HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 158 of 2007

ROLLAND HOASIAO,
JEZRIEL LOALOA AND
GEORGE ANOTHER

v

EKWAIOLA DEVELOPMENT ENTERPRISES AND
HUP LEE ENTERPRISES LIMITED

Date of Hearing: 8 August 2007
Date of Ruling: 22 August 2007

A. Radclyffe for Plaintiff/ Respondent
A. Nori for Defendant/Applicant

RULING on application to strike out the plaintiffs claim.

Brown, J:

1.	By summons the applicant/defendants seek to strike the plaintiff’s claim for that it does not disclose any reasonable cause of action or is frivolous and vexatious. 

2.	The plaintiff/respondents sue as representatives of the customary landowners of Amauruarua land, Takalau land and Aukele land, East Kwaio, Malaita Province. The statement of claim concedes the 1st defendant is the holder of a felling licence no. A1043 dated 20 September 2005 covering Ekwaiola Customary land in East Kwaio. The 2nd defendant has the contract to log the concession from the 1st defendant. The plaintiff/respondent says in their claim that the plaintiff’s land is not included in the concession area. The 1st defendant holds no logging licence to take timber from the plaintiff’s land. Nor do the defendants have permission to enter the 3 parcels of land to log.

3.	It is alleged that since November 2006 to date the defendants have trespassed and logged that land of the plaintiffs. Logs have been extracted and shipped and the plaintiff seeks damages for that trespass and conversion of logs, as well as a permanent injunction to stop further act of trespass.

4.	In support of the plaintiff’s claim for damages, the plaintiff’s plead a letter evidencing the suspension of the 1st defendants felling licence and further a direction by the Commissioner of Forests to the 1st defendant stopping further felling of tress; extraction and harbour of trees felled (and lying in the forest) at the log pond; machinery to remain at the log pond; and no export unless instructed by the Commissioner.

5.	In reply to the affidavit in support by the plaintiff Rolland Hoasiao, the Manager of the applicant/1st defendant company, Jackson Foriofi sworn an affidavit which was read by Mr. Nori on his application to strike. Also documents tendered to the court by the Commissioner of Forests Mr. Gordon Konairamo in answer to a subpoena became an exhibit.

6.	Mr. Nori reiterated the claim of the plaintiffs set out above. He criticises the plaintiff’s representational capacity, their locus standi.

7.	So far as the concession area is concerned he says the three land areas of the plaintiff are well within the concession area and are part of greater Gualalakwa land.

8.	That Gaulalakwa land (which includes and encompasses the three named portions) was the subject of the timber rights hearing and determination made by the Provincial Executive on the 13 October 2004. 

9.	That particular persons were found and named by the Executive as "representatives" of those able to grant timber rights in respect of Gaulalakwa land.

10.	That such named representatives are the true representatives of the Tribe of Auhere who is deceased. That Auhere is the "winning party" in the land case decided by the Local Court 2/82 between Irobasi and Auhere, and the plaintiffs are, by that decision, prevented by the principle of res judicata from now claiming standing.

11.	Further the timber rights hearing determined particular persons also entitled to grant timber rights in respect of Takarao and Auhere. It was these "representatives" who signed the timber rights agreement and assigned the rights. Certificates of Customary Ownership [Form II] issued pursuant to s. 9 of the Act in respect of various customary land parcels including Gaulalakwa, which has another name, Amauruarua; Takalao land [which is listed separately in the Form I as Takarao land] and Laedau Aukere [commonly referred to as Laidau] and which is also part of Gaulalakwa. 

12.	From the evidentiary material in the affidavit of Jackson Foriofi, for both applicant/defendants, it is plain the lands claimed by the plaintiff/respondents were included in the timber rights hearing process and that particular "representatives" were determined by the Provincial Executive and further that the plaintiffs were not named. Mr. Nori argued that persons disputing the particular land parcels inclusion or exclusion in the timber rights hearing or the authority of the "representatives" claiming should have raised such disputation at the time of the Executives hearing. If aggrieved, they are by virtue of the terms of the Act, entitled to pursue such disputation through by appeal to the Customary Land Appeal Court. This was not done. 

13.	When considering claims that no reasonable cause of action is disclosed an order dismissing proceedings on this ground will only be made where the claim is "obviously unsustainable". The fact that the claim is weak should ordinarily not be a sufficient ground for dismissal.

14.	In considering such types of claims to dismiss or strike, it is the court practice to allow affidavit evidence and other evidence where the inherent jurisdiction of the court is called in aid, a jurisdiction wider than the claimed right in a party to seek to strike on the grounds set out in this matter. It may be said to have been called in aid in this case for much material was read in the case before me. The courts inherent jurisdiction will extend to all situations where the justice of the case requires it to be exercised. Justice Else-Mitchell of the New South Wales Supreme Court of Appeal described the inherent jurisdiction:-

"The Courts power to stay an action is not confined to closed categories of cases, of which vexatious suits is one illustration. It is a power which is exercisable in any situation where the requirements of justice demand it, but it is a sound rule of practice adopted by all superior courts to allow an action honestly instituted to be litigated by normal and regular means if this can be done without injustice".

(Tringali v. Stewardeson Stubbs and Collett Ltd (1965) NSWR at 418).

That is a good exposition of the law in relation to O.27 r 4 of our Rules for that case arose in a jurisdiction where the Courts rules followed principally the English Rules which were the basis of our Rules.

15.	The guidelines surrounding whether or not to allow affidavits and other material beyond the pleadings, to be read, were set out in Wenlock v. Moloney (1965 2 ALL ER 871 where the English Court of Appeal (Sellers, Danckwests and Diplock, L JJ) held:-

"The course taken by the master (of the court) amounted to a trial of the case in chambers, without discovery, oral evidence or cross examination, and so was neither authorised by the rules nor a proper exercise of the inherent jurisdiction of the court" (Semble; if the only ground on which a statement of claim can be said to disclose nor reasonable cause of action is that the action is unlikely to succeed, affidavit evidence is in admissible on an application to strike it out).

16.	In the hearing just concluded both parties read affidavits and material tendered by the Commissioner of Forests became an exhibit. As well the Commissioner was examined and cross examined on oath. In these circumstances the Commissioner’s statements that the defendants had gone beyond their licence concession is hearsay, but by copy letter dated 26 April 2007 the Commissioner claiming to be acting in pursuant to s. 398(i) of the FRTUA, suspended falling licence As10430. He said, in court that the licence has not been cancelled. None of the material in the exhibit, on its face, can be said to resolve the issues raised by the statement of claim, without resort to a determination of factual matters. For the Form I document in the exhibit dated 10/3/04 does not correspond with the Form I produced by the applicants nor do the various plans match. Again, the question of "standing" [if the parcels of land where logging is complained of are outside the concession], must await findings of fact on the material filed. It would be wrong to seek to truncate the proceedings by this court ruling on matters clearly very much in issue without a proper hearing. To do so would fall into the error described in Wenlock’s case.

17.	The Application to strike is refused. Costs shall be costs in the cause.

THE COURT