))

R:(a) The answer provided is inadequate. The Second Applicant is ordered to supply the further particulars in 14 days.

R:(c) and (d) The answers to these requests will depend on whether the persons which it is alleged the Second Respondents have failed to enter into negotiations with, all have similar interests or rights as the Second Applicants. If so, then it would not be necessary to compel further and better particulars.

REQUEST 13 (Paragraph 36(a))

R:(a) The answer provided to this request is inadequate. Order to compel granted. Further particulars to be provided in 14 days.

R:(c) and (d) The answers to these requests will depend on whether the interests or rights relied on by persons to be identified in R:(a) above, and the customary law, facts and circumstances relied on are similar to those of the Second Applicant or not. If not, then the particulars must be provided, otherwise the orders to compel should be refused. .

REQUEST 14 (Paragraph 38)

R:(b) The answer is inadequate. The Applicants are ordered to supply the further particulars in 14 days.

REQUEST 15 (Paragraph 46(a))

R The answers provided to this request are adequate. Orders to compel refused.

REQUEST 16(Paragraph 46(b) (first sub-paragraph so denoted) )

R:(a), (b) and (c) Adequate answers have been provided in earlier requests that should enable the Respondents to know what case they are up against here. Orders to compel refused.

REQUEST 17 (Paragraphs 46(b) (second sub-paragraph so denoted)

R:(c) The answer provided is adequate. Order to compel refused.

REQUEST 18 (Paragraph 47(a) )

R Particulars requested are very similar to an earlier request made and which have been satisfactorily answered. Orders to compel refused.

REQUEST 19 (Paragraph 47(b) (first sub-paragraph so denoted)

R:(b) Again particulars requested here are similar to those earlier requested and have been answered. Orders to compel refused.

R:(c) Particulars requested have been provided in earlier requests. It is not necessary to provide any further particulars therefore. Orders to compel refused.

REQUEST 20 (Paragraphs 47(b) (second sub-paragraph so denoted)

R:(c) The answer given is adequate. Orders to compel refused.

R:(d) The same applies to this request. Orders to compel refused.

As to the question of costs, there were a total of 48 requests made. The Respondents succeeded only in respect of 21. They are to pay costs therefore to the extent of 6 . 48

ORDERS OF THE COURT:

1. The First and Second Applicants to deliver proper particulars of the requests granted in this judgment by 26th June, 1997.

2. The Respondents to make any further applications pursuant to the delivery of the said particulars by 3rd July, 1997.

3. The orders of the Court made on 29th April, 1997 be varied as follows:

Paragraph (3):   Defences to be delivered by 10th July, 1997.

Paragraph (4):	Reply, if any, to be delivered by 24th July, 1997 or within 14 days of delivery of further and better particulars of defence whichever is the later.

Paragraph (5):	Request for further and better particulars of defence, if any, to be delivered by 17th July, 1997.

Paragraph (6):	Further and better particulars of defence to be delivered by 31st July, 1997.

4. There be a further directions hearing at 2 pm on 7th August, 1997.

5. The Respondents are to bear the costs of the Applicants to the extent of 6 .
 48

THE COURT.